expediafourthamendarcred






                                                               Exhibit 10.1                                                      EXECUTION VERSION                               FOURTH AMENDMENT  dated as  of  May  31, 2018                        (this  “Amendment”),  to  the  AMENDED  AND  RESTATED                        CREDIT  AGREEMENT  dated  as  of  September  5,  2014  (as                        heretofore  amended,  the  “Credit  Agreement”),  among                        EXPEDIA     GROUP, INC.,   a  Delaware   corporation,                        EXPEDIA,      INC.,   a    Washington    corporation,                        TRAVELSCAPE,  LLC, a Nevada limited liability  company,                        HOTWIRE,  INC.,  a  Delaware  corporation,  the  other                        BORROWING  SUBSIDIARIES  from  time  to  time  party                        thereto,  the  LENDERS  from  time  to  time  party  thereto  and                        JPMORGAN CHASE BANK, N.A., as Administrative Agent                        and London Agent.                WHEREAS,  the  Lenders  have  agreed  to  extend  credit  to  the  Borrowers   under the Credit Agreement on the terms and subject to the conditions set forth therein;                WHEREAS,  the  Company  has  requested  that  the  Credit  Agreement  be   amended to (a) increase the aggregate amount of the European Tranche Commitments by   US$500,000,000  to  an  aggregate  total  amount  of  US$2,000,000,000,  such  additional   European  Tranche  Commitments  to  be  provided  by  Persons  whose  names  appear  on   Schedule 2.01 hereto, (b) extend the Maturity Date to the fifth anniversary of the Fourth   Amendment Effective Date (as defined below), (c) modify the pricing grid set forth in the   definition  of  “Applicable  Rate”  as  set  forth  herein  and  (d)  effect  certain  other   amendments to the Credit Agreement as set forth herein;                 WHEREAS, the parties hereto, which include each Person that will be a   Lender  as  of  the  Fourth  Amendment  Effective  Date,  are  willing  to  amend  the  Credit   Agreement on the terms and subject to the conditions set forth herein; and                WHEREAS, JPMorgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner   &  Smith  Incorporated,  BNP  Paribas  Securities  Corp.,  Mizuho  Bank,  Ltd.  and  HSBC   Bank USA, National Association have been appointed to act as joint lead arrangers and   joint bookrunners for this Amendment (the “Amendment Arrangers”).                NOW,  THEREFORE,  in  consideration  of  the  mutual  agreements  herein   contained and other good and valuable consideration, the sufficiency and receipt of which   are hereby acknowledged, the parties hereto hereby agree as follows:                SECTION 1.  Defined  Terms.  Capitalized  terms  used  but  not  otherwise   defined  herein  (including  in  the  preamble  and  the  recitals  hereto)  have  the  meanings   assigned to them in the Credit Agreement (as amended hereby).                SECTION 2.  Amendment  of  Credit  Agreement.  Effective  as  of  the   Fourth Amendment Effective Date:               (a)  The Credit  Agreement  (excluding,  except  as  set  forth  below, all  Schedules and Exhibits thereto, each of which shall remain as in effect immediately prior  to  the  Fourth Amendment  Effective  Date)  is  hereby  amended  by  inserting  the  language  





 






indicated in single underlined text (indicated textually in the same manner as the following  example: single-underlined  text or single-underlined  text)  in Exhibit  A hereto  and  by  deleting  the  language  indicated  by  strikethrough  text  (indicated  textually  in  the  same  manner as the following example: stricken text or stricken text) in Exhibit A hereto.                 (b)  The Credit Agreement is further amended by inserting new Exhibits A- 3 and A-4 in the form of Exhibits A-3 and A-4 hereto.               (c)  Schedule 2.01 and Schedule 6.01 to the Credit Agreement are hereby  replaced in their entirety with Schedule 2.01 or 6.01, as applicable, hereto.               (d)  Exhibit B-1 to the Credit Agreement is hereby replaced in its entirety  with Exhibit B-1 hereto.               (e)  JPMorgan Chase  Bank,  N.A. shall be the successor in  interest  to  J.P.  Morgan  Europe  Limited  in  its  capacity  as  the  London  Agent,  subject  to  the  rights  of  JPMorgan Chase Bank, N.A. set forth in the definition of the term London Agent.                SECTION 3.  Concerning  Commitments;  Letter  of  Credit  Participations.    (a)  Each Person whose name appears on Schedule 2.01 hereto acknowledges and agrees   that, on and as of the Fourth Amendment Effective Date, such Person shall be a Lender   under  the  Credit  Agreement  as  amended  hereby  (including  as  to  the  extension  of  the   Maturity Date provided for hereunder) and shall have a European Tranche Commitment   as set forth next to the name of such Person on Schedule 2.01 hereto.  Each party hereto   acknowledges  and  agrees  that,  on  and  as  of  the Fourth Amendment  Effective  Date,   Schedule 2.01 hereto sets forth all the Commitments of all the Lenders (and no Person   whose name does not appear on Schedule 2.01 hereto shall have, or shall be deemed to   have,  as  of  the Fourth Amendment  Effective  Date,  a  Commitment  under  the  Credit   Agreement).  It is acknowledged that the Commitment Increase effected pursuant to this   Amendment shall not reduce the amount by which the Company may further increase the   Commitments in accordance with the terms and conditions of Section 2.09(d) or 9.02(c)   of the Credit Agreement or otherwise affect the rights of the Company thereunder.               (b)  Each Lender acknowledges and agrees that, on the Fourth Amendment  Effective Date and without any further action on the part of the applicable Issuing Bank or  the Lenders, each Issuing Bank shall have granted to such Lender, and such Lender shall  have acquired from such Issuing Bank, a participation in each Letter of Credit issued by  such Issuing Bank and outstanding on the Fourth Amendment Effective Date equal to such  Lender’s  Combined  Tranche  Percentage  (as  automatically  redetermined  on  the Fourth  Amendment Effective Date based on the Commitments set forth on Schedule 2.01 hereto)  of  the  aggregate  amount  available  to  be  drawn  under  such  Letter  of  Credit.  Such  participation shall be governed by the terms of Section 2.06 of the Credit Agreement.                SECTION 4.  Representations  and  Warranties.  The  Company  and  each   Borrowing Subsidiary represents and warrants to the Lenders that:               (a)  This  Amendment  has  been  duly  executed  and  delivered  by  the   Company and  each  Borrowing  Subsidiary and  (assuming  due  execution  by  the  parties                                       2  





 






hereto other than the Company and the Borrowing Subsidiaries) constitutes a legal, valid  and binding obligation of the Company and each Borrowing Subsidiary, enforceable in  accordance with  its terms,  subject  to  applicable bankruptcy, insolvency, reorganization,  moratorium  or  other  laws  affecting  creditors’  rights  generally  and  subject  to  general  principles of equity, regardless of whether considered in a proceeding in equity or at law.              (b)  Before and after giving effect to this Amendment, the representations  and warranties set forth in Article III of the Credit Agreement are true and correct in all  material respects (in all respects in the case of representations and warranties qualified by  materiality in the text thereof) on and as of the Fourth Amendment Effective Date with  the  same  effect  as  if  made  on  and  as  of  such  date,  except  to  the  extent  such  representations and warranties expressly relate to an earlier date, in which case they were  so true and correct as of such earlier date.              (c)  As  of  the Fourth Amendment Effective  Date,  before  and  after  giving  effect to this Amendment, no Default or Event of Default has occurred and is continuing.               SECTION 5.  Effectiveness.  This Amendment shall become effective as  of the first date (the “Fourth Amendment Effective Date”) on which:              (a)  the  Administrative  Agent  (or  its  counsel)  shall  have  received  duly  executed counterparts hereof that, when taken together, bear the authorized signatures of  the Company, each Borrowing Subsidiary, the Administrative Agent, the London Agent  and each Person whose name appears on Schedule 2.01 hereto;              (b)  the  Administrative  Agent  (or  its  counsel)  shall  have  received  a  Reaffirmation Agreement, in form and substance satisfactory to the Administrative Agent,  duly executed by each Loan Party, pursuant to which each Loan Party shall consent to the  amendments  effected  by  this  Amendment  and  acknowledge  that  the  Guarantee  Agreement remains in full force and effect in accordance with its terms and constitutes a  guarantee of the Obligations as modified by this Amendment;              (c)  the  Administrative  Agent  shall  have  received  such  documents  and  certificates as the Administrative Agent or its counsel may reasonably request relating to  the organization, existence  and  good standing  of each  Loan Party  and  authorization of  this Amendment and the Reaffirmation Agreement referred to in clause (b) above, all in  form and substance reasonably satisfactory to the Administrative Agent;              (d)  the  Administrative  Agent  shall  have  received  a  favorable  written  opinion (addressed to the Administrative Agent, the Lenders as of the Fourth Amendment  Effective Date and the Issuing Banks and dated the Fourth Amendment Effective Date) of  (i) Wachtell, Lipton, Rosen & Katz, counsel for the Company, (ii) in-house counsel for  the  Company  and  (iii)  local  counsel  in  each  jurisdiction,  other  than  Colorado  and  Tennessee, in which a Loan Party is organized and the laws of which are not covered by  the opinion referred to in clause (i) above, in each case in form and substance reasonably  satisfactory to the Administrative Agent;                                       3  





 






           (e)  the  Administrative  Agent  shall  have  received  a  certificate,  dated  the  Fourth Amendment Effective Date and signed by an Authorized Officer of the Company,  confirming  the  accuracy  of  the  representations  and  warranties  set  forth  in  Section 4  hereof;              (f)  the Administrative Agent shall have received (i) for the account of each  Person  whose  name  appears  on  Schedule  2.01  hereto  and  that  executes  and  delivers  a  copy of this Amendment to the Administrative Agent, an amendment fee in an amount  equal  to  the  percentage  specified  in  the  Summary  of  Principal  Terms  and  Conditions  previously  posted  to  the  Lenders  (the  “Summary”)  of  the  aggregate  amount  of  the  Commitments, if any, of such Person as in effect immediately prior to the effectiveness of  this Amendment and (ii) for the account of each Person whose name appears on Schedule  2.01  hereto,  an  upfront  fee  in  an  amount  equal  to  the  percentage  specified  in  the  Summary  of  the  aggregate  amount,  if  any,  by  which  the  aggregate  amount  of  the  Commitments of such Person as set forth on Schedule 2.01 hereto exceeds the aggregate  amount of the Commitments, if any, of such Person as in effect immediately prior to the  effectiveness of this Amendment;              (g)  the Administrative Agent  shall have  received  all other fees  and other  amounts due and payable on or prior to the Fourth Amendment Effective Date, including,  any  amounts  payable  to  it  for  the  account  of  any  Lender  pursuant  to  the  penultimate  sentence of  Section  9.02(b)  of  the  Credit  Agreement  and, to  the  extent  invoiced,  reimbursement  or  payment  of  all  reasonable  out-of-pocket  expenses  (including  reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid  by the Company under the Credit Agreement;               (h)  the Administrative Agent shall have received, for the account of each  Lender  and  each  Issuing  Bank  party  to  the  Credit Agreement  immediately  prior  to  the  effectiveness of this Amendment, all interest and fees accrued but unpaid under the Credit  Agreement in respect of periods prior to the Fourth Amendment Effective Date; and              (i)  each  Lender  shall  have  received  all  documentation  and  other  information  required  to  be  obtained  by  such  Lender  under  applicable  “know  your  customer”  and  anti-money  laundering  rules  and  regulations,  including  the  USA  Patriot  Act.   The Administrative Agent shall notify the Company, the Lenders and the Issuing Banks  of  the  Fourth  Amendment  Effective  Date,  and  such  notice  shall  be  conclusive  and  binding.               SECTION 6.  Effect of this Amendment.  (a)  Except as expressly set forth  herein, this Amendment shall not by implication or otherwise limit, impair, constitute a  waiver of, or otherwise affect the rights and remedies of the Agents, the Issuing Banks or  the Lenders under the Credit Agreement or any other Loan Document, and shall not alter,  modify, amend or in any way affect any of the terms, conditions, obligations, covenants  or  agreements  contained  in  the  Credit  Agreement  or  any  other  Loan  Document,  all  of  which are ratified and affirmed in all respects and shall continue in full force and effect.                                       4  





 






Nothing herein shall be deemed to entitle any Loan Party to any other consent to, or any  other waiver, amendment, modification or other change of, any of the terms, conditions,  obligations,  covenants  or  agreements  contained  in  the  Credit  Agreement  or  any  other  Loan Document in similar or different circumstances.               (b)  On and after the Fourth Amendment Effective Date, each reference in  the Credit Agreement to “this Agreement”, “herein”, “hereunder”, “hereto”, “hereof” and  words of similar import shall, unless the context otherwise requires, refer to the Credit  Agreement as amended hereby, and each reference to the Credit Agreement in any other  Loan Document shall be deemed to be a reference to the Credit Agreement as amended  hereby.   This Amendment  shall  constitute  a  “Loan  Document”  for  all  purposes  of  the  Credit Agreement and the other Loan Documents               (c)  It is  agreed that the Amendment Arrangers and  their Related Parties  shall be entitled to the benefits of Section 9.03(b) of the Credit Agreement with respect to  the  arrangement  of  this  Amendment,  the  preparation,  execution  and  delivery  of  this  Amendment and the consummation of the transactions contemplated hereby to the same  extent  as  the  Arrangers  and  their  Related  Parties  are  entitled  to  the  benefits  of  such  Section in respect of the arrangement and the syndication of the credit facility under the  Credit Agreement and the other matters referred to in such Section.               (d)  Each Lender, by delivering its signature page to this Amendment shall  be deemed to have acknowledged receipt of, and consented to and approved, each Loan  Document  and  each  other  document  required  to  be  delivered  to,  or  be  approved  by  or  satisfactory  to,  the  Administrative  Agent  or  the  Lenders  on  or  prior  to  the Fourth  Amendment Effective Date.               SECTION 7.  Applicable  Law.  THIS  AMENDMENT  SHALL  BE  CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF  THE STATE OF NEW YORK.               SECTION 8.  Counterparts.  This  Amendment  may  be  executed  in  counterparts  (and  by  different  parties  hereto  on  different  counterparts),  each  of  which  shall constitute an original but all of which, when taken together, shall constitute a single  instrument.  Delivery of an executed counterpart of a signature page of this Amendment  by facsimile or other electronic transmission shall be effective as delivery of a manually  executed counterpart hereof.               SECTION 9.  Fees and Expenses.  The Company agrees to reimburse the  Administrative Agent for its reasonable out-of-pocket expenses in  connection with this  Amendment,  including  the  reasonable  fees,  charges  and  disbursements  of  Cravath,  Swaine & Moore LLP, counsel for the Administrative Agent.  All fees shall be payable in  immediately available funds and shall not be refundable.                                       5  





 






                                                                  IN  WITNESS  WHEREOF,  the  parties  hereto  have  caused  this  Amendment to be duly executed by their respective authorized officers as of the date first  above written.                                EXPEDIA GROUP, INC., a Delaware corporation,                                   by:                                      /s/ Alan R. Pickerill                                      Name: Alan R. Pickerill                                      Title: Executive  Vice  President,  Chief                                      Financial Officer and Treasurer                                EXPEDIA, INC., a Washington corporation,                                   by:                                      /s/ Alan R. Pickerill                                      Name: Alan R. Pickerill                                      Title: Executive  Vice  President,  Chief                                      Financial Officer and Treasurer                                TRAVELSCAPE, LLC,    a  Nevada  limited  liability                               company,                                   by:                                      /s/ Alan R. Pickerill                                      Name: Alan R. Pickerill                                      Title: Executive  Vice  President,  Chief                                      Financial Officer and Treasurer                                HOTWIRE, INC., a Delaware corporation,                                   by:                                      /s/ Alan R. Pickerill                                      Name: Alan R. Pickerill                                      Title: Executive  Vice  President  and                                      Treasurer                        [Signature Page to Fourth Amendment]  





 






                                            JPMORGAN  CHASE  BANK,  N.A.,  individually           and  as  Administrative  Agent,  London  Agent and           Issuing Bank,               by:                  /s/Peter B. Thauer                  Name: Peter B. Thauer                  Title:  Managing Director    [Signature Page to Fourth Amendment]  





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.    BANK OF AMERICA, N.A., as a Lender and an Issuing Bank      by:         /s/ Jonathan Tristan         Name: Jonathan Tristan         Title: Vice President              [Signature Page to Fourth Amendment]  





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            BNP Paribas.,    as a Lender and Issuing Bank      by:         /s/ Nicole Rodriguez         Name: Nicole Rodriguez         Title: Director              by:         /s/ Ade Adedeji         Name: Ade Adedeji         Title: Vice President                                   [Signature Page to Fourth Amendment]                       





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            Mizuho Bank, Ltd.      by:         /s/ Raymond Ventura         Name: Raymond Ventura         Title: Managing Director              [Signature Page to Fourth Amendment]                       





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            Name of Institution: HSBC BANK USA, NATIONAL ASSOCIATION      by:         /s/ Thomas O’Connell         Name: Thomas O’Connell         Title: Senior Vice President              [Signature Page to Fourth Amendment]                       





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            Name  of  Institution:  MUFG  Bank,  Ltd.  (f.k.a.  The  Bank  of  Tokyo- Mitsubishi UFJ, Ltd.)      by:         /s/ Ola Anderssen         Name: Ola Anderssen         Title: Director              [Signature Page to Fourth Amendment]                       





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            Royal Bank of Canada      by:         /s/ Andra Bosneaga         Name: Andra Bosneaga         Title: Vice-President              [Signature Page to Fourth Amendment]                       





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            Sumitomo Mitsui Banking Corporation:      by:         /s/ Katsuyuki Kubo         Name: Katsuyuki Kubo         Title: Managing Director              [Signature Page to Fourth Amendment]                       





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            U.S. BANK NATIONAL ASSOCIATION (with any institution that is both  a Lender and an Issuing Bank executing and delivering this Amendment in  both such capacities):      by:         /s/ Susan M. Bowes         Name: Susan M. Bowes         Title: Senior Vice President              [Signature Page to Fourth Amendment]                       





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            THE BANK OF NOVA SCOTIA      by:         /s/ Michael Grad         Name: Michael Grad         Title: Director              [Signature Page to Fourth Amendment]                       





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            GOLDMAN SACHS BANK USA      by:         /s/ Rebecca Kratz         Name: Rebecca Kratz         Title: Authorized Signatory              [Signature Page to Fourth Amendment]                       





 






                                         SIGNATURE PAGE TO                                       FOURTH AMENDMENT TO        CREDIT AGREEMENT DATED AS OF SEPTEMBER 5, 2014 OF                                           EXPEDIA GROUP, INC.                                            Standard Chartered Bank:      by:         /s/ Daniel Mattern         Name: Daniel Mattern         Title: Associate Director              [Signature Page to Fourth Amendment]                       





 






                                        EXHIBIT A                   Amendments to Credit Agreement                          See attached.                                         





 






                                                       EXHIBIT A                         MARKED VERSION REFLECTING CHANGES                              PURSUANT TO FOURTH AMENDMENT                       AGAINST EXHIBIT A TO THIRD AMENDMENT            ADDED TEXT SHOWN UNDERSCORED OR UNDERSCORED       DELETED TEXT SHOWN STRIKETHROUGH OR STRIKETHROUGH                              AMENDED AND RESTATED CREDIT AGREEMENT                           dated as of                      September 5, 20142014,                             among           EXPEDIA GROUP, INC., a Delaware corporation,              EXPEDIA, INC., a Washington corporation,       TRAVELSCAPE, LLC, a Nevada limited liability company,              HOTWIRE, INC., a Delaware corporation,                The LendersLENDERS Party Hereto,                              and                 JPMORGAN CHASE BANK, N.A.,                     as Administrative Agent,                               and                 J.P. MORGAN EUROPE LIMITED,                        as London Agent,                  ___________________________  J.P. MORGAN SECURITIES INC.,JPMORGAN CHASE BANK, N.A.,  MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,                BNP PARIBAS SECURITIES CORP.,                     MIZUHO BANK, LTD.,                              and           HSBC BANK USA, NATIONAL ASSOCIATION,             as Joint Lead Arrangers and Joint Bookrunners                    BANK OF AMERICA, N.A.                              and                     MIZUHO BANK, LTD.,                     as Co-Syndication Agents                         BNP PARIBAS                              and           HSBC BANK USA, NATIONAL ASSOCIATION,                    as Co-Documentation Agents                                                  [CS&M Ref. No. 6701-507]                         





 






                             TABLE OF CONTENTS                                  ARTICLE I                                                                       Definitions   SECTION 1.01.  Defined Terms .......................................................................................1  SECTION 1.02.  Classification of Loans and Borrowings ..........................................3944  SECTION 1.03.  Terms Generally...............................................................................3944  SECTION 1.04.  Accounting Terms; GAAP; Pro Forma Calculations.......................4045  SECTION 1.05.  Currency Translation .......................................................................4146                                 ARTICLE II                                                                       The Credits   SECTION 2.01.  Commitments ...................................................................................4247  SECTION 2.02.  Loans and Borrowings .....................................................................4248  SECTION 2.03.  Requests for Borrowings..................................................................4348  SECTION 2.04.  Borrowing Subsidiaries ....................................................................4449  SECTION 2.05.  [Reserved] ........................................................................................4550  SECTION 2.06.  Letters of Credit ...............................................................................4550  SECTION 2.07.  Funding of Borrowings ....................................................................5258  SECTION 2.08.  Interest Elections ..............................................................................5359  SECTION 2.09.  Termination and Reduction of Commitments; Increase of                 Commitments ...................................................................................5461  SECTION 2.10.  Repayment of Loans; Evidence of Debt ..........................................5764  SECTION 2.11.  Prepayment of Loans .......................................................................5865  SECTION 2.12.  Fees ..................................................................................................6066  SECTION 2.13.  Interest..............................................................................................6168  SECTION 2.14.  Alternate Rate of Interest .................................................................6269  SECTION 2.15.  Increased Costs ................................................................................6271  SECTION 2.16.  Break Funding Payments .................................................................6473  SECTION 2.17.  Taxes ................................................................................................6573  SECTION 2.18.  Payments Generally; Pro Rata Treatment; Sharing of Set-offs .......7180  SECTION 2.19.  Mitigation Obligations; Replacement of Lenders ............................7382  SECTION 2.20.  Defaulting Lenders...........................................................................7483                                 ARTICLE III                                                               Representations and Warranties   SECTION 3.01.  Organization; Powers .......................................................................7686  SECTION 3.02.  Authorization; Enforceability ..........................................................7686  SECTION 3.03.  Governmental Approvals; No Conflicts ..........................................7786  SECTION 3.04.  Financial Condition; No Material Adverse Change .........................7786                                      i  





 






   SECTION 3.05.  Properties .........................................................................................7887  SECTION 3.06.  Litigation and Environmental Matters .............................................7887  SECTION 3.07.  Compliance with Laws and Agreements .........................................7888  SECTION 3.08.  Investment Company Status ............................................................7888  SECTION 3.09.  Taxes ................................................................................................7888  SECTION 3.10.  ERISA ..............................................................................................7988  SECTION 3.11.  Disclosure ........................................................................................7988  SECTION 3.12.  Guarantee Requirement ...................................................................7989  SECTION 3.13.  Subsidiaries ......................................................................................7989  SECTION 3.14.  Use of Proceeds; Margin Regulations..............................................7989  SECTION 3.15.  Borrowing Subsidiaries ....................................................................7989  SECTION 3.16.  Anti-Corruption Laws and Sanctions...............................................8089                                 ARTICLE IV                                                                       Conditions   SECTION 4.01.  Restatement Effective Date............................................... 80[Reserved]  90  SECTION 4.02.  Each Credit Event ............................................................................8290  SECTION 4.03.  Initial Credit Event in Respect of Each Borrowing Subsidiary .......8290                                 ARTICLE V                                                                  Affirmative Covenants   SECTION 5.01.  Financial Statements; and Other Information ..................................8392  SECTION 5.02.  Notices of Material Events...............................................................8594  SECTION 5.03.  Existence; Conduct of Business .......................................................8694  SECTION 5.04.  Payment of Tax Liabilities ...............................................................8694  SECTION 5.05.  Maintenance of Properties; Insurance ..............................................8695  SECTION 5.06.  Books and Records; Inspection Rights ............................................8695  SECTION 5.07.  Compliance with Laws ....................................................................8795  SECTION 5.08.  Further Assurances...........................................................................8795                                 ARTICLE VI                                                                   Negative Covenants   SECTION 6.01.  Indebtedness .....................................................................................8796  SECTION 6.02.  Liens .................................................................................................9099  SECTION 6.03.  Sale/Leaseback Transactions .........................................................92102  SECTION 6.04.  Fundamental Changes; Business Activities ...................................92102  SECTION 6.05.  Restricted Payments .......................................................................93103  SECTION 6.06.  Transactions with Affiliates ...........................................................94103  SECTION 6.07.  Restrictive Agreements ..................................................................95105  SECTION 6.08.  Asset Dispositions ..........................................................................96106  SECTION 6.09.  Use of Proceeds and Letters of Credit; Margin Regulations .......100112                                      ii  





 






   SECTION 6.10.  Leverage Ratio .............................................................................100112  SECTION 6.11.  Interest Expense Coverage Ratio .................................................101112  SECTION 6.12.  Maintenance of Borrowing Subsidiaries as Wholly Owned                 Subsidiaries ..................................................................................101112                                 ARTICLE VII                                                                    Events of Default   SECTION 7.01.  Events of Default .........................................................................101113  SECTION 7.02.  CAM Exchange ............................................................................104115                                ARTICLE VIII                                                                       The Agents                                 ARTICLE IX                                                                      Miscellaneous   SECTION 9.01.  Notices .........................................................................................108123  SECTION 9.02.  Waivers; Amendments .................................................................109125  SECTION 9.03.  Expenses; Indemnity; Damage Waiver ........................................112128  SECTION 9.04.  Successors and Assigns................................................................114130  SECTION 9.05.  Survival ........................................................................................117134  SECTION 9.06.  Counterparts; Integration; Effectiveness; Issuing Banks .............118135  SECTION 9.07.  Severability ..................................................................................118135  SECTION 9.08.  Right of Setoff..............................................................................119135  SECTION 9.09.  Governing Law; Jurisdiction; Consent to Service of Process ......119136  SECTION 9.10.  WAIVER OF JURY TRIAL ........................................................120137  SECTION 9.11.  Headings ......................................................................................121138  SECTION 9.12.  Confidentiality .............................................................................121138  SECTION 9.13.  Interest Rate Limitation ...............................................................122139  SECTION 9.14.  Release of Guarantees ..................................................................122139  SECTION 9.15.  Conversion of Currencies ............................................................123140  SECTION 9.16.  USA Patriot Act Notice ...............................................................123140  SECTION 9.17.  No Fiduciary Relationship ...........................................................123141  SECTION 9.18.  Non-Public Information ...............................................................124141  SECTION 9.19.  Acknowledgement and Consent to Bail-In of EEA Financial                 Institutions....................................................................................124142                                         iii  





 






   SCHEDULES:  Schedule 2.01 — Commitments  Schedule 2.06 — Initial Issuing Bank LC Commitment  Schedule 2.06A  — Existing Letters of Credit  Schedule 3.06 — Disclosed Matters  Schedule 3.13 — Subsidiaries  Schedule 6.01 — Existing Indebtedness  Schedule 6.02 — Existing Liens  Schedule 6.07 — Existing Restrictions  Schedule 9.12 — Participant Confidentiality Restricted List   EXHIBITS:   Exhibit A-1 — Form of Assignment and Assumption  Exhibit A-2 — Form of Issuing Bank Agreement  Exhibit A-3 — Form of Borrowing Request  Exhibit A-4 — Form of Interest Election Request  Exhibit B-1 — Form of Borrowing Subsidiary Agreement  Exhibit B-2 — Form of Borrowing Subsidiary Termination  Exhibit C-1 — Form of US Tax Compliance Certificate (For Non-U.S. Lenders That Are               Not Partnerships For U.S. Federal Income Tax Purposes)  Exhibit C-2 — Form of US Tax Compliance Certificate (For Non-U.S. Participants That               Are Not Partnerships For U.S. Federal Income Tax Purposes)  Exhibit C-3 — Form of US Tax Compliance Certificate (For Non-U.S. Participants That               Are Partnerships For U.S. Federal Income Tax Purposes)  Exhibit C-4 — Form of US Tax Compliance Certificate (For Non-U.S. Lenders That Are               Partnerships For U.S. Federal Income Tax Purposes)                                              iv  





 






                           AMENDED  AND  RESTATED  CREDIT  AGREEMENT                    dated  as  of  September  5,  2014  (this  “Agreement”),  among                    EXPEDIA  GROUP,  INC.,  a  Delaware  corporation;  EXPEDIA,                    INC.,  a  Washington  corporation;  TRAVELSCAPE,  LLC,  a                    Nevada  limited  liability  company;  HOTWIRE,  INC.,  a  Delaware                    corporation;  the  LENDERS  from  time  to  time  party  hereto;  and                    JPMORGAN CHASE BANK, N.A., as Administrative Agent; and                    J.P. MORGAN EUROPE LIMITED, as London Agent.               The Borrowers (such term  and each other capitalized term  used and not  otherwise defined herein having the meaning assigned to it in Article I) have requested  that  the  Agents  and  the  Lenders  amend  and  restate  the  Existing  Credit  Agreement  to  continue and modify the credit facilities provided for therein as set forth in this Amended  and Restated Credit Agreement.  The parties hereto agree as follows:                                  ARTICLE I                                                                       Definitions               SECTION 1.01. Defined  Terms¶.   As  used  in  this  Agreement,  the  following terms have the meanings specified below:               “2010  Indenture”  means  that  certain  Indenture,  dated  as  of  August  5,  2010, among the Company, the subsidiary guarantors from time to time party thereto and  The Bank of New York Mellon Trust Company, N.A., as trustee, as in effect on the First  Amendment Effective Date.               “2020  Notes”  means  the  5.95%  Senior  Notes  issued  by  the  Company  under the 2010 Indenture.               “ABR”,  when  used  in  reference  to  any  Loan  or  Borrowing,  refers  to  whether such Loan, or the Loans comprising such Borrowing, shall bear interest at a rate  determined by reference to the Alternate Base Rate.               “Adjusted Combined  Tranche  Percentage” means,  at  any  time,  with  respect  to  any  Lender,  the  percentage  of  the  total  Commitments  (excluding  the  Commitment of any Defaulting Lender) represented by such Lender’s Commitments at  such time.  If all the Commitments have terminated or expired, the Adjusted Combined  Tranche Percentages shall be determined based upon the Commitments most recently in  effect, giving effect to any assignments hereunder.                “Adjusted  LIBO  Rate”  means,  with  respect  to  any  LIBOR  Borrowing  denominated in US Dollars for any Interest Period, an interest rate per annum equal to the  product of (a) the LIBO Rate for US Dollars for such Interest Period multiplied by (b) the  Statutory Reserve Rate.               “Administrative  Agent”  means  JPMorgan  Chase  Bank,  N.A.,  in  its  capacity as administrative agent hereunder and under the other Loan Documents, and its      





 






   successors  in  such  capacity  as  provided  in  Article  VIII,  or  such  Affiliates  or  branches  thereof as it shall from time to time designate by notice to the Company and the Lenders  for the purpose of performing any of its obligations hereunder or under any other Loan  Document.               “Administrative Questionnaire” means an Administrative Questionnaire in  a form supplied by the Administrative Agent.               “Affiliate” means, with respect to a specified Person, another Person that  directly or indirectly Controls or is Controlled by or is under common Control with the  Person specified.                “Agents” means the Administrative Agent and the London Agent.               “Agreement” means this Amended and Restated Credit Agreement.               “Agreement Currency” has the meaning assigned to such term in Section  9.15(b).               “Alternate Base Rate” means, for any day, a rate per annum equal to the  greatest of (a) the Prime Rate in effect on such day, (b) the New York Fed Bank Rate in  effect on such day plus 1⁄2 of 1% per annum and (c) the Adjusted LIBO Rate on such day  (or if such day is  not  a  Business  Day, the immediately  preceding  Business  Day) for a  deposit in US Dollars with a maturity of one month plus 1% per annum.  For purposes of  clause  (c)  above,  the  Adjusted  LIBO  Rate  on  any  day  shall  be  based  on  the rate  per  annum  appearing  on  the  applicable  Reuters  screen  page  (currently  page  LIBOR01)  displaying  interest  rates  for  US  Dollar  deposits  in  the  London  interbank  market  as  administered by the ICE Benchmark Administration (or any other Person that takes over  such rate) (or, in the event such rate does not appear on a page of the Reuters screen, on  the appropriate page of such other information service that publishes such rate as shall be  selected by the Administrative Agent from time to timeapplicable Screen Rate (or, if  such Screen Rate is not available for a maturity of one month with respect to US  Dollars but is available for periods both longer and shorter than such period, the  Interpolated Screen Rate) at approximately 11:00 a.m., London time, on such day for  deposits in US Dollars with a maturity of one month; provided that if such rate shall be  less than zero, such rate shall be deemed to be zero.  If the Alternate Base Rate is being  used  as  an  alternate  rate  of  interest  pursuant  to  Section  2.14,  then  the  Alternate  Base Rate shall be the greater of clause (a) and (b) above and shall be determined  without reference to clause (c) above.  Any change in the Alternate Base Rate due to a  change in the Prime Rate, the New York Fed Bank Rate or the Adjusted LIBO Rate shall  be effective from and including the effective date of such change in the Prime Rate, the  New York Fed Bank Rate or the Adjusted LIBO Rate, as the case may be.               “Alternative LC Currency” means  Euro,  Sterling,  Australian  Dollars,  Singapore Dollars, Canadian Dollars and any other currency (other than US Dollars)  that is freely available, freely transferable and freely convertible into US Dollars and in  which dealings in deposits are carried on in the London interbank marketfor which an                                        2  





 






   Exchange  Rate  and  an  LC  Exchange  Rate  may  be  obtained  by  reference  to  the  applicable Reuters  World Currency  Page; provided  that at  the time of the issuance,  amendment, renewal or extension of any Letter of Credit denominated in a currency other  than US Dollars, Euro or, Sterling, Australian Dollars, Singapore Dollars or Canadian  Dollars, such other currency is  reasonably  acceptable to  the Applicable Agent  and the  Issuing Bank in respect of such Letter of Credit.                “Anti-Corruption  Laws”  means  all  laws,  rules,  and  regulations  of  any  jurisdiction applicable to the Company or its Subsidiaries from time to time concerning  or relating to bribery or corruption, including the United States Foreign Corrupt Practices  Act of 1977.               “Applicable  Agent”  means  (a)  with  respect  to  a  Loan  or  Borrowing  denominated  in  US  Dollars  or  Canadian  Dollars  or  any  Letter  of  Credit,  and  with  respect to any payment hereunder that does not relate to a particular Loan or Borrowing,  the Administrative Agent and (b) with respect to a Loan or Borrowing denominated in  any Alternative  Currencycurrency  other  than  US  Dollars  or  Canadian  Dollars,  the  London Agent.               “Applicable Creditor” has the meaning assigned to such term in Section  9.15(b).               “Applicable Rate” means, for any day, with respect to any ABR Loan or  Eurocurrency  Loan,  or  with  respect  to  the  commitment  fees  payable  hereunder,  as  the  case  may  be,  the  applicable  rate  per  annum  set  forth  below  under  the  caption  “ABR  Spread”, “Eurocurrency Spread” or “Commitment Fee Rate”, as the case may be, based  upon the Company’s senior unsecured non-credit-enhanced long-term debt ratings from  S&P and Moody’s as of such date:    Level          Level 1     Level 2    Level 3     Level 4      Level 5  Rating        At Least    BBB by      BBB- by     BB+ by     Lower than                BBB+ by     S&P/Baa2  S&P/Baa3 by S&P/Ba1 by     BB+ by               S&P/Baa1    by Moody’s   Moody’s     Moody’s    S&P/Ba1 by                Moody’s                                        Moody’s or                                                                 unrated  Commitment      12.5        15.0        17.5       25.0         35.0  Fee Rate  Eurocurrency 112.5100.0  125.0112.5  137.5125.0  162.5150.0  200.0175.0  Spread   ABR Spread     12.50.0    25.012.5    37.525.0    62.550.0    100.075.0     For purposes  of the foregoing,  (i) if either Moody’s or S&P  shall not  have in  effect  a  rating  for  the  Company’s  senior  unsecured  non-credit-enhanced  long-term  debt  (other  than  by  reason  of  the  circumstances  referred  to  in  the  last  sentence  of  this  definition),  then the Commitment Fee Rate, the Eurocurrency Spread and the ABR Spread shall be                                        3  





 






   based upon the rating of the other rating agency; (ii) if neither Moody’s nor S&P shall  have  in  effect  a  rating  for  the  Company’s  senior  unsecured  non-credit-enhanced  long- term debt (other than by reason of the circumstances referred to in the last sentence of  this definition), then the Commitment Fee Rate, the Eurocurrency Spread and the ABR  Spread shall be based upon  Level  5;  (iii) if the ratings  or deemed ratings  by S&P and  Moody’s shall fall within different Levels, the Commitment Fee Rate, the Eurocurrency  Spread and ABR Spread shall be based upon the higher rating, unless the ratings differ by  two or more Levels, in which case the Commitment Fee Rate, the Eurocurrency Spread  and  ABR  Spread  will  be  based  upon  the  Level  next  below  that  corresponding  to  the  higher  rating;  and  (iv)  if  the  rating  established  or  deemed  to  have  been  established  by  Moody’s or S&P shall be changed (other than as a result of a change in the rating system  of Moody’s or S&P), such change shall be effective as  of the date on which it is  first  announced by the  applicable rating agency.   Each change in  the Applicable Rate shall  apply during the period commencing on the effective date of such change and ending on  the date immediately preceding the effective date of the next such change.  If the rating  system of Moody’s or S&P shall change, or if any such rating agency shall cease to be in  the  business  of  rating  corporate  debt  obligations,  the  Company  and  the  Lenders  shall  negotiate in good faith to amend this definition to reflect such changed rating system or  the unavailability  of  ratings  from  such rating agency and, pending the effectiveness  of  any such amendment, the Applicable Rate shall be determined by reference to the ratings  most recently in effect prior to such change or cessation.               “Approved Fund” means any Person (other than a natural person) that is  engaged in making, purchasing, holding or investing in bank loans and similar extensions  of credit in the ordinary course of its business and that is administered or managed by a  Lender, an Affiliate of a Lender or an entity or an Affiliate of an entity that administers or  manages a Lender.               “Arrangers”  means J.P.  Morgan  Securities  IncJPMorgan  Chase  Bank,  N.A.,  Merrill  Lynch,  Pierce,  Fenner and&  Smith  Incorporated  (or  any  other  registered  broker-dealer  wholly-owned  by  Bank  of  America  Corporation  to  which  all  or  substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment  banking,  commercial  lending  services  and  related  businesses  may  be  transferred  following the date of this Agreement), BNP Paribas Securities Corp., Mizuho Bank, Ltd.  and HSBC Bank USA, National Association in their capacities as joint lead arrangers and  joint bookrunners for the credit facility provided for herein.               “Assignment  and  Assumption”  means  an  assignment  and  assumption  entered  into  by  a  Lender  and  an assigneeEligible  Assignee  (with  the  consent  of  any  Person whose consent is required by Section 9.04), and accepted by the Administrative  Agent,  in  the  form  of  Exhibit  A-1  or  any  other  form (including  electronic  records  generated by the use of an Electronic System) approved by the Administrative Agent.               “AUD  Bank  Bill  Rate”  means,  with  respect  to  any  Borrowing  denominated  in  Australian  Dollars  for  any  Interest  Period,  the  applicable  Screen  Rate as of the Specified Time on the Quotation Date.                                         4  





 






               “Augmenting Lender” has the meaning assigned to such term in Section  2.09(d)(i).               “Australian Dollars” or “AUD$” refers to lawful money of Australia.               “Authorized  Officer”  means,  with  respect  to  any  Person,  any  of  the  chairman of the board, the chief executive officer, the president, the chief financial  officer, the treasurer, any assistant treasurer, the secretary, any assistant secretary,  any vice president or any other officer or manager (or authorized signatory holding  equivalent function) of such Person (or of such Person’s general partner, member or  other  similar  Person);  provided  that,  when  such  term  is  used  in  reference  to  any  document executed by, or a certification of, an Authorized Officer, upon request of  the Administrative Agent, the secretary, an assistant secretary or any other officer  or manager (or authorized signatory holding equivalent function) of such Person (or  of  such  Person’s  general  partner,  member  or  other  similar  Person)  shall  have  delivered (which delivery may be made on the Fourth Amendment Effective Date)  an incumbency certificate to the Administrative Agent as  to the authority of such  individual.               “Availability  Period”  means  the  period  from  and  including  the  FirstFourth Amendment Effective Date to but excluding the earlier of the Maturity Date  and the date of termination of the Commitments.               “Bail-In Action” means, as to any EEA Financial Institution, the exercise  of any Write-Down and Conversion Powers by an applicable EEA Resolution Authority  in respect of any liability of such EEA Financial Institution.               “Bail-In  Legislation”  means,  with  respect  to  any  EEA  Member  Country  implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the  Council  of  the  European  Union,  the  implementing  law  or  regulation  for  such  EEA  Member  Country  from  time  to  time  that  is  described  in  the  EU  Bail-In  Legislation  Schedule.               “Bankruptcy Code” means Title 11 of the United States Code.               “Board  of  Governors”  means  the  Board  of  Governors  of  the  Federal  Reserve System of the United States of America.               “Borrower” means the Company or any Borrowing Subsidiary.               “Borrower  DTTP  Filing”  means an  HM  Revenue  &  Customs’  Form  DTTP2, duly completed and filed by the applicable Borrower within the applicable time  limit,  which contains  the  scheme  reference  number  and  jurisdiction  of  tax  residence  provided by the Lender to the applicable Borrower and the Administrative Agent.               “Borrowing”  means  Loans  of  the  same  Type  and  currency,  made,  converted or continued on the same date and to the same Borrower and, in the case of  Eurocurrency Loans, as to which a single Interest Period is in effect.                                        5  





 






               “Borrowing Minimum” means (a) in the case of a Borrowing denominated  in  US  Dollars,  US$5,000,000,  (b)  in  the  case  of  a  Borrowing  denominated  in  Euro,  €5,000,000  and5,000,000, (c)  in  the  case  of  a  Borrowing  denominated  in  Sterling,  £5,000,000,  (d)  in  the  case  of  a  Borrowing  denominated  in  Canadian  Dollars,  CAD$5,000,000  and  (e)  in  the  case  of  a  Borrowing  denominated  in  Australian  Dollars, AUD$5,000,000.               “Borrowing Multiple” means (a) in the case of a Borrowing denominated  in  US  Dollars,  US$1,000,000,  (b)  in  the  case  of  a  Borrowing  denominated  in  Euro,  €1,000,000  and1,000,000, (c)  in  the  case  of  a  Borrowing  denominated  in  Sterling,  £1,000,000,  (d)  in  the  case  of  a  Borrowing  denominated  in  Canadian  Dollars,  CAD$1,000,000  and  (e)  in  the  case  of  a  Borrowing  denominated  in  Australian  Dollars, AUD$1,000,000.               “Borrowing Request” means a request by a Borrower (or the Company  on its behalf) for a Borrowing in accordance with Section 2.03.2.03, which shall be in  the form of Exhibit A-3 or any other form approved by the Administrative Agent.               “Borrowing Subsidiary” means, at any time, (a) each of Expedia, Inc., a  Washington  corporation,  Travelscape,  LLC,  a  Nevada  limited  liability  company,  and  Hotwire,  Inc.,  a  Delaware  corporation,  and  (b)  each  other  Subsidiary  that  has  been  designated by the Company as a Borrowing Subsidiary pursuant to Section 2.04, other  than any Subsidiary that has ceased to be a Borrowing Subsidiary as provided in Section  2.04.               “Borrowing  Subsidiary  Agreement”  means  a  Borrowing  Subsidiary  Agreement substantially in the form of Exhibit B-1.               “Borrowing  Subsidiary  Termination”  means  a  Borrowing  Subsidiary  Termination substantially in the form of Exhibit B-2.               “Business Day” means any day that is not a Saturday, Sunday or other day  on  which  commercial  banks  in  New  York  City  are  authorized  or  required  by  law  to  remain  closed;  provided  that  (a)  when  used  in  connection  with  a  Eurocurrency  Loan  denominated in any currencyUS Dollars or Sterling or a Letter of Credit denominated in  an  Alternative LC Currency,  the  term  “Business  Day”  shall  also  exclude  any  day  on  which banks are not open for dealings in deposits denominated in such currency in the  London interbank market and ,  (b) when used in connection with a Eurocurrency Loan  denominated in Euro, the term “Business Day” shall also exclude any day on which the  Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET2)  payment system is not open for the settlement of payments in Euro, (c) when used in  connection  with  a  Eurocurrency  Loan  or  a  Letter  of  Credit  denominated  in  Canadian  Dollars,  the  term  “Business  Day”  shall  also  exclude  any  day  on  which  banks  are  not  open  for  dealings  in  deposits  in  Toronto  and  (d)  when  used  in  connection  with  a  Eurocurrency  Loan  or  a  Letter  of  Credit  denominated  in  Australian  Dollars,  the  term  “Business  Day”  shall  also  exclude  any day  on  which  banks are not open for dealings in deposits in Sydney.                                        6  





 






               “CAM Exchange” means the exchange of the Lenders’ interests provided  for in Section 7.02.               “CAM Exchange Date” means the first date on which (a) there shall occur  (i) any event referred to in clause (h) or (i) of Section 7.01(h) or 7.01(i) in respect of the  Company  or  (ii)  an  acceleration  of  Loans  pursuant  to  Section  7.01,  (b)  Designated  Obligations in an amount of at least US$10,000,000 are outstanding under each Tranche,  (c) Designated Obligations in an amount of at least US$10,000,000 are outstanding under  one Tranche that constitute obligations of, or are Guaranteed by, one or more Material  Subsidiaries  that  are  not  liable  as  Borrowers  or  Subsidiary  Guarantors  for  all  the  Designated Obligations under the other Tranche, and (d) Lenders holding a majority in  amount of the Designated Obligations under such other Tranche shall not have advised  the Administrative Agent that they do not wish the CAM Exchange to occur.               “CAM  Percentage”  means,  with  respect  to  each  Lender,  a  fraction,  expressed as  a decimal,  of which (a) the numerator shall be the sum  of the US  Dollar  Equivalents (determined on the CAM Exchange Date on the basis of Exchange Rates on  such date) of the aggregate Designated Obligations owed to such Lender (whether or not  at the time due and payable) and (b) the denominator shall be the sum of the US Dollar  Equivalents (as so determined) of the aggregate Designated Obligations owed to all the  Lenders (whether or not at the time due and payable).               “Canadian Dollars” or “CAD$” means the lawful money of Canada.               “Capital Lease” means any lease of (or other arrangement conveying the  right  to  use)  real  or  personal  property,  or  a  combination  thereof,  the  obligations  under  which are required to be classified and accounted for as a capital lease on a balance sheet  of such Person under GAAP.               “Capital Lease Obligations” of any Person means the obligations of such  Person to  pay  rent  or other amounts  under  any  Capital  Lease, and the amount of such  obligations shall be the capitalized amount thereof determined in accordance with GAAP.   For  purposes  of  Section  6.02  only,  a  Capital  Lease  Obligation  shall  be  deemed  to  be  secured by a Lien on the property being leased and such property shall be deemed to be  owned by the lessee.               “Capped Adjustments” means (a) any additions to Consolidated EBITDA  pursuant  to  clause  (a)(vi)  of  the  definition  of  such  term  and  (b)  any  additions  to  Consolidated EBITDA pursuant to clause (ii) of Section 1.04(b)).               “CDO  Rate”  means,  with  respect  to  any  Borrowing  denominated  in  Canadian  Dollars  for  any  Interest  Period,  the  applicable  Screen  Rate  as  of  the  Specified Time on the Quotation Date.               “CFC Holdco” means any Subsidiary that has no material assets other than  Equity  Interests  in  one  or  more  Persons  that  are  Specified  Foreign  Subsidiaries  under  clause (a) of the definition of such term.                                        7  





 






               “Change in Control” means (a) the acquisition of “beneficial ownership”  (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, by  any Person or group (within the meaning of the Exchange Act and the rules of the SEC  thereunder as in effect on the date hereof), other than the Permitted Holders, of shares  representing more than 35% of the aggregate ordinary voting power represented by the  issued and outstanding capital stock of the Company (the “Total Voting Power”), unless  either (i) the Permitted Holders beneficially own a majority of the Total Voting Power or  (ii)  if  the  Permitted  Holders  beneficially  own  less  than  a  majority  of  the  Total  Voting  Power,  the  excess  of  the  percentage  of  Total  Voting  Power  represented  by  the  shares  beneficially owned by the Permitted Holders over the percentage of Total Voting Power  represented by shares beneficially owned by such acquiring Person or group is at least  5%, (b) occupation of a majority of the seats (other than vacant seats) on the board of  directors  of  the  Company  by  Persons  who  were  neither  (i)  nominated  by  the  board  of  directors  of  the  Company  nor  (ii)  appointed  by  directors  so  nominated  or  (c)  the  occurrence  of  any  “change  in  control”,  “change  in  control  triggering  event”  or  similar  event, however denominated, with respect to the Company under and as defined in any  indenture  or  other  agreement  or  instrument  evidencing,  governing  the  rights  of  the  holders of or otherwise relating to any Material Indebtedness (other than the 2020 Notes  and the 2010 Indenture) of the Company or any Subsidiary, to the extent such occurrence  gives rise to a put right, default, acceleration or similar consequence with respect to such  Material Indebtedness.                 “Change in Law” means (a) the adoption or taking effect of any law, rule  or  regulation  after  the  date  of  this  Agreement,  (b)  any  change  in  any  law,  rule  or  regulation or in the administration, interpretation, implementation or application thereof  by any Governmental Authority after the date of this Agreement or (c) compliance by any  Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of  such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with  any  request,  guideline  or  directive  (whether  or  not  having  the  force  of  law)  of  any  Governmental Authority made or issued after the date of this Agreement; provided that,  for purposes of this Agreement, (i) the Dodd-Frank Wall Street Reform and Consumer  Protection Act and all requests, rules, guidelines or directives in connection therewith and  (ii) all requests, rules, guidelines or directives promulgated by the Bank for International  Settlements, the Basel Committee on Banking Supervision (or any successor or similar  authority) or the United States or foreign regulatory authorities, in each case pursuant to  Basel III, shall in each case be deemed to have been adopted and become effective after  the date of this Agreement.               “Charges” has the meaning assigned to such term in Section 9.13.               “Class”, when used in reference to (a) any Loan or Borrowing, refers to  whether such Loan, or the Loans comprising such Borrowing, are US Tranche Revolving  Loans  or  European  Tranche  Revolving  Loans,  (b)  any  Commitment,  refers  to  whether  such Commitment is a US Tranche Commitment or European Tranche Commitment and  (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular  Class.                                        8  





 






               “Code” means the Internal Revenue Code of 1986, as amended.               “Combined Tranche Percentage” means, at any time, with respect to any  Lender,  the  percentage  of  the  total  Commitments  represented  by  such  Lender’s  Commitments  at  such  time;  provided  that,  for  purposes  of  Section  2.20  when  any  Lender  shall  be  a  Defaulting  Lender,  “Combined  Tranche  Percentage” shall  mean,  with respect to any Lender, the percentage of the total Commitments (disregarding any  Defaulting Lender’s Commitment) represented by such Lender’s Commitment.  If all  the Commitments have terminated or expired, the Combined Tranche Percentages shall  be determined based upon the Commitments most recently in effect, giving effect to any  assignments.               “Commitment” means a US Tranche Commitment or a European Tranche  Commitment or any combination thereof (as the context requires).  The aggregate amount  of  the  Lenders’  Commitments  as  of  the FirstFourth  Amendment  Effective  Date  is  US$1,500,000,000.2,000,000,000.               “Commitment Decrease” has the meaning assigned to such term in Section  2.09(d)(i).               “Commitment Increase” has the meaning assigned to such term in Section  2.09(d)(i).               “Commitment Letter” means (a) the Commitment Letter dated August 15,  2014, among the Company, JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC,  Bank  of  America  N.A.,  Merrill  Lynch,  Pierce,  Fenner  &  Smith  Incorporated,  BNP  Paribas,  BNP  Paribas  Securities  Corp.,  Royal  Bank  of  Canada,  RBC  Capital  Markets,  The Royal Bank of Scotland plc and RBS Securities Inc, and (b) solely for purposes of  Section  9.06,  the  Commitment  Letter  dated  January  14,  2016,  among  the  Company,  JPMorgan  Chase  Bank,  N.A.,  J.P.  Morgan  Securities  LLC,  Bank  of  America  N.A.,  Merrill  Lynch,  Pierce,  Fenner  &  Smith  Incorporated,  BNP  Paribas,  BNP  Paribas  Securities Corp., Mizuho Bank, Ltd. and HSBC Bank USA, National Association, and  (c) solely for purposes of Section 9.06, the Commitment Letter dated May 11, 2018,  among the Company, JPMorgan Chase Bank, N.A., Bank of America N.A., Merrill  Lynch, Pierce, Fenner & Smith Incorporated, BNP Paribas, BNP Paribas Securities  Corp., Mizuho Bank, Ltd. and HSBC Bank USA, National Association.               “Communications”  means,  collectively,  any  notice,  demand,  communication, information, document or other material provided by or on behalf of any  Loan Party pursuant to any Loan Document or the transactions contemplated therein that  is  distributed  to  any  Agent,  any  Lender  or  any  Issuing  Bank  by  means  of  electronic  communications  pursuant  to  Section  9.01,  including  through the  PlatformElectronic  Systems.               “Company” means Expedia Group, Inc., a Delaware corporation.                                         9  





 






               “Consolidated  Adjusted  Total  Assets”  means,  at  any  time,  (a)  Consolidated Total Assets at such time minus (b) the amount of such Consolidated  Total Assets attributable to goodwill in accordance with GAAP.               “Consolidated Cash Interest Expense” means, for any period, the excess of  (a) the sum, without duplication, of (i) the interest expense (including imputed interest  expense in respect of Capital Lease Obligations) of the Company and the Subsidiaries for  such  period,  determined  on  a  consolidated  basis  in  accordance  with  GAAP,  (ii)  the  interest  expense  that  would  be  imputed  for  such  period  in  respect  of  Synthetic  Lease  Obligations  of  the  Company  and  the  Subsidiaries  if  such  Synthetic  Lease  Obligations  were accounted for as Capital Lease Obligations, determined on a consolidated basis in  accordance  with  GAAP,  (iii)  any  interest  or  other  financing  costs  becoming  payable  during such period in respect of Indebtedness of the Company or the Subsidiaries to the  extent  such  interest  or  other  financing  costs  shall  have  been  capitalized  rather  than  included in consolidated interest expense for such period in accordance with GAAP and  (iv)  any  cash  payments  made  during  such  period  in  respect  of  obligations  of  the  type  referred to in clause (b)(ii) below that were amortized or accrued in a previous period,  minus (b) the sum of (i) to the extent included in such consolidated interest expense for  such  period,  non-cash  amounts  attributable  to  amortization  or  write-off  of  capitalized  interest or other financing costs paid in a previous period and (ii) to the extent included in  such  consolidated  interest  expense  for  such  period,  non-cash  amounts  attributable  to  amortization of debt discounts or accrued interest payable in kind for such period.               “Consolidated EBITDA” means, for any period, Consolidated Net Income  for  such  period  plus  (a)  without  duplication  and  to  the  extent  deducted  in  determining  such  Consolidated  Net  Income,  the  sum  of  (i)  consolidated  interest  expense  for  such  period, (ii) consolidated income tax expense for such period, (iii) all amounts attributable  to depreciation and amortization for such period (excluding, for the avoidance of doubt,  amortization expense attributable to a prepaid cash item that was paid in a prior period),  (iv) all losses for such period on sales or dispositions of assets outside the ordinary course  of  business,  (v)  any  non-recurring  non-cash  charges  for  such  period,  (vi)  any  restructuring or other unusual, non-recurring charges for such period; provided that the  amount of charges added back pursuant to this clause (vi) for such period, together with  the aggregate amount of all other Capped Adjustments for such period, shall not exceed  15% of Consolidated EBITDA for such period (determined prior to giving effect to any  addback  for  any  Capped  Adjustments),  (vii)  non-cash  goodwill  and  intangible  asset  impairment charges for such period, (viii) charges for such period recognized on changes  in the fair value of contingent consideration payable by, and non-cash charges for such  period  recognized  on  changes  in  the  fair  value  of  the  noncontrolling  interest  in  any  acquiree acquired by, the Company or any Subsidiary in any business combination and  non-cash charges  for such period for changes  in the fair value of  minority equity  investments (other than those accounted for under the equity method and those that  are consolidated) of the Company or any Subsidiary, and (ix) any non-cash expenses  for such period resulting from the grant of stock options or other equity-based incentives  to any director, officer or employee of the Company and the Subsidiaries; provided that  any  cash  payment  made  with  respect  to  any  non-cash  items  added  back  in  computing  Consolidated EBITDA for any prior period pursuant to this clause (a) (or that would have                                        10  





 






   been  added  back  had  this  Agreement  been  in  effect  during  such  prior  period)  shall  be  subtracted  in  computing  Consolidated  EBITDA  for  the  period  in  which  such  cash  payment  is  made;  and  minus  (b)  without  duplication  and  to  the  extent  included  in  determining  such  Consolidated  Net  Income,  (i)  all  gains  for  such  period  on  sales  or  dispositions of assets outside the ordinary course of business, (ii) all gains for such period  arising from business combinations, including gains on a “bargain purchase” and gains  recognized on changes in the fair value of contingent consideration payable by, and gains  recognized  on  changes  in  the  fair  value  of  the  noncontrolling  interest  in  any  acquiree  acquired by, the Company or any Subsidiary in connection therewith and gains for such  period for changes in the fair value of minority equity investments (other than those  accounted  for  under  the  equity  method  and  those  that  are  consolidated)  of  the  Company or any Subsidiary, (iii) any extraordinary gains for such period and (iv) any  non-cash  items  of income for such period that  represent  the reversal  of any accrual  of  charges  referred  to  in  clauses  (a)(v),  (a)(vi)  or  (a)(ix)  above,  all  determined  on  a  consolidated  basis  in  accordance  with  GAAP.   In  the  event  any  Subsidiary  shall  be  a  Subsidiary that is not a Wholly Owned Subsidiary, all amounts added back in computing  Consolidated  EBITDA  for  any  period  pursuant  to  clause  (a)  above,  and  all  amounts  subtracted  in  computing  Consolidated  EBITDA  pursuant  to  clause  (b)  above,  to  the  extent such amounts are, in the reasonable judgment of a Financial Officer, attributable to  such  Subsidiary,  shall  be  reduced  by  the  portion  thereof  that  is  attributable  to  the  noncontrolling interest in such Subsidiary.  For the purposes of calculating Consolidated  EBITDA  for  any  period  of  four  consecutive  fiscal  quarters  of  the  Company  (each,  a  “Reference  Period”)  for  the  purposes  of  any  determination  of  the  Leverage  Ratio,  if  during such Reference Period (or, in the case of pro forma calculations, during the period  from the last day of such Reference Period to and including the date as of which such  calculation  is  made)  the  Company  or  any  Subsidiary  shall  have  made  a  Material  Disposition  or  Material  Acquisition,  Consolidated  EBITDA  for  such  Reference  Period  shall be calculated after giving pro forma effect thereto as if such Material Disposition or  Material Acquisition had occurred on the first day of such Reference Period.  As used in  this  definition,  “Material  Acquisition”  means  any  acquisition  of  property  or  series  of  related acquisitions of property that involves consideration in excess of US$125,000,000;  and “Material Disposition” means any sale, transfer or other disposition of property or  series  of  related  sales,  transfers  or  other  dispositions  of  property  that  yields  gross  proceeds to the Company and the Subsidiaries in excess of US$125,000,000.               “Consolidated  Funded  Debt”  means,  on  any  date,  the  sum  (without  duplication)  for  the  Company  and  the  Subsidiaries  of  all  (a)  Indebtedness  (but  not  including  any  Indebtedness  in  the  form  of  contingent  consideration  obligations  of  the  Company or any Subsidiary incurred in connection with any business combination) that  would appear on a consolidated balance sheet of the Company prepared as of such date in  accordance with GAAP, (b) Capital Lease Obligations, (c) Synthetic Lease Obligations,  (d) Guarantees  by  the Company  and the Subsidiaries of  Indebtedness of Persons other  than the Company and the Subsidiaries, (e) obligations, contingent or otherwise, of the  Company and the Subsidiaries as an account party in respect of letters of credit and (f)  Securitization Transactions.                                         11  





 






               “Consolidated Net Income” means, for any period, the net income or loss  of the Company and the Subsidiaries for such period determined on a consolidated basis  in  accordance  with  GAAP  (after  giving  effect,  for  the  avoidance  of  doubt,  to  the  elimination  of  intercompany  accounts  in  accordance  with  GAAP);  provided  that  there  shall  be  excluded  the  income  or  loss  of  any  Subsidiary  that  is  not  a  Wholly  Owned  Subsidiary to the extent such income or loss is attributable to the noncontrolling interest  in such Subsidiary.               “Consolidated Revenues” means, for  any period, the aggregate revenues  of the Company and the Subsidiaries, determined on a consolidated basis in accordance  with GAAP.               “Consolidated  Total  Assets”  means,  at  any  time,  the  consolidated  total  assets of the Company and the Subsidiaries at such time, as such amount would appear  on a consolidated balance sheet of the Company prepared as of such date in accordance  with GAAP.               “Control”  means  the  possession,  directly  or  indirectly,  of  the  power  to  direct  or  cause  the  direction  of  the  management  or  policies,  or  the  dismissal  or  appointment  of  the  management,  of  a  Person,  whether  through  the  ability  to  exercise  voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings  correlative thereto.               “Co-Syndication  Agents”  means  Bank  of  America,  N.A.  and  Mizuho  Bank, Ltd., in their capacities as co-syndication agents for the credit facility provided for  herein.               “Default”  means  any  event  or  condition  that  constitutes  an  Event  of  Default or that upon notice, lapse of time or both would, unless cured or waived, become  an Event of Default.               “Defaulting Lender” means any Lender that (a) shall have failed to fund  its  applicable  Tranche  Percentage  of  any  Borrowing  for  three  or  more  Business  Days  after the date such Borrowing is required to be funded by Lenders hereunder, unless such  Lender, in good faith, notifies the Administrative Agent and the Company in writing that  such  failure  is  the  result  of  such  Lender’s  good  faith  determination  that  a  condition  precedent to funding (specifically identified in such writing, including, if applicable, by  reference to a specific Default) has not been satisfied, (b) shall have failed to fund any  portion of its participation in any LC Disbursement within three Business Days after the  date  on  which  such  funding  is  to  occur  hereunder,  (c)  shall  have  failed  to  pay  to  the  Administrative  Agent  or  any  Issuing  Bank  any  other  amount  required  to  be  paid  by  it  within three Business Days after the day on which such payment is required to be made  hereunder,  (d)  shall  have  notified  the  Administrative  Agent  (or  shall  have  notified  the  Company  or  any  Issuing  Bank,  which  shall  in  turn  have  notified  the  Administrative  Agent)  in  writing  that  it  does  not  intend  or  is  unable  to  comply  with  its  funding  obligations under this Agreement, or shall have made a public statement to the effect that  it  does  not  intend  or  is  unable  to  comply  with  such  funding  obligations  in  accordance                                        12  





 






   with the terms and subject to the conditions set forth herein (unless such writing or public  statement  states  in  good  faith  that  such  position  is  based  on  such  Lender’s  good-faith  determination that a condition precedent (specifically identified in such writing or public  statement, including, if applicable, by reference to a specific default) to funding a Loan  cannot  be  satisfied)  or  its  funding  obligations  generally  under  other  credit  or  similar  agreements  to  which  it  is  a  party,  (e)  shall  have  failed  (but  not  for  fewer  than  three  Business Days) after a written request by the Administrative Agent or an Issuing Bank to  confirm in writing that it will comply with its obligations (and is financially able to meet  such obligation) to make Loans and fund participations in LC Disbursements hereunder,  provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause  (e) upon the Administrative Agent’s or such Issuing Bank’s receipt of such certification  in form and substance satisfactory to the Administrative Agent, or (f) shall have become  the  subject  of  a  bankruptcy,  liquidation  or  insolvency  proceeding,  or  shall  have  had  a  receiver,  conservator,  trustee,  administrator,  custodian,  assignee  for  the  benefit  of  creditors or similar Person charged with the reorganization or liquidation of its business  appointed for it, or shall have taken any action in furtherance of, or indicating its consent  to, approval of or acquiescence in any such proceeding or appointment, or shall have, or  has a direct or indirect Lender Parent that shall have, become the subject of a Bail-In  Action  or  shall  have  a  parent  company  that  has  become  the  subject  of  a  bankruptcy,  liquidation  or  insolvency  proceeding,  or  has  had  a  receiver,  conservator,  trustee,  administrator, custodian, assignee for the benefit of creditors or similar Person charged  with the reorganization or liquidation of its business appointed for it, or has taken any  action in furtherance of, or indicating its consent to, approval of or acquiescence in any  such proceeding or appointment, or has become the subject of a Bail-In Action; provided  that  a  Lender  shall  not  be  deemed  to  be  a  Defaulting  Lender  solely  as  a  result  of  the  acquisition or maintenance of an ownership interest in such Lender or Person controlling  such Lender (whether controlling or otherwise), or the exercise of Control over a Lender  or  Person  controlling  such  Lender,  by  a  Governmental  Authority,  so  long  as  such  ownership  interest  or  exercise  of  Control  does  not  result  in  or  provide  such  Lender  or  Person with  immunity from  jurisdiction of courts within the United States  or from  the  enforcement of judgments or writs of attachment on its assets or permit such Lender or  Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any  contracts or agreements made by such Lender or Person.               “Designated Obligations” means Obligations consisting of the principal of  and  interest  on  outstanding  Loans,  reimbursement  obligations  in  respect  of  LC  Disbursements (including interest accrued thereon) and fees payable to the Lenders.               “Designated  Subsidiary” means  each  Subsidiary  that  is  (a)  a  Borrowing  Subsidiary,  (b)  a  Material  Subsidiary  or  (c)  an  obligor  (including  pursuant  to  a  Guarantee)  under  any  Material  Indebtedness  of  the  Company  or  any  other  Domestic  Subsidiary (other than a Specified Foreign Subsidiary), in each case other than (i) except  with respect to clause (c) above, any Specified Foreign Subsidiary or any CFC Holdco,  (ii) the New Headquarters SPV and the New Headquarters Parent SPV, (iii) except with  respect to clause (a) or (c) above, any Subsidiary if, and for so long as, such Subsidiary is  not a Wholly Owned Subsidiary and, (iv) except with respect to clause (c) above, Classic                                        13  





 






   Vacations,  LLC,  a  Nevada  limited  liability  company, and  (v)  any  Securitization  Subsidiary.               “Disclosed  Matters”  means  the  actions,  suits  and  proceedings  and  the  environmental matters disclosed on Schedule 3.06.               “Disqualified  Equity  Interest”  means,  with  respect  to  any  Person,  any  Equity Interest in such Person that by its terms (or by the terms of any security into which  it is convertible or for which it is exchangeable, either mandatorily or at the option of the  holder thereof), or upon the happening of any event or condition:               (a)  matures  or  is  mandatorily  redeemable  (other  than  solely  for  Equity  Interests in such Person that do not constitute Disqualified Equity Interests and cash in  lieu of fractional  shares  of such  Equity  Interests), whether pursuant  to  a  sinking fund  obligation or otherwise;               (b)  is convertible or exchangeable, either mandatorily or at the option of  the  holder  thereof,  for  Indebtedness  or  Equity  Interests  (other  than  solely  for  Equity  Interests in such Person that do not constitute Disqualified Equity Interests and cash in  lieu of fractional shares of such Equity Interests); or               (c)  is redeemable (other than solely for Equity Interests in such Person  that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares  of such Equity Interests) or is required to be repurchased by such Person or any of its  Affiliates (excluding, in the case of Equity Interests in the Company, IAC), in whole or  in part, at the option of the holder thereof;   in each case, on or prior to the date 180 days after the Maturity Date; provided, however,  that (i) an Equity Interest in any Person that would not constitute a Disqualified Equity  Interest but for terms thereof giving holders thereof the right to require such Person to  redeem  or  purchase  such  Equity  Interest  upon  the  occurrence  of  an  “asset  sale”  or  a  “change  of  control”  shall  not  constitute  a  Disqualified  Equity  Interest  if  any  such  requirement becomes operative only after repayment in full of all the Loans and all other  Obligations that are accrued and payable, the cancellation or expiration of all Letters of  Credit and the termination of the Commitments and (ii) an Equity Interest in any Person  that is issued to any employee or to any plan for the benefit of employees or by any such  plan to such employees shall not constitute a Disqualified Equity Interest solely because  it may be required to be repurchased by such Person or any of its subsidiaries in order to  satisfy  applicable  statutory  or  regulatory  obligations  or  as  a  result  of  such  employee’s  termination, death or disability.               “Documentation  Agent”  means  BNP  Paribas  and  HSBC  Bank  USA,  National Association, each in its capacity as documentation agent for the credit facility  provided for herein.               “Domestic  Subsidiary”  means  a  Subsidiary  incorporated  or  organized  under  the  laws  of  the  United  States  of  America,  any  State  thereof  or  the  District  of  Columbia.                                       14  





 






               “EEA Financial Institution” means (a) any credit institution or investment  firm  established  in  any  EEA  Member  Country  that  is  subject  to  the  supervision  of  an  EEA Resolution Authority, (b) any entity established in an EEA Member Country that is  a  parent  of  an  institution  described  in  clause  (a)  of  this  definition  or  (c)  any  financial  institution established in an EEA Member Country that is a subsidiary of an institution  described in clause (a) or (b) of this definition and is subject to consolidated supervision  with its parent.               “EEA Member Country” means any of the member states of the European  Union, Iceland, Liechtenstein and Norway.               “EEA Resolution Authority”  means any public administrative authority or  any personPerson  entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee)  having  responsibility  for  the  resolution  of  any  EEA  Financial Institution.               “EU  Bail-In  Legislation  Schedule”  means  the  EU  Bail-In  Legislation  Schedule  published  by  the  Loan  Market  Association  (or  any  successor  Person),  as  in  effect from time to time.Electronic System” means any electronic system, including e- mail,  e-fax,  Intralinks®,  ClearPar®,  Debt  Domain,  Syndtrak  and  any  other  substantially similar Internet or extranet-based site, whether such electronic system  is owned, operated or hosted by the Agents or any Issuing Bank and any of their  respective  Related  Parties  or  any  other  Person,  providing  for  access  to  data  protected by passcodes or other security system.               “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender,  (c)  an  Approved  Fund  and  (d)  any  other  Person,  other  than,  in  each  case,  (i)  a  natural person, (ii) a Defaulting Lender or (iii) the Company, any Subsidiary or any  other Affiliate of the Company.               “Environmental  Laws”  means  all  laws,  rules,  regulations,  codes,  ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued,  promulgated or entered into by any Governmental Authority, relating in any way to the  environment, preservation or reclamation of natural resources, the management, release  or threatened release of any Hazardous Materialtoxic or hazardous substance or waste,  or to health and safety matters.               “Environmental  Liability”  means  any  liability,  contingent  or  otherwise  (including any liability for damages, costs of environmental remediation, fines, penalties  or indemnities), of the Company or any Subsidiary directly or indirectly resulting from or  based  upon  (a)  violation  of  any  Environmental  Law,  (b)  the  generation,  use,  handling,  transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to  any  Hazardous  Materials,  (d)  the  release  or  threatened  release  of  any  Hazardous  Materials  into  the  environment  or  (e)  any  contract,  agreement  or  other  consensual  arrangement pursuant to which liability is assumed or imposed with respect to any of the  foregoing.                                        15  





 






               “Equity  Interests”  means  shares  of  capital  stock,  partnership  interests,  membership interests in a limited liability company, beneficial interests in a trust or other  equity ownership interests in a Person, and any warrants, options or other rights entitling  the  holder  thereof  to  purchase  or  acquire  any  such  equity  interest;  provided  that  Indebtedness that is convertible into Equity Interests in the Company shall not, prior to  the date of conversion thereof, constitute Equity Interests in the Company.               “ERISA” means the Employee Retirement Income Security Act of 1974.               “ERISA  Affiliate”  means  any  trade  or  business  (whether  or  not  incorporated)  that,  together  with  the  Company,  is  treated  as  a  single  employer  under  Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and  Section 412 of the Code, is treated as a single employer under Section 414 of the Code.               “ERISA  Event”  means  (a)  any  reportable  event  (within  the  meaning  of  Section 4043 of ERISA or the regulations issued thereunder) with respect to a Plan, other  than an event for which the 30-day notice period is waived; (b) a failure by any Plan to  satisfy the minimum funding standard (within the meaning of  Section 412 of the Code or  Section  302  of  ERISA)  applicable  to  such  Plan,  whether  or  not  waived;  (c)  the  filing  pursuant to Section 412(d) of the Code or Section 302(c) of ERISA of an application for  a waiver of the minimum funding standard with respect to any Plan; (d) a determination  that  any  Plan  is,  or  is  expected  to  be,  in  at-risk  status  (within  the  meaning  of  Section  430(i)(4) of the Code or Section 303(i)(4) of ERISA); (e) the incurrence by the Company  or  any  ERISA  Affiliate  of  any  liability  under  Title  IV  of  ERISA  with  respect  to  the  termination of any Plan; (f) the receipt by the Company or any ERISA Affiliate from the  PBGC or a plan administrator of any notice relating to an intention to terminate any Plan  or Plans or to appoint a trustee to administer any Plan; (g) the incurrence by the Company  or  any  ERISA  Affiliate  of  any  liability  with  respect  to  the  withdrawal  or  partial  withdrawal from any Plan or Multiemployer Plan; (h) the receipt by the Company or any  ERISA  Affiliate  of  any  notice,  or  the  receipt  by  any  Multiemployer  Plan  from  the  Company or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal  Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent  or  in  reorganization  (within  the  meaning  of  Title  IV  of  ERISA)  or  in  endangered  or  critical status (within the meaning of Section 432 of the Code or Section 305 of ERISA);  (i)  the  occurrence  of  a  non-exempt  “prohibited  transaction”  (within  the  meaning  of   Section  4975  of  the  Code  or  Section  406  of  ERISA)  concerning  any  Plan  and  with  respect to which the Company or any ERISA Affiliate is a “disqualified person” (within  the meaning of Section 4975 of the Code) or a party in interest (within the meaning of  Section 406 of ERISA) or could otherwise be liable; or (j) any other event or condition  with respect to a Plan or Multiemployer Plan that could result in liability of the Company  or any ERISA Affiliate.               “EU  Bail-In  Legislation  Schedule”  means  the  EU  Bail-In  Legislation  Schedule  published  by  the  Loan  Market  Association  (or  any  successor  Person),  as  in  effect from time to time.                                         16  





 






               “EURIBO  Rate”  means,  with  respect  to  any  Borrowing  denominated  in  Euro for any Interest Period, the applicable Screen Rate as of the Specified Time on the  Quotation Date.               “Euro”  or  “€”  means  the  lawful  currency  of  the  member  states  of  the  European Union that have adopted a single currency in accordance with applicable law or  treaty.               “Eurocurrency”, when used in reference to any Loan or Borrowing, refers  to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a  rate determined by reference to the Adjusted LIBO Rate, the LIBO Rate or, the EURIBO  Rate, the CDO Rate or the AUD Bank Bill Rate, as applicable.                “European  Tranche”  has  the  meaning  assigned  to  such  term  in  the  definition of the term “Tranche”.               “European Tranche Commitment” means, with respect to each Lender, the  commitment, if any, of such Lender to make European Tranche Revolving Loans and to  acquire  participations  in  Letters  of  Credit,  expressed  as  an  amount  representing  the  maximum  aggregate  permitted  amount  of  such  Lender’s  European  Tranche  Revolving  Exposure hereunder, as such commitment may be (a) reduced or increased from time to  time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to  assignments by or to such Lender pursuant to Section 9.04.  The amount of each Lender’s  European Tranche Commitment as of the FirstFourth Amendment Effective Date is set  forth  on  Schedule  2.01  and,  in  the  case  of  any  Lender  that  has  acquired  its  European  Tranche  Commitment  after  the FirstFourth  Amendment  Effective  Date,  the  initial  amount  thereof  is  set  forth  in  the  Assignment  and  Assumption,  or  the  documentation  referred to in Section 2.09(d)(i), pursuant to which such Lender shall have assumed or  provided its European Tranche Commitment, as applicable.  The aggregate amount of the  Lenders’ European Tranche Commitments as of  the FirstFourth Amendment Effective  Date is US$1,500,000,000.2,000,000,000.               “European  Tranche  Lender”  means  a  Lender  with  a  European  Tranche  Commitment or European Tranche Revolving Exposure.               “European Tranche Percentage” means,  at  any time, with  respect  to any  European Tranche Lender, the percentage of the total European Tranche Commitments  represented  by  such  Lender’s  European  Tranche  Commitment  at  such  time.   If  the  European  Tranche  Commitments  have  terminated  or  expired,  the  European  Tranche  Percentages shall be determined based upon the European Tranche Commitments most  recently in effect, giving effect to any assignments.               “European Tranche Revolving Exposure” means, at any time, the sum of  (a)  the  aggregate  principal  amount  of  the  European  Tranche  Revolving  Loans  denominated  in  US  Dollars  outstanding  at  such  time,  (b)  the  sum  of  the  US  Dollar  Equivalents  of  the  aggregate  principal  amounts  of  the  European  Tranche  Revolving  Loans  denominated  in  Euro  or,  Sterling,  Canadian  Dollars  or  Australian  Dollars                                        17  





 






   outstanding at such time and (c) the European Tranche Share of the LC Exposure at such  time.   The  European  Tranche  Revolving  Exposure  of  any  Lender  at  any  time  shall  be  such  Lender’s  European  Tranche  Percentage  of  the  total  European  Tranche  Revolving  Exposure  at  such  time,  adjusted  (without  duplication)  to  give  effect  to  any  reallocation under Section 2.20 of the LC Exposure of Defaulting Lenders in effect  at such time.               “European  Tranche  Revolving  Loan”  means  a  Loan  made  pursuant  to  Section  2.01(b).   Each  European  Tranche  Revolving  Loan  denominated  in  US  Dollars  shall be a Eurocurrency Loan or an ABR Loan, and each European Tranche Revolving  Loan denominated in Euro or, Sterling, Canadian Dollars or Australian Dollars shall  be a Eurocurrency Loan.               “European Tranche Share” means,  at  any time,  a percentage determined  by dividing the aggregate amount of the European Tranche Commitments at such time by  the aggregate amount of the Commitments at such time.               “Events  of  Default”  has  the  meaning  assigned  to  such  term  in  Section  7.01.               “Exchange  Act”  means  the  United  States  Securities  Exchange  Act  of  1934.               “Exchange Rate” means, on any daydate of determination, for purposes  of determining the US Dollar Equivalent of any currency other than US Dollars, the rate  at  which  such  other  currency  may  be  exchanged  into  US  Dollars  at  the  time  of  determination  on  such  day  as  set  forth,  determined  by  using  the  closing  rate  of  exchange as of the Business Day immediately preceding such date of determination,  as such closing rate of exchange is displayed on the applicable Reuters World Currency  Page.   In  the  event  that  such  rate  does  not  appear  on  the  applicable  Reuters  World  Currency  Page,  the  Exchange  Rate  shall  be  determined  by  reference  to  such  other  publicly  available service for displaying exchange rates as  may be agreed upon by the  Applicable  Agent  and  the  Company,  or,  in  the  absence  of  such  an  agreement,  the  Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the  Applicable Agent in the market where its foreign currency exchange operations in respect  of such currency are then being conducted, at or about such time as the Applicable Agent  shall  elect  after  determining  that  such  rates  shall  be  the  basis  for  determining  the  Exchange Rate, on such date for the purchase of US Dollars for delivery two Business  Days later; provided that if at the time of any such determination, for any reason, no such  spot rate is being quoted, the Applicable Agent may use any reasonable method it deems  appropriate  to  determine  such  rate,  and  such  determination  shall  be  conclusive  absent  manifest error.  For the avoidance of doubt, any exchange rate used will be with no  mark-up or spread added.               “Excluded  Subsidiaries”  means  trivago  and  any  subsidiary  thereof,  but  only for so long as trivago shall be a Subsidiary that is not a Wholly-Owned Subsidiary.                                        18  





 






               “Excluded Taxes” means any of the following Taxes imposed on or with  respect  to  either  Agent,  any  Lender,  any  Issuing  Bank  or  any  other  recipient  of  any  payment  to  be  made  by  or  on  account  of  any  obligation  of  the  Company  or  any  Borrowing  Subsidiary  hereunder  or  required  to  be  withheld  or  deducted  from  such  payment:  (a)  Taxes  imposed  on  (or  measured  by)  net  income  (however  denominated),  franchise Taxes  and branch profits  Taxes,  in  each case (i) imposed as  a result of such  recipient being organized under the laws of, or having its principal office, or, in the case  of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax  (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the  case of a Foreign Lender, any U.S. withholding Tax that is imposed (other than solely as  a result of the operation of the CAM Exchange) on amounts payable to or for the account  of such Lender with respect to an applicable interest in a Loan or Commitment pursuant  to a law, rule or regulation  in effect on the date on which such Lender becomes a party to  this  Agreement  (other  than  pursuant  to  an  assignment  at  the  request  of  the  Company  under  Section  2.19(b))  or  designates  a  new  lending  office,  except  in  each  case  to  the  extent  that  (i)  such  Foreign  Lender  (or  its  assignor,  if  any)  was  entitled,  immediately  before designation of a new lending office (or assignment), to receive additional amounts  from  the  Company  or  any  Borrowing  Subsidiary  with  respect  to  such  withholding  tax  pursuant  to  Section  2.17(a)  or  2.17(c)  or  (ii)  such  withholding  tax  shall  have  resulted  from  the  making  of  any  payment  to  a  location  other  than  the  office  designated  by  the  Applicable Agent or such Lender for the receipt of payments of the applicable type from  the applicable Borrower, (c) any Taxes attributable to such recipient’s failure to comply  with  Section  2.17(f)  or  2.17(g),  and  (d)  any  U.S.  federal  withholding  Taxes  imposed  under FATCA.               “Existing  Credit  Agreement”  means  the  Credit  Agreement  dated  as  of  February 10, 2010, as amended by the First Amendment dated as of August 18, 2010, the  Second Amendment dated as of August 31, 2011, and the Third Amendment dated as of  November  8,  2012,  among  Expedia,  Inc.,  a  Delaware  corporation,  Expedia,  Inc.,  a  Washington  corporation,  Travelscape,  LLC,  a  Nevada  limited  liability  company,  Hotwire,  Inc.,  a  Delaware  corporation,  the  lenders  from  time  to  time  party  thereto,  JPMorgan Chase Bank, N.A., as administrative agent, and J.P. Morgan Europe Limited,  as London agent.               “Existing  Indentures”  means  (a)  the  Indenture  dated  as  of  August  21,  2006, as  heretofore supplemented, among the Company, the Subsidiary  Guarantors  (as  defined  therein)  from  time  to  time  parties  thereto  and  The  Bank  of  New  York  Trust  Company, N.A., as Trustee, relating to the Company’s 7.456% Senior Notes due 2018,  (b)  the  Indenture  dated  as  of  August  5,  2010,  as  heretofore  supplemented,  among  the  Company,  the  Subsidiary  Guarantors  (as  defined  therein)  from  time  to  time  parties  thereto and The Bank of New York Mellon Trust Company, N.A., as Trustee, relating to  the  Company’s  5.95%  Senior  Notes  due 2020  and2020,  (c)  the  Indenture  dated  as  of  August  18,  2014,  as  heretofore  supplemented,  among  the  Company,  the  Subsidiary  Guarantors (as defined therein) from time to time parties thereto and The Bank of New  York Mellon Trust Company, N.A., as Trustee, relating to the Company’s 4.50% Senior  Notes due 2024.4.500% Senior Notes due 2024 and 2.500% Senior Notes due 2022,  (d)  the  Indenture  dated  as  of  December  8,  2015,  among  the  Company,  the                                        19  





 






   Subsidiary  Guarantors  (as  defined  therein)  from  time  to  time  parties  thereto  and  The  Bank  of  New  York  Mellon  Trust  Company,  N.A.,  as  Trustee,  relating  to  the  Company’s  5.000%  Senior  Notes  due  2024  and  (e)  the  Indenture  dated  as  of  September  21,  2017,  among  the  Company,  the  Subsidiary  Guarantors  (as  defined  therein) from time to time parties  thereto and U.S.  Bank National Association, as  Trustee, relating to the Company’s 3.800% Senior Notes due 2028.               “Existing  Letters  of  Credit”  means  letters  of  credit  listed  on  Schedule  2.06A that are outstanding on the Restatement Effective Date.               “FATCA” means Sections 1471 through 1474 of the Code, as of the date  of this Agreement (or any amended or successor version that is substantively comparable  and  not  materially  more  onerous  to  comply  with),  any  current  or  future  regulations  or  official  interpretations  thereof  and  any  agreements  entered  into  pursuant  to  Section  1471(b) of the Code.               “Federal Funds Effective Rate” means, for any day, the rate calculated by  the  New  York  Fed  based  on  such  day’s  federal  funds  transactions  by  depositary  institutions  (as  determined  in  such  manner  as  the  New  York  Fed  shall  set  forth  on  its  public website from time to time) and published on the next succeeding Business Day by  the New York Fed as the federal funds effective rate; provided that if such rate would be  less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.               “Financial Officer” means the chief financial officer, principal accounting  officer,  treasurer  or  controller  of  the  Company.“First  Amendment”  means  that  certain  First  Amendment,  dated  as  of  February  4,  2016,  to  this  Agreement.;  provided  that,  when such term is used in reference to any document executed by, or a certification  of, a Financial Officer, upon request of the Administrative Agent, the secretary, an  assistant secretary or any other officer or manager (or authorized signatory holding  equivalent function) of the Company shall have delivered (which  delivery  may be  made on the  Fourth  Amendment Effective Date) an incumbency certificate to the  Administrative Agent as to the authority of such individual.               “First Amendment Effective Date” means February 4, 2016.               “First  Amendment  Effective  Date  Reaffirmation  Agreement”  means  the  Reaffirmation Agreement referred to in Section 5(c) of the First Amendment.                “Foreign Lender” means any Lender that is organized under the laws of a  jurisdiction other than the United States of America, any State thereof or the District of  Columbia.               “Foreign  Subsidiary”  means  any  Subsidiary  that  is  not  a  Domestic  Subsidiary.               “Form S-4” means the Form S-4 Registration Statement filed by IAC and  the Company with the SEC on April 25, 2005, as amended on or before June 17, 2005.                                        20  





 






               “Fourth  Amendment”  means  the  Fourth  Amendment,  dated  as  of  May 31, 2018, to this Agreement.               “Fourth  Amendment  Effective  Date” has  the  meaning  assigned  to  such term in the Fourth Amendment.               “Fourth  Amendment  Effective  Date  Reaffirmation  Agreement”  means  the  Reaffirmation  Agreement  referred  to  in  Section  5(b)  of  the  Fourth  Amendment.                “GAAP”  means,  subject  to  Section  1.04(a),  generally  accepted  accounting principles in the United States of America.               “Governmental Authority” means the government of the United States of  America, any other nation or any political subdivision thereof, whether state or local, and  any agency, authority, instrumentality, regulatory body, court, central bank or other entity  exercising executive, legislative, judicial, taxing, regulatory or administrative powers or  functions of or pertaining to government (including any supra-national body exercising  such powers or functions, such as the European Union or the European Central Bank).               “Guarantee” of or by any Person (the “guarantor”) means any obligation,  contingent or otherwise, of the guarantor guaranteeing or having the economic effect of  guaranteeing  any  Indebtedness  or  other  obligation  of  any  other  Person  (the  “primary  obligor”) in any manner, whether directly or indirectly, and including any obligation of  the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the  purchase  or  payment  of)  such  Indebtedness  or  other  obligation  or  to  purchase  (or  to  advance or supply funds for the purchase of) any security for the payment thereof, (b) to  purchase or lease property, securities or services for the purpose of assuring the owner of  such Indebtedness or other obligation of the payment thereof (including pursuant to any  “synthetic lease” financing), (c) to maintain working capital, equity capital or any other  financial  statement  condition  or  liquidity  of  the  primary  obligor  so  as  to  enable  the  primary obligor to pay such Indebtedness or other obligation or (d) as an account party in  respect of any letter of credit or letter of guaranty issued to support such Indebtedness or  other obligation; provided that the term “Guarantee” shall not include endorsements for  collection or deposit in the ordinary course of business.  For the avoidance of doubt, any  expression  by  the  Company  or  any  Subsidiary  of  an  intent  to  continue  to  provide  financial support to  any of its  subsidiaries made in  a management  representation  letter  delivered in connection with an audit of the financial statements of such subsidiary, so  long as such expression of intent does not create any binding obligation, contingent or  otherwise,  on  the  Company  or  such  Subsidiary  to  provide  such  support,  shall  not  be  deemed to be a Guarantee.               “Guarantee Agreement” means (a) the Guarantee Agreement dated as of  February 8, 2010, among the Company, the Subsidiary Loan Parties party thereto and the  Administrative Agent, as amended and supplemented to the date hereof and from time to  time hereafter, or (b) in connection with the Guarantee of the Obligations by any Foreign  Subsidiary, another guarantee agreement or similar agreements (subject in each case to                                        21  





 






   such limits as shall be required under applicable local law) Guaranteeing the Obligations  and in form and substance reasonably satisfactory to the Administrative Agent.               “Guarantee Requirement” means, at any time, the requirement that:               (a) the Administrative Agent shall have received from the Company and  each  Designated  Subsidiary  that  is  not  a  Foreign  Subsidiary  (i)  in  the  case  of  the  Company and each Person that is a Designated Subsidiary on the Restatement Effective  Date, a counterpart of the Guarantee Agreement referred to in clause (a) of the definition  of Guarantee Agreement, duly executed and delivered on behalf of such Person, or (ii) in  the  case  of  any  Person  that  becomes  a  Designated  Subsidiary  after  the  Restatement  Effective  Date,  a  supplement  to  such  Guarantee  Agreement,  in  the  form  specified  therein,  duly  executed  and  delivered  on  behalf  of  such  Person,  together  with  such  documents and opinions as the Administrative Agent may reasonably request, including  (if so requested) documents and opinions of the type referred to in Sections 4.01(b) and  4.01(d)  with  respect  to  such  Designated  Subsidiary,  within  30  days  (or  such  longer  period as the Administrative Agent may agree to in writing) of such Person becoming a  Designated Subsidiary; and               (b) the  Administrative  Agent  shall  have  received  from  each  Designated  Subsidiary that is a Foreign Subsidiary a counterpart of a Guarantee Agreement referred  to in clause (a) or (b) of the definition of Guarantee Agreement, or a supplement thereto  in the form specified therein, duly executed and delivered on behalf of such Designated  Subsidiary,  together  with  such  documents  and  opinions  as  the  Administration  Agent  may reasonably request, including (if so requested) documents and opinions of the type  referred to in Sections 4.01(b) and 4.01(d) with respect to such Designated Subsidiary;  provided that, in the case of any Person that becomes a Designated Subsidiary after the  Restatement Effective Date, such counterpart may be delivered within 30 days (or such  longer  period  as  the  Administrative  Agent  may  agree  to  in  writing)  of  such  Person  becoming a Designated Subsidiary.   Notwithstanding the foregoing, a Foreign Subsidiary shall not be required to Guarantee  any  Obligation  if  the  Company  shall  have  provided  to  the  Administrative  Agent  a  certificate of a Financial Officer to the effect that, based on advice of outside counsel, it  would be a violation of applicable law for such Subsidiary to take such action.               “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.               “HMRC DT Treaty Passport scheme” means the Board of H.M. Revenue  and Customs Double Taxation Treaty Passport scheme.               “IAC” means IAC/InterActiveCorp, a Delaware corporation.                                        22  





 






               “IAC Agreements” means each of the Separation Agreement dated as of  August  9,  2005,  by  and  between  IAC  and  the  Company,  the  Tax  Sharing  Agreement  dated  as  of  August  9,  2005,  by  and  between  IAC  and  the  Company,  the  Employee  Matters Agreement dated as of August 9, 2005, by and between IAC and the Company,  and the Transition Services Agreement dated as of August 9, 2005, by and between IAC  and the Company.               “Increase  Effective  Date”  has  the  meaning  assigned  to  such  term  in  Section 2.09(d)(i).               “Increasing  Lender”  has  the  meaning  assigned  to  such  term  in  Section  2.09(d)(i).               “Indebtedness”  of  any  Person  means,  without  duplication,  (a)  all  obligations  of  such  Person  for  borrowed  money,  (b)  all  obligations  of  such  Person  evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such  Person  under  conditional  sale  or  other  title  retention  agreements  relating  to  property  acquired  by  such  Person,  (d)  all  obligations  of  such  Person  in  respect  of  the  deferred  purchase price of property or services, (e) all Indebtedness of others secured by (or for  which the holder of such Indebtedness has an existing right, contingent or otherwise, to  be secured by) any Lien on property owned or acquired by such Person, whether or not  the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of  Indebtedness  of  others,  (g)  all  Capital  Lease  Obligations  and  all  Synthetic  Lease  Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as  an account party in respect of letters of credit and letters of guaranty, (i) all Disqualified  Equity Interests in such Person, valued, as of the date of determination, at the maximum  aggregate  amount  that  would  be  payable  upon  maturity,  redemption,  repayment  or  repurchase thereof (or of Disqualified Equity Interests or Indebtedness into which such  Disqualified  Equity  Interests  are  convertible  or  exchangeable),  (j)  all  Securitization  Transactions  of  such  Person  and  (k)  all  obligations,  contingent  or  otherwise,  of  such  Person in respect of bankers’ acceptances.  The Indebtedness of any Person shall include  the Indebtedness of any other Person (including any partnership in which such Person is a  general partner) to the extent such Person is liable therefor as a result of such Person’s  ownership interest in or other relationship with such other Person, except to the extent the  terms  of  such  Indebtedness  provide  that  such  Person  is  not  liable  therefor.   Notwithstanding  the  foregoing,  Indebtedness  of  any  Person  shall  not  include  (i)  trade  payables, (ii) endorsements of checks, bills of exchange and other instruments for deposit  or collection in the ordinary course of business, (iii) customer deposits and advances, and  interest payable thereon, in the ordinary course of business in accordance with customary  trade  terms  and  other  obligations  incurred  in  the  ordinary  course  of  business  through  credit on an open account basis customarily extended to such Person in connection with  the purchase of goods or services, or (iv) obligations under overdraft arrangements with  banks incurred in the ordinary course of business to cover working capital needs.               “Indemnified  Taxes” means  Taxes,  other than Excluded Taxes,  imposed  on  or  with  respect  to  any  payment  made  by  or  on  account  of  any  obligation  of  any  Borrower under any Loan Document.                                        23  





 






               “Indemnitee” has the meaning assigned to such term in Section 9.03(b).               “Initial  Loans”  has  the  meaning  assigned  to  such  term  in  Section  2.09(d)(ii).               “Interest  Election  Request”  means  a  request  by  a  Borrower (or  the  Company on its behalf) to convert or continue a Borrowing in accordance with Section  2.08.2.08, which shall be in the form of Exhibit A-4 or any other form approved by  the Administrative Agent.               “Interest Payment Date” means (a) with respect to any ABR Loan, the last  day  of  each  March,  June,  September  and  December  and  (b)  with  respect  to  any  Eurocurrency  Loan,  the  last  day  of  the  Interest  Period  applicable  to  the  Borrowing  of  which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest  Period of more than three months’ duration, each day prior to the last day of such Interest  Period that occurs at intervals of three months’ duration after the first day of such Interest  Period.               “Interest Period” means, with respect to any Eurocurrency Borrowing, the  period  commencing  on  the  date  of  such  Borrowing  and  ending  on  the  numerically  corresponding day in the calendar month that is one, two, three or six months (or, with  the  consent  of  each  Lender  participating  therein,  twelve  months)  thereafter,  as  the  applicable Borrower (or the Company on its behalf) may elect; provided that (a) if any  Interest Period would end on a day other than a Business Day, such Interest Period shall  be extended to the next succeeding Business Day unless such next succeeding Business  Day would fall in the next calendar month, in which case such Interest Period shall end  on the next preceding Business Day, and (b) any Interest Period that commences on the  last  Business  Day of a  calendar month (or on  a day  for which there is  no numerically  corresponding day in the last calendar month of such Interest Period) shall end on the last  Business Day of the last calendar month of such Interest Period.  For purposes hereof, the  date  of  a  Borrowing  initially  shall  be  the  date  on  which  such  Borrowing  is  made  and  thereafter shall be the effective date of the most recent conversion or continuation of such  Borrowing.               “Interpolated  Screen  Rate”  means,  with  respect  to  any  Eurocurrency  Borrowing denominated in any currency for any Interest Periodperiod, a rate per annum  which results from interpolating on a linear basis between (a) the applicable Screen Rate  for  the  longest  maturity  for  which  a  Screen  Rate  is  available  that  is  shorter  than  such  Interest  Periodperiod  and  (b)  the  applicable  Screen  Rate  for  the  shortest  maturity  for  which a Screen Rate is available that is longer than such Interest Periodperiod, in each  case as of the Specified Time on the Quotation Datetime the Interpolated Screen Rate  is  required  to  be  determined  in  accordance  with  the  other  provisions  hereof;  provided that the Interpolated Screen Rate shall in no event be less than zero.               “IRS” means the US Internal Revenue Service.                                         24  





 






               “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).               “Issuing  Bank”  means  (a)  each  of  JPMorgan  Chase  Bank,  N.A.,  BNP  Paribas, Bank of America, N.A. and (b) any other Lender that has entered into an Issuing  Bank Agreement with the Company, each in its capacity as an issuer of Letters of Credit  hereunder,  and  its  successors  in  such  capacity  as  provided  in  Section  2.06(i).   Each  Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued  by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include  any  such  Affiliate  with  respect  to  Letters  of  Credit  issued  by  such  Affiliate  (it  being  agreed  that  such  Issuing  Bank  shall,  or  shall  cause  such  Affiliate  to,  comply  with  the  requirements of Section 2.06 with respect to such Letters of Credit).               “Issuing Bank Agreement” means an agreement among the Company, the  Administrative  Agent  and  a  financial  institution  pursuant  to  which  such  financial  institution agrees to act as an Issuing Bank hereunder, in the form of Exhibit A-2 or any  other form approved by the Administrative Agent.               “Judgment Currency” has  the meaning assigned  to  such term in  Section  9.15(b).               “LC  Commitment”  means,  as  to  any  Issuing  Bank,  the  maximum  permitted amount of the LC Exposure that may be attributable to Letters of Credit issued  by such Issuing Bank.  The initial amount of each Issuing Bank’s LC Commitment is set  forth  on  Schedule  2.06  or  in  such  Issuing  Bank’s  Issuing  Bank  Agreement.  The  LC  Commitment  of  any  Issuing  Bank  may  be  increased  or  reduced  by  written  agreement between such Issuing Bank and the Company, provided that a copy of  such written agreement shall have been delivered to the Administrative Agent.               “LC Disbursement” means a payment made by an Issuing Bank pursuant  to a Letter of Credit.  The amount of any LC Disbursement made by an Issuing Bank in  an  Alternative LC  Currency  and  not  reimbursed  by  the  applicable  Borrower  shall  be  determined as set forth in Section 2.06(e) or 2.06(l), as applicable.               “LC  Exchange  Rate”  means,  on  any daydate  of  determination,  with  respect to US Dollars in relation to any Alternative LC Currency, the rate at which US  Dollars  may  be  exchanged  into  such  Alternative LC Currency, as  set  forth  at  approximately 12:00 noon, New York City time, on such daydetermined by using the  closing rate of exchange as of the Business Day immediately preceding such date of  determination, as such closing rate of exchange is displayed on the applicable Reuters  World  Currency  Page.   In  the  event  that  such  rate  does  not  appear  on  the  applicable  Reuters World Currency Page, the LC Exchange Rate shall be determined by reference to  such  other  publicly  available  service  for  displaying  exchange  rates  as  may  be  agreed  upon by the Applicable Agent and the Company or, in the absence of such agreement, the  LC Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of  the  Applicable  Agent  in  the  market  where  its  foreign  currency  exchange  operations  in                                        25  





 






   respect of such currency are then being conducted, at or about 11:00 a.m., London time,  on  such  date  for  the  purchase  of  such  Alternative LC  Currency  with  US  Dollars  for  delivery two Business Days later; provided that if at the time of any such determination,  for any reason, no such spot rate is being quoted, the Applicable Agent, after consultation  with  the  Company,  may  use  any  reasonable  method  it  deems  appropriate  to  determine  such  rate,  and  such  determination  shall  be  conclusive  absent  manifest  error.   For  the  avoidance  of  doubt,  any  exchange  rate  used  will  be  with  no  mark-up  or  spread  added.               “LC Exposure” means, at any time, the sum of (a) the aggregate of the US  Dollar Equivalents (based on the applicable Exchange Rates) of the undrawn amounts of  all  outstanding  Letters  of  Credit  at  such  time  plus  (b)  the  aggregate  of  the  US  Dollar  Equivalents (based on the applicable Exchange Rates) of all LC Disbursements that have  not yet been reimbursed by or on behalf of the applicable Borrower at such time.  The LC  Exposure  of  any  Lender  at  any  time  shall  be  its  Combined  Tranche  Percentage  of  the  total  LC  Exposure  at  such  time,  adjusted  (without  duplication)  to  give  effect  to  any  reallocation  under  Section  2.20  of  the  LC  Exposure  of  Defaulting  Lenders  in  effect  at  such time.               “LC  Participation  Calculation  Date”  means,  with  respect  to  any  LC  Disbursement  made  by  any  Issuing  Bank  or  any  refund  of  a  reimbursement  payment  made by any Issuing Bank to any Borrower, in  each case in  a currency other than US  Dollars, (a) the date on which such Issuing Bank shall advise the Applicable Agent that it  purchased with US Dollars the currency used to make such LC Disbursement or refund or  (b)  if  such  Issuing  Bank  shall  not  advise  the  Applicable  Agent  that  it  made  such  a  purchase, the date on which such LC Disbursement or refund is made.               “Lender  Parent”  means,  with  respect  to  any  Lender,  any  Person  in  respect of which such Lender is a subsidiary.                “Lenders” means the Persons listed on Schedule 2.01 and any other Person  that  shall  have  become  a  party  hereto  pursuant  to  Section  2.09(d)  or  9.02(c)  or  an  Assignment and Assumption, other than any such Person that ceases to be a party hereto  pursuant to an Assignment and Assumption.               “Letter  of  Credit”  means  any  letter  of  credit  issued  pursuant  to  this  Agreement,  and,  as  of  the  Restatement  Effective  Date,  the  Existing  Letters  of  Credit,  other  than  any  such  letter  of  credit  that  shall  have  ceased  to  be  a  “Letter  of  Credit”  outstanding hereunder pursuant to Section 9.05.               “Leverage Ratio” means, on any date, the ratio of (a) Consolidated Funded  Debt  as  of  such  date  to  (b)  Consolidated  EBITDA  for  the  period  of  four  consecutive  fiscal quarters of the Company ended on such date (or, if such date is not the last day of a  fiscal quarter of the Company, ended most recently prior to such date).               “Liberty Successor” means any Person spun or otherwise separated out of  Liberty  Interactive Corporation (or any Subsidiary thereof);  provided  no Person that is                                        26  





 






   not a Permitted Holder is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5  under  the  Exchange  Act),  directly  or  indirectly,  of  more  than  50%  of  the  total  voting  power of the Voting Stock of such Person or otherwise Controls such Person.               “LIBO Rate” means, with respect to any Borrowing denominated in any  currency (other than Euro)US Dollars or Sterling for any Interest Period, the applicable  Screen Rate as of the Specified Time on the Quotation Date.               “Lien” means, with respect to any asset, (a) any mortgage, deed of trust,  lien,  pledge,  hypothecation,  encumbrance,  charge  or  security  interest  in,  on  or  of  such  asset and (b) the interest of a vendor or a lessor under any conditional sale agreement,  capital lease or title retention agreement (or any financing lease having substantially the  same economic effect as any of the foregoing) relating to such asset.               “Loan  Documents”  means  (a)  this  Agreement, theeach  Guarantee  Agreement,  the Reaffirmation  Agreement,  the  FirstFourth  Amendment  Effective  Date  Reaffirmation  Agreement,  the  Borrowing  Subsidiary  Agreements,  the  Borrowing  Subsidiary  Terminations,  any  documentation  referred  to  in  Section  2.09(d)(i)  and  any  promissory  notes  delivered  pursuant  to  Section  2.10(e)  and  (b)  except  for  purposes  of  Section  9.02,  any  letter  of  credit  applications  referred  to  in  Section  2.06(a)  and  any  Issuing Bank Agreement.               “Loan” means any loan made by the Lenders to any Borrower pursuant to  this Agreement.               “Loan Parties” means the Company and the Subsidiary Loan Parties.               “Local Time” means (a) with respect to a Loan or Borrowing denominated  in US Dollars or any Letter of Credit, New York City time, (b) with respect to a Loan or  Borrowing  denominated  in  Euro,  Frankfurt  time, and (c)  with  respect  to  a  Loan  or  Borrowing denominated in any other currencyCanadian Dollars, Toronto time, and (d)  with respect to a Loan or Borrowing denominated in Sterling or Australian Dollars,  London time.                “London Agent” means J.P. Morgan Europe Limited, JPMorgan Chase  Bank,  N.A. or  any  other  Affiliate  or  branch  of  JPMorgan  Chase  Bank,  N.A.,  that  JPMorgan  Chase  Bank,  N.A.  shall  have  designated  for  the  purpose  of  acting  in  such  capacity hereunder.               “Material  Adverse  Effect”  means  a  material  adverse  effect  on  (a)  the  business,  results  of  operations,  assets  or  financial  condition  of  the  Company  and  the  Subsidiaries, taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to  perform  their  obligations  under  the  Loan  Documents  or  (c)  the  rights  of  or  benefits  available to the Lenders under the Loan Documents, taken as a whole.               “Material  Indebtedness”  means  Indebtedness  (other  than  the  Loans,  Letters of Credit and Guarantees under the Loan Documents), or obligations in respect of  one or more Swap Agreements, of any one or more of the Company and the Subsidiaries                                       27  





 






   in  an  aggregate  principal  amount  exceeding  US$50,000,000.   For  purposes  of  determining Material Indebtedness, the “amount” of the obligations of the Company or  any Subsidiary in respect of (a) any Swap Agreement at any time shall be (i) the mark-to- market  value  for  such  Swap  Agreement  based  upon  one  or  more  mid-market  or  other  readily  available  quotations  provided  by  any  recognized  dealer  in  Swap  Agreements  (which may include a Lender or any Affiliate of a Lender) or (ii) in the absence of any  such  quotations,  the  maximum  aggregate  principal  amount  that  the  Company  or  such  Subsidiary would be required to pay if such Swap Agreement were terminated at such  time,  in  each  case  giving  effect  to  any  applicable  netting  agreements  and  (b)  any  Securitization Transaction shall be determined as set forth in the definition of such term.               “Material  Subsidiary”  means,  at  any  time,  each  Subsidiary  other  than  Subsidiaries that (a) together with their own subsidiaries, do not represent more than 2%  for any such Subsidiary, or more than 10% in the aggregate for all such Subsidiaries, of  either (i) Consolidated Total Assets or (ii) Consolidated Revenues of the Company and  the Subsidiaries at the end of or for the period of four consecutive fiscal quarters of the  Company most recently ended prior to such time and (b) do not own Equity Interests or  Indebtedness (other than de minimis Indebtedness) of any Material Subsidiary; provided  that each Borrowing Subsidiary shall in any event be a Material Subsidiary.               “Maturity Date” means February 4, 2021.May 31, 2023.               “Maximum Rate” has the meaning assigned to such term in Section 9.13.               “Moody’s” means  Moody’s  Investors  Service,  Inc. and any successor to  its rating agency business.               “Multiemployer Plan” means a multiemployer plan, as defined in Section  4001(a)(3) of ERISA, that is maintained, sponsored or contributed to by the Company or  any ERISA Affiliate.               “New  Headquarters”  means  (a)  the  approximately  41-acre  site  with  a  current street address of 1201 Amgen Ct W, Seattle, WA 98119, (b) any subsequently  acquired real properties either (i) adjacent to the property described in clause (a) of this  definition or (ii) used in connection with the headquarters (or potential headquarters) of  the Company and in the general vicinity of the property described in clause (a) of this  definition  and  (c)  all  current  or  future  improvements  on  any  of  the  real  properties  described in clause (a) or (b) of this definition.               “New Headquarters Assets” means the New Headquarters, together with  all fixtures currently or subsequently located thereon and all personal property currently  or subsequently located thereon or directly relating thereto that, in the case of any such  personal  property,  is  customarily  financed  together  with  real  properties  similar  to  the  New Headquarters.               “New  Headquarters  SPV”  means  a  Subsidiary  that  is  a  special  purpose  entity  formed  for  the  purpose  of  incurring  Indebtedness  in  order  to  finance  the  acquisition, construction or improvement of the New Headquarters Assets (including any                                       28  





 






   such Indebtedness incurred after the consummation of such acquisition, construction or  improvement),  provided  that  (a)  such  Subsidiary  does  not  own  any  significant  assets  other than the New Headquarters Assets and assets relating to its existence or incurrence  of such Indebtedness, (b) such Subsidiary conducts no significant business other than the  ownership  of  the  New  Headquarters  Assets  and  activities  incidental  thereto  (including  leasing of all or any portion of the New Headquarters Assets to the Company or any of its  Subsidiaries  and  related  contractual  relationships)  and  (c)  such  Subsidiary  does  not  Guarantee any Material Indebtedness of the Company or any Subsidiary (other than the  New Headquarters Parent SPV); provided further that the New Headquarters SPV may  not be designated as a Borrowing Subsidiary.               “New  Headquarters  Parent  SPV”  means  a  Subsidiary  that  is  a  special  purpose  entity  formed  for  the  purpose  of  being  the  direct  parent  company  of  the  New  Headquarters SPV, provided that (a) such Subsidiary does not own any significant assets  other  than  Equity  Interests  in,  and  Indebtedness  or  other  obligations  of,  the  New  Headquarters SPV and assets relating to its existence, (b) such Subsidiary conducts no  significant  business  other  than  business  relating  to  ownership  of  assets  referred  to  in  clause (a) above and (c) such Subsidiary does not Guarantee any Material Indebtedness  of  the  Company  or  any  Subsidiary  (other  than  the  New  Headquarters  SPV);  provided  further  that  the  New  Headquarters  Parent  SPV  may  not  be  designated  as  a  Borrowing  Subsidiary.               “New York Fed” means the Federal Reserve Bank of New York.               “New  York  Fed  Bank  Rate”  means,  for  any  day,  the  greater  of  (a)  the  Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding  Rate in effect on such day; provided that if both such rates are not published for any day  that is a Business Day, the term “New York Fed Bank Rate” means the rate quoted for  such day for a federal funds transaction at 11:00 a.m., New York City time, on such day  received by the Administrative Agent from a Federal funds broker of recognized standing  selected by it; provided further that if any of the foregoing rates shall be less than zero,  such rate shall be deemed to be zero for purposes of this Agreement.               “Non-Defaulting  Lender”  means,  at  any  time,  any  Lender  that  is  not  a  Defaulting Lender at such time.               “Non-Guarantor  Borrower”  means,  at  any  time,  any  Borrower  that  is  a  Specified Foreign Subsidiary or a CFC Holdco and that is not, at such time, a Designated  Subsidiary.               “Non-Increasing  Lender”  has  the  meaning  assigned  to  such  term  in  Section 2.09(d)(i).               “Obligations”  has  the  meaning  assigned  to  such  term  in  the  Guarantee  Agreement.               “OECD”  means  the  Organization  for  Economic  Cooperation  and  Development.                                       29  





 






               “Other  Connection  Taxes”  means,  with  respect  to  either  Agent,  any  Lender,  any  Issuing  Bank  or  any  other  recipient  of  any  payment  to  be  made  by  or  on  account of any obligation of the Company or any Borrowing Subsidiary hereunder, Taxes  imposed  as  a  result  of  a  present  or  former  connection  between  such  recipient  and  the  jurisdiction  imposing  such  Tax  (other  than  connections  arising  from  such  recipient  having executed, delivered, become a party to, performed its obligations under, received  payments  under,  received  or  perfected  a  security  interest  under,  engaged  in  any  other  transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in  any Loan or Loan Document).                “Other Taxes” means any and all present or future stamp or documentary  Taxes or any other excise or property Taxes, charges or similar levies arising from any  payment made under any Loan Document or from the execution, delivery or enforcement  of,  or  otherwise  with  respect  to,  any  Loan  Document,  except  any  such  Taxes  that  are  Other  Connection  Taxes  imposed  with  respect  to  an  assignment  (other  than  an  assignment made at the request of the Company pursuant to Section 2.19(b)).               “Overnight Bank Funding Rate” means, for any day, the rate comprised of  both  overnight  federal  funds  and  overnight  Eurodollar  borrowings  by  U.S.-managed  banking offices of depositary institutions (as such composite rate shall be determined by  the New York Fed as set forth on its public website from time to time) and published on  the next succeeding Business Day by the New York Fed as an overnight bank funding  rate  (from  and  after  such  date  as  the  New  York  Fed  shall  commence  to  publish  such  composite  rate);  provided  that  if  such  rate  shall  be  less  than  zero,  such  rate  shall  be  deemed to be zero for purposes of this Agreement.               “Partial  Transfer”  has  the  meaning  assigned  to  such  term  in  Section  6.08(k).               “Partial  Transfer  Asset  Amount”  means,  for  any  Partial  Transfer  Subsidiary,  the  product  of  (a)  the  applicable  Partial  Transfer  Percentage  and  (b)  the  aggregate book value of all the assets of such Partial Transfer Subsidiary, determined as  of the end of the fiscal quarter of the Company ending on or most recently prior to the  date of the Partial Transfer.                “Partial  Transfer  EBITDA  Amount”  means,  for  any  Partial  Transfer  Subsidiary,  the  product  of  (a)  the  applicable  Partial  Transfer  Percentage  and  (b)  the  portion of the Consolidated EBITDA for the period of four consecutive fiscal quarters of  the Company ended on or most recently prior to the date of the Partial Transfer that is  attributable to such Partial Transfer Subsidiary.               “Partial  Transfer  Parent  Subsidiary”  has  the  meaning  assigned  to  such  term in Section 6.08(k).               “Partial Transfer Percentage” means, with respect to any Partial Transfer  Subsidiary, the percentage of the aggregate equity value of the applicable Partial Transfer  Parent Subsidiary held by Persons other than the Company or any Subsidiary as a result                                        30  





 






   of  any  Partial  Transfer  made  in  reliance  on  Section  6.08(k),  in  each  case  determined  immediately after giving effect to such Partial Transfer.               “Partial Transfer Spin-Off Subsidiary” has the meaning assigned to such  term in Section 6.08(k).               “Partial Transfer Subsidiaries” has the meaning assigned to such term in  Section 6.08(k).               “Participant” has the meaning assigned to such term in Section 9.04(c)(i).               “Participant Register” has  the meaning assigned to  such term  in  Section  9.04(c)(i).               “PBGC” means the Pension Benefit Guaranty Corporation referred to and  defined in ERISA and any successor entity performing similar functions.               “Permitted  Charitable  Contributions”  means  charitable  contributions  (as  defined in Section 170(c) of the Code, whether in the form of cash, securities or other  property and without regard to whether such charitable contributions are deductible for  income  tax  purposes)  made  by  the  Company  or  any  Subsidiary,  whether  directly  (including to a donor advised fund) or through one or more Affiliates, and any binding  commitment  with  respect  thereto;  provided  that  the  aggregate  amount  of  such  contributions  made by the Company and the Subsidiaries during any fiscal  year of the  Company,  together  with  the  aggregate  amount  of  all  binding  commitments  of  the  Company  and the Subsidiaries to make any such contributions during such fiscal  year,   may not exceed US$10,000,000 in the aggregate.               “Permitted Encumbrances” means:               (a)  Liens  imposed  by  law  for  taxes  that  are  not  yet  due  or  are  being  contested in compliance with Section 5.04;               (b)  carriers’,  warehousemen’s,  mechanics’,  materialmen’s,  repairmen’s,  vendors’  and  lessors’  Liens  (and  deposits  to  obtain  the  release  of  such  Liens),  setoff  rights  and  other  like  Liens  imposed  by  law  (or  contract,  to  the  extent  that  such  contractual Liens are similar in nature and scope to such Liens imposed by law), arising  in the ordinary course of business and securing obligations that (i) are not overdue by  more than 30 days or (ii) are being contested in good faith by appropriate proceedings;  provided that (A) the Company or such Subsidiary has set aside on its books adequate  reserves  with  respect  thereto  in  accordance  with  GAAP,  (B)  such  contest  effectively  suspends collection of the contested obligation and the enforcement of any Lien securing  such  obligation  and  (C)  the  failure  to  make  payment  pending  such  contest  could  not  reasonably be expected to result in a Material Adverse Effect;               (c)  pledges  and  deposits  made  in  the  ordinary  course  of  business  in  compliance with workers’ compensation, disability, unemployment insurance and other  similar plans or programs and other social security laws or regulations;                                        31  





 






               (d)  deposits  to  secure  the  performance  of  bids,  trade  contracts,  leases,  statutory obligations, surety and appeal bonds, performance bonds and other obligations  of a like nature (including deposits in respect of tax assessments (or in respect of any  performance bonds posted in connection therewith) that are required to be made by the  assessing  municipalities  prior  to  the  commencement  of  litigation  challenging  such  assessments), in each case in the ordinary course of business;               (e)  judgment liens in respect of judgments that do not constitute an Event  of Default under Section 7.01(k); and               (f)  easements,  zoning  restrictions,  rights-of-way  and  similar  encumbrances  on  real  property  imposed  by  law  or  arising  in  the  ordinary  course  of  business that do not secure any monetary obligations and do not materially detract from  the value of the affected property or interfere with the ordinary conduct of business of  the Company or any Subsidiary;   provided  that  the  term  “Permitted  Encumbrances”  shall  not  include  any  Lien  securing  Indebtedness.               “Permitted Holders” means Barry Diller, Liberty Interactive Corporation,  any  Liberty  Successor,  their  respective  Affiliates  and  any  group  of  which  any  of  the  foregoing is, in terms of both economic and voting interest, one of the principal members.               “Permitted Investments” means:               (a)  direct  obligations  of  the  United  States  of  America  (including  U.S.        Treasury bills, notes and bonds) that are backed by the full faith and credit of the        United States of America;               (b) direct obligations of any agency of the United States of America that        are backed by the full faith and credit of the United States of America and direct        obligations  of  United  States  of  America  government-sponsored  enterprises        (including  the  Federal  National  Mortgage  Association  and  the  Federal  Home        Loan Mortgage Corporation) that are rated the same as direct obligations of the        United States of America;               (c) direct obligations of, and obligations fully guaranteed by, any State of        the United States of America that, on the date of acquisition, are rated investment        grade by Moody’s or by S&P, including general obligation and revenue notes and        bonds,  insured  bonds  (including  all  insured  bonds  having,  on  the  date  of        acquisition, a credit rating of Aaa by Moody’s and AAA by S&P) and refunded        bonds (reissued bonds collateralized by U.S. Treasury securities);               (d) Indebtedness of any  county or other local governmental body within        the United States of America having, on the date of acquisition, a credit rating of        Aaa  by  Moody’s  or  AAA  by  S&P,  or  Auction  Rate  Securities,  Tax-Exempt        Commercial Paper or Variable Rate Demand Notes issued by such bodies that is,                                        32  





 






                      on the date of acquisition, rated  at  least  A3/P-1/VMIG-1 by Moody’s  or A-/A- 1/SP-1 by S&P;         (e) non-US Dollar denominated indebtedness of other sovereign countries  having, on the date of acquisition, a credit rating of Aaa by Moody’s or AAA by  S&P;         (f)  non-US  Dollar  denominated  indebtedness  of  government  agencies  having, on the date of acquisition, a credit rating of Aaa by Moody’s or AAA by  S&P;         (g) mortgage-backed securities of the United States of America and/or any  agency thereof that are backed by the full faith and credit of the United States of  America; provided that such mortgage-backed securities that are purchased on a  TBA (“To-Be-Announced”) basis must have a settlement date of less than three  months from date of purchase;         (h)  collateralized  mortgage  obligations  of  the  United  States  of  America  and/or any agency thereof that are backed by the full faith and credit of the United  States of America;         (i) commercial paper issued by any corporation or bank having a maturity  of nine months or less and having, on the date of acquisition, a credit rating of at  least P1 or the equivalent thereof from Moody’s or A1 or the equivalent thereof  from S&P;         (j) money market investments, deposits, bankers acceptances, certificates  of deposit, notes and other like instruments, in each case issued by any domestic  bank  that  has  a  combined  capital  and  surplus  and  undivided  profits  of  not  less  than US$500,000,000;         (k) money market investments, deposits, bankers acceptances, certificates  of deposit, notes and other like instruments, in each case directly guaranteed by  any commercial bank organized under the laws of the Republic of Singapore, the  People’s  Republic  of  China,  the  Federative  Republic  of  Brazil,  the  Russian  Federation,  the  Republic  of  India,  the  Republic  of  Indonesia  or  of  a  member  nation  of  the  European  Union  or  the  OECD  which  has  a  combined  capital  and  surplus  and undivided profits  of not  less than US$500,000,000, denominated in  US  Dollars,  Sterling,  Euro,  Canadian  Dollars,  Australian  Dollars,  Norwegian  Kroner,  Swiss  Francs,  Japanese  Yen,  Singapore  Dollars,  Renminbi,  Brazilian  Reals, Russian Rubles, Indian Rupees or Indonesian Rupiahs; (l)  direct  obligations  of  corporations,  banks  or  financial  entities  and  agencies,  including  medium  term  notes  (MTN)  and  bonds,  structured  notes  and  Eurodollar/Yankee  notes and bonds, in each case having, at the date of acquisition, a credit rating of  at least Baa1 from Moody’s or BBB+ from S&P;                                                      33  





 






               (ml)  repurchase  and  reverse  repurchase  agreements  for  securities        described in clauses (a) through (c) above with a financial institution described in        clause (j) or (k) above;               (nm)  asset-backed  securities  that  are,  on  the  date  of  acquisition,  rated        BBB+ by S&P or Baa1 by Moody’s;               (on)  money  market  funds  and  mutual  funds  consisting  primarily  of        investments described in clauses (a) through (nm) above, in each case having a        credit rating of at least Aaa from Moody’s or AAA from S&P, and in each case        having at least US$500,000,000 of assets under management;                (po) money market investments, deposits, bankers acceptances, certificates        of deposit, notes and other like instruments, in each case not described in clause        (j) or (k) of this definition to the extent that (i) the issuing bank is organized under        the laws of a country in which the Company or any of its Subsidiaries conducts        operations  and  (ii)  the  aggregate  amount  of  such  instruments  issued  by  any        individual bank or its  Affiliates  held  by the Company and its  Subsidiaries does        not exceed US$20,000,000; and               (qp) other investments determined by the Company or any Subsidiary to        entail credit risks not materially greater than those associated with the foregoing        investments and approved in writing by the Administrative Agent.               “Person”  means  any  natural  person,  corporation,  limited  liability  company, trust, joint venture, association, company, partnership, Governmental Authority  or other entity.               “Plan”  means  any  employee  pension  benefit  plan  (other  than  a  Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the  Code  or  Section  302  of  ERISA  that  is  maintained,  sponsored  or  contributed  to  by  the  Company or any ERISA Affiliate.               “Platform” has the meaning set forth in Section 9.01(e).               “Prime  Rate”  means  the  rate  of  interest  per  annum  publicly  announced  from  time  to  time  by  JPMorgan  Chase  Bank,  N.A.  as  its  prime  rate  in  effect  at  its  principal office in New York City.  Each change in the Prime Rate shall be effective from  and including the date such change is publicly announced as being effective.               “PTE” means a prohibited transaction class exemption issued by the  U.S.  Department of Labor, as  any such exemption may be amended from time  to  time.               “Quotation Date” means (a) with respect to any Eurocurrency Borrowing  denominated  in any  currency  other  than  Sterling  or  EuroUS  Dollars  for  any  Interest  Period, two Business Days prior to the first day of such Interest Period, (b) with respect  to  any  Eurocurrency  Borrowing  denominated  in  Sterling,  Canadian  Dollars  or                                        34  





 






   Australian Dollars for any Interest Period, the first Business Day of such Interest Period  and (c) with respect to any Eurocurrency Borrowing denominated in Euro for any Interest  Period, the day two TARGET Days before the first day of such Interest Period, in each  case  unless  market  practice  differs  for  loans  such  as  the  applicable  Loans  priced  by  reference to rates quoted in the Relevant Interbank Market, in which case the Quotation  Date for such currency shall be determined by the Applicable Agent in accordance with  market  practice  for  such  loans  priced  by  reference  to  rates  quoted  in  the  Relevant  Interbank Market (and if quotations would normally be given by leading banks for such  loans priced by reference to rates quoted in the Relevant Interbank Market on more than  one day, the Quotation Date shall be the last of those days).“Reaffirmation Agreement”  means  the  Reaffirmation  Agreement  dated  the  date  hereof,  among  the  Company,  the  Borrowing  Subsidiaries,  the  other  Subsidiaries  of  the  Company  party  thereto  and  the  Administrative Agent.               “Register” has the meaning assigned to such term in Section 9.04(b)(iv).               “Related  Parties”  means,  with  respect  to  any  specified  Person,  such  Person’s  Affiliates  and  the  respective  directors,  trustees,  partners,  officers,  employees,  agents and advisors of such Person and such Person’s Affiliates.               “Relevant  Interbank  Market”  means  (a)  with  respect  to any  currency  (other than Euros)US Dollars and Sterling, the London interbank market, and (b) with  respect to Euros, the European interbank market, (c) with respect to Canadian Dollars,  the  Toronto  interbank  market  and  (d)  with  respect  to  Australian  Dollars,  the  Australian interbank market.               “Required Lenders” means, at any time, Lenders having Revolving Credit  Exposures and unused Commitments representing more than 50% of the sum of the total  Revolving Credit Exposures and unused Commitments at such time.               “Restatement  Effective  Date”  means  the  date  on  which  the  conditions  specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).               “Restricted Payment” means  any dividend or other distribution (whether  in cash, securities or other property) with respect to any Equity Interests in the Company  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  in  the  Company or any Subsidiary.               “Revolving  Credit  Exposure”  means,  with  respect  to  any  Lender  at  any  time,  the  sum  at  such  time  of  such  Lender’s  US  Tranche  Revolving  Exposure  and  European Tranche Revolving Exposure at such time.               “S&P” means Standard & Poor’s Ratings Group, a division of McGraw- Hill FinancialS&P Global Inc., and any successor to its rating agency business.                                         35  





 






               “Sale/Leaseback  Transaction”  means  any  arrangement,  directly  or  indirectly, with any Person whereby the Company or any Subsidiary shall sell or transfer  any  property,  real  or  personal,  used  or  useful  in  its  business,  whether  now  owned  or  hereafter acquired, and thereafter the Company or any such Subsidiary shall rent or lease  property  that  it  intends  to  use  for  substantially  the  same  purpose  or  purposes  as  the  property being sold or transferred.  The “amount” of any Sale/Leaseback Transaction at  any  time  will  be  the  capitalized  amount  of  the  lease  included  in  such  transaction  as  reflected  on  the  most  recent  consolidated  balance  sheet  of  the  Company  delivered  pursuant to Section 5.01 (or, in the case of a Sale/Leaseback Transaction resulting in a  lease that is not a Capital Lease, the amount that would be so reflected in respect of such  lease if it were a Capital Lease).               “Sanctioned  Country”  means,  at  any  time,  a  country,  region  or  territory  which is itself the subject or target of any Sanctions (as of the FirstFourth Amendment  Effective Date, Crimea, Cuba, Iran, North Korea, Sudan and Syria).               “Sanctioned  Person”  means,  at  any  time,  (a)  any  Person  listed  in  any  Sanctions-related list of designated Persons maintained by the Office of Foreign Assets  Control of the U.S. Department of the Treasury or the U.S. Department of State or (b)  any other Person dealings with which are the subject of Sanctions.               “Sanctions”  means  economic  or  financial  sanctions  or  trade  embargoes  imposed,  administered  or  enforced  from  time  to  time  by  (a)  the  U.S.  government,  including  those  administered  by  the  Office  of  Foreign  Assets  Control  of  the  U.S.  Department of the Treasury or the U.S. Department of State, or (b) the European Union  or Her Majesty’s Treasury of the United Kingdom.               “Screen  Rate”  means  (a)  in  respect  of  the  LIBO  Rate  for  any  Interest  Period or with respect to any determination of the Alternate Base Rate pursuant to  clause  (c)  of  the  definition  thereof,  a  rate  per  annum  equal  to  the  London  interbank  offered rate as administered by the ICE Benchmark Administration (or any other Person  that takes over the administration of such rate) for deposits in the applicable currency (for  delivery on the first day of such Interest Period) with a term equivalent to such Interest  Period  as  displayed  on  the  Reuters  screen  page  that displays such  rate (currently  LIBOR01  or  LIBOR02)  (or,  in  the  event  such  rate  does  not  appear  on  a  page  of  the  Reuters  screen,  on  the  appropriate  page  of  such  other commercially  available  information service that publishes such rate as shall be selected by the Applicable Agent  from time to time), and (b) in respect of the EURIBO Rate for any Interest Period, the  percentage  per  annum  determined  by  the Banking  Federation  of  the  European  UnionEuropean  Money  Market  Institute  (or  any  other  Person  that  takes  over  the  administration of such rate) for such Interest Period as set forth on the Reuters screen  page that displays such rate (currently EURIBOR01) (or, in the event such rate does not  appear  on  a  page  of  the  Reuters  screen,  on  the  appropriate  page  of  such  other  commercially  available  information  service  that  publishes  such  rate  as  shall  be  selected by the Applicable Agent from time to time), (c) in respect of the CDO Rate  for  any  Interest  Period,  the  average  rate  per  annum  for  bankers  acceptances  as  administered  by  the  Investment  Industry  Regulatory  Organization  of  Canada  (or                                        36  





 






   any other Person that takes over the administration of that rate) with a term equal  to such Interest Period displayed on the Reuters screen page that displays such rate  (currently page CDOR01) (or, in the event such rate does not appear on a page of  the Reuters  screen, on  the appropriate page of such other commercially available  information service that publishes such rate as shall be selected by the Applicable  Agent  from  time  to  time), and (d)  in  respect  of  the  AUD  Bank  Bill  Rate  for  any  Interest Period, the average bid reference rate per annum as administered by the  Australian Financial Markets Association (or any other Person that takes over the  administration of such rate) for bills of exchange in Australian Dollars (for delivery  on  the  first  day  of  such  Interest  Period)  with  a  term  equivalent  to  such  Interest  Period as displayed on the applicable Reuters screen page (currently page BBSY)  (or, in the event such rate does not appear on a page of the Reuters screen, on the  appropriate  page  of  such  other  commercially  available information  service  that  publishes  such  rate  as  shall  be  selected  by  the  Applicable  Agent  from  time  to  time);  provided that if the Screen Rate, determined as provided above, would be less than zero,  the Screen Rate shall for all purposes of this Agreement be zero.  If, as to any currency,  no Screen Rate shall be available for a particular Interest Period but Screen Rates shall be  available for maturities both longer and shorter than such Interest Period, then the Screen  Rate for such Interest Period shall be the Interpolated Screen Rate.               “SEC” means the United States Securities and Exchange Commission.               “Second  Amendment”  means  the  Second  Amendment,  dated  as  of  December 22, 2016, to this Agreement.               “Second  Amendment  Effective  Date”  has  the  meaning  assigned  to  such  term in the Second Amendment.               “Securities Act” means the United States Securities Act of 1933.               “Securitization Receivables” has the meaning assigned to such term in  the definition of “Securitization Transaction”.               “Securitization  Subsidiary”  means  any  Subsidiary  that  is  a  special  purpose entity formed for the purpose of engaging in activities in connection with  Securitization  Transactions, provided  that  such  Subsidiary  (a)  does  not own  any  significant  assets  other  than  Securitization  Receivables,  Equity  Interests  in  any  other  Securitization  Subsidiary,  assets  relating  to  its  existence  and  other  assets  ancillary to any of the foregoing and (b) conducts no business activities other than in  connection  with  Securitization  Transactions  and  activities  incidental  thereto;  provided  further  that  a  Securitization  Subsidiary  may  not  be  designated  as  a  Borrowing Subsidiary.               “Securitization Transaction” means any transfer by the Company or any  Subsidiary of accounts receivable or interests therein (collectively, the “Securitization  Receivables”)  (a)  to  a  trust,  partnership,  corporation  or  other  entity,  which  transfer  is  funded in  whole or in  part, directly or indirectly, by the incurrence or issuance by the                                        37  





 






   transferee or any successor transferee of Indebtedness, fractional undivided interests or  securities that are to receive payments from, or that represent interests in, the cash flow  derived from such accounts receivable or interests, or (b) directly, or indirectly through a  special purpose vehicle, to one or more investors or other purchasers.  The amount of any  Securitization Transaction shall be deemed at any time to be the aggregate principal or  stated  amount  of  the  Indebtedness,  fractional  undivided  interests  or  other  securities  referred  to  in  the  preceding  sentence  or,  if  there  shall  be  no  such  principal  or  stated  amount, the uncollected amount of the accounts receivable or interests therein transferred  pursuant  to  such  Securitization  Transaction  net  of  any  such  accounts  receivable  or  interests therein that have been written off as uncollectible and/or any discount (but not in  excess  of  the  discount  that  would  be  usual  and  customary  for Securitization  Transactionssecuritization  transactions  of  this  type  in  light  of  the  then  prevailing  market conditions) in the purchase price therefor.  For purposes of Section 6.02 only, a  Securitization  Transaction  shall  be  deemed  to  be  secured  by  a  Lien  on  the  accounts  receivable or interests therein that are subject thereto, and such accounts receivable and  interests shall be deemed to be assets of the Company and the Subsidiaries.               “Singapore Dollars” or “SGD$” refers to lawful money of Singapore.               “Specified  Foreign  Subsidiary”  means  (a)  any  Subsidiary  that  is a  “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) and  (b) any subsidiary of any entity described in clause (a) of this definition.               “Specified  Time”  means  (a)  with  respect  to  the  LIBO  Rate,  11:00  a.m.,  London time, and (b) with respect to the EURIBO Rate, 11:00 a.m., Frankfurt time, (c)  with respect to the CDO Rate, 11:00 a.m., Toronto time, and (d) with respect to the  AUD Bank Bill Rate, 11:00 a.m., Sydney time.               “Statutory Reserve Rate” means  a fraction (expressed as  a decimal), the  numerator of which is the number one and the denominator of which is the number one  minus  the  aggregate  of  the  maximum  reserve  (including  any  marginal,  special,  emergency or supplemental reserves) established by the Board of Governors to which  the  Administrative  Agent  is  subject  for  eurocurrency  funding  (currently  referred  to  as  “Eurocurrency Liabilities” in Regulation D of the Board of Governors).  Such reserve  percentages  shall  include  those  imposed  pursuant  to  Regulation  D  of  the  Board  of  Governors.  Eurocurrency Loans shall be deemed to constitute eurocurrency funding and  to  be  subject  to  such  reserve  requirements  without  benefit  of  or  credit  for  proration,  exemptions or offsets that may be available from time to time to any Lender under any  applicable law, rule or regulation, including Regulation D.  The Statutory Reserve Rate  shall  be  adjusted  automatically  on  and  as  of  the  effective  date  of  any  change  in  any  reserve percentage.               “Sterling” or “£” means the lawful currency of the United Kingdom.               “Subsequent  Borrowings”  has  the  meaning  assigned  to  such  term  in  Section 2.09(d)(ii).                                        38  





 






               “subsidiary” means, with respect to any Person (the “parent”) at any date,  any  corporation,  limited  liability  company,  partnership,  association  or  other  entity  the  accounts  of  which  would  be  consolidated  with  those  of  the  parent  in  the  parent’s  consolidated  financial  statements  if  such  financial  statements  were  prepared  in  accordance with GAAP as of such date, as well as any other corporation, limited liability  company, partnership, association or other entity of which securities or other ownership  interests  representing  more  than  50%  of  the  equity  or  more  than  50%  of  the  ordinary  voting power or, in the case of a partnership, more than 50% of the general partnership  interests  are,  as  of  such  date,  owned,  controlled  or  held  by  the  parent  or  one  or  more  subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.               “Subsidiary” means any subsidiary of the Company.               “Subsidiary  Loan  Party”  means  each  Subsidiary  that  is  a  party  to  a  Guarantee Agreement.               “Swap  Agreement”  means  any  agreement  with  respect  to  any  swap,  forward,  future  or  derivative  transaction  or  option  or  similar  agreement  involving,  or  settled  by  reference  to,  one  or  more  rates,  currencies,  commodities,  equity  or  debt  instruments  or  securities,  or  economic,  financial  or  pricing  indices  or  measures  of  economic, financial or pricing risk or value or any similar transaction or any combination  of  these  transactions;  provided  that  no  phantom  stock  or  similar  plan  providing  for  payments only on account of services provided by current or former directors, officers,  employees or consultants of the Company or the Subsidiaries shall be a Swap Agreement.               “Synthetic  Lease  Obligations”  of  any  Person  means  the  obligations  of  such  Person  to  pay  rent  or  other  amounts  under  any  lease  of  (or  other  arrangement  conveying the right to use) real or personal property, or a combination thereof, under a  synthetic, off-balance sheet or tax retention lease, including any financing lease or other  agreement for the use or possession of property creating obligations that do not appear on  the balance sheet of such Person but which are characterized as the indebtedness of such  Person for US tax purposes (without regard to accounting treatment), and the amount of  such obligations shall be the capitalized amount thereof that would appear on a balance  sheet of such Person under GAAP if such lease were accounted for as a capital lease.               “TARGET  Day”  means  any  day  on  which  both  (a)  the  Trans-European  Automated  Real-time  Gross  Settlement  Express  Transfer  (TARGET2)  payment  system  (or, if such payment system ceases to be operative, such other payment system as shall be  determined by the Applicable Agent to be a replacement therefor for purposes hereof) is  open for the settlement of payments in Euro and (b) banks in London are open for general  business.               “Taxes” means any and all present or future taxes, levies, imposts, duties,  deductions, charges or withholdings imposed by any Governmental Authority.                “Third Amendment” means the Third Amendment, dated as of April 25,  2017, to this Agreement.                                        39  





 






               “Third Amendment Effective Date” has the meaning assigned to such term  in the Third Amendment.               “Tranche”  means  a  Class  of  Commitments  and  extensions  of  credit  thereunder.  For purposes hereof, each of the following comprises a separate Tranche:  (a)  the  US  Tranche  Commitments,  the  US  Tranche  Revolving  Loans  and  participations  in  Letters  of  Credit  attributable  to  the  US  Tranche  Commitments  and  (b)  the  European  Tranche  Commitments,  the  European  Tranche  Revolving  Loans  and  participations  in  Letters  of  Credit  attributable  to  the  European  Tranche  Commitments.   The  Classes  of  Commitments  and  extensions  of  credit  described  under  clauses  (a)  and  (b)  above  are  referred to, respectively, as the “US Tranche” and the “European Tranche”.               “Tranche  Percentage”  means,  at  any  time,  with  respect  to  any  Lender  holding any Commitment or Loan under the US Tranche or the European Tranche, such  Lender’s US Tranche Percentage or European Tranche Percentage, as applicable, at such  time.               “Transactions”  means  the  execution,  delivery  and  performance  by  the  Loan Parties of the Loan Documents, the satisfaction of the Guarantee Requirement, the  borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit  hereunder.               “trivago” means trivago N.V., a Dutch public limited company (naamloze  vennootschap),  formerly  known  as  travel  B.V.,  a  Dutch  private  company  with  limited  liability (besloten vennootschap met beperkte aansprakelijkheid).               “trivago Form F-1” means the Form F-1 Registration Statement filed by  trivago with the SEC on November 14, 2016, as amended or supplemented from time to  time.               “trivago Form F-6” means the Form F-6 Registration Statement filed by  trivago with the SEC on December 5, 2016, as amended or supplemented from time to  time.               “trivago  IPO”  means  an  initial  public  offering  of  American  Depositary  Shares of trivago, substantially as described in the trivago Form F-1 and the trivago Form  F-6.               “Type”,  when  used  in  reference  to  any  Loan  or  Borrowing,  refers  to  whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is  determined by reference to the Adjusted LIBO Rate, the LIBO Rate, the EURIBO Rate,  the CDO Rate, the AUD Bank Bill Rate or the Alternate Base Rate.               “UCP” means, with respect to any Letter of Credit, the Uniform Customs  and Practice for Documentary Credits, International Chamber of Commerce Publication  No. 600 (or such later version thereof as may be in effect at the time of issuance).                                         40  





 






               “UK Borrower” means any Borrower (a) that is organized or formed under  the laws of the United Kingdom or (b) payments from which under this Agreement or  any other Loan Document are subject to withholding Taxes imposed by the laws of the  United Kingdom.               “US  Dollar  Equivalent”  means,  on  any  date  of  determination,  (a)  with  respect to any amount in US Dollars, such amount, and (b) with respect to any amount in  any  currency  other  than  US  Dollars,  the  equivalent  in  US  Dollars  of  such  amount,  determined by the Administrative Agent using the Exchange Rate or the LC Exchange  Rate, as applicable, with respect to such currency in effect for such amount on such date.   The  US  Dollar  Equivalent  at  any  time  of  the  amount  of  any  Letter  of  Credit,  LC  Disbursement or Loan denominated in any currency other than US Dollars shall be the  amount most recently determined as provided in Section 1.05(b).               “US  Dollars”  or  “US$”  refers  to  lawful  money  of  the  United  States  of  America.               “US Tranche” has the meaning assigned to such term in the definition of  the term “Tranche”.               “US  Tranche  Commitment”  means,  with  respect  to  each  Lender,  the  commitment, if any, of such Lender to make US Tranche Revolving Loans and to acquire  participations  in  Letters  of  Credit,  expressed  as  an  amount  representing  the  maximum  aggregate  permitted  amount  of  such  Lender’s  US  Tranche  Revolving  Exposure  hereunder,  as  such  commitment  may  be  (a)  reduced  or  increased  from  time  to  time  pursuant  to  Section  2.09  and  (b)  reduced  or  increased  from  time  to  time  pursuant  to  assignments by or to such Lender pursuant to Section 9.04.  The amount of each Lender’s  US Tranche Commitment as of the FirstFourth Amendment Effective Date is set forth  on  Schedule  2.01  and,  in  the  case  of  any  Lender  that  has  acquired  its  US  Tranche  Commitment after the FirstFourth Amendment Effective Date, the initial amount thereof  is  set  forth  in  the  Assignment  and  Assumption,  or  the  documentation  referred  to  in  Section 2.09(d)(i), pursuant to which such Lender shall have assumed or provided its US  Tranche Commitment, as applicable.  The aggregate amount of the Lenders’ US Tranche  Commitments as of the FirstFourth Amendment Effective Date is US$0.                “US Tranche Lender” means a Lender with a US Tranche Commitment or  US Tranche Revolving Exposure.               “US  Tranche  Percentage”  means,  at  any  time,  with  respect  to  any  US  Tranche  Lender,  the  percentage  of  the  total  US  Tranche  Commitments  represented  by  such Lender’s US Tranche Commitment at such time.  If the US Tranche Commitments  have terminated or expired, the US Tranche Percentages shall be determined based upon  the US Tranche Commitments most recently in effect, giving effect to any assignments.               “US Tranche Revolving Exposure” means, at any time, the sum of (a) the  aggregate principal amount of the US Tranche Revolving Loans outstanding at such time  and  (b)  the  US  Tranche  Share  of  the  LC  Exposure  at  such  time.   The  US  Tranche                                        41  





 






   Revolving  Exposure  of  any  Lender  at  any  time  shall  be  such  Lender’s  US  Tranche  Percentage of the total US Tranche Revolving Exposure at such time, adjusted (without  duplication) to give effect to any reallocation under Section 2.20 of the LC Exposure  of Defaulting Lenders in effect at such time.               “US  Tranche  Revolving  Loan”  means  a  Loan  made  by  a  US  Tranche  Lender  pursuant  to  Section  2.01(a).   Each  US  Tranche  Revolving  Loan  shall  be  a  Eurocurrency Loan or an ABR Loan.               “US  Tranche  Share”  means,  at  any  time,  a  percentage  determined  by  dividing  the  aggregate  amount  of  the  US  Tranche  Commitments  at  such  time  by  the  aggregate amount of the Commitments at such time.               “USA  Patriot  Act”  means  the  Uniting  and  Strengthening  America  by  Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001  (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).               “Wholly Owned Subsidiary” means any Subsidiary all the Equity Interests  in which (other than directors’ qualifying shares and/or other nominal amounts of Equity  Interests  that  are  required  under  applicable  law  to  be  held  by  Persons  other  than  the  Company or the Wholly Owned Subsidiaries) are owned, directly  or indirectly, by the  Company.               “Withdrawal Liability” means liability to a Multiemployer Plan as a result  of  a  complete  or  partial  withdrawal  from  such  Multiemployer  Plan,  as  such  terms  are  defined in Part I of Subtitle E of Title IV of ERISA.               “Write-Down  and  Conversion  Powers”  means,  with  respect  to  any  EEA  Resolution  Authority,  the  write-down  and  conversion  powers  of  such  EEA  Resolution  Authority  from  time  to  time  under  the  Bail-In  Legislation  for  the  applicable  EEA  Member  Country,  which  write-down  and  conversion  powers  are  described  in  the  EU  Bail-In Legislation Schedule.               SECTION 1.02. Classification  of  Loans  and  Borrowings¶.   For  purposes  of this Agreement, Loans may be classified and referred to by Class (e.g., a “US Tranche  Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a  “Eurocurrency US Tranche Revolving Loan”).  Borrowings  also may be classified and  referred  to  by  Class  (e.g.,  a  “US  Tranche  Revolving  Borrowing”)  or by  Type  (e.g.,  a  “Eurocurrency  Borrowing”)  or  by  Class  and  Type  (e.g.,  a  “Eurocurrency  US  Tranche  Revolving Borrowing”).               SECTION 1.03. Terms Generally¶.  The definitions of terms herein shall  apply  equally  to  the  singular  and  plural  forms  of  the  terms  defined.   Whenever  the  context  may  require, any  pronoun shall include  the corresponding masculine, feminine  and neuter forms.  The words “include”, “includes” and “including” shall be deemed to  be followed by the phrase “without limitation”.  The word “will” shall be construed to  have the same meaning and effect as the word “shall”. The words “asset” and “property”  shall be construed to have the same meaning and effect and to refer to any and all real                                       42  





 






   and  personal, tangible  and  intangible  assets  and  properties,  including  cash,  securities,  accounts and contract rights.  Unless the context requires otherwise, (a) any definition of  or  reference  to  any  agreement,  instrument  or  other  document  herein  (including  to  this  Agreement  or  any  other  Loan  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), (b) any definition of or reference to any statute, rule or  regulation  shall  be  construed  as  referring  thereto  as  from  time  to  time  amended,  supplemented or otherwise modified (including by  succession of comparable successor  laws), (c) any reference herein to any Person shall be construed to include such Person’s  successors and assigns (subject to any restrictions on assignment set forth herein) and, in  the  case  of  any  Governmental  Authority,  any  other  Governmental  Authority  that  shall  have  succeeded  to  any  or  all  functions  thereof,  (d)  the  words  “herein”,  “hereof”  and  “hereunder”, and words of similar import, shall be construed to refer to this Agreement in  its entirety and not to any particular provision hereof, (e) references herein to “the date  hereof”  or  “the  date  of  this  Agreement”  shall  be deemed  to  refer  to  the  Restatement  Effective Date and (f) all references herein to Articles, Sections, Exhibits and Schedules  shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this  Agreement.               SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations¶.  (a)   Except  as  otherwise  expressly  provided  herein,  all  terms  of  an  accounting  or  financial  nature  shall  be  construed  in  accordance  with  GAAP  as  in  effect  from  time  to  time;  provided that  (i)  if  the  Company  notifies  the  Administrative  Agent  that  the  Company  requests  an  amendment  to  any  provision  hereof  to  eliminate  the  effect  of  any  change  occurring after the date hereof in GAAP or in the application thereof on the operation of  such provision (or if the Administrative Agent notifies the Company that the Required  Lenders request an amendment to any provision hereof for such purpose), regardless of  whether  any  such  notice  is  given  before  or  after  such  change  in  GAAP  or  in  the  application thereof, then such provision shall be interpreted on the basis of GAAP as in  effect and applied immediately before such change shall have become effective until such  notice shall have been withdrawn or such provision amended in accordance herewith and  (ii) for purposes of determining compliance with any covenant set forth in Article VI, no  effect  shall  be  given  to (A)  any  election  under Statement  of  Financial Accounting  Standards No. 159, The Fair Value Option for Financial Assets and Financial Liabilities,  or  any  successor  thereto  (including  pursuant  to  theCodification  825  (or  any  other  Accounting  Standards  Codification or  Financial  Accounting  Standard  having  a  similar result or effect), to value any Indebtedness of the Company or any Subsidiary at  “fair  value”,  as  defined  therein,  (B) any  treatment  of  Indebtedness  in  respect  of  convertible  debt  instruments  under Accounting  Standards  Codification  470-20 (or  any  other  Accounting  Standards  Codification  or  Financial  Accounting  Standard  having  a  similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner  as described therein, and such Indebtedness shall at all times be valued at the full stated  principal  amount  thereof  and  (C) any  change  to  GAAP  occurring  after  the date  hereofRestatement Effective Date as a result of the adoption of any proposals set forth  in  the Proposed  Accounting  Standards  Update,  Leases  (Topic  840),  issued  by  theimplementation of Financial Accounting Standards Board on August 17, 2010, ASU                                       43  





 






   No.  2016-02,  Leases  (Topic  842) (or  any  other proposals  issued  by  the Financial  Accounting Standards Board in connection therewith, in each case ifto the extent such  change would require treating any lease (or similar arrangement conveying the right to  use) as  a capital  lease where such lease (or similar arrangement) would not  have been  required to be so treated under GAAP as in effect on the date hereof.December 31, 2016.               (b) All  pro  forma  computations  required  to  be  made  hereunder  giving  effect  to  any  acquisition,  investment,  sale,  disposition,  merger  or  similar  event  shall  reflect  on  a  pro  forma  basis  such  event  and,  to  the  extent  applicable,  the  historical  earnings  and  cash  flows  associated  with  the  assets  acquired  or  disposed  of  and  any  related incurrence or reduction of Indebtedness, and may also reflect (i) any projected  synergies  or  similar  benefits  expected  to  be  realized  as  a  result  of  such  event  to  the  extent such synergies or similar benefits would be permitted to be reflected in financial  statements  prepared  in  compliance  with  Article  11  of  Regulation  S-X  under  the  Securities Act  and  (ii) any other demonstrable cost-savings  and other  adjustments  not  included in the foregoing clause (i) that are reasonably anticipated by the Company to be  achieved in connection with any such event within the 12-month period following the  consummation of such event, which the Company determines are reasonable and as set  forth  in  a  certificate  of  a  Financial  Officer;  provided  that  the  aggregate  additions  to  Consolidated EBITDA, for any period being tested, pursuant to this clause (ii), together  with the aggregate amount of all other Capped Adjustments for such period, shall not  exceed 15% of Consolidated EBITDA for such period (determined prior to giving effect  to any addback for any Capped Adjustments).               SECTION 1.05. Currency  Translation¶.  (a)  For  purposes  of  any  determination  under  Section  6.01,  6.02,  6.03,  7.01(f),  7.01(g)  or  7.01(k),  all  amounts  incurred, outstanding or proposed to be incurred or outstanding in currencies other than  US Dollars shall be translated into US Dollars at currency exchange rates in effect on the  date of such determination; provided that no Default or Event of Default shall arise as a  result  of  any  limitation  set  forth  in  US  Dollars  in  Section  6.01,  6.02  or  6.03  being  exceeded  solely  as  a result  of  changes  in  currency  exchange  rates  from  those  rates  applicable at the time or times Indebtedness, Liens or Sale/Leaseback Transactions were  initially consummated in reliance on the exceptions under such Sections.  For purposes of  any determination under Sections 6.05 and 6.08, the amount of each payment, disposition  or other applicable transaction denominated in a currency other than US Dollars shall be  translated into US Dollars at the applicable currency exchange rate in effect on the date  of the consummation thereof.  Such currency exchange rates shall be determined in good  faith  by  the  Company.   For  purposes  of  Sections  6.10  and  6.11,  and  the  related  definitions,  amounts  in  currencies  other  than  US  Dollars  shall  be  translated  into  US  Dollars  at the  currency  exchange  rates  then  most  recently  used  in  preparing  the  Company’s consolidated financial statements.               (b) (i)  The  Administrative  Agent  shall  determine  the  US  Dollar  Equivalent of any Letter of Credit denominated in an Alternative LC Currency as of the  date of the issuance thereof and on the first  Business Day of each calendar month on  which  such  Letter  of  Credit  is  outstanding,  in  each  case  using  the  Exchange  Rate in  effect(as  calculated  in  accordance  with  the  definition  thereof  on  the  date  of                                        44  





 






   determination), and each such amount shall be the US Dollar Equivalent of such Letter  of  Credit  until  the  next  required  calculation  thereof  pursuant  to  this  Section.   The  Administrative Agent shall in addition determine the US Dollar Equivalent of any Letter  of Credit denominated in an Alternative LC Currency as provided in Sections 2.06(e)  and 2.06(l).               (ii)  The  Applicable  Agent  shall  determine  the  US  Dollar  Equivalent  of  any  Borrowing  denominated  in an  Alternative  Currencyany  currency  other  than  US  Dollars on or about the date of the commencement of the initial Interest Period therefor  and as of the date of the commencement of each subsequent Interest Period therefor, in  each  case  using  the  Exchange  Rate in  effect(as  calculated  in  accordance  with  the  definition thereof on the date of determination), and each such amount shall, except as  provided in the next sentence, be the US Dollar Equivalent of such Borrowing until the  next  required  calculation  thereof  pursuant  to  this  Section.   The  Administrative  Agent  shall in addition determine the US Dollar Equivalent of any Borrowing denominated in  an Alternative Currencyany currency other than US Dollars as of the CAM Exchange  Date,  and  such  amount  shall  be  the  US  Dollar  Equivalent  of  such  Borrowing  for  all  purposes of Section 7.02.               (iii)  The Applicable Agent may also determine the US Dollar Equivalent  of  any  Borrowing  or  Letters  of  Credit  denominated  in an  Alternative  Currencyany  currency other than US Dollars as of such other dates as such Applicable Agent shall  determine, in each case using the Exchange Rate in effect(as calculated in accordance  with the definition thereof on the date of determination), and each such amount shall be  the US Dollar Equivalent of such Borrowing or Letter of Credit until the next calculation  thereof pursuant to this Section.               (iv)  The  Administrative  Agent  shall  notify  the  Company,  the  applicable  Lenders  and  the  applicable  Issuing  Bank  of  each  determination  of  the  US  Dollar  Equivalent of each Letter of Credit, Borrowing and LC Disbursement.                                 ARTICLE II                                                                       The Credits               SECTION 2.01. Commitments¶.  (a)  Subject to the terms and conditions  set forth herein, each US Tranche Lender agrees to make US Tranche Revolving Loans  denominated in  US  Dollars to any Borrower from  time to time during the Availability  Period  in  an  aggregate  principal  amount  that  will  not  result  in  (i)  such  Lender’s  US  Tranche Revolving Exposure exceeding such Lender’s US Tranche Commitment or (ii)  the sum of the total US Tranche Revolving ExposuresExposure exceeding the total US  Tranche Commitments.   Within  the  foregoing  limits  and  subject  to  the  terms  and  conditions set forth herein, any Borrower may borrow, prepay and reborrow US Tranche  Revolving Loans.               (b) Subject  to  the  terms  and  conditions  set  forth  herein,  each  European  Tranche Lender agrees to make European Tranche Revolving Loans denominated in US                                        45  





 






   Dollars, Euro or, Sterling, Canadian Dollars or Australian Dollars to any Borrower  from time to time during the Availability Period in an aggregate principal amount that  will  not  result  in  (i)  such  Lender’s  European  Tranche  Revolving  Exposure  exceeding  such  Lender’s  European  Tranche  Commitment  or  (ii)  the sum  of  the total  European  Tranche  Revolving ExposuresExposure  exceeding  the  total  European  Tranche  Commitments.  Within the foregoing limits and subject to the terms and conditions set  forth  herein,  any  Borrower  may  borrow,  prepay  and  reborrow  European  Tranche  Revolving Loans.               SECTION 2.02. Loans and Borrowings¶.  (a)  Each Loan shall be made as  part of a Borrowing consisting of Loans of the same Class, Type and currency made by  the Lenders ratably in accordance with their respective Commitments of the applicable  Class to the same Borrower.  The failure of any Lender to make any Loan required to be  made by it shall not relieve any other Lender of its obligations hereunder; provided that  the  Commitments  of  the  Lenders  are  several and  not  joint and  no  Lender  shall  be  responsible for any other Lender’s failure to make Loans as required.               (b) Subject to Section 2.14, each Borrowing shall be comprised (i) in the  case of Borrowings denominated in US Dollars, entirely of ABR Loans or Eurocurrency  Loans of  the  applicable  Type as  the  applicable  Borrower  (or  the  Company  on  its  behalf)  may  request  in  accordance  herewith,  and  (ii)  in  the  case  of  Borrowings  denominated in any other currency, entirely of Eurocurrency  Loans of the applicable  Type.   Each  Lender  at  its  option  may  make  any  Loan  by  causing  any  domestic  or  foreign  branch  or  Affiliate  of  such  Lender  to  make  such  Loan;  provided  that  any  exercise  of  such  option  shall  not  affect  the  obligation  of  the  applicable  Borrower  to  repay such Loan in accordance with the terms of this Agreement.               (c) At the commencement of each Interest Period for any Eurocurrency  Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple  of the Borrowing Multiple and not less than the Borrowing Minimum; provided that a  Eurocurrency  Borrowing  that  results  from  a  continuation  of  an  outstanding  Eurocurrency  Borrowing  may  be  in  an  aggregate  amount  that  is  equal  to  such  outstanding Borrowing.  At the time that each ABR Borrowing is made, such Borrowing  shall be in an aggregate amount that is an integral multiple of US$1,000,000 and not less  than US$1,000,000; provided that an ABR Borrowing may be in an aggregate amount  that  is  equal  to  the  entire  unused  balance  of  the  total  Commitments  of  the  applicable  Class  or  that  is  required  to  finance  the  reimbursement  of  an  LC  Disbursement  as  contemplated by Section 2.06(e).  Borrowings of more than one Type and Class may be  outstanding at the same time; provided that there shall not at any time be more than a  total of six Eurocurrency Borrowings outstanding.               (d) Notwithstanding any other provision of this Agreement, no Borrower  shall  be  entitled  to  request,  or  to  elect  to  convert  or  continue,  any  Eurocurrency  Borrowing  if  the  Interest  Period  requested  with  respect  thereto  would  end  after  the  Maturity Date.                                         46  





 






               SECTION 2.03. Requests for Borrowings¶.  To request a Borrowing, the  applicable Borrower shall notify(or the Company on its behalf) shall submit a written  Borrowing  Request,  signed  by  an  Authorized  Officer  of  such  Borrower  or  the  Company, as applicable, to the Applicable Agent of such request by telephone (a) in the  case of a Eurocurrency Borrowing denominated in US Dollars, not later than 11:00 a.m.,  New York City time, three Business Days before the date of the proposed Borrowing, (b)  in  the  case  of  a  Borrowing  denominated  in  Euro or, Sterling, Canadian  Dollars  or  Australian Dollars, not later than 11:00  a.m., London timeLocal Time, four Business  Days  before  the  date  of  the  proposed  Borrowing or,  and (c)  in  the  case  of  an  ABR  Borrowing, not later than 10:00 a.m., New York City time, on the date of the proposed  Borrowing.  Each such telephonic Borrowing Request shall be irrevocable and shall be  confirmed promptly by hand delivery or facsimile to the Applicable Agent of a written  Borrowing  Request in  a  form  approved  by  the  Applicable  Agent  and  signed  by  the  applicable Borrower.  Each such telephonic and written Borrowing Request shall specify  the following information in compliance with Section 2.02:               (i) the Borrower requesting such Borrowing (or on whose behalf the        Company is requesting such Borrowing);               (ii) (i) the aggregate amount and currency of the requested Borrowing;               (iii) (ii) the Class of such Borrowing;               (iv) (iii) the date of such Borrowing, which shall be a Business Day;               (v) (iv) if denominated in US Dollars, whether such Borrowing is to be        an ABR Borrowing or a Eurocurrency Borrowing;               (vi) (v) in  the  case  of  a  Eurocurrency  Borrowing,  the  initial  Interest        Period  to  be  applicable  thereto,  which  shall  be  a  period  contemplated  by  the        definition of the term “Interest Period”; and               (vii) (vi) the  location  and  number  of  the  account  of  the  applicable        Borrower to  which funds  are to  be disbursed, which shall comply with  Section        2.07,  or,  in  the  case  of  any  ABR  Borrowing  requested  to  finance  the        reimbursement of an LC Disbursement as provided in Section 2.06(e), the identity        and the account of the Issuing Bank that had made such LC Disbursement.   If no currency is specified with respect to any requested Borrowing, then the applicable  Borrower shall be deemed to have selected US Dollars.  If no election as to the Type of  Borrowing is specified, then the requested Borrowing shall be (A) if denominated in US  Dollars,  an  ABR  Borrowing  and  (B)  if  denominated  in  any  other  currency,  a  Eurocurrency Borrowing of the applicable Type.  If no Interest Period is specified with  respect to any requested Eurocurrency Borrowing, then the applicable Borrower shall be  deemed to have selected an Interest Period of one month’s duration.  Promptly following  receipt  of  a  Borrowing  Request  in  accordance  with  this  Section,  the  Applicable  Agent  shall advise each Lender of the applicable Class of the details thereof and of the amount  of such Lender’s Loan to be made as part of the requested Borrowing.                                       47  





 






               SECTION 2.04. Borrowing Subsidiaries¶.  Any Wholly Owned Subsidiary  of  the  Company  shall  become  a  Borrowing  Subsidiary  and  a  party  to  this  Agreement  upon  the  effectiveness  of  a  Borrowing  Subsidiary  Agreement  executed  by  such  Subsidiary  and  the  Company  and  delivered  to  the  Administrative  Agent.   As  soon  as  practicable  upon  receipt  of  any  such  Borrowing  Subsidiary  Agreement,  the  Administrative Agent will make a copy thereof available to the Lenders. Each Borrowing  Subsidiary Agreement shall become effective on the date five Business Days after it has  been so made available by the Administrative Agent (subject to the receipt by any Lender  of any information reasonably requested by it under the USA Patriot Act or other “know- your-customer”  laws,  in  each  case, not  later  than  the  second  Business  Day  after  the  delivery of such Borrowing Subsidiary Agreement), unless, in the case of any Borrowing  Subsidiary  Agreement  of  a  Foreign  Subsidiary,  the  Administrative  Agent  shall  theretofore  have  received  a  written  notice  from  any  Lender  stating  that  it  would  be  unlawful under Federal or applicable state or foreign law or regulation for such Lender to  make  Loans  or  otherwise  extend  credit  to  or  do  business  with  such  Subsidiary  as  provided herein, in which case such Borrowing Subsidiary Agreement shall not become  effective until such time as such Lender withdraws such notice or ceases to be a Lender  hereunder.   Upon  the  execution  by  the  Company  and  delivery  to  the  Administrative  Agent of a Borrowing Subsidiary Termination with respect to any Borrowing Subsidiary,  such Subsidiary shall cease to be a Borrowing Subsidiary hereunder and a party to this  Agreement; provided that no Borrowing Subsidiary Termination will become effective as  to any Borrowing Subsidiary (other than to terminate such Borrowing Subsidiary’s right  to make further Borrowings or obtain Letters of Credit under this Agreement) at a time  when any principal of or interest on any Loan to such Borrowing Subsidiary or any Letter  of  Credit  issued  for  the  account  of  such  Borrowing  Subsidiary  shall  be  outstanding  hereunder.   Promptly  following  receipt  of  any  Borrowing  Subsidiary  Termination,  the  Administrative Agent shall send a copy thereof to each Lender.               SECTION 2.05. [Reserved]               SECTION 2.06. Letters of Credit¶.  (a) General.  Subject to the terms and  conditions set forth herein, each Borrower may request the issuance of Letters of Credit  for its own account, in a form reasonably acceptable to the Administrative Agent and the  applicable Issuing Bank, at any time and from time to time during the Availability Period.   In the event of any inconsistency between the terms and conditions of this Agreement and  the terms  and conditions of any form of letter of credit application or other agreement  submitted by any Borrower to, or entered into by any Borrower with, an Issuing Bank  relating to any Letter of Credit, the terms and conditions of this Agreement shall control.   The  Existing  Letters  of  Credit  will,  for  all  purposes  of  this  Agreement  (including  paragraphs (d) and (e) of this Section), continue to constitute Letters of Credit.               (b) Notice  of  Issuance,  Amendment,  Renewal,  Extension;  Certain  Conditions.  To request the issuance of a Letter of Credit (or the amendment, renewal or  extension of an outstanding Letter of Credit, other than an automatic renewal permitted  pursuant to paragraph (c) of this Section), the applicable Borrower shall deliver by hand  or facsimile transmission (or transmit by electronic communication, if arrangements for  doing so have been approved by the recipient of such notice) to the applicable Issuing                                        48  





 






   Bank  and  the  Administrative  Agent  (reasonably  in  advance  of  the  requested  date  of  issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter  of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and  specifying  the  date  of  issuance,  amendment,  renewal  or  extension  (which  shall  be  a  Business Day), the date on which such Letter of Credit is to expire (which shall comply  with paragraph (c) of this Section), the amount of such Letter of Credit, the currency in  which  such  Letter  of  Credit  is  to  be  denominated  (which  shall  be  US  Dollars  or  an  Alternative LC  Currency),  the  name  and  address  of  the  beneficiary  thereof  and  such  other information as shall be necessary to enable the applicable Issuing Bank to prepare,  amend, renew or extend such Letter of Credit.  If requested by the applicable  Issuing  Bank, the  applicable Borrower also  shall submit a letter of credit application on such  Issuing  Bank’s  standard  form  in  connection  with  any  request  for  a  Letter  of  Credit;  provided  that  any  provisions  in  any  such  letter  of  credit  application  that  create  Liens  securing  the  obligations  of  any  Borrower  thereunder  or  that  are  inconsistent  with  the  provisions of this Agreement or the other Loan Documents shall be of no force or effect.   A Letter of Credit shall be issued, amended, renewed or extended only if (and upon each  issuance,  amendment,  renewal  or  extension  of  any  Letter  of  Credit  the  applicable  Borrower  shall  be  deemed  to  represent  and  warrant  that),  after  giving  effect  to  such  issuance,  amendment,  renewal  or  extension  (i)  the  LC  Exposure  shall  not  exceed  US$120,000,000,  (ii)  the aggregatetotal  US  Tranche  Revolving ExposuresExposure  shall not exceed the aggregatetotal US Tranche Commitments, (iii) the aggregatetotal  European  Tranche  Revolving ExposuresExposure  shall  not  exceed  the aggregatetotal  European Tranche Commitments and (iv) the portion of the LC Exposure attributable to  Letters of Credit issued by any Issuing Bank shall not exceed the LC Commitment of  such Issuing Bank.               (c) Expiration Date.  Each Letter of Credit shall by its terms expire at or  prior to the close of business on the earlier of (i) the date 18 months after the date of the  issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, 13  months after such renewal or extension) and (ii) the date that is five Business Days prior  to  the  Maturity  Date;  provided  that  any  Letter  of  Credit  may  contain  customary  automatic  renewal  provisions  agreed  upon  by  the  applicable  Borrower  and  the  applicable Issuing Bank pursuant to which the expiration date of such Letter of Credit  shall automatically be extended for a period of up to 13 months (but not to a date later  than the date set forth in clause (ii) above), subject to a right on the part of such Issuing  Bank to prevent any such renewal from occurring pursuant to the terms of such Letter of  Credit.               (d) Participations.  By  the  issuance  of  a  Letter  of  Credit  (or  an  amendment to a Letter of Credit increasing the amount thereof) and without any further  action on the part of the applicable Issuing Bank or the Lenders, suchthe Issuing Bank  that is the issuer thereof hereby grants to each Lender, and each such Lender hereby  acquires from such Issuing Bank, a participation in such Letter of Credit equal to such  Lender’s Combined Tranche Percentage of the aggregate amount available to be drawn  under such Letter of Credit.  In consideration and in furtherance of the foregoing, each  Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent,  for  the  account  of  the  applicable  Issuing  Bank,  such  Lender’s  Combined  Tranche                                        49  





 






   Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by  the applicable Borrower on the date due as provided in paragraph (e) of this Section, or  of  any  reimbursement  payment  in  respect  of  an  LC  Disbursement  required  to  be  refunded to any Borrower for any reason.  Such payment by the Lenders shall be made  (i) if the currency of the applicable LC Disbursement or reimbursement payment shall  be US Dollars, then in US Dollars and (ii) subject to paragraph (e) of this Section, if the  currency  of  the  applicable  LC  Disbursement  or  reimbursement  payment  shall  be  an  Alternative LC Currency, in US Dollars in an amount equal to the US Dollar Equivalent  of such LC Disbursement or reimbursement payment, calculated by the Administrative  Agent using the LC Exchange Rate on the applicable LC Participation Calculation Date.   Each Lender acknowledges  and agrees that (A) its obligation to acquire participations  pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional  and shall not  be affected by  any circumstance  whatsoever, including  any  amendment,  renewal  or  extension  of  any  Letter  of  Credit,  the  occurrence  and  continuance  of  a  Default, any reduction or termination of the Commitments, any fluctuation in currency  values  or  any  force  majeure  or  other  event  that  under  any  rule  of  law  or  uniform  practices  to  which  any  Letter  of  Credit  is  subject  (including  Section  3.14  of  the  ISP)  permits a drawing to be made under such Letter of Credit after the expiration thereof or  of  the  Commitments,  and  (B)  each  such  payment  shall  be  made  without  any  offset,  abatement, withholding or reduction whatsoever.  Each Lender further acknowledges  and agrees that, in issuing, amending, renewing or extending any Letter of Credit,  the  applicable  Issuing  Bank  shall  be  entitled  to  rely,  and  shall  not  incur  any  liability  for  relying,  upon  the  representation  and  warranty  of  each  Borrower  deemed made pursuant to Section 4.02, unless, at least two Business Days prior to  the time such Letter of Credit is issued, amended, renewed or extended (or, in the  case of an automatic renewal permitted pursuant to paragraph (c) of this Section,  at least two Business Days prior to the time by which the election not to renew must  be made by the applicable Issuing Bank), the Required Lenders shall have notified  the applicable Issuing Bank (with a copy to the Administrative  Agent) in writing  that, as a result of one or more events or circumstances described in such notice,  one  or  more  of  the  conditions  precedent  set  forth  in  Section  4.02  would  not  be  satisfied if such Letter of Credit were then issued, amended, renewed or extended.               (e) Reimbursement.  If an Issuing Bank shall make any LC Disbursement  in  respect  of  a  Letter  of  Credit,  the  applicable  Borrower  shall  reimburse  such  LC  Disbursement by paying to the Administrative Agent an amount in the currency of such  LC  Disbursement  equal  to  such  LC  Disbursement  not  later  than  12:00  noon,  Local  Time,  on  the  date  that  such  LC  Disbursement  is  made,  if  such  Borrower  shall  have  received notice of such LC Disbursement prior to 11:00 a.m., Local Time, on such date,  or, if such notice has not been received by such Borrower prior to such time on such  date,  then  not  later  than  12:00  noon,  Local  Time,  on  (i)  the  Business  Day  that  such  Borrower  receives  such  notice,  if  such  notice  is  received  prior  to  11:00  a.m.,  Local  Time, on the day of receipt, or (ii) the Business Day immediately following the day that  such Borrower receives such notice, if such notice is not received prior to such time on  the day of receipt; provided that, if such LC Disbursement is denominated in US Dollars  and  is  not  less  than  the  Borrowing  Minimum  for  US  Dollar  denominated  Loans,  the  applicable Borrower may, subject to the conditions to borrowing set forth herein, request                                       50  





 






   in accordance with Section 2.03 that such payment be financed with an ABR Borrowing  in an equivalent amount and, to the extent so financed, such Borrower’s obligation to  make such payment shall be discharged and replaced by the resulting ABR Borrowing.   If the applicable Borrower fails  to  make any such reimbursement payment  when due,  (A)  if  such  payment  relates  to  a  Letter  of  Credit  denominated  in  an  Alternative LC  Currency,  automatically  and  with  no  further  action  required,  the  obligation  of  such  Borrower to reimburse the applicable LC Disbursement shall be permanently converted  into  an  obligation  to  reimburse  the  US  Dollar  Equivalent,  calculated  using  the  LC  Exchange  Rate  on  the  applicable  LC  Participation  Calculation  Date,  of  such  LC  Disbursement and (B) in the case of each LC Disbursement, the Administrative Agent  shall notify each Lender of the applicable LC Disbursement, the amount of the payment  then due from such Borrower in respect thereof and such Lender’s Combined Tranche  Percentage thereof, and each Lender shall pay in US Dollars to the Administrative Agent  on  the  date  such  notice  is  received  its  Combined  Tranche  Percentage  of  the  payment  then  due  from  such  Borrower,  in  the  same  manner  as  provided  in  Section  2.07  with  respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis,  to  the  payment  obligations  of  the  Lenders  pursuant  to  this  paragraph),  and  the  Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so  received  by  it  from  the  Lenders.   Promptly  following  receipt  by  the  Administrative  Agent  of  any  payment  from  the  applicable  Borrower  pursuant  to  this  paragraph,  the  Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to  the  extent  that  Lenders  have  made  payments  pursuant  to  this  paragraph  to  reimburse  such Issuing Bank, then to such Lenders and such Issuing  Bank as their interests may  appear.   Any  payment  made  by  a  Lender  pursuant  to  this  paragraph  to  reimburse  an  Issuing  Bank  for  any  LC  Disbursement  (other  than  the  funding  of  ABR  Loans  as  contemplated  above)  shall  not  constitute  a  Loan  and  shall  not  relieve  the  applicable  Borrower  of  its  obligation  to  reimburse  such  LC  Disbursement.   If  the  applicable  Borrower’s  reimbursement  of,  or  obligation  to  reimburse,  any  amounts  in  any  Alternative LC Currency would subject the Administrative Agent, the applicable Issuing  Bank or any Lender to any stamp duty, ad valorem charge or similar tax that would not  be payable if such reimbursement were made or required to be made in US Dollars, such  Borrower shall pay the amount of any such tax requested by the Administrative Agent,  such Issuing Bank or such Lender.               (f) Obligations Absolute.  The obligation of each Borrower to reimburse  LC Disbursements as provided in paragraph (e) of this Section is absolute, unconditional  and  irrevocable,  and  shall  be  performed  strictly  in  accordance  with  the  terms  of  this  Agreement under any and all circumstances whatsoever and irrespective of (i) any lack  of validity or enforceability of any Letter of Credit, this Agreement or any other Loan  Document, or any term or provision herein or therein, (ii) any draft or other document  presented  under  a  Letter  of  Credit  proving  to  be  forged,  fraudulent  or  invalid  in  any  respect or any statement therein being untrue or inaccurate in any respect, (iii) payment  by  any  Issuing  Bank  under  a  Letter  of  Credit  against  presentation  of  a  draft  or  other  document that does not comply with the terms of such Letter of Credit, (iv) any force  majeure  or  other  event  that  under  any  rule  of  law  or  uniform  practices  to  which  any  Letter of Credit is subject (including Section 3.14 of the ISP) permits a drawing to be  made  under  such  Letter  of  Credit  after  the  stated  expiration  date  thereof  or  of  the                                       51  





 






   Commitments or (v) any other event or circumstance whatsoever, whether or not similar  to any of the foregoing, that might, but for the provisions of this Section, constitute a  legal  or  equitable  discharge  of,  or  provide  a  right  of  setoff  against,  such  Borrower’s  obligations hereunder.  None of the Agents, the Lenders, the Issuing Banks or any of  their  Related  Parties  shall  have  any  liability  or  responsibility  by  reason  of  or  in  connection with the issuance or transfer of any Letter of Credit or any payment or failure  to make any payment thereunder (irrespective of any of the circumstances referred to in  the  preceding  sentence),  or  any  error,  omission,  interruption,  loss  or  delay  in  transmission or delivery of any draft, notice or other communication under or relating to  any Letter of Credit (including any document required to make a drawing thereunder),  any error in interpretation of technical terms or any other act, failure to act or other event  or  circumstance;  provided  that  the  foregoing  shall  not  be  construed  to  excuse  any  Issuing  Bank  from  liability  to  a  Borrower  to  the  extent  of  any  direct  damages  (as  opposed  to  special,  indirect,  consequential  or  punitive  damages,  claims  in  respect  of  which are hereby waived by each Borrower to the extent permitted by applicable law)  suffered  by  such  Borrower  that  are  caused  by  such  Issuing  Bank’s  failure  to  exercise  care when determining whether drafts and other documents presented under a Letter of  Credit  comply  with  the  terms  thereof.   The  parties  hereto  expressly  agree  that,  in  the  absence  of  gross  negligence  or  wilful  misconduct  on  the  part  of  an  Issuing  Bank  (as  finally determined in a nonappealable judgment by  a court of competent jurisdiction),  such the applicable Issuing Bank shall be deemed to have exercised care in each such  determination  unless  a  court  of  competent  jurisdiction  shall  have  determined  by  a  final,  non-appealable  judgment  that  such  Issuing  Bank  was  grossly  negligent  or  acted with willful misconduct in connection with such determination.  In furtherance  of the foregoing and without limiting the generality thereof, the parties agree that, with  respect to documents presented that appear on their face to be in substantial compliance  with  the  terms  of  a  Letter  of  Credit,  the  applicable  Issuing  Bank  may,  in  its  sole  discretion, either accept and make payment upon such documents without responsibility  for  further  investigation,  regardless  of  any  notice  or  information  to  the  contrary,  or  refuse to accept and make payment upon such documents if such documents are not in  strict compliance with the terms of such Letter of Credit.               (g) Disbursement  Procedures.  The  applicable  Issuing  Bank  shall,  promptly following its receipt thereof, examine all documents purporting to represent a  demand  for  payment  under  a  Letter  of  Credit.   The  applicable  Issuing  Bank  shall  promptly  notify  the  Administrative  Agent  and  the  applicable  Borrower  by  telephone  (confirmed by facsimile) of such demand for payment and of such Issuing Bank having  made  an  LC  Disbursement  thereunder;  provided  that  any  failure  to  give  or  delay  in  giving  such  notice  shall  not  relieve  the  applicable  Borrower  of  its  obligation  to  reimburse  such  Issuing  Bank  and  the  Lenders  with  respect  to  any  such  LC  Disbursement.               (h) Interim Interest.  If an Issuing Bank shall make any LC Disbursement,  then, unless the applicable Borrower shall reimburse such LC Disbursement in full on  the date such LC Disbursement is made, the unpaid amount thereof shall bear interest,  for  each  day  from  and  including  the  date  such  LC  Disbursement  is  made  to  but  excluding the date that the applicable Borrower reimburses such LC Disbursement, (i) in                                        52  





 






   the case of any LC Disbursement denominated in US Dollars, and at all times following  the  conversion  to  US  Dollars  of  any  LC  Disbursement  made  in  an  Alternative LC  Currency  pursuant  to  paragraph  (e)  or  (l)  of  this  Section,  at  the  rate  per  annum  then  applicable to ABR Loans and (ii) if such LC Disbursement is made in an Alternative LC  Currency, at all times prior to its conversion to US Dollars pursuant to paragraph (e) or  (l) of this  Section, at  a rate equal  to  the rate reasonably determined by  the applicable  Issuing Bank to be the cost to such Issuing Bank of funding such LC Disbursement plus  the Applicable Rate applicable to Eurocurrency Loans at such time; provided that, if the  applicable  Borrower  fails  to  reimburse  such  LC  Disbursement  when  due  pursuant  to  paragraph (e) of this Section, then Section 2.13(c) shall apply.  Interest accrued pursuant  to this paragraph shall be paid by the applicable Borrower to the Administrative Agent,  for the account of the applicable Issuing Bank, except that interest accrued on and after  the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse  such Issuing Bank shall be paid by the applicable Borrower to the Administrative Agent  for the account of such Lender to the extent of such payment, and shall be payable on  demand or, if no demand has been made, on the date on which the applicable Borrower  reimburses the applicable LC Disbursement in full.               (i) Replacement of an Issuing Bank.  An Issuing Bank may be replaced at  any  time  by  agreement  among  the  Company,  the  Administrative  Agent,  the  replaced  Issuing Bank and the successor Issuing Bank and execution and delivery by Parentthe  Company, the Administrative Agent and the successor Issuing Bank of an Issuing Bank  Agreement.  The Administrative Agent shall notify the Lenders of any such replacement  of  an  Issuing  Bank.   At  the  time  any  such  replacement  shall  become  effective,  each  Borrower shall pay all unpaid fees payable by it that are accrued for the account of the  replaced Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of  any  such  replacement,  (i)  the  successor  Issuing  Bank  shall  have  all  the  rights  and  obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to  be  issued  thereafter  and  (ii)  references  herein  to  the  term  “Issuing  Bank”  shall  be  deemed to refer to such successor or to any previous Issuing Bank, or to such successor  and all previous Issuing Banks, as the context shall require.  After the replacement of an  Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall  continue to have all the rights and obligations of an Issuing Bank under this Agreement  with  respect  to  Letters of Credit issued by it prior to  such replacement (including the  right to receive fees under Section 2.12(b)), but shall not be required to issue additional  Letters of Credit.               (j) Cash  Collateralization.  If  any  Event  of  Default  shall  occur  and  be  continuing,  on  the  Business  Day  that  the  Company  receives  notice  from  the  Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been  accelerated,  Lenders  with  LC  Exposure  representing  more  than  50%  of  the  total  LC  Exposure)  demanding  the  deposit  of  cash  collateral  pursuant  to  this  paragraph,  each  Borrower shall deposit in an account with the Administrative Agent, in the name of the  Administrative  Agent  and  for  the  benefit  of  the  Lenders  and  the  Issuing  Banks,  an  amount in cash in US Dollars equal to the LC Exposure attributable to Letters of Credit  issued for the account of such Borrower as of such date plus  any accrued and unpaid  interest thereon; provided that (i) amounts payable in respect of any Letter of Credit or                                        53  





 






   LC  Disbursement  shall  be  payable  in  the  currency  of  such  Letter  of  Credit  or  LC  Disbursement, except that LC Disbursements in an Alternative LC Currency in respect  of which the applicable Borrower’s reimbursement obligations have been converted to  obligations in US Dollars as provided in paragraph (e) or (l) of this Section and interest  accrued thereon shall be payable in US Dollars, and (ii) the obligation to deposit such  cash  collateral  shall  become  effective  immediately,  and  such  deposit  shall  become  immediately  due  and  payable,  without  demand  or  other  notice  of  any  kind,  upon  the  occurrence  of  any  Event  of  Default  with  respect  to  any  Borrower  or  any  Material  Subsidiary  described  in  Section  7.01(h)  or  7.01(i).   Each  Borrower  shall  also  deposit  cash  collateral  in  US  Dollars  in  accordance  with  this  paragraph  as  and  to  the  extent  required  of  such  Borrower  by  Section  2.20.   Each  such  deposit  shall  be  held  by  the  Administrative Agent as collateral for the payment and performance of the obligations  of the applicable Borrower under this Agreement.  The Administrative Agent shall have  exclusive dominion and control, including the exclusive right of withdrawal, over such  account.   Other  than  any  interest  earned  on  the  investment  of  such  deposits,  which  investments shall be in Permitted Investments and shall be made at the option and sole  discretion  of  the  Administrative  Agent  and  at  the  applicable  Borrower’s  risk  and  expense,  such  deposits  shall  not  bear  interest.   Interest  or  profits,  if  any,  on  such  investments shall accumulate in such account.  Moneys in such account shall be applied  by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements on  behalf  of  the  applicable  Borrower  (and,  other  than  in  the  case  of  any  Non-Guarantor  Borrower,  the  other  Borrowers)  for  which  they  have  not  been  reimbursed  and,  to  the  extent not so applied, shall be held for the satisfaction of the reimbursement obligations  of the applicable Borrower for the LC Exposure at such time or, if the maturity of the  Loans has been accelerated (but subject to the consent of (A) Lenders with LC Exposure  representing more than 50% of the total LC Exposure and (B) in the case of any such  application at a time when any Lender is a Defaulting Lender (but only if, after giving  effect thereto, the remaining cash collateral shall be less than the total LC Exposure of  all  the  Defaulting  Lenders),  the  consent  of  each  Issuing  Bank),  be  applied  to  satisfy  other  obligations  of  the  applicable  Borrower  (or,  other  than  in  the  case  of  any  Non- Guarantor  Borrower,  any  other  Borrower)  under  this  Agreement.   If  any  Borrower  is  required to provide an amount of cash collateral hereunder as a result of the occurrence  of  an  Event  of  Default,  such  amount  (to  the  extent  not  applied  as  aforesaid)  shall  be  returned to such Borrower within three Business Days after all Events of Default have  been cured or waived.  If any Borrower provides an amount of cash collateral hereunder  pursuant to Section 2.20, such amount (to the extent not applied as aforesaid) shall be  returned to such Borrower, upon request, to the extent that, after giving effect to such  return, no Issuing Bank shall have any exposure in respect of any outstanding Letter of  Credit issued for the account of such Borrower (or, other than in the case of any Non- Guarantor Borrower, any other Borrower) that is not fully covered by the Commitments  of  the  Non-Defaulting  Lenders  and/or  the  remaining  cash  collateral  and  no  Event  of  Default shall have occurred and be continuing.               (k) Issuing Bank Reports.  Unless otherwise agreed by the Administrative  Agent,  each  Issuing  Bank  shall,  in  addition  to  its  notification  obligations  set  forth  elsewhere in this Section, report in writing to the Administrative Agent (i) on or prior to  each Business Day on which such Issuing Bank issues, amends, renews or extends any                                       54  





 






   Letter of Credit, the date of such issuance, amendment, renewal or extension, and the  currency and aggregate face amount of the Letters of Credit issued, amended, renewed  or  extended  by  it  and  outstanding  after  giving  effect  to  such  issuance,  amendment,  renewal  or  extension  (and  whether  the  amount  thereof  shall  have  changed),  it  being  understood that such Issuing Bank shall not effect any issuance, renewal, extension or  amendment resulting in an increase in the amount of any Letter of Credit without first  obtaining written confirmation from the Administrative Agent that such increase is then  permitted under this Agreement, (ii) on each Business Day on which such Issuing Bank  makes any LC Disbursement, the date, currency and amount of such LC Disbursement,  (iii)  on  any  Business  Day  on  which  any  Borrower  fails  to  reimburse  an  LC  Disbursement required to be reimbursed to such Issuing Bank on such day, the date of  such  failure  and  the  currency  and  amount  of  such  LC  Disbursement  and  (iv)  on  any  other Business Day, such other information as the Administrative Agent shall reasonably  request as to the Letters of Credit issued by such Issuing Bank.               (l) Conversion.  In the event that the Loans become immediately due and  payable on any date pursuant to Section 7.01, all amounts (i) that any Borrower is at the  time or becomes thereafter required to reimburse or otherwise pay to the Administrative  Agent in respect of LC Disbursements made under any Letter of Credit denominated in  an Alternative LC Currency (other than amounts in respect of which such Borrower has  deposited  cash  collateral,  if  such  cash  collateral  was  deposited  in  the  applicable  currency), (ii) that the Lenders are at the time or become thereafter required to pay to the  Administrative Agent (and the Administrative Agent is at the time or becomes thereafter  required to distribute to the applicable Issuing Bank) pursuant to paragraph (e) of this  Section in respect of unreimbursed LC Disbursements made under any Letter of Credit  denominated in an Alternative LC Currency and (iii) of each Lender’s participation in  any  Letter  of  Credit  denominated  in  an  Alternative LC  Currency  under  which  an  LC  Disbursement has been made shall, automatically and with no further action required, be  converted  into  the  US  Dollar  Equivalent,  calculated  using  the  LC  Exchange  Rate  on  such date (or in the case of any LC Disbursement made after such date, on the date such  LC Disbursement is made), of such amounts.  On and after such conversion, all amounts  accruing  and  owed  to  the  Administrative  Agent,  any  Issuing  Bank  or  any  Lender  in  respect of the obligations described in this paragraph shall accrue and be payable in US  Dollars at the rates otherwise applicable hereunder.               (m) Communications with Beneficiaries.  Each Issuing Bank shall use its  commercially  reasonable  efforts  to  provide  advance  notice  to  the  Company  of  any  formal communication by such Issuing Bank with any beneficiary under any Letter of  Credit  issued  by  such  Issuing  Bank  with  respect  thereto,  other  than  any  such  communication in the ordinary course of business or otherwise in accordance with the  standard operating procedures of such Issuing Bank.               (n) LC Exposure Determination.  For all purposes of this Agreement, the  amount  of  a  Letter  of  Credit  that,  by  its  terms  or  the  terms  of  any  document  related  thereto, provides for one or more automatic increases in the stated amount thereof shall  be deemed to be the maximum stated amount of such Letter of Credit after giving effect  to all such increases (other than any such increase consisting of the reinstatement of an                                        55  





 






   amount  previously  drawn  thereunder  and  reimbursed),  whether  or  not  such  maximum  stated amount is in effect at the time of determination.               (o) Applicability of ISP and UCP. Unless otherwise expressly agreed by  the  Issuing  Bank  and  the  applicable  Borrower  when  a  Letter  of  Credit  is  issued  (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of  the ISP shall apply to each standby Letter of Credit and (ii) the rules of the UCP shall  apply to each commercial Letter of Credit.               SECTION 2.07. Funding  of  Borrowings¶.  (a)  Each  Lender  shall  make  each Loan to be made by it hereunder on the proposed date thereof by wire transfer of  immediately available funds in the applicable currency by 12:00 noon, Local Time, to the  account  of  the  Applicable  Agent  most  recently  designated  by  it  for  such  purpose  by  notice  to  the  Lenders.   The  Applicable  Agent  will  make  such  Loans  available  to  the  applicable Borrower by promptly crediting the amounts so received, in like funds, to an  account of such Borrower maintained with the Applicable Agent and designated by such  Borrower  in  the  applicable  Borrowing  Request; provided that  ABR  Loans  made  to  finance the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be  remitted  by  the  Administrative  Agent  to  the  applicable  Issuing  Bank specified  in  the  applicable Borrowing Request.               (b) Unless the Applicable Agent shall have received notice from a Lender  prior to the proposed date of any Borrowing that such Lender will not make available to  the Applicable Agent such Lender’s share of such Borrowing, the Applicable Agent may  assume that such Lender has made such share available on such date in accordance with  paragraph (a) of this Section and may, in reliance on such assumption, make available to  the applicable Borrower a corresponding amount.  In such event, if a Lender has not in  fact made its share of the applicable Borrowing available to the Applicable Agent, then  the  applicable  Lender  and  the  applicable  Borrower  severally  agree  to  pay  to  the  Applicable  Agent  forthwith  on  demand  such  corresponding  amount  with  interest  thereon, for each day from and including the date such amount is made available to such  Borrower to but excluding the date of payment to the Applicable Agent, at (i) in the case  of  such  Lender,  (A)  if  denominated  in  US  Dollars,  the  greater  of  the  New  York  Fed  Bank Rate and a rate determined by the Applicable Agent in accordance with banking  industry  rules  on  interbank  compensation  and  (B)  if  denominated  in  an Alternative  Currencyany  currency  other  than  US  Dollars,  a  rate  determined  by  the  Applicable  Agent in accordance with banking industry rules on interbank compensation, or (ii) in  the case of such Borrower, (A) if denominated in US Dollars, the interest rate applicable  to ABR Loans and (B) if denominated in an Alternative Currencyany currency other  than US Dollars, the interest rate applicable to the subject Loan.  If such Lender pays  such amount to the Applicable Agent, then such amount shall constitute such Lender’s  Loan included in  such  Borrowing.   If such Borrower  and such  Lender  shall pay such  interest to the Applicable Agent for the same or an overlapping period, the Applicable  Agent shall promptly remit to such Borrower the amount of such interest paid by such  Borrower  for  such  period.   Any  such  payment  by  any  Borrower  shall  be  without  prejudice to any claim such Borrower may have against a Lender that shall have failed  to make such payment to the Applicable Agent.                                        56  





 






               SECTION 2.08. Interest Elections¶.  (a)  Each Borrowing initially shall be  of  the  Type  specified  in  the  applicable  Borrowing  Request and,  in  the  case  of  a  Eurocurrency  Borrowing,  shall  have  an  initial  Interest  Period  as  specified  in  such  Borrowing Request or as otherwise provided in Section 2.03.  Thereafter, the applicable  Borrower may elect to convert any Borrowing denominated in US Dollars to a different  Type or to continue any Borrowing and, in the case of a Eurocurrency Borrowing, may  elect Interest Periods therefor, all as provided in this Section.  The applicable Borrower  may elect different options with respect to different portions of the affected Borrowing, in  which case each such portion shall be allocated ratably among the Lenders holding the  Loans comprising such Borrowing, and the Loans comprising each such portion shall be  considered a separate Borrowing.               (b) To make an election pursuant to this Section, the applicable Borrower  shall  notify(or  the  Company  on  its  behalf)  shall  submit  a  written  Interest  Election  Request,  signed  by  an  Authorized  Officer  of  such  Borrower  or  the  Company,  as  applicable,  to  the  Applicable  Agent  of  such  election  by  telephone  by  the  time  that  a  Borrowing  Request  would  be  required  under  Section  2.03  if  such  Borrower  were  requesting a Borrowing of the Type, and in the currency, resulting from such election to  be made on the effective date of such election.  Each such telephonic Interest Election  Request  shall  be  irrevocable  and  shall  be  confirmed  promptly  by  hand  delivery  or  facsimile  to  the  Applicable  Agent  of  a  written  Interest  Election  Request  in  a  form  approved by the Applicable Agent and signed by such Borrower.  Notwithstanding any  other provision of this Section, no Borrower shall be permitted to change the currency of  any Borrowing or to convert any Borrowing to a Type not available under the Class of  Commitments pursuant to which such Borrowing was made.               (c) Each  telephonic  and  written  Interest  Election  Request  shall  specify  the following information in compliance with Section 2.02:               (i) the Borrowing to which such Interest Election Request applies and, if        different options are being elected with respect to different portions thereof, the        portions  thereof to  be allocated to  each  resulting  Borrowing (in which  case the        information  to  be  specified  pursuant  to  clauses  (iii)  and  (iv)  below  shall  be        specified for each resulting Borrowing);               (ii) the  effective  date  of  the  election  made  pursuant  to  such  Interest        Election Request, which shall be a Business Day;               (iii) whether  the  resulting  Borrowing  is  to  be  an  ABR  Borrowing  or  a        Eurocurrency Borrowing; and               (iv) if  the  resulting  Borrowing  is  to  be  a  Eurocurrency  Borrowing,  the        Interest Period to be applicable thereto after giving effect to such election, which        shall be a period contemplated by the definition of the term “Interest Period”.                                         57  





 






   If  any  such  Interest  Election  Request  requests  a  Eurocurrency  Borrowing  but  does  not  specify an Interest Period, then the applicable Borrower shall be deemed to have selected  an Interest Period of one month’s duration.               (d) Promptly  following  receipt  of  an  Interest  Election  Request,  the  Administrative  Agent  shall  advise  each  Lender  of  the  applicable  Class  of  the  details  thereof and of such Lender’s portion of each resulting Borrowing.               (e) If a Borrower fails to deliver a timely Interest Election Request with  respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable  thereto,  then  such  Borrowing shall  be  repaid  as  provided  herein  at  the  end  of  such  Interest Period, unless(i) if such Borrowing is denominated in US Dollars, in which case  (unless it is so repaid) it shall be converted to  an ABR Borrowing at the end of such  Interest Period and (ii) if such Borrowing is denominated in any currency other than  US Dollars, shall be continued as a Eurocurrency Borrowing of the same Type with  an  Interest  Period  of  one  month’s  duration  unless  repaid.   Notwithstanding  any  contrary provision hereof, if any Event of Default under Section 7.01(h) or 7.01(i) has  occurred  and  is  continuing,  or  if  any  other  Event  of  Default  has  occurred  and  is  continuing  and  the  Administrative  Agent,  at  the  request  of  the  Required  Lenders,  so  notifies  the  Company,  then,  in  each  such  case,  so  long  as  an  Event  of  Default  is  continuing (i) in the case of Borrowings denominated in US Dollars, (A) no outstanding  Borrowing  may  be  converted  to  or  continued  as  a  Eurocurrency  Borrowing  and  (B)  unless repaid, each Eurocurrency Borrowing shall be converted to an ABR Borrowing at  the  end  of  the  Interest  Period  applicable  thereto,  and  (ii)  in  the  case  of  Borrowings  denominated  in Alternative  Currenciesany  currency  other  than  US  Dollars,  unless  repaid, each Eurocurrency Borrowing shall be continued as a Eurocurrency Borrowing  of the same Type with an Interest Period of one month’s duration.               SECTION 2.09. Termination  and  Reduction  of  Commitments;  Increase  of Commitments¶.  (a)  Unless previously terminated, the Commitments shall terminate  on the Maturity Date.               (b) The Company may at any time terminate, or from time to time reduce,  the Commitments of any Class; provided that (i) each reduction of the Commitments of  any Class shall be in an amount that is an integral multiple of the Borrowing Multiple  for  US  Dollar  denominated  Loans  and  not  less  than  the  Borrowing  Minimum  for  US  Dollar  denominated  Loans  and  (ii)  the  Company  shall  not  terminate  or  reduce  the  Commitments of any Class if, after giving effect to any concurrent prepayment of the  Loans  in  accordance  with  Section  2.11,  the total US  Tranche  Revolving  Exposure  would  exceed  the  total  US  Tranche  Commitments  or  the  total  European  Tranche  Revolving Exposure would exceed the total European Tranche Commitments.               (c) The Company shall notify the Administrative Agent of any election to  terminate or reduce the Commitments under paragraph (b) of this Section at least three  Business  Days  prior to  the effective date of such termination or reduction, specifying  such  election  and  the  effective  date  thereof.   Promptly  following  receipt  of  any  such  notice, the Administrative Agent shall advise the Lenders of the contents thereof.  Each                                        58  





 






   notice delivered by the Company pursuant to this Section shall be irrevocable; provided  that a notice of termination or reduction of the Commitments of any Class delivered by  the Company may state that such notice is conditioned upon the occurrence of one or  more  events  specified  therein,  in  which  case  such  notice  may  be  revoked  by  the  Company (by notice to the Administrative Agent on or prior to the specified effective  date)  if  such  condition  is  not  satisfied.   Any  termination  or  reduction  of  the  Commitments  shall  be  permanent.   Each  reduction  of  the  Commitments  of  any  Class  shall  be  made  ratably  among  the  Lenders  of  such  Class  in  accordance  with  their  respective Commitments of such Class.               (d) The  Company  may  from  time  to  time  request  increases  in  the  aggregate amount of Commitments under either Tranche pursuant to the provisions of  this Section 2.09(d).               (i) The  Company  may,  by  written  notice  to  the  Administrative  Agent        (which shall promptly forward such notice to each Lender under the applicable        Tranche),  request  (A)  that  the  total  Commitments  under  either  Tranche  be        increased (a “Commitment Increase”) by an amount for each increased Tranche        of  not  less  than  US$25,000,000  and  (B)  at  the  election  of  the  Company,  that        simultaneous  decreases  (each,  a  “Commitment  Decrease”)  be  made  to  the        Commitments  under  the  other  Tranche;  provided  that  at  no  time  shall  the        aggregate amount of Commitment Increases effected pursuant to this paragraph        after the FirstFourth Amendment Effective Date, when taken together with the        aggregate  amount of new Commitments  established under Section 9.02(c)  after        the FirstFourth  Amendment  Effective  Date,  exceed  the  aggregate  amount  of        Commitment Decreases effected pursuant to this paragraph after the FirstFourth        Amendment  Effective  Date  by  more  than  US$500,000,000.   Each  such  notice        shall  set  forth  the  amount  of  the  requested  Commitment  Increase  (and        Commitment  Decrease,  as  applicable)  in  each  Tranche,  and  the  date  on  which        such adjustment is requested to become effective (which shall be a Business Day        not  less  than  10  Business  Days  or  more  than  30  days  after  the  date  of  such        notice).  The Company may arrange for one or more banks or other entities (any        such bank or other entity being called an “Augmenting Lender” with respect to        such Tranche), which may include any Lender under either Tranche (each Lender        so agreeing being an “Increasing Lender” with respect to such Tranche, and each        Lender  so  declining  being  a  “Non-Increasing  Lender”  with  respect  to  such        Tranche),  to  extend  Commitments  or,  in  the  case  of  any  Lender,  increase  its        Commitment  in  an  aggregate  amount  equal  to  the  amount  of  the  requested        Commitment Increase; provided that each Augmenting Lender shall be subject to        the approval of the Administrative Agent and each Issuing Bank (which approval        shall  not  be  unreasonably  withheld)  and  the  Borrowers  and  each  Augmenting        Lender  shall  execute  all  such  documentation  as  the  Administrative  Agent  shall        reasonably  specify  to  evidence  the  Commitment  of  such  Augmenting  Lender        and/or  its  status  as  a  Lender  hereunder.   Any  Commitment  Increase  under  any        Tranche may be made in an amount less than the Commitment Increase requested        by  the  Company  if  the  Company  is  unable  to  arrange  for,  or  chooses  not  to        arrange  for,  Augmenting  Lenders  and  Increasing  Lenders.   Not  less  than  three                                        59  





 






                      Business Days prior to the effective date (the “Increase Effective Date”) of any  Commitment  Increase  under  any  Tranche  pursuant  to  this  Section  2.09(d),  the  Company  shall  by  written  notice  to  the  Administrative  Agent  confirm  the  Commitment Decreases, if any, to be made to the Commitments under the other  Tranches  specified  in  the  original  notice  given  in  respect  of  the  proposed  adjustments or shall specify the Commitment Decreases, if any, to be made in lieu  thereof.         (ii) On  the  Increase  Effective  Date  with  respect  to  any  Commitment  Increase, (A) the aggregate principal amount of the Loans outstanding under each  Tranche  under  which  such  Commitment  Increase  will  become  effective  (the  “Initial  Loans”  under  such  Tranche)  immediately  prior  to  giving  effect  to  such  Commitment Increase on the Increase Effective Date shall be deemed to be repaid  by  each  applicable  Borrower,  (B)  after  the  effectiveness  of  such  Commitment  Increase,  each  applicable  Borrower  shall  be  deemed  to  have  made  new  Borrowings under  such  Tranche (collectively,  the  “Subsequent  Borrowings”  under such Tranche) in an aggregate principal amount and in currency equal to  the  aggregate  principal  amount  and  currency  of  the  Initial  Loans  of  such  Borrower  under  such  Tranche  and  of  the  Types  and  for  the  Interest  Periods  specified  in  a  Borrowing  Request  delivered  to  the  Administrative  Agent  in  accordance with Section 2.03, (C) each Lender under such Tranche shall pay to  the  Applicable  Agent  in  same  day  funds  in  the  applicable  currency  an  amount  equal to the difference, if positive, between (1) such Lender’s applicable Tranche  Percentage  (calculated  after  giving  effect  to  such  Commitment  Increase)  of  the  Subsequent  Borrowings  and  (2)  such  Lender’s  applicable  Tranche  Percentage  (calculated  without  giving  effect  to  such  Commitment  Increase)  of  the  Initial  Loans,  (D)  after  the  Applicable  Agent  receives  the  funds  in  the  applicable  currency specified in clause (C) above, the Applicable Agent shall pay to each  Lender  under  such  Tranche  the  portion  of  such  funds  that  is  equal  to  the  difference, if positive, between (1) such Lender’s applicable Tranche Percentage  (calculated  without  giving  effect  to  such  Commitment  Increase)  of  the  Initial  Loans  and  (2)  such  Lender’s  applicable  Tranche  Percentage  (calculated  after  giving  effect  to  such  Commitment  Increase)  of  the  amount  of  the  Subsequent  Borrowings,  (E)  each Non-Increasing  Lender,  each  Increasing  Lender and each  Augmenting Lender shall be deemed to hold its applicable Tranche Percentage of  each  Subsequent  Borrowing  (each  calculated  after  giving  effect  to  such  Commitment  Increase)  and  (F)  each  applicable  Borrower  shall  pay  each  Increasing  Lender  and  each  Non-Increasing  Lender  any  and  all  accrued  but  unpaid  interest  on  the  Initial  Loans  of  such  Borrower.   The  deemed  payments  made pursuant to clause (A) above in respect of any Eurocurrency Loan shall be  subject to indemnification by the applicable Borrower pursuant to the provisions  of Section 2.16 if the Increase Effective Date occurs other than on the last day of  the Interest Period relating thereto and breakage costs result.         (iii) On  the  Increase  Effective  Date,  each  Commitment  Decrease  specified  in  the  notice  by  the  Company  pursuant  to  paragraph  (d)(i)  above  (as  adjusted pursuant  to  the last  sentence of such paragraph) shall be made ratably                                                     60  





 






         among  the  Lenders  holding  Commitments  under  the  decreasing  Tranche  in        accordance with their respective Commitments under such Tranche.               (iv) Commitment  Increases,  Commitment  Decreases  and  new        Commitments created pursuant to this Section 2.09(d) shall become effective on        the date specified in the original notice delivered by the Company pursuant to the        first sentence of paragraph (d)(i) above.               (v) Notwithstanding  the  foregoing,  no  increase  in  the  Commitments        under  any  Tranche  (or  in  any  Commitment  of  any  Lender)  or  addition  of  an        Augmenting Lender shall become effective under this Section 2.09(d) unless (A)        on  the  date  of  such  increase,  the  conditions  set  forth  in  Sections  4.02(a)  and        4.02(b)  shall  be  satisfied  (without  giving  effect  to  the  parenthetical  in  Section        4.02(a), but, in each case, deeming all references therein to the date, time or effect        of a Borrowing (or an issuance, amendment, renewal or extension of a Letter of        Credit)  to  refer  to  the  date,  time  and  effect  of  such  increase)  and  the        Administrative  Agent  shall  have  received  a  certificate  to  that  effect  dated  such        date and executed by a Financial Officer and (B) the Administrative Agent shall        have  received,  to  the  extent  reasonably  requested  by  the  Administrative  Agent,        documents  consistent  with  those  delivered  pursuant  to  Sections  4.01(b)  and        4.01(d)  as  to  the  corporate  power  and  authority  of  the  Borrowers  to  borrow        hereunder after giving effect to such increase and related matters.               SECTION 2.10. Repayment  of  Loans;  Evidence  of  Debt¶.  (a)  Each  Borrower hereby unconditionally promises to pay on the Maturity Date to the Applicable  Agent for the account of each Lender the then unpaid principal amount of each Loan of  such Lender made to such Borrower.  Each Borrower will repay the principal amount of  each  Loan made  to  such  Borrower and  the  accrued  interest  thereon  in  the  currency  in  which such Loan is denominated.               (b) Each Lender shall maintain in accordance with its usual practice an  account  or  accounts  evidencing  the  indebtedness  of  each  Borrower  to  such  Lender  resulting from each Loan made by such Lender, including the amounts of principal and  interest payable and paid to such Lender from time to time hereunder.               (c) Each  Agent  shall  maintain  accounts  in  which  it  shall  record  (i)  the  amount  of  each  Loan  made  hereunder,  the  Class  and  Type  thereof  and  the  Interest  Period applicable thereto, (ii) the amount of any principal or interest due and payable or  to become due and payable from each Borrower to each Lender hereunder and (iii) the  amount of any sum received by such Agent hereunder for the account of the Lenders and  each Lender’s share thereof.               (d) The  entries  made  in  the  accounts  maintained  pursuant  to  paragraph  (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of  the obligations recorded therein; provided that the failure of any Lender or any Agent to  maintain such accounts or any error therein shall not in any manner affect the obligation                                        61  





 






   of  the  applicable  Borrower  to  repay  the  Loans  in  accordance  with  the  terms  of  this  Agreement.               (e) Any  Lender  may  request  that  Loans  of  any  Class  made  by  it  be  evidenced by a promissory note.  In such event, each applicable Borrower shall prepare,  execute  and  deliver  to  such  Lender  a  promissory  note  payable  to  the  order  of  such  Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in  a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such  promissory  note  and  interest  thereon  shall  at  all  times  (including  after  assignment  pursuant to Section 9.04) be represented by one or more promissory notes in such form  payable  to  the  order  of  the  payee  named  therein  (or,  if  such  promissory  note  is  a  registered note, to such payee and its registered assigns).               SECTION 2.11. Prepayment of Loans¶.  (a)  Each Borrower shall have the  right at any time and from time to time to prepay any of its Borrowings in whole or in  part, without any premium or penalty (but subject to Section 2.16) subject to prior notice  in accordance with paragraph (c) of this Section.               (b) In the event and on each occasion that the sum of Revolving Credit  Exposures under any Tranche exceeds the sum of the Commitments under such Tranche,  each Borrower shall not later than the next Business Day prepay Borrowings made to  such  Borrower  under  the  applicable  Tranche  in  an  aggregate  amount  equal  to  such  Borrower’s  pro  rata  share  (determined  on  the  basis  of  the  percentage  that  such  Borrowings  represent  of  the  aggregate  principal  amount  of  all  Borrowings  under  the  applicable  Tranche)  of  such  excess,  and  in  the  event  that  after  such  prepayment  of  Borrowings  any  such  excess  shall  remain,  each  Borrower  shall  deposit  with  the  Administrative Agent cash in US Dollars in an amount equal to such Borrower’s pro rata  share  (determined on the basis of the percentage that the  LC Exposure  attributable to  Letters of Credit issued for the account of such Borrower represents of the aggregate LC  Exposure)  of  such  excess  as  collateral  for  the  reimbursement  obligations  of  such  Borrower  in  respect  of  Letters  of  Credit  under  such  Tranche;  provided  that  if  such  excess  results  from  a  change  in currency  exchange  ratesExchange  Rates,  such  prepayment and deposit  shall be required to be made not later than the fifth Business  Day  after  the  day  on  which  the  Administrative  Agent  shall  have  given  the  Company  notice  of  such  excess.   Any  cash  so  deposited  (and  any  cash  previously  deposited  pursuant to this paragraph) with the Administrative Agent shall be held  in an account  over which the Administrative Agent  shall have sole dominion  and  control,  including  exclusive rights of withdrawal.  Other than any interest earned on the investment of such  deposits, which investment shall be in Permitted Investments and shall be made in the  discretion  of  the  Administrative  Agent  and  at  the  applicable  Borrower’s  risk  and  expense,  such  deposits  shall  not  bear  interest.   Interest  or  profits,  if  any,  on  such  investments shall accumulate in such account.  Moneys in such account shall be applied  by  the  Administrative  Agent  to  reimburse  each  Issuing  Bank  for  the  portion  of  LC  Disbursements on behalf of the applicable Borrower that is allocable to such Tranche for  which it has not been reimbursed and, to the extent not so applied, shall be held for the  satisfaction of the reimbursement obligations of the applicable Borrower (or, other than  in the case of any Non-Guarantor Borrower, any other Borrower) for the LC Exposure                                        62  





 






   allocable  to  such  Tranche  at  such  time  or,  if  the  maturity  of  the  Loans  has  been  accelerated  (but  subject  to  the  consent  of  Lenders  holding  more  than  50%  of  the  LC  Exposures), be applied to satisfy other obligations of the applicable Borrower (or, other  than  in  the  case  of  any  Non-Guarantor  Borrower,  any  other  Borrower)  under  this  Agreement.  If any Borrower has provided cash collateral pursuant to this paragraph to  secure the reimbursement obligations of such Borrower in respect of Letters of Credit,  then, so long as no Event of Default shall exist, such cash collateral shall be released to  such Borrower if so requested by such Borrower at any time if and to the extent that,  after  giving  effect  to  such  release,  the  aggregate  amount  of  the  Revolving  Credit  Exposures under the applicable Tranche would not exceed the aggregate amount of the  Commitments under such Tranche (or, in the case of any Non-Guarantor Borrower, such  Non-Guarantor Borrower would not be required to provide cash collateral in accordance  with  this  paragraph).   Prepayments  made  under  this  paragraph  shall  be  without  any  premium or penalty (but shall be subject to Section 2.16).               (c) The  applicable  Borrower  shall  notify  the  Applicable  Agent  by  telephone  (confirmed  by  facsimile)  of  any  prepayment  hereunder  (i)  in  the  case  of  prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time, four  Business  Days  before  the  date  of  prepayment  or  (ii)  in  the  case  of  prepayment  of  an  ABR  Borrowing,  not  later  than  11:00  a.m.,  New  York  City  time,  one  Business  Day  before the date of prepayment; provided that in the case of any prepayment required to  be  made  within  one  Business  Day  under  paragraph  (b)  of  this  Section  the  applicable  Borrower  will  give  such  notice  as  soon  as  practicable.   Each  such  notice  shall  be  irrevocable  and  shall  specify  the  prepayment  date  and  the  principal  amount  of  each  Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is  given  in  connection  with  a  conditional  notice  of  termination  or  reduction  of  the  Commitments as contemplated by Section 2.09, then such notice of prepayment may be  revoked  if  such  notice  of  termination  is  revoked  in  accordance  with  Section  2.09.   Promptly  following  receipt  of  any  such  notice  relating  to  a  Borrowing,  the  Administrative Agent  shall advise the  Lenders of the applicable Class of the contents  thereof.  Each partial prepayment of any Borrowing shall be in an amount that would be  permitted in the case of an advance of a Borrowing of the same Class, Type and in the  same currency as provided in Section 2.02.  Each prepayment of a Borrowing shall be  applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be  accompanied by accrued interest to the extent required by Section 2.13.               SECTION 2.12. Fees¶.  (a)  The  Company  agrees  to  pay,  or  cause  the  applicable Borrowing Subsidiary to pay, to the Administrative Agent for the account of  each Lender a commitment fee, which shall accrue at the Applicable Rate on the daily  unused amount of the Commitments of such Lender during the period from and including  the FirstFourth Amendment Effective Date to but excluding the date on which the last of  such Commitments terminates.  Commitment fees accrued through and including the last  day  of  March,  June,  September  and  December  of  each  year  shall  be  payable  on  the  seventhfifteenth day (or,  if  such  day  is  not  a Business  Day,  the  next  succeeding  Business Day) following such last day and on the date on which the Commitments of any  Class terminate, commencing on the first such date to occur after the date hereof.  All  commitment  fees  shall  be  computed  on  the  basis  of  a  year  of  360  days  and  shall  be                                        63  





 






   payable for the actual number of days elapsed (including the first day but excluding the  last day).  For purposes of computing commitment fees, a Commitment of a Lender under  any Tranche shall be deemed to be used to the extent of the outstanding Loans and LC  Exposure of such Lender under such Tranche.               (b) Each Borrower agrees to pay (i) to the Administrative Agent for the  account of each Lender a participation fee with respect to its participations in Letters of  Credit  issued  for  the  account  of  such  Borrower,  which  shall  accrue  at  the  Applicable  Rate  used  to  determine  the  interest  rate  applicable  to  Eurocurrency  Loans,  on  the  average  daily  amount  of  such  Lender’s  LC  Exposure  attributable  to  such  Letters  of  Credit (excluding any portion thereof attributable to unreimbursed LC Disbursements)  during the period from and including the FirstFourth Amendment Effective Date to but  excluding  the  later  of  the  date  on  which the  last  of such  Lender’s  CommitmentCommitments  terminates  and  the  date  on  which  such  Lender  ceases  to  have any such LC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall  accrue at the rate or rates per annum separately agreed upon between the Company and  such Issuing Bank on the daily LC Exposure attributable to Letters of Credit issued for  the  account  of  such  Borrower  by  such  Issuing  Bank  (excluding  any  portion  thereof  attributable to unreimbursed LC Disbursements), during the period from and including  the FirstFourth Amendment Effective Date to but excluding the later of the date the LC  Commitment of such Issuing Bank is reduced to zero and the date on which there ceases  to be any such LC Exposure, as well as such Issuing Bank’s standard fees with respect  to the issuance, amendment, renewal or extension of any Letter of Credit issued for the  account of such Borrower or processing of drawings thereunder.  Participation fees and  fronting fees accrued through and including the last day of March, June, September and  December of each year shall be payable on the seventhfifteenth day (or, if such day is  not  a  Business  Day,  the  next  succeeding  Business  Day)  following  such  last  day,  commencing on the first such date to occur after the FirstFourth Amendment Effective  Date; provided that all such fees shall be payable on the date on which the Commitments  terminate  and  any  such  fees  accruing  after  the  date  on  which  the  Commitments  terminate  shall  be  payable  on  demand.   Any  other  fees  payable  to  any  Issuing  Bank  pursuant  to  this  paragraph  shall  be  payable  within  10  days  after  demand.   All  participation fees and fronting fees shall be computed on the basis of a year of 360 days  and shall be payable for the actual number of days elapsed (including the first day but  excluding the last day).               (c) The Company agrees to pay to the Administrative Agent, for its own  account, fees payable in the amounts and at the times separately agreed upon between  the Company and the Administrative Agent.               (d) All  fees  payable  hereunder  shall  be  paid  on  the  dates  due,  in  immediately  available  funds  in  US  Dollars,  to  the  Administrative  Agent  (or  to  the  Issuing  Banks,  in  the  case  of  fees  payable  to  them)  for  distribution,  in  the  case  of  commitment fees and participation fees, to the Lenders entitled thereto.  Fees paid shall  not be refundable under any circumstances.                                         64  





 






               SECTION 2.13. Interest¶.  (a)  The  Loans  comprising  each  ABR  Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate.               (b) The  Loans  comprising  each  Eurocurrency  Borrowing  shall  bear  interest  (i)  in  the  case  of  any  such  Borrowing  denominated  in  US  Dollars,  at  the  Adjusted LIBO Rate, (ii) in the case of any such Borrowing denominated in Sterling, at  the LIBO Rate and, (iii) in the case of any such Borrowing denominated in Euro, at the  EURIBO  Rate, (iv)  in  the  case  of  any  such  Borrowing  denominated  in  Canadian  Dollars, at the CDO Rate, and (v) in the case of any such Borrowing denominated  in Australian Dollars, at the AUD Bank Bill Rate, in each case for the Interest Period  in effect for such Borrowing, plus, in each case, the Applicable Rate.               (c) Notwithstanding the foregoing, if any principal of or interest on any  Loan or any fee or other amount payable by any Borrower hereunder is not paid when  due, whether  at  stated maturity, upon acceleration or otherwise, such overdue amount  shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in  the  case  of  overdue  principal  of  any  Loan,  2%  per  annum  plus  the  rate  otherwise  applicable to such Loan as provided in the preceding paragraphs of this Section, (ii) in  the  case  of  any  overdue  interest  on  any  Loan  denominated  in  Sterling  or,  Euro,  Canadian  Dollars  or  Australian  Dollars,  2%  per  annum  plus  the  rate  otherwise  applicable to such Loan as provided in the preceding paragraphs of this Section or (iii)  in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided  in paragraph (a) of this Section.               (d) Accrued  interest  on  each  Loan  shall  be  payable  in  arrears  on  each  Interest  Payment  Date  for  such  Loan  and,  in  the  case  of  Loans  of  any  Class,  upon  termination  of  the  Commitments  of  such  Class;  provided  that  (i)  interest  accrued  pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of  any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan  prior  to  the  end  of  the  Availability  Period),  accrued  interest  on  the  principal  amount  repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii)  in the event of any conversion of any Eurocurrency Loan prior to the end of the current  Interest Period therefor, accrued interest on such Loan shall be payable on the effective  date  of  such  conversion.   All  interest  shall  be  payable  in  the  currency  in  which  the  applicable Loan is denominated.               (e) All interest hereunder shall be computed on the basis of a year of 360  days, except that (i) interest computed by reference to the Alternate Base Rate at times  when  the  Alternate  Base  Rate  is  based  on  the  Prime  Rate  and  (ii)  interest  on  Eurocurrency Loans denominated in Sterling, Canadian Dollars or Australian Dollars  shall be computed on the basis of a year of 365 days (or, in the case of clause (i) above,  366 days in a leap year), and in each case shall be payable for the actual number of days  elapsed  (including the  first day but excluding the last  day).  The applicable Alternate  Base  Rate,  Adjusted  LIBO  Rate,  LIBO  Rate  or,  EURIBO  Rate,  CDO  Rate  or  AUD  Bank  Bill  Rate  shall  be  determined  by  the  Administrative  Agent,  and  such  determination shall be conclusive absent manifest error.                                        65  





 






               SECTION 2.14. Alternate  Rate  of  Interest¶.  (a) If  prior  to  the  commencement of any Interest Period for a Eurocurrency Borrowing:               (a) (i) the Administrative Agent determines (which determination shall be        conclusive absent manifest error) that adequate and reasonable means do not exist        for ascertaining the Adjusted LIBO Rate, the LIBO Rate, the EURIBO Rate, the        CDO Rate or the EURIBOAUD Bank Bill Rate for such Interest Period; or               (b) (ii) the Administrative Agent is advised by the majority in interest of        the Lenders under the affected Tranche that the Adjusted LIBO Rate, the LIBO        Rate, the EURIBO Rate, the CDO Rate or the EURIBOAUD Bank Bill Rate        for  such  Interest  Period  will  not  adequately  and  fairly  reflect  the  cost  to  such        Lenders  of  making  or  maintaining  their  Loans  included  in  such  Borrowing  for        such Interest Period;   then the Administrative Agent shall give notice thereof to the Company and the Lenders  by  telephone  or  facsimile  as  promptly  as  practicable  thereafter  and,  until  the  Administrative  Agent  notifies  the  Company  and  the  Lenders  that  the  circumstances  giving rise to such notice no longer exist, (iA) any Interest Election Request that requests  the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency  Borrowing  of  the  applicable  Type  shall  be  ineffective,  and,  unless  repaid,  such  Borrowing shall, if denominated in US Dollars, be madecontinued as or converted to an  ABR Borrowing or, if denominated in an Alternative Currencyany currency other than  US Dollars, bear interest at such rate as the Administrative Agent shall determine (which  determination shall be conclusive absent manifest error) adequately and fairly reflects  the cost to the affected Lenders (or Lender) of making or maintaining their Loans (or its  Loan) included in such Borrowing for such Interest Period plus the Applicable Rate, and  (ii  (or,  if  the  Administrative  Agent  determines  that  it  is  unable  to  make  such  a  determination,  shall  be  repaid  on  the  last  day  of  the  current  Interest  Period  applicable  thereto),  and  (B)  if  any  Borrowing  Request  requests  a  Eurocurrency  Borrowing of the applicable Type, such Borrowing shall, if denominated in US Dollars,  be  made  as  an  ABR  Borrowing  or,  if  denominated  in an  Alternative  Currencyany  currency other than US Dollars, bear interest at such rate as the Administrative Agent  shall  determine (which  determination  shall  be  conclusive  absent  manifest  error)  adequately and fairly reflects the cost to the affected Lenders (or Lender) of making or  maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period  plus  the  Applicable  Rate; provided  that  if  the  circumstances  giving  rise  to  such  notice  affect  only  one  Type  of  Borrowings,  then  the  other  Type  of  Borrowings  shall  be  permitted. (or, if the Administrative Agent determines that it is unable to make such  a determination, shall be ineffective).               (b) If  at  any  time  the Administrative Agent  determines  (which  determination shall be conclusive absent manifest error and shall be evidenced by  written notice to the Company), or the Company notifies the Administrative Agent  that it has determined, that (i) the circumstances set forth in paragraph (a)(i) of this  Section have arisen with respect to Loans of any Type and such circumstances are  unlikely  to be temporary or (ii)  the circumstances  set forth  in paragraph (a)(i) of                                        66  





 






   this Section have not arisen but either (w) the supervisor for the administrator of  the applicable Screen Rate has  made a public statement that the administrator of  such  Screen  Rate  is  insolvent  (and  there  is  no  successor  administrator  that  will  continue  publication  of  such Screen  Rate),  (x)  the  administrator  of  the  applicable  Screen Rate has made a public statement identifying a specific date after which such  Screen Rate will permanently or indefinitely cease to be published by it (and there is  no successor administrator that will continue publication of such Screen Rate), (y)  the  supervisor  for  the  administrator  of  the  applicable  Screen  Rate  has  made  a  public  statement  identifying  a  specific  date  after  which  such  Screen  Rate  will  permanently  or  indefinitely  cease  to  be  published  or  (z) the  supervisor  for  the  administrator  of  the  applicable Screen  Rate  or  a  Governmental  Authority  having  jurisdiction over the Administrative Agent has made a public statement identifying  a  specific  date  after  which  the  applicable  Screen  Rate  may  no  longer  be  used  for  determining interest rates for loans, then, reasonably promptly following receipt of  such  notice  by  the  Company  or  the  Administrative  Agent,  as  applicable,  the  Administrative Agent and the Company shall, at the option of the Company (in its  sole discretion), (A) endeavor to establish an alternate rate of interest to the LIBO  Rate, the EURIBO Rate, the CDO Rate or the AUD Bank Bill Rate, as applicable,  that  gives  due  consideration  to  the  then  prevailing  market  convention  for  determining a rate of interest for syndicated loans in the United States denominated  in  the  applicable  currency  at  such  time  and  (B)  enter  into  an  amendment  to  this  Agreement to reflect such alternate rate of interest and such other related changes  to this Agreement as may be applicable (it being understood that such amendment  shall not reduce the Applicable Rate).  Notwithstanding anything else herein, any  definition of such alternate rate of interest shall provide that in no event shall such  alternate  rate  of  interest  be  less  than  zero  for  the  purposes  of  this  Agreement.  Notwithstanding  anything  to  the  contrary  in  Section  9.02,  such  amendment  shall  become  effective  without  any  further  action  or  consent  of  any  other  party  to  this  Agreement so long as the Administrative Agent shall not have received, within five  Business Days of the date a copy of such amendment is provided to the Lenders, a  written  notice  from  the  Required  Lenders  stating  that  such  Required  Lenders  object to such amendment.  Until an alternate rate of interest shall be determined in  accordance with this paragraph (but, in the case of the circumstances described in  clause  (ii)  above,  only  to  the  extent  the  applicable  Screen  Rate  for  such  Interest  Period is not available or published at such time on a current basis), clauses (A) and  (B) of paragraph (a) of this Section shall be applicable.               SECTION 2.15. Increased Costs¶.  (a)  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  such  reserve  requirement  reflected  in  the  Adjusted  LIBO        Rate) or any Issuing Bank;                (ii) subject any Agent, Lender or Issuing Bank to any Taxes on its loans,        loan principal, letters of credit, commitments or other obligations, or its deposits,                                        67  





 






         reserves,  other liabilities or  capital  attributable thereto  (but expressly  excluding        Taxes referred to in paragraph (f) of this Section); or               (iii) impose on any Lender or any Issuing Bank or the London interbank        market  or,  European  interbank  market,  Toronto  interbank  market  or        Australian interbank market any other condition, cost or expense affecting this        Agreement or Eurocurrency 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,  converting  to  or  continuing  or  maintaining  any  Loan  (or  of  maintaining  its  obligation to make any Loan) or to increase the cost to such Lender or such Issuing Bank  of  participating  in,  issuing  or  maintaining  any  Letter  of  Credit  (or  of  maintaining  its  obligation to participate in or to issue any Letter of Credit) or to reduce the amount of any  sum received or receivable by such Lender or such Issuing Bank hereunder (whether of  principal,  interest  or  otherwise),  then  the  Company  will  pay,  or  cause  the  applicable  Borrowing Subsidiary to pay, to such Lender or such Issuing Bank, as the case may be,  such additional amount or amounts as will compensate such Lender or such Issuing Bank,  as the case may be, for such additional costs incurred or reduction suffered.               (b) If any Lender or any Issuing Bank determines that any Change in Law  regarding capital or liquidity requirements has had or would have the effect of reducing  the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of  such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this  Agreement or the  Loans made by, or participations  in  Letters of Credit held  by, such  Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which  such  Lender  or  such  Issuing  Bank  or  such  Lender’s  or  such  Issuing  Bank’s  holding  company  could  have  achieved  but  for  such  Change  in  Law  (taking  into  consideration  such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such  Issuing  Bank’s holding  company with  respect to  capital  adequacy and liquidity), then  from time to time the Company will pay, or cause the applicable Borrowing Subsidiary  to pay, to such Lender or such Issuing Bank, as the case may be, such additional amount  or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or  such Issuing Bank’s holding company for any such reduction suffered.               (c) A certificate of a Lender or an Issuing Bank setting forth the amount  or amounts necessary to compensate such  Lender or such Issuing Bank or its holding  company, as the case may be, as specified in paragraph (a) or (b) of this Section, as the  case  may  be,  setting  forth  in  reasonable  detail  the  manner  in  which  such  amount  or  amounts  have  been  determined,  shall  be  delivered  to  the  Company  and  shall  be  conclusive absent manifest error.  The Company or the applicable Borrowing Subsidiary  shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as  due on any such certificate within 10 Business Days after receipt thereof.               (d) Failure  or  delay  on  the  part  of  any  Lender  or  any  Issuing  Bank  to  demand  compensation  pursuant  to  this  Section  shall  not  constitute  a  waiver  of  such  Lender’s or such Issuing Bank’s right to demand such compensation; provided that the                                        68  





 






   Company or any Borrowing Subsidiary shall not be required to compensate a Lender or  an Issuing Bank pursuant to this Section for any increased costs or reductions incurred  more than 180 days prior to the date that such Lender or such Issuing Bank, as the case  may be, notifies the Company of the Change in Law giving rise to such increased costs  or  reductions  and  of  such  Lender’s  or  such  Issuing  Bank’s  intention  to  claim  compensation therefor; provided further that, if the Change in Law giving rise to such  increased costs or reductions  is  retroactive, then the 180-day period  referred to  above  shall be extended to include the period of retroactive effect thereof.                 (e) If  an  Agent,  a  Lender  or  an  Issuing  Bank  determines,  in  its  sole  discretion,  that  it  has  received  a  refund  of  any  amount  as  to  which  it  has  been  indemnified by any Borrower pursuant to this Section 2.15, it shall pay over such refund  to such Borrower (but only to the extent of indemnity payments made by such Borrower  under this Section 2.15 with respect to the events giving rise to such refund), net of all  out-of-pocket expenses of such Agent, such Lender or such Issuing Bank and without  interest  (other  than  any  interest  paid  by  the  relevant  Governmental  Authority  with  respect to such refund); provided that each Borrower, upon the request of such Agent,  such  Lender  or  such  Issuing  Bank,  agrees  to  repay  the  amount  paid  over  to  such  Borrower  (plus  any  penalties,  interest  or  other  charges  imposed  by  the  relevant  Governmental Authority) in the event such Agent, such Lender or such Issuing Bank is  required to repay such refund to such Governmental Authority.  This Section shall not  be construed to require any Agent, any Lender or any Issuing Bank to make available its  accounting  records  (or  any  other  information  which  it  deems  confidential)  to  any  Borrower or any other Person.               (f) For the avoidance of doubt, this Section 2.15 (i) shall not entitle any  Agent, Lender or Issuing Bank to compensation in respect of any Excluded Taxes, (ii)  shall not apply to (A) Indemnified Taxes imposed on payments by or on account of any  obligations  of  any  Borrower  hereunder  or  under  any  Loan  Document  or  (B)  Other  Taxes, it being understood that Indemnified Taxes and Other Taxes shall be governed by  Section  2.17(a),  and  (iii)  shall  not  relieve  any  Lender  of  any  obligation  pursuant  to  Section 2.17(d), 2.17(f), 2.17(g) or 2.17(h).               SECTION 2.16. Break  Funding  Payments¶.   In  the  event  of  (a)  the  payment  of any  principal  of  any  Eurocurrency  Loan  other  than  on  the  last  day  of  an  Interest Period applicable thereto (including as a result of an Event of Default), (b) the  conversion of  any Eurocurrency  Loan other than on the last  day of the  Interest  Period  applicable  thereto,  (c)  the  failure  to  borrow,  convert,  continue  or  prepay  any  Eurocurrency  Loan  on  the  date  specified  in  any  notice  delivered  pursuant  hereto  (regardless of whether such notice may be revoked under Section 2.11(c) and is revoked  in accordance therewith) or (d) the assignment of any Eurocurrency Loan other than on  the  last  day  of  the  Interest  Period  applicable  thereto  as  a  result  of  a  request  by  the  Company pursuant to Section 2.19 or the CAM Exchange, then, in any such event, the  applicable  Borrower  shall  compensate  each  Lender  for  the  loss,  cost  and  expense  attributable to such event.  In the case of a Eurocurrency Loan, such loss, cost or expense  to any Lender shall be deemed to include an amount determined by such Lender to be the  excess,  if  any,  of  (i)  the  amount  of  interest  that  would  have  accrued  on  the  principal                                        69  





 






   amount of such Loan had such event not occurred, at the Adjusted LIBO Rate, the LIBO  Rate or the, EURIBO Rate, the CDO Rate or the AUD Bank Bill Rate, as the case may  be, that would have been applicable to such Loan, for the period from the date of such  event to the last day of the then current Interest Period therefor (or, in the case of a failure  to borrow, convert or continue, for the period that would have been the Interest Period for  such Loan) over (ii) the amount of interest that would accrue on such principal amount  for such period at  the interest  rate which such  Lender would bid  were it to  bid,  at  the  commencement of such period, for deposits in the applicable currency of a comparable  amount  and  period  from  other  banks  in  the eurocurrency  marketRelevant  Interbank  Market.   A  certificate  of  any  Lender  setting  forth  any  amount  or  amounts  that  such  Lender is entitled to receive pursuant to this Section shall be delivered to the Company  and shall be conclusive absent manifest error.  The applicable Borrower shall pay such  Lender  the  amount  shown  as  due  on  any  such  certificate  within  20  days  after  receipt  thereof.               SECTION 2.17. Taxes¶.  (a)  Any and all payments by or on account of  any obligation of any Borrower hereunder or under any other Loan Document shall be  made free and clear of and without deduction for any Indemnified Taxes or Other Taxes  except as required by applicable law; provided that if any Borrower shall be required by  applicable  law  to  deduct  any  Indemnified  Taxes  or  Other  Taxes  from  such  payments,  then (i) the sum payable by such Borrower shall be increased as necessary so that after  making  all  required  deductions  (including  deductions  applicable  to  additional  sums  payable under this Section) the Applicable Agent,  Lender or Issuing Bank (as the case  may  be)  receives  an  amount  equal  to  the  sum  it  would  have  received  had  no  such  deductions been made, (ii) the applicable Borrower shall make such deductions and (iii)  the applicable Borrower shall pay the full amount deducted to the relevant Governmental  Authority in accordance with applicable law.               (b) In  addition,  the  Company  shall  pay,  or  cause  the  applicable  Borrowing Subsidiary to pay, any Other Taxes to the relevant Governmental Authority  in accordance with applicable law.               (c) The  Company  shall  indemnify,  or  cause  the  applicable  Borrowing  Subsidiary  to  indemnify,  each  Agent,  Lender  and  Issuing  Bank,  within  20  days  after  written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes  paid by such Agent, such Lender or such Issuing Bank, as the case may be, on or with  respect to any payment by or on account of any obligation of  any Borrower hereunder  or  under  any  other  Loan  Document  (including  Indemnified  Taxes  or  Other  Taxes  imposed or asserted on or attributable to amounts payable under this Section) and any  penalties,  interest  and  reasonable  expenses  arising  therefrom  or  with  respect  thereto,  whether  or  not  such  Indemnified  Taxes  or  Other  Taxes  were  correctly  or  legally  imposed  or  asserted  by  the  relevant  Governmental  Authority.   A  certificate  as  to  the  amount of such payment or liability delivered to the Company by a Lender or an Issuing  Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or an  Issuing Bank, shall be conclusive absent manifest error.                                         70  





 






               (d) Each  Lender  and  Issuing  Bank  severally  agrees  to  indemnify  each  Agent,  within  20  days  after  written  demand  therefor,  for  the  full  amount  of  (i)  any  Indemnified  Taxes  and  Other  Taxes  attributable  to  such  Lender  or  Issuing  Bank  (but  only to the extent that the Borrowers have not already indemnified such Agent for such  Indemnified Taxes and without limiting the obligation of any Borrower to do so), (ii)  any  Taxes  attributable  to  such  Lender’s  or  Issuing  Bank’s  failure  to  comply  with  the  provisions of Section 9.04(c) relating to the maintenance of a Participant Register and  (iii) any Excluded Taxes attributable to such Lender or Issuing Bank, in each case, that  are  paid  or  payable  by  such  Agent  in  connection  with  any  Loan  Documents  and  any  penalties,  interest  and  reasonable  expenses  arising  therefrom  or  with  respect  thereto,  whether or not such 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  applicable  Lender  or  Issuing  Bank  by  an  Agent  shall  be  conclusive  absent manifest error.  Each Lender and Issuing Bank hereby authorizes each Agent to  set off and apply any and all amounts at any time owing to such Lender or Issuing Bank  under any Loan Document or otherwise payable by such Agent to the Lender or Issuing  Bank from any other source against any amount due to such Agent under this paragraph  (d).   Nothing  herein  shall  prevent  any  Lender  or  Issuing  Bank  from  contesting  the  applicability of any Excluded Taxes that it believes to have been incorrectly or illegally  imposed or asserted by any Governmental Authority; provided that no such contest shall  suspend the obligation of any Lender or Issuing Bank to pay amounts due to the Agents  as provided in the first sentence of this paragraph.               (e) As  soon  as  practicable  after  any  payment  of  Indemnified  Taxes  or  Other Taxes by any Borrower to a Governmental Authority, such 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.               (f) (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document shall deliver  to  the  Company  (with  a  copy  to  the  Administrative  Agent),  at  the  time  or  times  reasonably  requested  by  the  Company  or  the  Administrative  Agent  or,  solely  with  respect to an obligation of any Borrower that is a Domestic Subsidiary, at the time or  times  prescribed  by  applicable  law,  such  properly  completed  and  executed  documentation reasonably requested by the Company or the Administrative Agent, or, if  applicable,  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  reasonably requested by the Company or the Administrative Agent, shall deliver such  other  documentation  prescribed  by  applicable  law  or  reasonably  requested  by  the  Company  or  the  Administrative  Agent  as  will  enable  the  Borrowers  or  the  Administrative  Agent  to  determine  whether  or  not  such  Lender  is  subject  to  backup  withholding  or  information  reporting  requirements.   Notwithstanding  anything  to  the  contrary in  the preceding two sentences,  the completion, execution and submission of  such documentation (other than such documentation set forth in Section 2.17(f)(ii)(A),  (ii)(B) and (ii)(D) below) shall not be required if in the Lender's reasonable judgment                                        71  





 






   such  completion,  execution  or  submission  would  subject  such  Lender  to  any  material  unreimbursed  cost  or  expense  or  would  materially  prejudice  the  legal  or  commercial  position of such Lender.                (ii) Without limiting the generality of the foregoing,                             (A) any Lender that is a U.S. Person shall deliver to the Company and the  Administrative Agent on or prior to the date on which such  Lender becomes a Lender  under this Agreement (and from time to time thereafter upon the reasonable request of the  Company or the Administrative Agent), executed originals of IRS Form W-9 certifying  that such Lender is exempt from U.S. Federal backup withholding Tax;                             (B) any Foreign Lender shall, to the extent it is legally entitled to do so,  deliver to the Company 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  reasonable  request  of  the  Company  or  the  Administrative  Agent),  whichever  of  the  following is applicable:                      (1)   in  the  case  of  a  Foreign  Lender  claiming  the  benefits  of  an              income tax treaty to which the United States is a party (x) with respect to              payments of interest under any Loan Document, executed originals of IRS              Form  W-8BEN  or  IRS  Form  W-8BEN-E,  as  applicable,  establishing  an              exemption from, or reduction of, U.S. Federal withholding Tax pursuant to              the “interest” article of such tax treaty and (y) with respect to any other              applicable  payments  under  any  Loan  Document,  IRS  Form  W-8BEN  or              IRS Form W-8BEN-E, as applicable, establishing an exemption from, or              reduction  of,  U.S.  Federal  withholding  Tax  pursuant  to  the  “business              profits” or “other income” article of such tax treaty;                      (2)  executed originals of IRS Form W-8ECI;                            (3)  in  the  case  of  a  Foreign  Lender  claiming  the  benefits  of  the              exemption  for  portfolio interest  under  Section  881(c)  of  the  Code,  (x)  a              certificate substantially in the form of Exhibit C-1 to the effect that such              Foreign  Lender  is  not  a  “bank”  within  the  meaning  of  Section              881(c)(3)(A)  of  the  Code,  a  “10  percent  shareholder”  of  the  applicable              Borrower  within  the  meaning  of  Section  881(c)(3)(B)  of  the  Code,  or  a              “controlled foreign corporation” described in Section 881(c)(3)(C) of the              Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of              IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or                                        (4)  to  the  extent  a  Foreign  Lender  is  not  the  beneficial  owner,              executed originals of IRS Form W-8IMY, accompanied by IRS Form W-             8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S.              Tax  Compliance  Certificate  substantially  in  the  form  of  Exhibit  C-2  or              Exhibit  C-3,  IRS  Form  W-9,  and/or  other  certification  documents  from                                       72  





 






               each beneficial owner, as applicable; provided that if the Foreign Lender is              a partnership and one or more direct or indirect partners of such Foreign              Lender are claiming the portfolio interest exemption, such Foreign Lender              may provide a U.S. Tax Compliance Certificate substantially in the form              of Exhibit C-4 on behalf of each such direct and indirect partner;                      (C)  any Foreign Lender shall, to the extent it is legally entitled to do so,  deliver to the Company 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  reasonable request of the Company or the Administrative Agent), executed originals of  any other form prescribed by applicable law as a basis for claiming exemption from or a  reduction  in  U.S.  Federal  withholding  Tax,  duly  completed,  together  with  such  supplementary  documentation  as  may  be  prescribed  by  applicable  law  to  permit  the  Company  or  the  Administrative  Agent  to  determine  the  withholding  or  deduction  required to be made; and                            (D) if a payment made to a Lender under any Loan Document would be  subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail  to  comply  with  the  applicable  reporting  requirements  of  FATCA  (including  those  contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall  deliver to the Company and the Administrative Agent at the time or times prescribed by  law  and  at  such  time  or  times  reasonably  requested  by  the  Company  or  the  Administrative  Agent  such  documentation  prescribed  by  applicable  law  (including  as  prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation  reasonably requested by the Company or the Administrative Agent as may be necessary  for any Borrower and the Administrative Agent to comply with their obligations under  FATCA and to determine that such Lender has complied with such Lender's obligations  under FATCA or to determine the amount to deduct and withhold from such payment.   Solely for purposes of this clause (D), “FATCA” shall include any amendments made to  FATCA after the date of this Agreement.                Each  Lender  agrees  that  if  any  form  or  certification  it  previously  delivered  expires  or  becomes obsolete or inaccurate in any respect, it shall update such form or certification or  promptly  notify  the  Company  and  the  Administrative  Agent  in  writing  of  its  legal  inability to  do so.   For  purposes  of this  paragraph (f), the term  “Lender” includes  any  Issuing Bank.                      (g) In  furtherance  of,  and  without  limitation  of,  the  obligations  of  the  parties pursuant to Section 2.17(f), (i) subject to (ii) below, each Lender and each UK  Borrower  which  makes  a  payment  to  such  Lender  shall  cooperate  in  completing  any  procedural formalities necessary for such UK Borrower to obtain authorization to make  such payment without withholding or deduction for Taxes imposed under the laws of the  United Kingdom.                      (ii)  (A)  A Lender on the day on which this Agreement closes           that (x) holds a passport under the HMRC DT Treaty Passport scheme and (y)                                       73  





 






                         wishes  such  scheme  to  apply  to  this  Agreement,  shall  provide  its  scheme     reference number and its jurisdiction of tax residence to each UK Borrower     and the Administrative Agent; and                            (B)  a Lender which becomes a Lender hereunder after the day on     which this Agreement closes that (x) holds a passport under the HMRC DT     Treaty  Passport  scheme  and  (y)  wishes  such  scheme  to  apply  to  this     Agreement, shall provide its scheme reference number and its jurisdiction of     tax residence to each UK Borrower and the Administrative Agent, and                            (C)  Upon  satisfying  either  clause  (A)  or  (B)  above,  such  Lender     shall have satisfied its obligation under paragraph (g)(i) above.                      (iii)  If  a  Lender  has  confirmed  its  scheme  reference  number  and  its  jurisdiction of tax residence in accordance with paragraph (g)(ii) above, each UK  Borrower shall make a Borrower DTTP filing with respect to such Lender, and  shall promptly provide such Lender with a copy of such filing; provided that, if:                (A)  each UK Borrower making a payment to such Lender has not     made a Borrower DTTP Filing in respect of such Lender; or                             (B)   each  UK  Borrower  making  a  payment  to  such  Lender  has     made a Borrower DTTP Filing in respect of such Lender but:                                  (1) such Borrower DTTP Filing has been rejected by HM Revenue        & Customs; or                            (2)  HM  Revenue  &  Customs  has  not  given  such  UK  Borrower        authority  to  make  payments  to  such  Lender  without  a  deduction  for  tax        within 60 days of the date of such Borrower DTTP Filing;                       and in each case, such UK Borrower has notified that Lender in writing of        either (1) or (2) above, then such Lender and such UK Borrower shall co-       operate in completing any additional procedural formalities necessary for        such UK Borrower to obtain authorization to make that payment without        withholding or deduction for Taxes imposed under the laws of the United        Kingdom.          (iv)   If  a  Lender  has  not  confirmed  its  scheme  reference  number  and  jurisdiction of tax residence in accordance with  paragraph (g)(ii) above, no UK  Borrower shall make a Borrower DTTP Filing or file any other form relating to  the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment(s)  or its participation in any Loan unless the Lender otherwise agrees.          (v)   Each  UK  Borrower  shall,  promptly  on  making  a  Borrower  DTTP  Filing, deliver a copy of such Borrower DTTP Filing to the Administrative Agent  for delivery to the relevant Lender.                                                     74  





 






               (vi)  Each Lender shall notify the Company and Administrative Agent if it        determines in its sole discretion that it is ceases to be entitled to claim the benefits        of an income tax treaty to which the United Kingdom is a party with respect to        payments made by any UK Borrower hereunder.               (vii)  For purposes of this paragraph (g), the term “Lender” includes any        Issuing Bank.               (h) If  an  Agent,  a  Lender  or  an  Issuing  Bank  determines,  in  its  sole  discretion, that it has received a refund of any Taxes or Other Taxes as to which it has  been indemnified pursuant to this Section 2.17 (including by the payment of additional  amounts pursuant to this Section 2.17), it shall pay over such refund to the indemnifying  party (but only to the extent of indemnity payments made, or additional amounts paid,  under  this  Section  2.17  with  respect  to  the  Taxes  or  Other  Taxes  giving  rise  to  such  refund), net of all reasonable out-of-pocket expenses of such Agent, such Lender or such  Issuing  Bank  and  without  interest  (other  than  any  interest  paid  by  the  relevant  Governmental Authority with respect to such refund); provided that such indemnifying  party,  upon  the  request  of  such  Agent,  such  Lender  or  such  Issuing  Bank,  agrees  to  repay the amount paid over to such indemnifying party (plus any penalties, interest or  other  charges  imposed  by  the  relevant  Governmental  Authority)  to  such  Agent,  such  Lender or such Issuing Bank in the event such Agent, such Lender or such Issuing Bank  is  required  to  repay  such  refund  to  such  Governmental  Authority.   Notwithstanding  anything to the contrary in this paragraph (h), in no event will an Agent, a Lender or an  Issuing Bank be required to pay any amount to an indemnifying party pursuant to this  paragraph (h) the payment of which would place such Agent, Lender or Issuing Bank in  a less favorable net after-Tax position than such Agent, Lender or Issuing Bank would  have been in if the Tax subject to indemnification and giving rise to such refund had not  been  deducted,  withheld  or  otherwise  imposed  and  the  indemnification  payments  or  additional amounts with respect to such Tax had never been paid.  This Section shall not  be construed to require any Agent, any Lender or any Issuing Bank to make available its  Tax returns (or any other information relating to its Taxes which it deems confidential)  to the Company, any Borrowing Subsidiary or any other Person.               (i) From and after the effective date of this Agreement, each Agent shall  be  entitled  to  treat  this  Agreement  as  not  qualifying  as  a  “grandfathered  obligation”  within the meaning of United States Treasury Regulation Section 1.1471-2(b)(2)(i).               (j) Notwithstanding anything to the contrary in this Agreement, no Non- Guarantor Borrower shall be required to make any payment on behalf of, or to provide  cash  collateral  or any other property or  assets  of such Non-Guarantor Borrower to  be  applied to any Obligations of (or any Obligation that is treated for U.S. federal income  tax purposes  as  an Obligation of), any  Loan Party that is  a “U.S.  person” (within  the  meaning of the Code), it being the intention of the parties hereto to avoid adverse tax  consequences to the Company or any of its Subsidiaries under Section 956 of the Code.   The provisions of this Agreement shall be interpreted consistently with this paragraph,  and in the event any such provisions conflicts with this paragraph, the provisions of this  paragraph shall control (it being understood and agreed that nothing in this paragraph                                        75  





 






   shall affect (i) any agreement made solely among the Lenders, the Issuing Banks and/or  the  Agents,  including  those  set  forth  in  Sections  2.06(d),  2.06(e),  2.09(d)(ii),  2.18(c),  2.20 and 7.02, or (ii) for the avoidance of doubt, the obligations of each Borrower under  Sections 2.06(e), 2.06(h), 2.06(j), 2.10(a), 2.11(b), 2.12 and 2.16).               SECTION 2.18. Payments  Generally;  Pro  Rata  Treatment;  Sharing  of  Set-offs¶.  (a)  Each Borrower  shall  make  each  payment  required  to  be  made  by it  hereunder  or  under  any  other  Loan  Document  (whether  of  principal,  interest,  fees  or  reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or  2.17,  or  otherwise)  prior  to  the  time  expressly  required  hereunder  or  under  such  other  Loan  Document  for  such  payment  (or,  if  no  such  time  is  expressly  required,  prior  to  12:00 noon, Local Time), on the date when due, in immediately available funds, without  set-off or counterclaim.  Any amounts received after such time on any date may, in the  discretion  of  the  Administrative  Agent,  be  deemed  to  have  been  received  on  the  next  succeeding Business Day for purposes of calculating interest thereon.  All such payments  shall be made to the Applicable Agent to the applicable account specified by it from time  to  time  to  the  Company  for  such  purpose,  except  payments  to  be  made  directly  to  an  Issuing  Bank  as  expressly  provided  herein  shall  be  so  made  and  except  that  payments  pursuant  to  Sections  2.15,  2.16,  2.17  and  9.03  shall  be  made  directly  to  the  Persons  entitled  thereto  and  payments  pursuant  to  other  Loan  Documents  shall  be  made  to  the  Persons  specified  therein.   The  Applicable  Agent  shall  distribute  any  such  payments  received by it for the account of any other Person to the appropriate recipient promptly  following receipt thereof.  If any payment under any Loan Document shall be due on a  day  that  is  not  a  Business  Day,  the  date  for  payment  shall  be  extended  to  the  next  succeeding  Business  Day,  and,  in  the  case  of  any  payment  accruing  interest,  interest  thereon shall be payable for the period of such extension.  Except as otherwise provided  herein, (i) all payments of principal, interest or reimbursement obligations in respect of  any  Loan  or  Letter  of  Credit  shall  be  made  in  the  currency  of  such  Loan  or  Letter  of  Credit and (ii) all other payments under each Loan Document (including all fees) shall be  made in US Dollars.               (b) If at any time insufficient funds are received by and available to the  Applicable  Agent  to  pay  fully  all  amounts  of  principal,  unreimbursed  LC  Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first,  towards  payment  of  interest  and  fees  then  due  hereunder,  ratably  among  the  parties  entitled  thereto  in  accordance  with  the  amounts  of  interest  and  fees  then  due  to  such  parties,  and  (ii)  second,  towards  payment  of  principal  and  unreimbursed  LC  Disbursements  then  due  hereunder,  ratably  among  the  parties  entitled  thereto  in  accordance with the amounts of principal and unreimbursed LC Disbursements then due  to such parties.               (c) If any Lender shall, by exercising any right of set-off or counterclaim  or  otherwise,  obtain  payment  in  respect  of  any  principal  of  or  interest  on  any  of  its  Loans or participations in LC Disbursements resulting in such Lender receiving payment  of a greater proportion  of the aggregate amount of its  Loans  and participations in  LC  Disbursements  and accrued interest  thereon than the proportion  received by  any other  Lender,  then  the  Lender  receiving  such  greater  proportion  shall  purchase  (for  cash  at                                        76  





 






   face value) participations in the Loans and participations in LC Disbursements of other  Lenders  under  such  Tranche  to  the  extent  necessary  so  that  the  benefit  of  all  such  payments  shall  be  shared  by  the  Lenders  ratably  in  accordance  with  the  aggregate  amount of principal of and accrued interest on their respective Loans and participations  in LC Disbursements; provided that (i) if any such participations are purchased and all  or any portion of the payment giving rise thereto is recovered, such participations shall  be  rescinded  and  the  purchase  price  restored  to  the  extent  of  such  recovery,  without  interest, and (ii) the provisions of this paragraph shall not be construed to apply to any  payment made by any Borrower pursuant to and in accordance with the express terms of  this Agreement (for the avoidance of doubt, as in effect from time to time) or any  payment  obtained  by  a  Lender  as  consideration  for  the  assignment  of  or  sale  of  a  participation in any of its Loans or participations in LC Disbursements to any assignee  or Participant, other than to the Company or any Subsidiary or Affiliate thereof (as to  which the provisions of this paragraph shall apply).  It is acknowledged and agreed that  the foregoing provisions of this Section 2.18(c) reflect an agreement entered into solely  among the Lenders (and not any Borrower or any other Loan Party) and the consent of  any  Borrower  or  any  other  Loan  Party  shall  not  be  required  to  give  effect  to  the  acquisition of a participation by a Lender pursuant to such provisions or with respect to  any  action  taken  by  the  Lenders  or  the  Administrative  Agent  pursuant  to  such  provisions.   Each  Borrower  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  Borrower  rights  of  set-off  and  counterclaim  with respect to such participation as fully as if such Lender were a direct creditor of such  Borrower, as the case may be, in the amount of such participation.               (d) Unless  the  Applicable  Agent  shall  have  received  notice  from  the  Company prior to the date on which any payment is due to the Applicable Agent for the  account of the Lenders or an Issuing Bank hereunder that any Borrower will not make  such  payment,  the  Applicable  Agent  may  assume  that  such  Borrower  has  made  such  payment  on  such  date  in  accordance  herewith  and  may,  in  reliance  upon  such  assumption,  distribute  to  the  Lenders  or  such  Issuing  Bank,  as  the  case  may  be,  the  amount due.  In such event, if such Borrower has not in fact made such payment, then  each of the Lenders or such Issuing Bank, as the case may be, severally agrees to repay  to the Applicable Agent forthwith on demand the amount so distributed to such Lender  or  Issuing  Bank  with  interest  thereon,  for  each  day  from  and  including  the  date  such  amount is distributed to it to but excluding the date of payment to the Applicable Agent,  at (A) if such amount is denominated in US Dollars, the greater of the New York Fed  Bank Rate and a rate determined by the Applicable Agent in accordance with banking  industry rules on interbank compensation, and (B) if such amount is denominated in an  Alternative  Currencyany  currency  other  than  US  Dollars,  a  rate  determined  by  the  Applicable Agent in accordance with banking industry rules on interbank compensation.               (e) If any Lender shall fail to make any payment required to be made by  it  pursuant  to  Section  2.06(d),  2.06(e),  2.07(b),  2.18(d)  or  9.03(c),  then  the  Administrative  Agent  may,  in  its  discretion  (notwithstanding  any  contrary  provision  hereof),  (i)  apply  any  amounts  thereafter  received  by  either  Agent  for  the  account  of  such  Lender  to  satisfy  such  Lender’s  obligations  under  such  Sections  until  all  such                                        77  





 






   unsatisfied  obligations  are  fully  paid  or  (ii)  hold  any  such  amounts  in  a  segregated  account as cash collateral for, and application to, any future payment obligations of such  Lender under such Sections, in each case in such order as shall be determined by such  Agent in its discretion.               SECTION 2.19. Mitigation Obligations; Replacement of Lenders¶.  (a)  If  any Lender requests compensation under Section 2.15, or if any Borrower is required to  pay any additional amount to any Lender or any Governmental Authority for the account  of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to  designate  a  different  lending  office  for  funding  or  booking its  Loans  hereunder  or  to  assign and delegate its rights and obligations hereunder to another of its offices, branches  or Affiliates, if, in the judgment of such Lender, such designation or assignment (i) would  eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,  in the future and (ii) would not subject such Lender to any unreimbursed cost or expense  and  would  not  otherwise  be  disadvantageous  to  such  Lender.  The Company hereby  agrees to  pay  all  reasonable  costs  and  expenses  incurred  by  any  Lender  in  connection  with any such designation or assignment and delegation.               (b) If (i) any Lender has advised it is unlawful for it to extend credit to  a Subsidiary under Section 2.04, (ii) any Lender requests compensation under Section  2.15, (iiiii) any Borrower is required to pay any additional amount to any Lender or any  Governmental Authority for the account of any Lender pursuant to Section 2.17, (iiiiv)  any Lender becomes a Defaulting Lender or (ivv) any Lender has failed to consent to a  proposed waiver, amendment or other modification that under Section 9.02 requires the  consent of all the Lenders (or all the affected Lenders or all the Lenders of the affected  Class) and with respect to which the Required Lenders (or, where applicable, a majority  in interest of the Lenders of the affected Class) shall have granted their consent, then the  Company  may,  at  its  sole  expense  and  effort,  upon  notice  to  such  Lender  and  the  Administrative Agent, require such Lender to assign and delegate, without recourse (in  accordance  with  and  subject  to  the  restrictions  contained  in  Section  9.04),  all  its  interests, rights and obligations under this Agreement to an assigneeand the other Loan  Documents (or, in the case of any such assignment and delegation resulting from a  failure to provide a consent as a Lender of an affected Class, all its interests, rights  and obligations under this Agreement and the other Loan Documents as a Lender  of  such  affected  Class)  to  an  Eligible  Assignee  that  shall  assume  such  obligations  (which assignee may be another Lender, if a Lender accepts such assignment); provided  that  (iA)  the  Company  shall  have  received  the  prior  written  consent  of  the  Administrative Agent and the Issuing Banks, which consent shall not unreasonably be  withheld,  (iiB)  such  Lender  shall  have  received  payment  of  an  amount  equal  to  the  outstanding  principal  of  its  Loans  and  participations  in  LC  Disbursements,  accrued  interest  thereon,  accrued  fees  and  all  other  amounts  payable  to  it  hereunder  (if  applicable, in each case only to the extent such amounts relate to its interest as a  Lender  of  a  particular  Class),  from  the  assignee  (to  the  extent  of  such  outstanding  principal and accrued interest and fees) or the applicable Borrowers (in the case of all  other  amounts),  (iiiC)  in  the  case  of  any  such  assignment  resulting  from  a  claim  for  compensation under Section 2.15 or payments required to be made pursuant to Section  2.17, such assignment is reasonably be expected to result in a future reduction in such                                        78  





 






   compensation or payments and, (ivD) in the case of any such assignment resulting from  the failure to  provide a  consent,  the  assignee shall have  given such consent  and,  as  a  result  of  such  assignment  and  any  contemporaneous  assignments  and  consents,  the  applicable  waiver,  amendment  or  other  modification  can  be  effected  and  (E)  such  assignment does not conflict with applicable law.  A Lender shall not be required to  make any  such  assignment  and delegation if, prior thereto,  as  a result of a  waiver by  such  Lender  or  otherwise,  the  circumstances  entitling  the  Company  to  require  such  assignment and delegation cease to apply.  Each party hereto agrees that an assignment  required  pursuant  to  this  paragraph  may  be  effected  pursuant  to  an  Assignment  and  Assumption executed by the Company, the Administrative Agent and the assignee and  that the Lender required to make such assignment need not be a party thereto.               SECTION 2.20. Defaulting Lenders¶.  (a)  Notwithstanding any provision  of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the  following provisions shall apply for so long as any such Lender is a Defaulting Lender:               (i) no  commitment  fee  shall  accrue  on  the  unused  amount  of  any        Commitment of any Defaulting Lender pursuant to Section 2.12(a);               (ii) the Commitments and Revolving Credit Exposures of each Defaulting        Lender shall be disregarded in determining whether the Required Lenders or any        other requisite Lenders have taken any action hereunder or under any other Loan        Document  (including  any  consent  to  any  waiver,  amendment  or  other        modification  pursuant  to  Section  9.02);  provided,  however,  that  any  waiver,        amendment or other modification that, disregarding the effect of this clause (ii),        requires the consent of all Lenders or of all Lenders affected thereby shall, except        as  otherwise  provided  in  Section  9.02,  continue  to  require  the  consent  of  such        Defaulting Lender in accordance with the terms hereof;               (iii)  if  any  LC  Exposure  exists  at  the  time  any  Lender  becomes  a        Defaulting Lender, then:                     (A)  the  LC  Exposure  of  such  Defaulting  Lender  (other  than  any              portion  of  such  LC  Exposure  attributable  to  unreimbursed  LC              Disbursements  with  respect  to  which  such  Defaulting  Lender  shall  have              funded its participation as contemplated by Sections 2.06(d) and 2.06(e))              shall  be  reallocated  among  the  Non-Defaulting  Lenders  in  accordance              with  their  respective  Combined  Tranche  Percentages,  but  only  to  the              extent  that,  after  giving  effect  to  such  reallocation,  the  sum  of  all  Non-             Defaulting Lenders’ US Tranche Revolving Exposures would not exceed              the sum of Non-Defaulting Lenders’ US Tranche Revolving Commitments              and the sum of all Non-Defaulting Lenders’ European Tranche Revolving              Exposures  would  not  exceed  the  sum  of  all  Non-Defaulting  Lenders’              European Tranche Revolving Commitments;                     (B) if the reallocation described in clause (A) above cannot, or can              only partially, be effected, each Borrower shall within two Business Days                                        79  





 






               following  notice  by  the  Administrative  Agent  cash  collateralize  for  the              benefit of the Issuing Banks the portion of such Defaulting Lender’s LC              Exposure attributable to  Letters of Credit issued for the account of such              Borrower (other than any portion thereof referred to in the parenthetical in              such  clause  (A))  that  has  not  been  reallocated  in  accordance  with  the              procedures set forth in Section 2.06(j) for so long as such LC Exposure is              outstanding;                     (C)  if  the  applicable  Borrower  cash  collateralizes  any  portion  of              such Defaulting Lender’s LC Exposure pursuant to clause (B) above, the              applicable Borrower shall not be required to pay participation fees to such              Defaulting Lender pursuant to Section 2.12(b) with respect to such portion              of such Defaulting Lender’s LC Exposure for so long as such Defaulting              Lender’s LC Exposure is cash collateralized;                     (D) if any portion of the LC Exposure of such Defaulting Lender is              reallocated  pursuant  to  clause  (A)  above,  then  the  fees  payable  to  the              Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give              effect to such reallocation; and                      (E) if all or any portion of such Defaulting Lender’s LC Exposure              is neither reallocated nor cash collateralized pursuant to clause (A) or (B)              above,  then,  without  prejudice  to  any  rights  or  remedies  of  any  Issuing              Bank or any other Lender hereunder, all participation fees payable by any              Borrower under Section 2.12(b) with respect to such Defaulting Lender’s              LC Exposure shall be payable to the Issuing Banks (and allocated among              them  ratably  based  on  the  amount  of  such  Defaulting  Lender’s  LC              Exposure  attributable  to  Letters  of  Credit  issued  by  each  Issuing  Bank)              until  and to the extent that  such  LC Exposure is  reallocated and/or cash              collateralized; and               (iv) so long as such Lender is a Defaulting Lender, no Issuing Bank shall        be required to issue, amend, renew or extend any Letter of Credit, unless, in each        case,  it  is  satisfied  that  the  related  LC  Exposure  will  be  fully  covered  by  the        Commitments of the Non-Defaulting Lenders and/or cash collateral provided by        the applicable  Borrower in  accordance with  this  Section 2.20,  and participating        interests in any such issued, amended, renewed or extended Letter of Credit will        be  allocated  among  the  Non-Defaulting  Lenders  in  a  manner  consistent  with        Section 2.20(a)(iii)(A) (and such Defaulting Lender shall not participate therein).               (b)  In  the  event  the  Administrative  Agent,  each  Issuing  Bank  and  the  Company  shall  have  agreed  that  a  Lender  that  is  a  Defaulting  Lender  has  adequately  remedied  all  matters  that  caused  such  Lender  to  become  a  Defaulting  Lender,  then  (i)  such  Lender  shall  cease  to  be  a  Defaulting  Lender  for  all  purposes  hereof,  (ii)  the  participations of the Lenders in Letters of Credit under Section 2.06(d) shall be readjusted  to be determined on the basis of the Lenders’ Combined Tranche Percentages and (iii)  such Lender shall purchase at par such of the Loans under the applicable Tranche of                                        80  





 






   the other Lenders under such Tranche as the Administrative Agent shall determine to be  necessary  in  order  for  the  Loans  to  be  held  by  the  Lenders  in  accordance  with  their  Combined Tranche Percentages.               (c)  No  Commitment  of  any  Lender  shall  be  increased  or  otherwise  affected and, except as otherwise expressly provided in this Section, performance by any  Borrower of its obligations hereunder and under the other Loan Documents shall not be  excused or otherwise modified, as a result of the operation of this Section. The rights and  remedies  against a Defaulting  Lender under this  Section are in  addition to  other rights  and  remedies  that  any  Borrower,  any  Agent,  any  Issuing  Bank  or  any  Non-Defaulting  Lender may have against such Defaulting Lender (and, for the avoidance of doubt, each  Non-Defaulting Lender shall have a claim against any Defaulting Lender for any losses it  may suffer as a result of the operation of this Section).                                 ARTICLE III                                                               Representations and Warranties               The Company and each Borrowing Subsidiary represents and warrants to  the Lenders that:               SECTION 3.01. Organization;  Powers¶.   Each  of  the  Company  and  the  Subsidiaries  is  duly  organized,  validly  existing  and  (to  the  extent  the  concept  is  applicable in such jurisdiction) in good standing under the laws of the jurisdiction of its  organization (except, in the case of Subsidiaries that are not Material Subsidiaries, where  the failure to do so, individually or in the aggregate, could not reasonably be expected to  result in a Material Adverse Effect), has all requisite power and authority to carry on its  business as now conducted and, except where the failure to do so, individually or in the  aggregate,  could  not  reasonably  be  expected  to  result  in  a  Material  Adverse  Effect,  is  qualified  to  do  business  in,  and  is  in  good  standing  in,  every  jurisdiction  where  such  qualification is required.               SECTION 3.02. Authorization;  Enforceability¶.   The  Transactions  to  be  entered  into  by  each  Loan  Party  are  within  such  Loan  Party’s  corporate  or  other  organizational powers and have been duly authorized by all necessary corporate or other  organizational and, if required, stockholder or other equityholder action.  This Agreement  has been duly executed and delivered by each Borrower and constitutes (assuming due  execution by the parties hereto other than the Company and the Subsidiaries), and each  other Loan Document to which any Loan Party is or is to be a party, when executed and  delivered  by  such  Loan  Party,  will  constitute  (assuming  due  execution  by  the  parties  thereto other  than  the  Company  and  the  Subsidiaries),  a  legal,  valid  and  binding  obligation  of  such  Borrower  or  such  Loan  Party  (as  the  case  may  be),  enforceable  in  accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization,  moratorium or  other  laws  affecting  creditors’  rights  generally  and  subject  to  general  principles of equity, regardless of whether considered in a proceeding in equity or at law.                                         81  





 






               SECTION 3.03. Governmental  Approvals;  No  Conflicts¶.   The  Transactions (a) do not require any consent or approval of, registration or filing with or  any other action by any Governmental Authority, except those that have been obtained or  made  and  are  in  full  force  and  effect  or  those  the  failure  to  obtain  which  could  not  reasonably  be  expected  to  result in a Material  Adverse Effect,  (b) will not  violate any  applicable law or regulation or the charter, by-laws or other organizational documents of  the Company or any of the Subsidiaries or any order of any Governmental Authority, (c)  will not violate or result (alone or with notice or lapse of time, or both) in a default under  any indenture, or other material agreement or instrument binding upon the Company or  any of the Material Subsidiaries or its assets, or require any payment to be made by the  Company  or  any of  the  Material  Subsidiaries  thereunder  and  (d)  will  not  result  in  the  creation or imposition of any Lien on any asset of the Company or any of the Material  Subsidiaries.               SECTION 3.04. Financial Condition; No Material Adverse Change¶.  (a)   The Company has heretofore furnished to the Lenders its consolidated balance sheet and  consolidated statements of operations and cash flows and, with respect to the fiscal year  ended December 31, 2013,2017, only, changes in stockholders equity and comprehensive  income (i) as of and for the fiscal year ended December 31, 2013,2017, reported on by  Ernst & Young LLP, independent registered public accounting firm, and (ii) as of and for  the  fiscal  quarters  and  the  portions  of  the  fiscal  year  ended  March 31  and  June  30,  2014,31, 2018, certified by a Financial Officer.  Such financial statements present fairly,  in all material respects, the financial position and results of operations and cash flows of  the Company and the consolidated Subsidiaries as of such dates and for such periods in  accordance  with  GAAP,  subject  to  year-end  audit  adjustments  and  the  absence  of  footnotes in the case of the statements referred to in clause (ii) above.               (b) There  has  not  occurred  since  December  31, 2013,2017,  any  event,  condition  or  circumstance  that  has  had  or  could  reasonably  be  expected  to  have  a  material  adverse  effect  on  the  business,  results  of  operations,  assets  or  financial  condition of the Company and the Subsidiaries, taken as a whole.               (c) Except as disclosed in the financial statements referred to above or the  notes  thereto  and  except  for  the  Disclosed  Matters,  after  giving  effect  to  the  Transactions, none of the Company or the Subsidiaries has, as of the RestatementFourth  Amendment Effective Date, any material contingent liabilities.               SECTION 3.05. Properties¶.  (a)  Each  of  the  Company  and  the  Subsidiaries  (other  than  any  Excluded  Subsidiary) has  good  title  to,  or  valid  leasehold  interests in, all its real and personal property material to its business, except for minor  defects  in  title that do not  interfere with  its  ability to  conduct  its  business  as  currently  conducted or to utilize such properties for their intended purposes.               (b) Each of the Company and the Subsidiaries owns, or is licensed to use,  all trademarks, tradenames, copyrights, patents and other intellectual property material  to  its  business,  except  for  intellectual  property  the  failure  to  own  or  license  which,  individually or in the aggregate, could not reasonably be expected to result in a Material                                        82  





 






   Adverse  Effect,  and  the  use  thereof  by  the  Company  and  the  Subsidiaries  does  not  infringe  upon  the  rights  of  any  other  Person,  except  for  any  such  infringements  that,  individually or in the aggregate, could not reasonably be expected to result in a Material  Adverse Effect.               SECTION 3.06. Litigation and Environmental Matters¶.  (a)  There are no  actions,  suits  or  proceedings  by  or  before  any  arbitrator  or  Governmental  Authority  pending against or, to the knowledge of the Company, threatened in writing against or  affecting the Company  or any of the Subsidiaries  (i)  as  to  which there  is  a reasonable  possibility  of  an  adverse  determination  and  that,  if  adversely  determined,  could  reasonably be expected, individually or in the aggregate, to result in a Material Adverse  Effect (other than the Disclosed Matters) or (ii) that involve any of the Loan Documents  or the Transactions.               (b) Except for the Disclosed Matters and except with respect to any other  matters that, individually or in the aggregate, could not reasonably be expected to result  in a Material Adverse Effect, neither the Company nor any of the Subsidiaries (i) has  failed to comply with any Environmental Law or to obtain, maintain or comply with any  permit,  license  or  other  approval  required  under  any  Environmental  Law,  (ii)  has  become subject to any Environmental Liability, (iii) has received written notice of any  claim with respect to any Environmental Liability or (iv) knows of any basis reasonably  likely to result in any Environmental Liability.               SECTION 3.07. Compliance  with  Laws  and  Agreements¶.   Each  of  the  Company and the Subsidiaries is in compliance with all laws, regulations and orders of  any  Governmental  Authority  applicable  to  it  or  its  property  and  all  indentures,  agreements and other instruments binding upon it or its property, except where the failure  to do so, individually or in the aggregate, could not reasonably be expected to result in a  Material Adverse Effect.  No Default has occurred and is continuing.               SECTION 3.08. Investment Company Status¶.  Neither the Company nor  any of the Subsidiaries is an “investment company” as defined in, or subject to regulation  under, the Investment Company Act of 1940.               SECTION 3.09. Taxes¶.  Each of the Company and the Subsidiaries has  timely filed or caused to be filed all Tax returns and reports required to have been filed  and has paid or caused to be paid all Taxes required to have been paid by it, except (a)  Taxes that are being contested in good faith by appropriate proceedings and for which the  Company  or  such  Subsidiary,  as  applicable,  has  set  aside  on  its  books  reserves  with  respect  thereto  in  accordance  with  GAAP  or  (b)  to  the  extent  that  the  failure  to  do  so  could not, individually or in the aggregate, reasonably be expected to result in a Material  Adverse Effect.               SECTION 3.10. ERISA¶.  No ERISA Event has occurred or is reasonably  expected to occur that, when taken together with all other such ERISA Events for which  liability  is  reasonably  expected  to  occur,  would  reasonably  be  expected  to  result  in  a  Material  Adverse  Effect.   The  excess  of  the  present  value  of  all  accumulated  benefit                                        83  





 






   obligations  under  each  Plan  (based  on  assumptions  used  for  purposes  of  Statement  of  Financial Accounting Standards No. 87), if any, over the fair market value of the assets of  such Plan, would not reasonably be expected to result in a Material Adverse Effect.               SECTION 3.11. Disclosure¶.   None  of  the  reports,  financial  statements,  certificates  or  other  written  factual  information  furnished  by  or  on  behalf  of  any  Loan  Party to the Administrative Agent or any Lender in connection with the negotiation of  this  Agreement  or any  other  Loan  Document  or  delivered  hereunder  or  thereunder  (as  modified or supplemented by other information so furnished), taken as a whole, contains  any material misstatement of fact or omits to state any material fact necessary to make  the statements therein, in the light of the circumstances under which they were made, not  misleading  as  of  the  date  furnished; provided that,  with  respect  to  projected  financial  information,  the Company  represents  only that  such information  was prepared in  good  faith based upon assumptions believed to be reasonable at the time.               SECTION 3.12. Guarantee Requirement¶.  The Guarantee Requirement is  satisfied.               SECTION 3.13. Subsidiaries¶.   Schedule  3.13  sets  forth,  as  of  the  Restatement Effective  Date,  the  name  and  jurisdiction  of  organization  of,  and  the  percentage of each class of Equity Interests owned by the Company or any Subsidiary in,  each  Subsidiary  and  identifies,  as  of  the Restatement Effective  Date,  each  Designated  Subsidiary and each Material Subsidiary.               SECTION 3.14. Use of Proceeds; Margin Regulations¶.  The proceeds of  the  Loans  and  the  Letters  of  Credit  have  been  and  will  be  used  solely  for  the  general  corporate  purposes  of  the  Company  and  the  Subsidiaries,  including  working  capital,  capital expenditures and acquisitions.  No part of the proceeds of any Loan or any Letter  of Credit have been or will be used, whether directly or indirectly, for any purpose that  entails  a  violation  of  any  of  the  Regulations  of  the  Board of  Governors,  including  Regulations T, U and X.               SECTION 3.15. Borrowing Subsidiaries¶.  Each Borrowing Subsidiary is  subject to civil and commercial law with respect to its obligations under this Agreement,  and  the  execution,  delivery  and  performance  by  such  Borrowing  Subsidiary  of  the  applicable  Borrowing  Subsidiary  Agreement  and  this  Agreement  constitute and  will  constitute  private  and  commercial  acts  rather  than  public  or  governmental  acts.   Each  Borrowing Subsidiary that is not a Domestic Subsidiary has validly given its consent to  be sued in respect of its obligations under the Borrowing Subsidiary Agreement and this  Agreement.  Each Borrowing Subsidiary that is  not a Domestic Subsidiary has waived  every  immunity  (sovereign  or  otherwise)  to  which  it  or  any  of  its  properties  would  otherwise be entitled from any legal action, suit or proceeding, from jurisdiction of any  court or from setoff or any legal process (whether service or notice, attachment prior to  judgment,  attachment  in  aid  of  execution  of  judgment,  execution  of  judgment  or  otherwise)  under  the  laws  of  the  jurisdiction  of  its  incorporation  in  respect  of  its  Obligations under the Borrowing Subsidiary Agreement and this Agreement.  The waiver                                        84  





 






   by such Borrowing Subsidiary described in the immediately preceding sentence is legal,  valid and binding on such Borrowing Subsidiary.               SECTION 3.16. Anti-Corruption Laws and Sanctions¶.  The Company  maintains  and  will  maintain  in  effect  policies  and  procedures  designed  to  result  in  compliance  by  the  Company,  its  Subsidiaries  and  their  respective  directors,  officers,  employees  and  agents  with  Anti-Corruption  Laws  and  applicable  Sanctions,  and  the  Company  and  its  Subsidiaries  and,  to  the  knowledge  of  the  Company,  their  respective  officers, employees, directors and agents, are in compliance with Anti-Corruption Laws  and  applicable  Sanctions  in  all  material  respects.   None  of  (a)  the  Company,  any  Subsidiary or to the knowledge of the Company any of their respective directors, officers  or employees, or (b) to the knowledge of the Company, any agent of the Company or any  Subsidiary  that  will  act  in  any  capacity  in  connection  with  or  benefit  from  the  credit  facility established hereby, is a Sanctioned Person.   No Borrowing, issuance of a Letter  of Credit or use of the proceeds of any Borrowing or any Letter of Credit will result in a  violation by any party hereto of Anti-Corruption Laws or applicable Sanctions.                                 ARTICLE IV                                                                       Conditions               SECTION 4.01. Restatement Effective Date[Reserved]¶.  The obligations  of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit under  this Amended and Restated Credit Agreement shall not become effective until the date on  which each of the following conditions is satisfied (or waived in accordance with Section  9.02):               (a) The Administrative Agent or its counsel shall have received from each        party hereto either (i) a counterpart of this Agreement signed on behalf of such        party or (ii) written evidence reasonably satisfactory to the Administrative Agent        (which  may  include  facsimile  or  other  electronic  transmission  of  a  signed        signature page of this Agreement) that such party has signed a counterpart of this        Agreement.               (b)  The  Administrative  Agent  shall  have  received  such  documents  and        certificates  as  the  Administrative  Agent  or  its  counsel  may  reasonably  request        relating to the organization, existence and good standing of each Loan Party, the        authorization of the Transactions and any other legal matters relating to the Loan        Parties,  the  Loan  Documents  or  the  Transactions,  all  in  form  and  substance        reasonably satisfactory to the Administrative Agent and its counsel.               (c)  The  Administrative  Agent  shall  have  received  a  Reaffirmation        Agreement, in form and substance satisfactory to the Administrative Agent, duly        executed by each Loan Party, pursuant to which each Loan Party shall consent to        this  Agreement  and  the  amendments  to  the  Existing  Credit  Agreement  effected        hereby and acknowledge that the Guarantee Agreement remains in full force and        effect in accordance with its terms and constitutes a guarantee of the Obligations.                                        85  





 






               (d)  The  Administrative  Agent  shall  have  received  a  favorable  written        opinion (addressed to the Agents, the Lenders and the Issuing Banks and dated the        Restatement  Effective  Date)  of  each  of  (i)  Wachtell,  Lipton,  Rosen  &  Katz,        counsel  for the Company, (ii) in-house counsel  for the Company and  (iii) local        counsel in each jurisdiction in which a Loan Party is organized and the laws of        which are not covered by the opinion referred to in clause (i) above, in each case        in form and substance reasonably satisfactory to the Administrative Agent.               (e) The Administrative Agent shall have received a certificate, dated the        Restatement  Effective  Date  and  signed  by  a  Financial  Officer,  confirming        compliance with the conditions set forth in Section 4.02(a) (without giving effect        to the parenthetical therein) and Section 4.02(b).               (f)  The  Administrative  Agent  shall  have  received  all  fees  and  other        amounts due and payable on or prior to the Restatement Effective Date, including,        to  the  extent  invoiced  at  least  two  Business  Days  prior  to  the  Restatement        Effective  Date,  reimbursement  or  payment  of  all  out-of-pocket  expenses        (including fees, charges and disbursements of counsel) required to be reimbursed        or paid by the Company under the Commitment Letter, any fee letter referred to        therein or this Agreement.               (g) On the Restatement Effective Date, all interest, fees and other amounts        accrued  for  the  accounts  of  the  Lenders  and  Issuing  Banks  under  the  Existing        Credit Agreement shall have been or shall be paid in full.               (h)  Each  Lender  shall  have  received  all  documentation  and  other        information required to be obtained by such Lender under applicable “know your        customer”  and  anti-money  laundering  rules  and  regulations,  including  the  USA        Patriot Act.   The Administrative Agent shall notify the Borrowers and the Lenders of the Restatement  Effective Date, and such notice shall be conclusive and binding.               SECTION 4.02. Each  Credit  Event¶.   The  obligation  of  each  Lender  to  make  a  Loan  on  the  occasion  of  any  Borrowing (other  than  any  conversion  or  continuation of a Loan), and of each Issuing Bank to issue, amend, renew or extend any  Letter of Credit, is subject to receipt of the request therefor in accordance herewith and to  the satisfaction of the following conditions:               (a) The representations and warranties of the Loan Parties set forth in this        Agreement  (other  than  the  representations  and  warranties  set  forth  in  Sections        3.04(b) and 3.06) shall be true and correct in all material respects (or, in the case        of any such representation or warranty under this Agreement already qualified as        to materiality, in all respects) on and as of the date of such Borrowing or the date        of  issuance,  amendment,  renewal  or  extension  of  such  Letter  of  Credit,  as        applicable  (except  in  the  case  of  any  such  representation  and  warranty  that        expressly relates to a prior date, in which case such representation and warranty                                        86  





 






         shall have been so true and correct in all material respects on and as of such prior        date).                 (b) At the time of and immediately after giving effect to such Borrowing        or  the  issuance,  amendment,  renewal  or  extension  of  such  Letter  of  Credit,  as        applicable, no Default shall have occurred and be continuing.   Each Borrowing (other than any conversion or continuation of a Loan) and each issuance,  amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a  representation  and  warranty  by  the  Company  and  the  applicable  Borrower  on  the  date  thereof as to the matters specified in paragraphs (a) and (b) of this Section 4.02.               SECTION 4.03. Initial  Credit  Event  in  Respect  of  Each  Borrowing  Subsidiary¶.  The obligations of the Lenders and Issuing Banks to make the initial Loans  to or to issue the initial Letter of Credit for the account of each Borrowing Subsidiary  (other  than  the  Borrowing  Subsidiaries  that  are  party  to  this  Agreement  on  the  date  hereof) are subject to the satisfaction of the following additional conditions:               (a) The Administrative Agent or its counsel shall have received from each        of  such  Borrowing  Subsidiary  and  the  Company  either  (i)  a  counterpart  of  a        Borrowing Subsidiary Agreement signed on behalf of such party or (ii)  written        evidence reasonably satisfactory to the Administrative Agent (which may include        facsimile  or  other  electronic  transmission  of  a  signed  signature  page  of  such        Borrowing Subsidiary Agreement) that such party has signed a counterpart of a        Borrowing  Subsidiary  Agreement,  and  such  Borrowing  Subsidiary  Agreement        shall have become effective as provided in Section 2.04.               (b) The Administrative Agent shall have received, on behalf of itself, the        Lenders and the Issuing Banks, a favorable written opinion of counsel for such        Borrowing  Subsidiary  (which  counsel  shall  be  reasonably  acceptable  to  the        Administrative  Agent),  in  form  and  substance  reasonably  satisfactory  to  the        Administrative Agent, (i) dated the date of the applicable Borrowing Subsidiary        Agreement  (or  as  of  a  later  date  prior  to  the  date  of  such  credit  event),  (ii)        addressed  to  the  Administrative  Agent,  the  Lenders  and  the  Issuing  Banks  and        (iii) covering such matters as the Administrative Agent shall reasonably request.               (c) The  Administrative  Agent  shall  have  received  such  documents  and        certificates  as  the  Administrative  Agent  or  its  counsel  may  reasonably  request        relating  to  the  organization,  existence  and  good  standing  of  such  Borrowing        Subsidiary, the authorization by it of the Transactions  to  which it will  be party        and  any  other  legal  matters  relating  to  such  Borrowing  Subsidiary,  the  Loan        Documents or the Transactions, all in form and substance reasonably satisfactory        to the Administrative Agent and its counsel.               (d) The Administrative Agent shall have received a certificate, dated the        date of the applicable Borrowing Subsidiary Agreement and signed by a Financial        Officer of the Company, confirming compliance with the conditions set forth in                                        87  





 






         paragraphs  (a)  and  (b)  of  Section  4.02  (in  each  case,  deeming  all  references        therein  to  the  date,  time  or  effect  of  a  Borrowing  (or  an  issuance,  amendment,        renewal or extension of a Letter of Credit) to refer to the date, time and effect of        such Borrowing Subsidiary Agreement).                                 ARTICLE V                                                                  Affirmative Covenants               Until the Commitments have expired or been terminated and the principal  of and interest on each Loan and all fees payable hereunder shall have been paid in full  and all Letters of Credit shall have expired or been terminated and all LC Disbursements  shall  have  been  reimbursed  by  the  Borrowers,  the  Company  and  each  Borrowing  Subsidiary covenants and agrees with the Lenders that:               SECTION 5.01. Financial  Statements;  and  Other  Information¶.   The  Company will furnish to the Administrative Agent, on behalf of each Lender:               (a) (i) so long as the Company is subject to periodic reporting obligations        under the Exchange Act, within five Business Days of each date the Company is        required to file with the SEC an Annual Report on Form 10-K for any fiscal year        of  the  Company  (giving  effect  to  any  extension  of  such  date  available  under        paragraph (b) of Rule 12b-25 under the Exchange Act), and (ii) otherwise, within        90 days after the end of each fiscal year of the Company, its audited consolidated        balance  sheet  and  related  consolidated  statements  of  operations,  changes  in        stockholders’ equity and comprehensive income and cash flows as of the end of        and for such fiscal year, setting forth in each case in comparative form the figures        for  the  previous  fiscal  year,  all  audited  by  and  accompanied  by  the  opinion  of        Ernst & Young LLP or another registered independent public accounting firm of        recognized national standing (without a “going concern” or like qualification or        exception and without any qualification or exception as to the scope of such audit)        to  the  effect  that  such  consolidated  financial  statements  present  fairly  in  all        material respects the financial condition and results of operations and cash flows        of the Company and the consolidated Subsidiaries on a consolidated basis as of        the end of and for such fiscal year in accordance with GAAP;               (b) (i) so long as the Company is subject to periodic reporting obligations        under the Exchange Act, within five Business Days of each date the Company is        required  to  file  with  the  SEC  a  Quarterly  Report  on  Form  10-Q  for  any  fiscal        quarter  of  the  Company  (giving  effect  to  any  extension  of  such  date  available        under paragraph (b) of Rule 12b-25 under the Exchange Act), and (ii) otherwise,        within  45  days  after  the  end  of  each  of  the  first  three  fiscal  quarters  of  the        Company,  its  consolidated  balance  sheet  and  related  consolidated  statements  of        operations and cash flows as of the end of and for such fiscal quarter and the then        elapsed portion of the fiscal year, setting forth in each case in comparative form        the  figures  for  the  corresponding  period  or  periods  of  (or,  in  the  case  of  the        balance sheet, as of the end of) the previous fiscal year, all certified by a Financial                                        88  





 






                      Officer  as  presenting  fairly  in  all  material  respects  the  financial  condition  and  results  of  operations  and  cash  flows  of  the  Company  and  the  consolidated  Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal  year-end audit adjustments and the absence of footnotes;         (c) concurrently  with  each  delivery  of  financial  statements  under  clause  (a) or (b) above, a certificate of a Financial Officer (i) certifying as to whether a  Default has occurred and, if a Default has occurred, specifying the details thereof  and any action taken or proposed to be taken with respect thereto, (ii) setting forth  reasonably detailed calculations of the ratios set forth in Sections 6.10 and 6.11  and (iii) stating  whether any change in  GAAP  or in  the application thereof has  occurred since the date of the audited financial statements referred to in Section  3.04 that has had a material effect thereon and, if any such change has occurred,  specifying  the  effect  of  such  change  on  the  financial  statements  accompanying  such certificate;         (d) concurrently with any delivery of financial statements under clause (a)  above,  a  certificate  of  a  Financial  Officer  of  the  Company  certifying  as  to  the  identity of each Material Subsidiary existing at the date of such certificate;         (e) promptly  after  the  same  become  publicly  available,  copies  of  all  periodic  and  other  reports,  proxy  statements  and  other  materials  filed  by  the  Company  or  any  Subsidiary  with  the  SEC,  or  any  Governmental  Authority  succeeding  to  any  or  all  of  the  functions  of  the  SEC,  or  with  any  national  securities exchange, or distributed by the Company to its shareholders generally,  as the case may be;         (f) promptly after any request therefor by the Administrative Agent or any  Lender,  copies  of  (i)  any  documents  described  in  Section  101(ik)(1)  of  ERISA  that the Company or any of its ERISA Affiliates may request with respect to any  Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA  that the Company or any of its ERISA Affiliates may request with respect to any  Multiemployer Plan; provided that, if the Company or any of its ERISA Affiliates  has not requested such documents or notices from the administrator or sponsor of  the  applicable  Multiemployer  Plan,  the  Company  or  the  applicable  ERISA  Affiliate shall promptly make a request for such documents and notices from such  administrator or sponsor and shall provide copies of such documents and notices  promptly after receipt thereof; and         (g) (i) promptly  after  any  request  therefor,  such  other  information  regarding the operations, business affairs and financial condition of the Company  or any Subsidiary, or compliance with the terms of any Loan Document, as the  Administrative  Agent  (on  its  own  behalf  or  at  the  request  of  any  Lender)  may  reasonably request and (ii) promptly after any request therefor, information  and documentation reasonably requested by the Administrative Agent or any  Lender  in  writing  to  the  extent  necessary  for  compliance  with  applicable                                                     89  





 






         “know your customer” and anti-money laundering rules and regulations, including        the USA Patriot Act.   Information  required  to  be  delivered  pursuant  to  this  Section  5.01  shall  be  deemed  to  have been delivered if such information (including, in the case of certifications required  pursuant to clause (b) above, the certifications accompanying any such quarterly report  pursuant to Section 302 of the Sarbanes-Oxley Act of 2002), or one or more annual or  quarterly  reports  containing  such  information,  shall  have  been  posted  by  the  Administrative Agent  on the PlatformElectronic System  or a similar site to  which the  Lenders  have  been  granted  access  or  shall  be  available  on  the  website  of  the  SEC  at  http://www.sec.gov.  Information required to be  delivered pursuant to this Section 5.01  may also be delivered by electronic communications pursuant to procedures approved by  the Administrative Agent.  In the event any financial statements delivered under clause  (a) or (b) above shall be restated, the Company shall deliver, promptly after such restated  financial statements become available, revised completed certificates with respect to the  periods  covered  thereby  that  give  effect  to  such  restatement,  signed  by  a  Financial  Officer.               SECTION 5.02. Notices of Material Events¶.  The Company will furnish  to the Administrative Agent prompt written notice of the following:               (a) the occurrence of any Default;               (b) the  filing  or  commencement  of  any  action,  suit  or  proceeding  by  or        before any arbitrator or Governmental Authority against or affecting the Company        or any Subsidiary that could reasonably be expected to be adversely determined        and, if adversely determined, could reasonably be expected to result in a Material        Adverse Effect; and               (c) the  occurrence  of  any  ERISA  Event  that,  alone  or  together  with  any        other ERISA Events that have occurred, could reasonably be expected to result in        a Material Adverse Effect.   Each  notice  delivered  under  this  Section  shall  be  accompanied  by  a  statement  of  a  Financial Officer or other executive officer of the Company setting forth the details of the  event or development requiring such notice and any action taken or proposed to be taken  with respect thereto.               SECTION 5.03. Existence;  Conduct  of  Business¶.   The  Company  will,  and will cause each of the Subsidiaries to, do or cause to be done all things necessary to  preserve,  renew  and  keep  in  full  force  and  effect  its  legal  existence  and  the  rights,  licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names  material to the conduct of its business except (other than as to the legal existence of  any Borrower) where the failure to do so could not reasonably be expected to result in a  Material  Adverse  Effect; provided that  the  foregoing  shall  not  prohibit  any  merger,  consolidation, sale, transfer, lease, disposition, liquidation or dissolution permitted under  Section 6.04 or 6.08.                                        90  





 






               SECTION 5.04. Payment of Tax Liabilities¶.  The Company will, and will  cause each of the Subsidiaries to, pay its Tax liabilities that, if not paid, could reasonably  be  expected  to  result in  a  Material  Adverse  Effect  before  the  same  shall  become  delinquent  or  in  default,  except  where  (a)  the  validity  or  amount  thereof  is  being  contested  in  good  faith  by  appropriate  proceedings  and  (b)  the  Company  or  such  Subsidiary  has  set  aside  on  its  books  reserves  with  respect  thereto  in  accordance  with  GAAP.               SECTION 5.05. Maintenance  of  Properties;  Insurance¶.   The  Company  will, and will cause each of the Subsidiaries (other than any Excluded Subsidiary) to, (a)  keep and maintain all property material to the conduct of its business in good working  order and condition, ordinary wear and tear excepted, except where the failure to do so  could not reasonably be expected to result in a Material Adverse Effect, and (b) maintain,  with financially sound and reputable insurance companies, insurance in such amounts and  against such risks as are customarily maintained by companies engaged in the same or  similar businesses operating in the same or similar locations; provided that the Company  and the Subsidiaries may (i) self-insure against such risks and in amounts as are usually  self-insured by similar companies engaged in the same or similar businesses operating in  the same or similar locations and (ii) elect not to carry terrorism insurance.               SECTION 5.06. Books  and  Records;  Inspection  Rights¶.  The  Company  will, and will cause each of the Subsidiaries to, keep proper books of record and account  in which full, true and correct entries are made of all dealings and transactions in relation  to its business and activities.  The Company will, and will cause each of the Subsidiaries  (other  than  any  Excluded  Subsidiary) to,  permit  any  representatives  designated  by  the  Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its  properties, to examine and make extracts from its books and records and to discuss its  affairs, finances and condition with its officers and independent accountants, all at such  reasonable times and as often as reasonably requested; provided that, unless an Event of  Default  has  occurred  and  is  continuing,  no  representative  designated  by  a  Lender  may  conduct  any  such  visit,  inspection,  examination,  extraction  or  discussion  unless  such  representative  is  accompanied  by  a  representative  designated  by  the  Administrative  Agent.               SECTION 5.07. Compliance  with  Laws¶.   The  Company  will,  and  will  cause each of the Subsidiaries to, comply with all laws, rules, regulations and orders of  any Governmental Authority applicable to it or its property, except where the failure to  do so, individually or in the aggregate, could not reasonably be expected to result in a  Material Adverse Effect.               SECTION 5.08. Further  Assurances¶.  (a)  The  Company  will,  and  will  cause each of the Subsidiaries to, execute any and all further documents, agreements and  instruments, and take all further actions that may be required under any applicable law or  regulation, or that the Administrative Agent may reasonably request, (i) to effectuate the  transactions  contemplated  by  the  Loan  Documents  and  (ii)  to  cause  the  Guarantee  Requirement  to  be  and  remain  satisfied  at  all  times. ¶If  after  the  Restatement  Effective  Date  any  Subsidiary  is  formed  or  acquired  that  is  a  Designated  Subsidiary,  or  any                                        91  





 






   Subsidiary  becomes  a  Designated  Subsidiary,  the  Company  will,  as  promptly  as  practicable, and in any event within 30 days (or such longer period as the Administrative  Agent may agree to in writing), notify the Administrative Agent thereof.                                 ARTICLE VI                                                                   Negative Covenants               Until the Commitments have expired or been terminated and the principal  of and interest on each Loan and all fees payable hereunder have been paid in full and all  Letters of Credit have expired or been terminated and all LC Disbursements shall have  been  reimbursed  by  the  Borrowers,  the  Company  and  each  Borrowing  Subsidiary  covenants and agrees with the Lenders that:               SECTION 6.01. Indebtedness¶.  The  Company  will  not  permit  any  Subsidiary  (other  than  any  Loan  Party  that  Guarantees  all  the  Obligations)  to,  create,  incur, assume or permit to exist any Indebtedness, except:               (a) Indebtedness created under the Loan Documents;               (b) Indebtedness set forth on Schedule 6.01, and extensions, renewals and        replacements  of  any  such  Indebtedness  that  do  not  increase  the  outstanding        principal amount thereof, result in an earlier maturity date or decreased remaining        weighted  average  life  to  maturity  thereof  or  change  the  parties  directly  or        indirectly responsible for the payment thereof;               (c) Indebtedness owed to the Company or to any Subsidiary; provided that        such Indebtedness shall not have been transferred or pledged to any Person other        than the Company or any Subsidiary;               (d) Indebtedness  incurred  to  finance  the  acquisition,  construction  or        improvement  of  any  fixed  or  capital  assets  (including  any  such  Indebtedness        incurred  after  the  consummation  of  such  acquisition,  construction  or        improvement),  including  Capital  Lease  Obligations  and  any  Indebtedness        incurred  or  assumed  in  connection  with  the  acquisition,  construction  or        improvement of any such assets or secured by a Lien on any such assets prior to        the acquisition thereof, and extensions, renewals, refinancings and replacements        of  any  Indebtedness  permitted  by  this  Section  6.01(d)  that  do  not  increase  the        outstanding principal amount thereof by more than the amount of any fees, costs,        expenses and premiums  associated with such extension, renewal, refinancing or        replacement  and  accrued  interest,  fees  and  premiums  with  respect  to  the        Indebtedness being extended, renewed, refinanced or replaced, result in an earlier        maturity date or decreased remaining weighted average life to maturity thereof or        change  the  parties  directly  or  indirectly  responsible  for  the  payment  thereof;        provided  that  (i)  such  Indebtedness  (other  than  otherwise  permitted  extensions,        renewals, refinancings and replacements thereof) is incurred prior to or within 180        days after such acquisition or the completion of such construction or improvement                                        92  





 






                      and (ii) the aggregate principal amount of Indebtedness permitted by this clause  (d)  shall  not  exceed,  in  each  case,  the  cost  of  such  acquisition,  construction  or  improvement plus the amount of any fees, costs and expenses associated with the  incurrence  of  such  Indebtedness  and,  in  the  case  of  any  extension,  renewal,  refinancing or replacement  of any such  Indebtedness,  accrued interest,  fees  and  premiums with respect to the Indebtedness being extended, renewed, refinanced  or replaced;         (e) Indebtedness  of  any  Person  that  becomes  a  Subsidiary  (or  of  any  Person not previously a Subsidiary that is merged or consolidated with or into a  Subsidiary in a transaction permitted hereunder) after the date hereof;  provided  that (i) such Indebtedness exists at the time such Person becomes a Subsidiary (or  is  so  merged  or  consolidated)  and  is  not  created  in  contemplation  of  or  in  connection  with  such  Person  becoming  a  Subsidiary  (or  such  merger  or  consolidation) and (ii) at the time such Person becomes a Subsidiary (or is so  merged  or  consolidated),  the  aggregate  principal  amount  of  Indebtedness  permitted  bythen  outstanding  under  this  clause  (e)  shall  not  exceed  US$375,000,000 at any time outstandingthe greater of (x) US$550,000,000 and  (y) 4.5% of Consolidated Adjusted Total Assets as of the last day of the fiscal  quarter  of  the  Company  most  recently  ended  on  or  prior  to  the  date  such  Person becomes a Subsidiary (or is so merged or consolidated);         (f) Indebtedness of any Subsidiary as an account party in respect of trade  letters of credit;          (g) Indebtedness consisting of (i) the financing of insurance premiums or  (ii)  take  or  pay  obligations  contained  in  supply  arrangements,  in  each  case,  incurred in the ordinary course of business;         (h) Indebtedness  representing  deferred  compensation  to  employees  incurred in the ordinary course of business;         (i) Indebtedness  consisting  of  any  purchase  price  adjustment,  earnout  or  deferred payment of a similar nature incurred in connection with any investment  by any Subsidiary, but only to the extent that no payment has at the time accrued  pursuant  to  such  purchase  price  adjustment,  earnout  or  deferred  payment  obligation,  or  of  any  indemnification  obligation  arising  in  connection  with  any  investment by any Subsidiary;         (j) Indebtedness arising under any performance or surety bond (including  any  consumer  protection  bond  or  any  performance  bond  posted  in  respect  of  contested tax assessments), completion bond or similar obligation, in  each case  incurred in the ordinary course of business and not supporting Indebtedness;         (k) overdrafts paid within five Business Days;         (l) Capital  Lease  Obligations  incurred  in  connection  with  any  Sale/Leaseback Transaction permitted by Section 6.03;                                                    93  





 






                            (m) other Indebtedness that, when aggregated(other than Securitization  Transactions);  provided  that  at  the  time  of  incurrence  of  any  such  Indebtedness,  the  aggregate  principal  amount  of  Indebtedness  then  outstanding under this clause (m), together with, without duplication, with the  aggregate outstandingprincipal  amount  of  Indebtedness of  the  Companythen  outstanding that is secured by Liens and Securitization Transactions permitted  pursuant  to  Section  6.02(g)  and  the  aggregate outstanding amount  of  Sale/Leaseback  Transactions permitted  pursuant  tothen  outstanding  under  the  proviso to Section 6.03, shall at no time exceed US$150,000,000not exceed the  greater of (x) US$225,000,000 and (y) 1.8% of Consolidated Adjusted Total  Assets as of the last day of the fiscal quarter of the Company most recently  ended on or prior to the date of incurrence of such Indebtedness;          (n) all  premium  (if  any),  interest  (including  post-petition  interest),  fees,  expenses, charges and additional or contingent interest on obligations described in  the foregoing clauses of this Section;         (o) guarantees of Indebtedness of Loan Parties;         (p) Indebtedness  consisting  of  promissory  notes  issued  to  current  or  former officers, directors and employees of a Subsidiary, their respective estates,  spouses or former spouses issued in exchange for the purchase or redemption by  such Subsidiary of its Equity Interests (other than Disqualified Equity Interests);  provided that the aggregate principal amount of such Indebtedness permitted by  this clause (p) shall not exceed US$15,000,00022,500,000;         (q) obligations under Swap Agreements that are entered into to hedge or  mitigate risks to which the Company or any Subsidiary has actual or anticipated  exposure  (other  than  in  respect  of  Equity  Interests  or  Indebtedness  of  the  Company  or  any  Subsidiary)  or  to  cap,  collar  or  exchange  interest  rates  (from  fixed to floating rates, from one floating rate to another floating rate or otherwise)  or  exchange  rates  with  respect  to  any  interest  bearing  or  non-US  Dollar  denominated liability or investment of the Company or any Subsidiary;          (r) Indebtedness  of  Foreign  Subsidiaries  (other  than  any  such  Foreign  Subsidiary  that  is  a  Borrower  hereunder)  in  an;  provided  that  at  the  time  of  incurrence  of  any  such  Indebtedness  the  aggregate  principal  amount of  Indebtedness  then  outstanding  under  this  clause  (r)  shall not to  exceed  US$225,000,000  at  any  time  outstandingexceed  the  greater  of  (x)  US$325,000,000 and (y) 2.7% of Consolidated Adjusted Total Assets as of the  last day of the fiscal quarter of the Company most recently ended on or prior  to the date of incurrence of such Indebtedness;         (s) Indebtedness  incurred  to  finance  the  acquisition,  construction  or  improvement of the New Headquarters Assets (including any such Indebtedness  incurred  after  the  consummation  of  such  acquisition,  construction  or  improvement),  including  Capital  Lease  Obligations  (including  Capital  Lease                                                     94  





 






         Obligations arising from Sale/Leaseback Transactions), and extensions, renewals,        refinancings  and  replacements  of  any  Indebtedness  permitted  by  this  Section        6.01(s) that do not increase the outstanding principal amount thereof by more than        the  amount  of  any  fees,  costs,  expenses  and  premiums  associated  with  such        extension,  renewal,  refinancing  or  replacement  and  accrued  interest,  fees  and        premiums with respect to the Indebtedness being extended, renewed, refinanced        or  replaced,  result  in  an  earlier  maturity  date  or  decreased  remaining  weighted        average  life  to  maturity  thereof  or  change  the  parties  directly  or  indirectly        responsible for the payment thereof; provided that the aggregate principal amount        of Indebtedness permitted by this Section 6.01(s) shall not exceed the aggregate        cost  of  the  acquisition  of  the  New  Headquarters  Assets,  all  construction  or        improvements thereon and all fixtures thereto plus the amount of any fees, costs        and expenses associated with the incurrence of such Indebtedness and, in the case        of any extension, renewal, refinancing or replacement of any such Indebtedness,        accrued  interest,  fees  and  premiums  with  respect  to  the  Indebtedness  being        extended, renewed, refinanced or replaced;               (t) Indebtedness of the New Headquarters SPV or the New Headquarters        Parent SPV; and               (u) Indebtedness  of  Excluded  Subsidiaries  in  an  aggregate  principal        amount not to exceed US$250,000,000 at any time outstanding.; and               (v) Securitization  Transactions  in  an  aggregate  amount  (as        determined  in  accordance  with  the  definition  thereof)  at  any  time        outstanding not to exceed US$200,000,000.               SECTION 6.02. Liens¶.  The Company will not, and will not permit any  Subsidiary  (other  than  any  Excluded  Subsidiary) to,  create,  incur,  assume  or  permit  to  exist any Lien on any property or asset now owned or hereafter acquired by it, or assign  or sell any income or revenues (including accounts receivable) or rights in respect of any  thereof, except:               (a) Permitted Encumbrances;               (b) any Lien on any asset of the Company or any Subsidiary (or on any        improvements  or  accessions  thereto  or  proceeds  therefrom)  existing  on  the        FirstFourth Amendment Effective Date and set forth on Schedule 6.02; provided        that  (i)  such  Lien  shall  not  apply  to  any  other  asset  of  the  Company  or  any        Subsidiary and (ii) such Lien shall secure only those obligations that it secures on        the  date  hereof  and  extensions,  renewals  and  replacements  thereof  that  do  not        increase the outstanding principal amount thereof;               (c) any Lien existing on any asset prior to the acquisition thereof by the        Company or any Subsidiary or existing on any asset of any Person that becomes a        Subsidiary  after  the  date  hereof  prior  to  the  time  such  Person  becomes  a        Subsidiary;  provided  that  (i)  such  Lien  is  not  created  in  contemplation of  or  in                                        95  





 






                      connection  with  such  acquisition  or  such Person  becoming  a  Subsidiary,  as  the  case may be, (ii) such Lien shall not apply to any other assets of the Company or  any  Subsidiary  and  (iii)  such  Lien  shall  secure  only  those  obligations  that  it  secures  on  the  date  of  such  acquisition  or  the  date  such  Person  becomes  a  Subsidiary, as the case may be, and extensions, renewals and replacements thereof  that do not increase the outstanding principal amount thereof;         (d) Liens on fixed or capital assets acquired, constructed or improved by  the  Company  or  any  Subsidiary;  provided  that  (i)  such  Liens  secure  solely  Indebtedness permitted by Section 6.01(d) and (ii) such Liens shall not apply to  any other assets of the Company or any Subsidiary;          (e) Liens  arising  in  the  ordinary  course  of  business  that  do  not  secure  Indebtedness  and  do  not  interfere  with  the  material  operations  of  the  Company  and the Subsidiaries and do not individually or in the aggregate materially impair  the value of the assets of the Company and the Subsidiaries;         (f) Liens  deemed  to  secure  Capital  Lease  Obligations  incurred  in  connection with any Sale/Leaseback Transaction permitted by Section 6.03;         (g) other  Liens  securing  Indebtedness  (including  Liens  deemed  to  secureother  than  Securitization  Transactions  pursuant  to  the  definition  of  such  term)  that,  when  aggregated,  without  duplication,  with);  provided  that  at  the  time  of  incurrence  of  any  such  Liens  the  aggregate  principal  amount  of  Indebtedness  then  secured  under  this  clause  (g),  together  with,  without  duplication,  the  aggregate  principal  amount  of  Indebtedness of  Subsidiaries  permittedthen outstanding under Section 6.01(m) and the outstandingaggregate  amount  of  Sale/Leaseback  Transactions permitted  pursuant  tothen  outstanding  under the proviso to Section 6.03, does not exceed US$150,000,000 at any time  outstandingshall not exceed the greater of (x) US$225,000,000 and (y) 1.8% of  Consolidated Adjusted Total Assets as of the last day of the fiscal quarter of  the Company  most recently ended on or prior to the date of incurrence of  such Liens;          (h) licenses,  sublicenses,  leases  or  subleases  that  do  not  interfere  in  any  material respect with the business of the Company or any Subsidiary;         (i) any  interest  or  title  of  a  lessor  or  sublessor  under,  and  Liens  arising  from UCC financing statements (or equivalent filings, registrations or agreements  in foreign jurisdictions) relating to, leases and subleases permitted hereunder;         (j) normal  and customary rights  of setoff upon deposits  of cash  or other  Liens  originating  solely  by  virtue  of  any  statutory  or  common  law  provision  relating  to  bankers  liens,  rights  of  setoff  or  similar  rights  in  favor  of  banks  or  other depository institutions and not securing any Indebtedness;         (k) Liens of a collection bank arising under Section 4-210 of the Uniform  Commercial Code on items in the course of collection;                                                    96  





 






               (l) Liens solely on any cash earnest money deposits made by the Company        or any Subsidiary in connection with any letter of intent or purchase agreement in        respect of any acquisition or other investment by the Company or any Subsidiary;               (m) any  extension,  renewal  or  replacement  (or  successive  renewals  or        replacements) in whole or in part of any Lien referred to in clause (b), (c) or (d);        provided that (i) the obligations secured thereby shall be limited to the obligations        secured by the Lien so extended, renewed or replaced (and, to the extent provided        in such clauses, extensions, renewals and replacements thereof) and (ii) such Lien        shall be limited to all or a part of the assets that secured the Lien so extended,        renewed or replaced;                (n) Liens  granted  by  the  New  Headquarters  Parent  SPV  or  the  New        Headquarters SPV; provided that such Liens shall not apply to the assets of the        Company or any of its Subsidiaries (other than the New Headquarters Parent SPV        and the New Headquarters SPV);               (o) Liens  on  the  New  Headquarters  Assets;  provided  that  (i)  such  Liens        shall secure solely Indebtedness permitted by Section 6.01(s) and (ii) such Liens        shall not apply to any other assets of the Company or any Subsidiary; and               (p) Liens securing Indebtedness incurred pursuant to Section 6.01(r); and               (q) Liens securing (or deemed to secure pursuant to the definition of        the term) Securitization Transactions permitted to be incurred pursuant to        Section 6.01(v); provided that such Liens shall only extend to Securitization        Receivables subject to such Securitization Transaction, the Equity Interests        in and assets of Securitization Subsidiaries and assets ancillary to any of the        foregoing.               SECTION 6.03. Sale/Leaseback  Transactions¶.   Other  than  (xa)  contemporaneously  with  the  acquisition  of  any  asset  in  order  to  finance  the  purchase  thereof  or  (yb)  in  the  case  of  a  Sale/Leaseback  Transaction  with  respect  to  the  New  Headquarters  Assets,  at  any  time  in  order  to  finance  the  acquisition  of  the  New  Headquarters  Assets,  any  construction  thereon  or  any  improvements  thereto  (including  any  such  Sale/Leaseback  Transaction  consummated  after  the  consummation  of  such  acquisition, construction or improvement), the Company will not, and will not permit any  Subsidiary  (other  than  any  Excluded  Subsidiary) to,  enter  into  any Sale/Leaseback  Transaction; provided that,  notwithstanding  the  foregoing,  the  Company  or  any  such  Subsidiary  may  engage  in  any  Sale/Leaseback  Transaction  if,  at  the  time  of  such  Sale/Leaseback  Transaction, the  aggregate amount  of  Sale/Leaseback  Transactions  then outstanding amount of such transactions entered into pursuant to this proviso after  giving  effect  thereto shall  not  exceed  (a)  US$100,000,000  less  (b)  the  sum,  together  with,  without  duplication, of  (i) the  aggregate  principal  amount  of  Indebtedness then  outstanding at  such  time  pursuant  tounder Section  6.01(m)  and (ii) the  aggregate  principal  amount  of  Indebtedness (including  Securitization  Transactions)then  outstanding secured  by  Liens outstanding  at such  timepermitted pursuant  to  Section                                        97  





 






   6.02(g),  shall  not  exceed  the  greater  of  (i)  US$225,000,000  and  (ii)  1.8%  of  Consolidated  Adjusted  Total  Assets as  of  the  last  day  of  the  fiscal  quarter  of  the  Company  most  recently  ended  on  or  prior  to  the  date  of  such  Sale/Leaseback  Transaction.               SECTION 6.04. Fundamental  Changes;  Business  Activities¶.  (a)  The  Company will not, and will not permit any Material Subsidiary (other than any Excluded  Subsidiary) to,  merge  into  or  consolidate  with  any  other  Person,  or  permit  any  other  Person to merge into or consolidate with it, or liquidate or dissolve; provided that, if at  the  time  thereof  and  immediately  after  giving  effect  thereto  no  Default  shall  have  occurred and be continuing, (i) the Company or any Material Subsidiary may merge or  consolidate with any Person; provided that (A) in the case of any merger or consolidation  involving the Company or any Borrowing Subsidiary, (1) either (x) the Company or such  Borrowing Subsidiary shall be the continuing or surviving Person or (y) the continuing or  surviving Person shall be a corporation or limited liability company organized under the  laws  of  the  United  States  of  America  or  any  State  thereof  and  shall  assume  all  of  the  Company’s or such Borrowing Subsidiary’s obligations under the Loan Documents in a  manner reasonably acceptable to the Administrative Agent, and (2) the Company or such  Borrowing Subsidiary shall give the Lenders reasonable prior notice thereof in order to  allow  the  Lenders  to  comply  with  “know  your  customer”  rules and  other  applicable  regulations; and (B) (1) in the case of any merger or consolidation involving a Material  Subsidiary, the continuing or surviving Person shall be a Subsidiary and, if such Material  Subsidiary is a Wholly Owned Subsidiary, shall be a Wholly Owned Subsidiary, and (2)  in  the  case  of  any  merger  or  consolidation  involving  a  Material  Subsidiary  that  is  a  Subsidiary  Loan  Party,  the  continuing  or  surviving  Person  shall  be  a  Loan  Party;  provided that  the  requirements  set  forth  in  this clause  (B)  shall  not  apply  to  any  such  merger  or  consolidation  involving  a  Material  Subsidiary  (other  than  any  Borrowing  Subsidiary)  consummated  to  effect  any  sale,  transfer  or  other  disposition  of  all  of  the  Equity Interests in such Material Subsidiary owned by the Company and the Subsidiaries  in accordance with Section 6.08; and (ii) any Material Subsidiary (other than a Borrowing  Subsidiary) may liquidate or dissolve into another Subsidiary; provided that in the case of  any  such  liquidation  or  dissolution  of  a  Material  Subsidiary  that  is  a  Wholly  Owned  Subsidiary,  the  other  Subsidiary  shall  be  a  Wholly  Owned  Subsidiary  and,  if  such  liquidating or dissolving Material Subsidiary is a Subsidiary Loan Party, shall be a Loan  Party.               (b) The Company will not, and will not permit any Subsidiary (other than  any Excluded Subsidiary) to, engage to any material extent in any business other than  businesses  conducted  as  of  the  Restatement  Effective  Date  by  the  Company  and  the  Subsidiaries,  taken  as  a  whole,  and  businesses  similar,  ancillary,  complementary  or  otherwise reasonably related thereto or that are a reasonable extension, development or  expansion thereof.               SECTION 6.05. Restricted  Payments¶.   The  Company  will  not,  and  will  not permit any Subsidiary (other than any Excluded Subsidiary) to, declare or make, or  agree to pay or make, directly or indirectly, any Restricted Payment, except that (a) the  Company  may  declare  and  pay  dividends  with  respect  to  its  Equity  Interests  payable                                        98  





 






   solely in additional shares of its Equity Interests (other than Disqualified Equity Interests)  or made with the net cash proceeds of the substantially concurrent issue of new Equity  Interests (other than Disqualified Equity Interests) in the Company, (b) Subsidiaries may  declare and pay dividends ratably (or on more favorable terms from the perspective of the  Company) with respect to their Equity Interests, (c) Subsidiaries may declare and make  any  Restricted  Payments  made  to  the  Company  or  the  other  Subsidiaries,  (d)  the  Company may make repurchases of Equity Interests deemed to occur upon the “cashless  exercise” of stock options or warrants or upon the vesting of restricted stock units, if such  Equity  Interests  represent  the  exercise  price  of  such  options  or  warrants  or  represent  withholding  taxes  due  upon  such  exercise  or  vesting,  (e)  the  Company  and  the  Subsidiaries may purchase Equity Interests in non-Wholly Owned Subsidiaries from the  minority owners thereof (whether by means of stock acquisition, self-tender, redemption  or otherwise) and (f) the Company and the Subsidiaries may make Restricted Payments  pursuant  to  and  in  accordance  with  stock  option  plans  or  other  benefit  plans  for  management  or  employees  of  the  Company  and  the  Subsidiaries;  provided  that  the  Company and any Subsidiary may make any Restricted Payments if (x) no Default shall  have occurred and be continuing or would result therefrom and (y) the Company shall be  in  compliance  with  the  covenant  set  forth  in  Section  6.10  as  of  the  end  of  the  fiscal  quarter of the Company most recently ended on  or prior to the date of such Restricted  Payment, giving pro forma effect to such Restricted Payment and any related incurrence  of Indebtedness as if they had occurred on the last day of such quarter.               SECTION 6.06. Transactions  with  Affiliates¶.   The  Company  will  not,  and will not permit any Subsidiary (other than any Excluded Subsidiary) to, sell, lease or  otherwise transfer any assets to, or purchase, lease or otherwise acquire any assets from,  or  otherwise  engage  in  any  other  transactions  with,  any  of  its  Affiliates,  except  (a)  at  prices and on terms and conditions not less favorable to the Company or such Subsidiary  than  could  be  obtained  on  an  arm’s-length  basis  from  unrelated  third  parties,  (b)  transactions  between  or  among  the  Company,  Wholly-Owned  Subsidiaries  and  Subsidiary  Loan  Parties  not  involving  any  other  Affiliate,  (c)  transactions  between  or  among Subsidiaries that are not Loan Parties, (d) any Restricted Payment permitted by  Section 6.05, (e) transactions under the IAC Agreements as in effect on the date hereof  (or as hereafter amended in a manner not materially adverse to the Company and to the  rights or interests of the Lenders), (f) payments made and other transactions entered into  in  the  ordinary  course  of  business  with  officers  and  directors  of  the  Company  or  any  Subsidiary, and consulting fees and expenses incurred in the ordinary course of business  payable  to  former  officers  or  directors  of  the  Company  or  any  Subsidiary,  (g)  reclassifications  or  changes  in  the  terms  of  or  other  transactions  relating  to Equity  Interests  in  the  Company  held  by  Affiliates  that  do  not  involve  the  payment  of  any  consideration (other than Equity Interests (other than Disqualified Equity Interests) in the  Company) or any other transfer of value by the Company or any Subsidiary to any such  Affiliate, (h) payments by the Company or any Subsidiary to or on behalf of any Affiliate  of the Company or any Subsidiary in connection with out-of-pocket expenses incurred in  connection  with  any  public  or  private  offering,  other  issuance  or sale  of  stock  by  the  Company  or  an  Affiliate  of  the  Company  or  other  transaction  for  the  benefit  of  the  Company  or  any  Subsidiary,  (i)  transactions  disclosed  in  the  Form  S-4,  (j)  Permitted  Charitable Contributions, (k) any transaction (if part of a series of related transactions,                                       99  





 






   together  with  such  related  transactions)  involving  consideration  or  value  of  less  than  US$10,000,000,15,000,000,  (l)  transactions  permitted  under  Section  6.08(m), (m)  transactions pursuant to  agreements with TripAdvisor, Inc. and its Subsidiaries entered  into in connection with the separation of TripAdvisor, Inc. from the Company, in each  case substantially as described in the TripAdvisor, Inc. Form S-4 as filed with the SEC on  July 27, 2011, as amended, (n) transactions engaged by a Person that is not a Subsidiary  on  the  First  Amendment  Effective  Date,  which  transactions  are  engaged  pursuant  to  agreements or arrangements in existence at the time such Person becomes a Subsidiary or  is  merged or  consolidated with  or into the Company or  a Subsidiary (provided that (i)  such  agreements  or  arrangements  were  not  entered  into  in  connection  with  or  in  contemplation of such Person becoming a Subsidiary or such merger or consolidation and  (ii)  immediately  prior  to  such  Person  becoming  a  Subsidiary  or  such  merger  or  consolidation, such Person was not an Affiliate of the Company) and, (o) the trivago IPO  and the transactions relating thereto, in each case substantially as described in the trivago  Form F-1 as filed with the SEC on November 14, 2016, as amended by the Amendment  No. 1 to Form F-1 Registration Statement filed by trivago with the SEC on December 5,  2016, and as supplemented by the prospectus filed by trivago with the SEC on December  16, 2016 and the trivago Form F-6, as filed with the SEC on December 5, 2016 (and any  amendment, supplement or modification to any such transaction or related agreement in a  manner not  materially adverse to  the Company  and its  Subsidiaries  (other than trivago  and  its  Subsidiaries)  and  to  the  rights  or  interests  of  the  Lenders) and  (p) customary  transactions  with  Securitization  Subsidiaries  pursuant  to  a  Securitization  Transaction; provided,  however,  that  this  Section  shall  not  prohibit,  nor  limit  the  operation  or  effect  of,  or  any  payments  under,  (i)  any  license,  lease,  service  contract,  purchasing agreement, disposition agreement or similar arrangement entered into in the  ordinary  course  of  business  between  any  Subsidiary  and  the  Company  or  any  other  Subsidiary or (ii) any agreement with respect to any joint venture to which the Company  or any Subsidiary is a party entered into in connection with, or reasonably related to, its  lines of business; provided that such agreement is approved by the Company’s board of  directors or the executive committee or audit committee thereof.               SECTION 6.07. Restrictive  Agreements¶.   The  Company  will  not,  and  will  not  permit  any  Subsidiary  (other  than  any  Excluded  Subsidiary) to,  directly  or  indirectly,  enter into, incur or permit  to  exist any  agreement or other arrangement  that  prohibits, restricts or imposes any condition upon (a) the ability of the Company or any  Domestic Subsidiary to create, incur or permit to exist any Lien upon any of its assets to  secure  any  Obligations  or  (b)  the  ability  of  any  Subsidiary  to  pay  dividends  or  other  distributions  with  respect  to  any  shares  of  its  capital  stock,  membership  interests  or  similar Equity Interests or to make or repay loans or advances to the Company or any  other Subsidiary or to Guarantee Indebtedness of the Company or any other Subsidiary;  provided that (i) the foregoing shall not apply to (A) restrictions and conditions imposed  by law or by any Loan Document, (B) restrictions and conditions identified on Schedule  6.07 (but shall apply to any extension or renewal of, or any amendment or modification  expanding the scope of, any such restriction or condition), (C) restrictions and conditions  with respect to a Person that is not a Subsidiary on the date hereof, which restrictions and  conditions are in existence at the time such Person becomes a Subsidiary or is merged or  consolidated  with  a  Subsidiary  and  are  not  incurred  in  connection  with,  or  in                                      100  





 






   contemplation  of, such Person becoming a Subsidiary, so  long as  such restrictions and  conditions apply only to such Person (but shall apply to any extension or renewal of, or  any  amendment  or  modification  expanding  the  scope  of,  any  such  restriction  or  condition), (D) restrictions and conditions imposed by any Existing Indenture as in effect  on the date hereofFourth Amendment Effective Date or by any agreement or document  governing  or  evidencing  any  other  Indebtedness  of  the  Company  or  any  Subsidiary  permitted hereunder; provided that the restrictions and conditions contained in any such  agreement  or  document  are  not  less  favorable  to  the  Lenders  than  the  restrictions  and  conditions imposed by the Existing Indentures as in effect on the date hereof or, in the  case of any agreement or document governing Indebtedness of a Foreign Subsidiary, are  market terms for comparable Indebtedness at the time of incurrence of such Indebtedness  (as reasonably determined by the Company) and would not materially reduce the ability  of Foreign Subsidiaries, taken as a whole, to pay dividends to the Company, (E) in the  case  of  any  Domestic  Subsidiary  that  is  not  a  Designated  Subsidiary  or  any  Foreign  Subsidiary,  in  each  case,  that  is  not  a  Wholly  Owned  Subsidiary,  restrictions  in  such  Person’s  organizational  documents  or  pursuant  to  any  joint  venture  agreement  or  equityholders  agreement and, (F)  restrictions  and  conditions  imposed on  the  New  Headquarters  SPV  or  the  New  Headquarters  Parent SPV and  (G)  in  connection  with  any  Securitization  Transaction,  restrictions  and  conditions  imposed  on  the  Securitization Receivables subject thereto, any Securitization Subsidiary, the Equity  Interests in or assets of any Securitization Subsidiary or  any assets ancillary to any  of  the  foregoing;  (ii)  clause  (a)  of  the  foregoing  shall  not  apply  to  (A)  restrictions  or  conditions  imposed  by  any  agreement  relating  to  secured  Indebtedness  or  other  Liens  permitted  by  this  Agreement  if  such  restrictions  or  conditions  apply  only  to  the  assets  securing  such  Indebtedness  or  subject  to  such  Liens  and  (B)  customary  provisions  in  leases and other agreements restricting the assignment thereof; and (iii) clause (b) of the  foregoing  shall  not  apply  to (A) customary  restrictions  and  conditions  contained  in  agreements  relating  to  the  sale  of  a  Subsidiary  pending  such  sale; provided that  such  restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is  permitted hereunder, or (B) restrictions and conditions imposed by any agreement or  document  governing  or  evidencing  any  Indebtedness  of  the  Company  or  any  Domestic  Subsidiary  permitted  hereunder;  provided  that  the  restrictions  and  conditions contained in any such agreement or document are on market terms for  comparable  Indebtedness  at  the  time  of  incurrence  of  such  Indebtedness  (as  reasonably  determined  by  the  Company)  and  would  not  materially  reduce  the  ability of Domestic Subsidiaries, taken as a whole, to pay dividends to the Company.               SECTION 6.08. Asset Dispositions¶.  The Company will not, and will not  permit  any  Subsidiary  (other  than  any  Excluded  Subsidiary) to,  sell,  transfer,  lease  or  otherwise dispose of any asset, including any Equity Interest, owned by it, nor will the  Company permit any of the Subsidiaries (other than any Excluded Subsidiary) to issue  any additional Equity Interest in such Subsidiary, except:               (a) sales  of  inventory,  used  or  surplus  equipment  and  other  fixed  assets        and Permitted Investments in the ordinary course of business;                                        101  





 






                            (b) sales, transfers and other dispositions (i) to a Loan Party or (ii) among  any Subsidiaries that are not Loan Parties;         (c) issuances  of  Equity  Interests  in  a  Subsidiary  (i)  as  incentive  compensation  to  officers,  directors  or  employees  of  such  Subsidiary,  (ii)  to  the  Company or to a Wholly Owned Subsidiary or (iii) as a Restricted Payment made  in reliance on Section 6.05(b);         (d) dispositions of assets to the extent that (i) such assets are exchanged  for  credit  against  the  purchase  price  of  similar  replacement  assets  or  (ii)  the  proceeds  of  such  disposition  are  reasonably  promptly  applied  to  the  purchase  price of such replacement assets;         (e) licenses, sublicenses, leases and subleases that do not interfere in any  material respect with the business of the Company or any Subsidiary;         (f) sales  or  discounts  of  accounts  receivable  in  connection  with  the  compromise or collection thereof in the ordinary course of business;         (g) the  granting  of  Liens  or  entry  into  Securitization  Transactions  permitted  by  Section  6.02;in  connection  with any  Securitization  Transaction  permitted by Sections  6.01 and 6.02, the granting of Liens and/or any sale,  transfer,  lease  or  other  disposition  of  Securitization  Receivables  subject  thereto, Equity Interests in and assets of any Securitization Subsidiary and  assets ancillary to any of the foregoing;         (h) any Sale/Leaseback Transaction permitted by Section 6.03;         (i) any Restricted Payment permitted under Section 6.05 (other than non- cash payments permitted solely under the proviso in such Section);         (j) sales,  transfers  and  dispositions  of  all  the  Equity  Interests  in  a  Subsidiary  owned  by  the  Company  and  the  Subsidiaries  and  sales,  transfers,  leases and other dispositions of other assets (other than accounts receivable as part  of a Securitization Transaction or inventory as part of an inventory financing and,  for the avoidance of doubt, Equity Interests in a Subsidiary), in each case to  the extent made to a Person other than the Company or any Subsidiary and to the  extent not made in reliance on any other clause of this Section 6.08; provided that  at the time of each such sale, transfer or disposition and after giving effect thereto,  (i) the sum, without duplication, of (x) the aggregate book value of all assets sold,  transferred, leased or otherwise disposed of in reliance on this clause (j) since the  FirstFourth Amendment Effective Date (in each case determined as of the date of  the applicable sale, transfer, lease or other disposition) and (y) all Partial Transfer  Asset Amounts forwith respect to all Partial Transfer SubsidiariesTransfers (if  any) since the Fourth Amendment Effective Date, shall not exceed 25% of the  sum,  without  duplication,  of  (A)  the  amounts  referred  to  in  the  immediately  preceding clauses (x) and (y) and (B) Consolidated Total Assets as of the last day  of the fiscal quarter of the Company most recently ended on or prior to the date of                                                   102  





 






                      such sale, transfer, lease or other disposition (without giving pro forma effect to  such sale, transfer, lease or other disposition), (ii) no Default shall have occurred  and be continuing, (iii) the Company shall be in compliance with the covenants  set  forth  in  Sections  6.10  and  6.11  as  of  the  end  of  the  fiscal  quarter  of  the  Company most recently ended on or prior to the date of such sale, transfer, lease  or other disposition, giving pro forma effect to such sale, transfer, lease or other  disposition as if it had occurred on the first day of the period of four consecutive  fiscal quarters of the Company ending with such quarter, (iv) all sales, transfers,  leases  and  other  dispositions (other  than  dispositions  constituting  Restricted  Payments) made in reliance on this clause (j) shall have been made for fair value,  provided that the requirements of this clause (iv) shall not apply to a single(v) if  such disposition in the form ofconstitutes a Restricted Payment made with assets  other  than  cash  so  long  as,  then  (A)  the  aggregate  Consolidated  EBITDA  attributable  to  all  non-cash  assets  disposed  of  in  such  disposition  does  not  constitute more than 15.0% of the total Consolidated EBITDA of the Company  and  the  Subsidiaries  for  the  period  of  four  consecutive  fiscal  quarters  of  the  Company most recently ended prior to the date of such disposition, (B) such non- cash assets are not otherwise material to the conduct in the ordinary course of the  business  of  the  Company  and  its  Subsidiaries,  taken  as  a  whole,  and  (C)  the  Company  shall  have  delivered  to  the  Administrative  Agent  a  certificate  of  a  Financial Officer certifying that the requirements set forth in this provisoclause  (v)  have  been  satisfied  with  respect  thereto  (it  being  understood  that  such  Restricted Payment may also involve a disposition of cash, which disposition of  cash may be made if permitted by any clause of this Section 6.08, regardless of  whether  it  is  permitted  by  this  clause  (j)), and  (vprovided  that  this  clause  (j)  may not be relied for more than one disposition (or more than a single series  of related dispositions consummated substantially concurrently) constituting  a Restricted Payment, and (vi) with respect to each sale, transfer, lease or other  disposition made in reliance on this clause (j) for consideration with a fair value in  excess  of  US$25,000,000,  the  Company  shall  have  delivered  to  the  Administrative  Agent  a  certificate  of  a  Financial  Officer  certifying  that  all  the  requirements set forth in this clause (j) have been satisfied with respect thereto,  together  with  reasonably  detailed  calculations  demonstrating  satisfaction  of  the  requirements set forth in subclauses (i) and (iii) above;         (k) any  transfer  to  Persons  other  than  the  Company  or  a  Subsidiary  of  Equity  Interests  representing  all  or  any  portion  of  the  aggregate  equity  in  any  Subsidiary,  whether  pursuant  to  a  Restricted  Payment,  a  sale  of  such  Equity  Interests  by  the  holder  or  holders  thereof  or  an  issuance  and  sale  of  Equity  Interests  by  such  Subsidiary  (any  such  transfer  being  referred  to  as  a  “Partial  Transfer”;  such  Subsidiary  being  referred  to  as  the  “Partial  Transfer  Parent  Subsidiary”  and,  together  with  its  subsidiaries,  as  the  “Partial  Transfer  Subsidiaries”; and any Partial Transfer Subsidiary that becomes a Partial Transfer  Subsidiary  as  a  result  of  a  Restricted  Payment  being  referred  to  as  a  “Partial  Transfer Spin-Off Subsidiary”); provided that at the time of such Partial Transfer  and  after  giving  effect  thereto,  (i)  no  Default  shall  have  occurred  and  be  continuing, (ii) the Company shall be in compliance with the covenants set forth                                                   103  





 






                      in Sections 6.10 and 6.11 as of the end of the fiscal quarter of the Company most  recently ended on or prior to the date of such Partial Transfer, giving pro forma  effect  to  such  Partial  Transfer  and  any  related  incurrence  of  Indebtedness  as  if  they had occurred on the first day of the period of four consecutive fiscal quarters  of the Company ended with such quarter, (iii) the sum, without duplication, of (x)  the  Partial  Transfer  Asset  Amounts forwith  respect  to  all the Partial Transfer  SubsidiariesTransfers since the Fourth Amendment Effective Date and (y) the  aggregate  book  value  of  all  the  assets  sold,  transferred,  leased  or  otherwise  disposed  of  in  reliance  upon  clause  (j)  of  this  Section  since  the FirstFourth  Amendment Effective Date (in each case in this clause (y), determined as of the  date of the applicable sale, transfer, lease or other disposition), shall not exceed  25%  of  the  sum,  without  duplication,  of  (A)  the  amounts  referred  to  in  the  immediately preceding clauses (x) and (y) and (B) Consolidated Total Assets as  of the last  day  of the fiscal  quarter of the Company most  recently  ended on or  prior to the date of such Partial Transfer (without giving pro forma effect to such  Partial Transfer), (iv) if such Partial Transfer constitutes a Restricted Payment, the  sum,  without  duplication,  of  the  Partial  Transfer  EBITDA  Amounts  for  all  the  Partial  Transfer  Spin-Off  Subsidiaries  shall  not  exceed  25%  of  Consolidated  EBITDA for the period of four consecutive fiscal quarters of the Company most  recently ended on or prior to the date of such Restricted Payment (without giving  pro  forma  effect  to  such  Restricted  Payment),  (v)  if  such  Partial  Transfer  constitutes  a  sale  or  an  issuance  and  sale  of  Equity  Interests  in  the  Subsidiary,  such  Partial  Transfer  shall  have  been  made  for  fair  value,  (vi)  if  the  Partial  Transfer  Asset  Amount  with  respect  to  such  Partial  Transfer  (or  a  single  series of related Partial Transfers) exceeds US$25,000,000, the Company shall  have  delivered  to  the  Administrative  Agent  a  certificate  of  a  Financial  Officer,  certifying that all the requirements set forth in this clause (k) have been satisfied  with respect thereto, together with reasonably detailed calculations demonstrating  satisfaction of the requirements set forth in subclauses (ii), (iii) and (iv) above and  (vii) this clause (k) may not be relied for more than one Partial Transfer (or more  than  a  single  series  of  related  Partial  Transfers  consummated  substantially  concurrently), in each case, that constitutes a Restricted Payment;         (l) any other sales, transfers and other dispositions of any or all the Equity  Interests in a Subsidiary owned by the Company and the Subsidiaries and sales,  transfers,  leases  and  other  dispositions  of  other  assets  (other  than  accounts  receivable  as  part  of  a  Securitization  Transaction  or  inventory  as  part  of  an  inventory financing), in each case to the extent made to a Person other than the  Company or any Subsidiary and to the extent not made in reliance on any other  clause of this Section 6.08; provided that (i) no Default shall have occurred and be  continuing at the time thereof or would result therefrom, (ii) the Company shall be  in compliance with the covenants set forth in Sections 6.10 and 6.11 as of the end  of the fiscal quarter of the Company most recently ended on or prior to the date of  such sale, transfer, lease or other disposition, giving pro forma effect to such sale,  transfer,  lease  or  other  disposition  as  if  it  had  occurred  on  the  first  day  of  the  period  of  four  consecutive  fiscal  quarters  of  the  Company  ending  with  such  quarter, (iii) all sales, transfers, leases and other dispositions permitted pursuant to                                                   104  





 






                      this clause (l) shall be made for fair value and 100% cash consideration, (iv) with  respect to each sale, transfer, lease or other disposition made in reliance on this  clause  (l)  for  consideration  with  a  fair  value  in  excess  of  US$25,000,000,  the  Company  shall  have  delivered  to  the  Administrative  Agent  a  certificate  of  a  Financial  Officer,  certifying that  all the requirements  set  forth  in this  clause (l)  have  been  satisfied  with  respect  thereto,  together  with  reasonably  detailed  calculations demonstrating satisfaction of the requirements set forth in subclause  (ii) above and (v) the Commitments shall be permanently reduced at the time of  the consummation, and by an aggregate amount equal to the net cash proceeds, of  each such sale, transfer, lease or other disposition, such reduction to be made in  accordance with Section 2.09 and, as between the Tranches, on a ratable basis;         (m) dispositions or transfers of assets by the Loan Parties to Subsidiaries  that  are  not  Loan  Parties of assets  with  an;  provided  that  the aggregate  fair  market value, for all such dispositions or transfers since the First (as reasonably  determined by the Company, with respect to any assets, as of the time of the  applicable  disposition  or  transfer)  of  the  assets  so  disposed  or  transferred  since  the  Fourth Amendment  Effective  Date, shall not to  exceed  US$150,000,000exceed the sum of (i) US$225,000,000, net, with respect to any  disposition,  of  the  fair  market  value  (as  reasonably  determined  by  the  Company, with respect to any assets, at the time of the applicable disposition  or  transfer)  of  any  assets  received  by  the  Loan  Parties  since  the  Fourth  Amendment Effective Date as consideration for such disposition or transfer  (it being understood that any consideration in the form of Equity Interests in  the  transferee  Subsidiary  or  any  Indebtedness  of  a  Subsidiary  shall  not  constitute consideration for this purpose); and (ii) with respect to any such  disposition  or  transfer  in  the  form  of  a  capital  contribution,  the  aggregate  fair market value (as reasonably determined by the Company, with respect  to any assets, as of the time of the receipt thereof) of assets received by the  Loan  Parties  as  a  dividend,  distribution  or  return  of  or  on  the  capital  contributed  (it  being  understood  that  the  amount  added  back  pursuant  to  this  clause  (ii)  may  not  exceed  the  original  amount  of  such  capital  contribution made in reliance on this clause (m));         (n) dispositions  or  transfers  by  any  Loan  Party  in  the  form  of  (i)  the  contribution or other disposition to a Foreign SubsidiarySubsidiary that is not a  Loan  Party of  Equity  Interests  in,  or  Indebtedness  of,  any otherCFC  Holdco,  Foreign  Subsidiary  or  Specified Foreign  Subsidiary  owned  directly  by  such  Loan Party in  exchange for Equity  Interests in (or additional share premium or  paid in capital in respect of Equity Interests in), or Indebtedness of, such Foreign  Subsidiary that is not a Loan Party, or a combination of any of the foregoing,  and (ii) an exchange of Equity Interests in any CFC Holdco, Foreign Subsidiary  or Specified Foreign Subsidiary for Indebtedness of, or of Indebtedness of such  CFC  Holdco,  Foreign  Subsidiary  or  Specified Foreign  Subsidiary  for  Equity  Interests  in,  such CFC  Holdco,  Foreign  Subsidiary  or  Specified Foreign  Subsidiary;                                                    105  





 






               (o) Permitted Charitable Contributions;                (p) dispositions or transfers of the New Headquarters Assets to the New        Headquarters SPV;               (q) any  transactions  involving  consideration  or  value  of  less  than        US$1,000,0002,000,000 individually; and               (r) the trivago IPO, provided that (i) the trivago IPO shall be on terms not        less favorable to the Lenders in any material respect than the information set forth        in  the  trivago  Form  F-1,  as  filed  with  the  SEC  on  November  14,  2016,  as        amended by the Amendment No. 1 to Form F-1 Registration Statement filed by        trivago  with  the  SEC  on  December  5,  2016,  and  as  supplemented  by  the        prospectus filed by trivago with the SEC on December 16, 2016 and the trivago        Form F-6, as filed with the SEC on December 5, 2016, (ii) no Default shall have        occurred  and  be  continuing,  (iii)  the  Company  shall  be  in  compliance  with  the        covenants set forth in Sections 6.10 and 6.11 as of the end of the fiscal quarter of        the Company most recently ended on or prior to the date of consummation of the        trivago IPO, giving pro forma effect thereto as if it had occurred on the first day        of the period of four consecutive fiscal quarters ending with such quarter, and (iv)        the Company shall have delivered to the Administrative Agent a certificate of a        Financial  Officer  certifying  that  all  the  requirements  set  forth  in  this  clause  (r)        have  been  satisfied  with  respect  thereto,  together  with  reasonably  detailed        calculations demonstrating satisfaction of the requirements set forth in subclause        (iii)  above.  It  is  understood  and  agreed  that,  from  and  after  the  Second        Amendment Effective Date, the trivago IPO does not constitute for purposes of        this Agreement either (x) a Partial Transfer or (y) notwithstanding any certificate        delivered by the Company prior to the Second Amendment Effective Date, a sale,        transfer or disposition pursuant to Section 6.08(j); and               (s) dispositions  or  transfers by  any  Loan  Party  in  the  form  of  (i)  the        contribution or other  disposition to a Domestic Subsidiary (other than any        Domestic  Subsidiary  that  is  expressly  excluded  from  being  a  Designated        Subsidiary pursuant to clauses (i) through (iv) of the definition of such term)        of  Equity  Interests  in,  or  Indebtedness  of,  any  other  Subsidiary  owned        directly  by  such  Loan  Party  in  exchange  for  Equity  Interests  in  (or        additional share premium or paid in capital in respect of Equity Interests in),        or Indebtedness of, such Domestic Subsidiary, or a combination of any of the        foregoing,  and  (ii)  an  exchange  of  Equity  Interests  in  any  Domestic        Subsidiary  for  Indebtedness  of,  or  of Indebtedness  of  such  Domestic        Subsidiary for Equity Interests in, such Domestic Subsidiary.               Notwithstanding  anything  to  the  contrary  in  this  Section  or  any  other  provision of this Agreement, the Company will not, and will not permit any Subsidiary  to, sell, transfer, lease or otherwise dispose of any Equity Interests or other assets if such  Equity  Interests  or  other  assets  represent  all  or  substantially  all  of  the  assets  of  the  Company and the Subsidiaries, on a consolidated basis.                                       106  





 






               For  the  avoidance  of  doubt,  no  loan  by  the  Company  or  any  of  its  Subsidiaries  to  the  Company  or  any  of  its  Subsidiaries  shall  constitute  a  sale,  transfer, lease or other disposition subject to the restrictions set forth in this Section  6.08.               SECTION 6.09. Use  of  Proceeds  and  Letters  of  Credit;  Margin  Regulations¶.  (a)  The Company will not, and will not permit any Subsidiary to, use the  proceeds of the Loans for any purpose other than (a) to repay all amounts outstanding  under the Existing Credit Agreement and (b) for the general  corporate purposes  of the  Company  and  the  Subsidiaries,  including  working  capital,  capital  expenditures  and  acquisitions.   The  Letters  of  Credit  will  be  used  only  to  support  obligations  of  the  Company  and  the  Subsidiaries.   The  Company  will  not,  and  will  not  permit  any  Subsidiary to, use any part of the proceeds of any Loan, whether directly or indirectly, for  any purpose that entails a violation of any of the Regulations of the Board of Governors,  including Regulations T, U and X.               (b) No Borrower shall request any Borrowing or Letter of Credit, and the  Company and each other Borrower shall not use, and shall procure that its Subsidiaries  and  its  or  their  respective  directors,  officers,  employees  and  agents  shall  not  use,  the  proceeds  of  any  Borrowing  or  any  Letter  of  Credit  (i)  in  furtherance  of  an  offer,  payment,  promise  to  pay,  or  authorization  of  the  payment  or  giving  of  money,  or  anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for  the purpose of funding, financing or facilitating any activities, business or transaction of  or with any Sanctioned Person or in any Sanctioned Country except (A) as otherwise  permitted pursuant to a license granted by the Office of Foreign Assets Control of  the U.S. Department of the Treasury or (B) otherwise to the extent permissible for  a Person required to comply with Sanctions or (iii) in any manner that would result in  the violation of any Sanctions by any party hereto.               SECTION 6.10. Leverage Ratio.  The Company will not permit the  Leverage Ratio at any time to exceed 3.754.00 to 1.00.               SECTION 6.11. Interest  Expense  Coverage  Ratio¶.   The  Company  will  not  permit  the  ratio  of  (a)  Consolidated  EBITDA  to  (b)  Consolidated  Cash  Interest  Expense, in each case for any period of four consecutive fiscal quarters of the Company,  to be less than 3.002.75 to 1.00.               SECTION 6.12. Maintenance  of  Borrowing  Subsidiaries  as  Wholly  Owned  Subsidiaries¶.   Notwithstanding  anything  to  the  contrary  herein,  the  Company  will not  permit  any  Borrowing Subsidiary to  cease to  be  a Wholly Owned Subsidiary;  provided that this Section shall not prohibit any merger or consolidation of a Borrowing  Subsidiary consummated in accordance with Section 6.04 or 6.08 so long as the surviving  or continuing Person shall be a Wholly Owned Subsidiary that is a Domestic Subsidiary  and a Loan Party.                                        107  





 






                                 ARTICLE VII                                                                    Events of Default               SECTION 7.01. Events  of  Default¶.   If  any  of  the  following  events  (“Events of Default”) shall occur:               (a) any  Borrower  shall  fail  to  pay  any  principal  of  any  Loan  or  any        reimbursement  obligation  in  respect  of  any  LC  Disbursement  when  and  as  the        same shall become due and payable, whether at the due date thereof or at a date        fixed for prepayment thereof or otherwise;               (b) any Borrower shall fail to pay any interest on any Loan or any fee or        any other amount (other than an amount referred to in clause (a) of this Section)        payable  under  this  Agreement  or  any  other  Loan  Document,  when  and  as  the        same shall become due and payable, and such failure shall continue unremedied        for a period of three Business Days;               (c) any representation, warranty or statement made or deemed made by or        on behalf of the Company or any Subsidiary in or in connection with any Loan        Document or any amendment or modification thereof or waiver thereunder, or in        any report, certificate, financial statement or other document furnished pursuant to        or  in  connection  with  any  Loan  Document  or  any  amendment  or  modification        thereof or waiver thereunder, shall prove to have been incorrect in any material        respect when made or deemed made;               (d) the  Company  or  any  Borrowing  Subsidiary  shall  fail  to  observe  or        perform any covenant, condition or agreement contained in Section 5.02,5.02(a),        5.03 (with respect to the Company’s or a Borrowing Subsidiary’s existence) or in        Article VI;               (e) any Loan Party shall fail to observe or perform any covenant, condition        or  agreement  contained  in  any  Loan  Document  (other  than  those  specified  in        clause (a), (b) or (d) of this Section), and such failure shall continue unremedied        for a period of 30 days after notice thereof from the Administrative Agent to the        Company (which notice will be given at the request of any Lender);               (f) the  Company  or  any  Subsidiary  shall  fail  to  make  any  payment        (whether  of  principal  or  interest  and  regardless  of  amount)  in  respect  of  any        Material Indebtedness, when and as the same shall become due and payable (after        giving effect to any grace period applicable thereto);               (g) any event or condition occurs that results in any Material Indebtedness        becoming due prior to its scheduled maturity or that enables or permits (with or        without the giving of notice, but after giving effect to any grace period applicable        thereto) the holder or holders of any Material Indebtedness or any trustee or agent        on  its  or  their  behalf  or,  in  the  case  of  any  Swap  Agreement,  the  applicable        counterparty,  or,  in  the  case  of  a  Securitization  Transaction  the  purchasers  or                                      108  





 






                      lenders  thereunder,  to  cause  such  Material  Indebtedness  to  become  due,  or  to  require the prepayment, repurchase, redemption or defeasance thereof, prior to its  scheduled  maturity  or,  in  the  case  of  any  Swap  Agreement  or  Securitization  Transaction, to cause the termination thereof;  provided that this clause (g) shall  not apply to (i) secured Indebtedness that becomes due as a result of the voluntary  sale or transfer of the assets securing such Indebtedness or (ii) any holder of the  2020  Notes  having  the  right  to  require  the  Company  to  repurchase  any  2020  Notes  pursuant  to  the  terms  of  the  2010  Indenture  solely  as  a  result  of  the  occurrence  of  a  Change  of  Control  Triggering  Event  (as  defined  in  the  2010  Indenture);         (h) an  involuntary  proceeding  shall  be  commenced  or  an  involuntary  petition  shall  be  filed  seeking  (i)  liquidation,  reorganization  or  other  relief  in  respect of the Company or any Material Subsidiary or its debts, or of a substantial  part  of  its  assets,  under  any  Federal,  state  or  foreign  bankruptcy,  insolvency,  receivership or similar law now or hereafter in effect or (ii) the appointment of a  receiver,  trustee,  custodian,  sequestrator,  conservator  or  similar  official  for  the  Company or any Material Subsidiary or for a substantial part of its assets, and, in  any such case, such proceeding or petition shall continue undismissed for 60 days  or an order or decree approving or ordering any of the foregoing shall be entered;         (i) the  Company  or  any  Material  Subsidiary  shall  (i)  voluntarily  commence  any  proceeding  or  file  any  petition  seeking  liquidation  (other  than  any  liquidation  or  similar  transaction  of  a  Material  Subsidiary  permitted  under Section 6.04(a)(ii)), reorganization or other relief under any Federal, state  or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in  effect,  (ii)  consent  to  the  institution  of,  or  fail  to  contest  in  a  timely  and  appropriate  manner,  any  proceeding  or  petition  described  in  clause  (h)  of  this  Section,  (iii)  apply  for  or  consent  to  the  appointment  of  a  receiver,  trustee,  custodian,  sequestrator,  conservator  or  similar  official  for  the  Company  or  any  Material  Subsidiary  or  for  a  substantial  part  of  its  assets  (other  than  in  connection  with  any  liquidation  or  similar  transaction  of  a  Material  Subsidiary permitted under Section 6.04(a)(ii)), (iv) file an answer admitting  the material allegations of a petition filed against it in any such proceeding, (v)  make a general assignment for the benefit of creditors or (vi) take any corporate  action for the purpose of effecting any of the foregoing;         (j) the Company or any Material Subsidiary shall become unable, admit in  writing its inability or fail generally to pay its debts as they become due;         (k) one  or  more  judgments  for  the  payment  of  money  in  an  aggregate  amount in excess of US$30,000,000 (to the extent not covered by insurance) shall  be  rendered  against  the  Company,  any  Material  Subsidiary  or  any  combination  thereof  and  the  same  shall  remain  undischarged  for  a  period  of  30  consecutive  days  from  the  date  on  which  payment  of  such  judgment  is  due  during  which  execution shall not be effectively stayed, or any action shall be legally taken by a                                                    109  





 






         judgment  creditor  to  attach  or  levy  upon  any  assets  of  the  Company  or  any        Material Subsidiary to enforce any such judgment;               (l) an  ERISA  Event  shall  have  occurred  that,  in  the  opinion  of  the        Required  Lenders,  when  taken  together  with  all  other  ERISA  Events  that  have        occurred, could reasonably be expected to result in a Material Adverse Effect;                (m) any  Guarantee  purported  to  be  created  under  any  Loan  Document        shall cease to be, or shall be asserted by any Loan Party not to be, in full force and        effect, except as expressly provided in Section 9.14; or               (n) a Change in Control shall occur;   then, and in every such event (other than an event with respect to any Borrower described  in clause (h) or (i) of this Section), and at any time thereafter during the continuance of  such event,  the Administrative Agent  may, and  at  the request  of the Required  Lenders  shall, by notice to the Company, take either or both of the following actions, at the same  or different times:  (i) terminate the Commitments, and thereupon the Commitments shall  terminate immediately, and (ii) declare the Loans then outstanding to be due and payable  in whole (or in part (but ratably as among the Classes of Loans and the Loans of each  Class at the time outstanding), in which case any principal not so declared to be due and  payable may thereafter be declared to be due and payable), and thereupon the principal of  the Loans so declared to be due and payable, together with accrued interest thereon and  all fees and other obligations of the Borrowers accrued hereunder, shall become due and  payable immediately, without presentment, demand, protest or other notice of any kind,  all of which are hereby waived by each Borrower; and in case of any event with respect  to  any  Borrower  described  in  clause  (h)  or  (i)  of  this  Section,  the  Commitments  shall  immediately  and  automatically  terminate  and  the  principal  of  the  Loans  then  outstanding, together with accrued interest thereon and all fees and other obligations of  any Borrower accrued hereunder, shall immediately and automatically become due and  payable, without presentment, demand, protest or other notice of any kind, all of which  are hereby waived by each Borrower.               SECTION 7.02. CAM Exchange¶.  (a)  On the CAM Exchange Date, (i)  the Commitments shall automatically and without further act be terminated as provided in  Section 7.01 and (ii) the Lenders shall automatically and without further act be deemed to  have exchanged interests in the Designated Obligations such that, in lieu of the interests  of each Lender in the particular Designated Obligations that it shall own as of such date  and  prior  to  the  CAM  Exchange,  such  Lender  shall  own  an  interest  equal  to  such  Lender’s  CAM  Percentage  in  all  the  Designated  Obligations.   Each  Lender  and  each  Person acquiring a participation from any Lender as contemplated by Section 9.04 hereby  consents  and agrees  to the CAM Exchange.  Each of the  Lenders agrees  from  time to  time  to  execute  and  deliver  to  the  Administrative  Agent  all  such  instruments  and  documents as the Administrative Agent shall reasonably request to evidence and confirm  the  respective  interests  and  obligations  of  the Lenders  after  giving  effect  to  the  CAM  Exchange, and each Lender agrees to surrender any promissory notes originally received  by it hereunder to the Administrative Agent; provided that the failure to execute orand                                       110  





 






   deliver any such instrument or document shall not affect the validity or effectiveness of  the CAM Exchange.  It is acknowledged and agreed that the foregoing provisions of this  Section 7.02(a) and Sections 7.02(b) and 7.02(c) reflect an agreement entered into solely  among the Lenders (and not any Borrower or other Loan Party) and the consent of any  Borrower  or  any  other  Loan  Party  shall  not  be  required  to  give  effect  to  the  CAM  Exchange or with respect to any action taken by the Lenders or the Administrative Agent  pursuant to such provisions.  ¶As a result of the CAM Exchange, on and after the CAM  Exchange Date, each payment received by an Agent pursuant to any Loan Document in  respect  of  the  Designated  Obligations  shall  be  distributed  to  the  Lenders  pro  rata  in  accordance with their respective CAM Percentages (to be redetermined as of each such  date  of  payment  or  distribution  to  the  extent  required  by  paragraph  (c)  below),  but  giving  effect  to  assignments  after  the  CAM  Exchange  Date,  it  being  understood  that  nothing herein shall be construed to prohibit the assignment of a proportionate part of all  an  assigning  Lender’s  rights  and  obligations  in  respect  of  a  single  Class  of  Commitments or Loans.               (c) In the event that, on or after the CAM Exchange Date, the aggregate  amount of the Designated Obligations shall change as a result of the making of an LC  Disbursement by an Issuing Bank that is not reimbursed by a Borrower, then (i) each  Lender (determined as of the CAM Exchange Date but without giving effect to the CAM  Exchange), shall, in accordance with Sections 2.06(d) and 2.06(e), promptly pay to such  Issuing Bank an amount determined in accordance with such Sections on the basis of  such Lender’s Combined Tranche Percentage of such LC Disbursement (determined as  of the CAM Exchange Date but without giving effect to the CAM Exchange) of the  amount due from the applicable Borrower in respect of such LC Disbursement, (ii)  the Administrative Agent shall redetermine the CAM Percentages after giving effect to  such LC Disbursement and the funding of participations therein by the Lenders and (iii)  in  the  event  distributions  shall  have  been  made  in  accordance  with  clause  (i)  of  paragraph (b) above, the Lenders shall make such payments to one another as shall be  necessary in order that the amounts received by them shall be equal to the amounts they  would have received had each LC Disbursement been outstanding immediately prior to  the  CAM  Exchange.   Each  such  redetermination  shall  be  binding  on  each  of  the  Borrowers and Lenders and their successors and assigns and shall be conclusive absent  manifest error.                                ARTICLE VIII                                                                       The Agents               Each of the Lenders and the Issuing Banks hereby irrevocably appoints the  entities named as the Administrative Agent and the London Agent in the heading of this  Agreement, and their successors in such capacities, to serve as the Administrative Agent  and  the  London  Agent,  respectively,  under  the  Loan  Documents  and  authorizes  the  Agents to take such actions and to exercise such powers as are delegated to the Agents by  the  terms  of  the  Loan  Documents,  together  with  such  actions  and  powers  as  are  reasonably incidental thereto.                                         111  





 






               Any Person serving as an Agent hereunder shall have the same rights and  powers  in  its  capacity  as  a  Lender  or  an  Issuing  Bank  as  any  other  Lender  or  Issuing  Bank and may exercise the same as though it were not an Agent, and such Person and its  Affiliates may accept deposits from, lend money to, own securities of, act as the financial  adviser or in any other advisory capacity for and generally engage in any kind of business  with the Company or any Subsidiary or other Affiliate thereof as if such Person were not  an  Agent  hereunder  and  without  any  duty  to  account  therefor  to  the  Lenders  or  the  Issuing Banks.               The Agents shall not have any duties or obligations except those expressly  set  forth  in  the  Loan  Documents,  and  their  duties  hereunder  and  under  the  other  Loan Documents shall be administrative in nature.  Without limiting the generality of  the foregoing, (a) the Agents shall not be subject to any fiduciary or other implied duties,  regardless of whether a Default has occurred and is continuing (and it is understood and  agreed that the use of the term “agent” herein or in any other Loan Documents (or any  other similar term) with reference to the Agents is not intended to connote any fiduciary  or other implied (or express) obligations arising under agency doctrine of any applicable  law, and that such term is used as a matter of market custom and is intended to create or  reflect  only  an  administrative  relationship  between  contracting  parties),  (b)  the  Agents  shall not have any duty to take any discretionary action or to exercise any discretionary  powers,  except  discretionary  rights  and  powers  expressly  contemplated  by  the  Loan  Documents that the Agents are required to exercise as directed in writing by the Required  Lenders (or such other number or percentage of the Lenders as shall be necessary, or as  the applicable Agent shall believe in good faith to be necessary, under the circumstances  as provided in Section 9.02); provided that no Agent shall be required to take any action  that,  in  its  opinion,  could  expose  such  Agent  to  liability  or  be  contrary  to  any  Loan  Document or applicable law, and (c) except as expressly set forth in the Loan Documents,  the Agents shall not have any duty to disclose, and shall not be liable for the failure to  disclose, any information relating to  the Company or any Subsidiary  or other Affiliate  thereof  that  is  communicated  to  or  obtained  by  them  or  any  of  their  Affiliates  in  any  capacity.  The Agents shall not be liable for any action taken or not taken by them 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 applicable Agent shall believe in good faith  to be necessary, under the circumstances as provided in Section 9.02) or in the absence of  their  own  gross  negligence  or  wilful  misconduct  (such  absence  to  be  presumed  for  purposes  of  this  Article  VIII  unless  otherwise  determined  by  a  court  of  competent  jurisdiction by a final and nonappealable judgment).  Each Agent shall be deemed not to  have knowledge of any Default unless and until written notice thereof (stating that it is a  “notice of default”) is given to such Agent by the Company or a Lender, and the Agents  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 any  Loan Document, (ii) the  contents  of  any  certificate,  report  or  other  document  delivered  thereunder  or  in  connection  therewith,  (iii)  the  performance  or  observance  of  any  of  the  covenants,  agreements  or  other  terms  or  conditions  set  forth  in  any  Loan  Document  or  the  occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or  genuineness of any Loan Document or any other agreement, instrument or document or  (v)  the  satisfaction  of  any  condition  set  forth  in  Article  IV  or  elsewhere  in  any  Loan                                      112  





 






   Document, other than to confirm receipt of items expressly required to  be delivered to  such Agent, or satisfaction of any condition that expressly refers to the matters described  therein being acceptable or satisfactory to such Agent.  Notwithstanding anything herein  to the contrary, the Agents shall not have any liability arising from any confirmation of  any Revolving Credit Exposure or the component amounts thereof, any determination of  the  Exchange  Rate,  the  LC  Exchange  Rate  or  the  US  Dollar  Equivalent  or  any  determination of any rate that reflects the costs to any Lenders of making or maintaining  any Loans as contemplated by Section 2.14.2.14 (including, for the avoidance of doubt,  any determination of an alternate rate of interest pursuant to Section 2.14(a)).               Each Agent shall be entitled to rely, 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 (including, if applicable, a Financial Officer).  Each  Agent  also  may  rely,  and  shall  not  incur  any  liability  for  relying,  upon  any  statement  made  to  it  orally  or  by  telephone  and  believed  by  it  to  be  made  by  the  proper  Person  (including, if applicable, a Financial Officer), and may act upon any such statement prior  to receipt of written confirmation thereof.  In determining compliance with any condition  hereunder to the making of a Loan, or the issuance, amendment, extension or renewal of  a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an  Issuing Bank, each Agent may presume that such condition is satisfactory to such Lender  or such Issuing Bank unless such Agent shall have received notice to the contrary from  such Lender or such Issuing Bank sufficiently in advance to the making of such Loan or  the issuance, amendment, extension or renewal of such Letter of Credit.  Each Agent may  consult  with  legal  counsel  (who  may  be  counsel  for  any  Borrower),  independent  accountants and other experts selected by it, and shall not be liable for any action taken or  not taken by it in accordance with the advice of any such counsel, accountants or experts.               Each Agent may perform any of and all 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 it.  Each Agent and any such sub-agent may perform any of and  all its duties and exercise its rights and powers through their respective Related Parties.   The exculpatory provisions of this Article shall apply to any such sub-agent and to the  Related Parties of each Agent and any such sub-agent, and shall apply to their respective  activities in connection with the syndication of the credit facility provided for herein as  well as activities as the Administrative Agent or the London Agent, as applicable.  No  Agent shall be responsible for the negligence or misconduct of any sub-agent except to  the extent that a court of competent jurisdiction determines in a final and nonappealable  judgment  that  such  Agent  acted  with  gross  negligence  or  willful  misconduct  in  the  selection of such sub-agent.               Subject  to  the  appointment  and  acceptance  of  a  successor  Agent  as  provided in this paragraph, each Agent may resign at any time by notifying the Lenders,  the Issuing Banks and the Company.  Upon receipt of any such notice of resignation, the  Required  Lenders shall  have the right,  in  consultation  with  the Company, to  appoint a  successor.   If no successor shall have been so  appointed by  the Required  Lenders and                                       113  





 






   shall have accepted such appointment within 30 days after the retiring Agent gives notice  of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing  Banks,  appoint a successor Agent, which shall be a bank with  an office in New York,  New York, or an Affiliate of any such bank.  Upon the acceptance of its appointment as  Agent hereunder by a successor, such successor shall succeed to and become vested with  all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent  shall be discharged from its duties and obligations hereunder and under the other Loan  Documents.  The fees payable by the Company to a successor Agent shall be the same as  those payable to its predecessor unless otherwise agreed between the Company and such  successor.  After an Agent’s resignation hereunder and under the other Loan Documents,  the provisions of this Article and Section 9.03 shall continue in effect for the benefit of  such retiring Agent, its sub-agents and their respective Related Parties in respect of any  actions taken or omitted to be taken by any of them while it was acting as Agent.               Each Lender and Issuing Bank acknowledgesirrevocably authorizes the  Administrative  Agent  to  determine  (it  being  understood  that  such  determination  will be made jointly with the Company), in connection with any Subsidiary that is a  Foreign Subsidiary becoming a Guarantor pursuant to a Guarantee Agreement, the  terms and conditions of any limitations to be set forth in such Guarantee Agreement  with  respect  to  such  Subsidiary  as  contemplated  by  the  definition  of  the  term  “Guarantee Agreement”, it being understood and agreed that (a) the Administrative  Agent shall not have any liability arising from any such determination of such terms  and  such  conditions  and  (b)  in  connection  with  any  such  determination,  the  Administrative Agent may consult with legal counsel (who may be counsel for the  Loan Parties) 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.               In case of the pendency of any proceeding with respect to any Loan  Party  under  any  Federal,  state  or  foreign  bankruptcy,  insolvency,  receivership  or  similar  law  now  or  hereafter  in  effect,  each  Agent  (irrespective  of  whether  the  principal  of any Loan or any LC  Disbursement shall then be due and payable as  herein  expressed  or  by  declaration  or  otherwise  and  irrespective  of  whether  such  Agent  shall  have  made  any  demand  on  any  Borrower)  shall  be  entitled  and  empowered (but not obligated) 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, LC Exposure and all other        obligations under the Loan Documents 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  Issuing  Banks  and  such  Agent  (including  any        claim  under  Sections  2.12,  2.13,  2.15,  2.16,  2.17  and  9.03)  allowed  in  such        judicial proceeding; and              (b)  to  collect  and  receive  any  monies  or  other  property  payable  or        deliverable on any such claims and to distribute the same;   and  any  custodian,  receiver,  assignee,  trustee,  liquidator,  sequestrator  or  other  similar  official  in  any  such  proceeding  is  hereby  authorized  by  each  Lender  and                                      114  





 






   each Issuing Bank to make such payments to such Agent and, in the event that such  Agent shall consent to the making of such payments directly to the Lenders or the  Issuing Banks, to pay to such Agent any amount due to it, in its capacity as Agent,  under  the  Loan  Documents  (including  under  Section  9.03).   Nothing  contained  herein shall be deemed to authorize any Agent to authorize or consent to or accept  or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization,  arrangement,  adjustment  or  composition  affecting  the  obligations  or  the  rights  of  any  Lender  or  Issuing  Bank,  or  to  vote  in  respect  of  the  claim  of  any  Lender  or  Issuing Bank in any such proceeding.               Each  Lender  and  Issuing  Bank  acknowledges  and  agrees  that  the  extensions of credit made hereunder are commercial loans and letters of credit and  not  investments  in  a  business  enterprise  or  securities.   Each  Lender  and  Issuing  Bank  further  represents  that  it  is  engaged  in  making,  acquiring  or  holding  commercial loans and letters of credit in the ordinary course of its business and that  it has, independently and without reliance upon either Agent, any Arranger or any other  Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, 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 Issuing Bank also  acknowledges  that  it  will,  independently  and  without  reliance  upon  either  Agent,  any  Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the  foregoing, 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.               Each  Lender  and  Issuing  Bank,  by  delivering  its  signature  page  to  this  Agreement,  or  delivering  its  signature  page  to  an  Assignment  and  Assumption  or  an  Issuing Bank Agreement pursuant to which it shall become a Lender or an Issuing Bank,  as  the  case  may  be,  hereunder,  shall  be  deemed  to  have  acknowledged  receipt  of,  and  consented to and approved, each Loan Document and each other document required to be  delivered  to,  or  be  approved  by  or  satisfactory  to,  the  Administrative  Agent  or  the  Lenders on or prior to the Restatement Effective Date.               Notwithstanding  anything  herein  to  the  contrary,  no  Arranger,  Co- Syndication Agent  or  Documentation Agent  shall have any duties  or obligations  under  this Agreement or any other Loan Document (except in its capacity, as applicable, as a  Lender or  an Issuing Bank), but all such Persons shall have the benefit of the expense  reimbursement and indemnities to the extent provided for hereunder.               Each Lender (a) represents and warrants, as of the date such Person  became  a  Lender  party  hereto,  to,  and  (b)  covenants,  from  the  date  such  Person  became a Lender party hereto to the date such Person ceases being a Lender party  hereto, for the benefit of the Agents, the Arrangers, and their respective Affiliates,  and not, for the avoidance of doubt, to or for the  benefit of the Borrower, that at  least one of the following is and will be true:                                       115  





 






               (i) such Lender is  not using “plan assets”  (within the meaning of 29        CFR § 2510.3-101, as modified  by Section 3(42) of ERISA) of one or more        Plans in connection with the Loans or the Commitments;                (ii) the transaction exemption set forth in one or more PTEs, such as        PTE  84-14  (a  class  exemption  for  certain  transactions  determined  by        independent  qualified  professional  asset  managers),  PTE  95-60  (a  class        exemption  for  certain  transactions  involving  insurance  company  general        accounts),  PTE  90-1  (a  class  exemption  for  certain  transactions  involving        insurance company pooled separate accounts), PTE 91-38 (a class exemption        for certain transactions involving bank collective investment funds) or PTE        96-23  (a  class  exemption  for  certain  transactions  determined  by  in-house        asset  managers),  is  applicable  with  respect  to  such  Lender’s  entrance  into,        participation  in,  administration  of  and  performance  of  the  Loans,  the        Commitments and this Agreement;               (iii) (A) such Lender is an investment fund managed by a “Qualified        Professional Asset Manager” (within the meaning of Part VI of PTE 84-14),        (B) such Qualified Professional Asset Manager made the investment decision        on  behalf  of  such  Lender  to  enter  into,  participate  in,  administer  and        perform the Loans, the Commitments and this Agreement, (C) the entrance        into, participation in, administration of and performance of the Loans,  the        Commitments and this Agreement satisfies the requirements of sub-sections        (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such        Lender,  the  requirements  of  subsection  (a)  of  Part  I  of  PTE  84-14  are        satisfied  with  respect  to  such  Lender’s  entrance  into,  participation  in,        administration of and performance of the Loans, the Commitments and this        Agreement; or               (iv) such  other  representation,  warranty  and  covenant  as  may  be        agreed in writing between the Administrative Agent or the London Agent, in        its sole discretion, and such Lender.               In  addition,  unless  sub-clause  (i)  in  the  immediately  preceding  paragraph is true with respect to a Lender or such Lender has not provided another  representation,  warranty  and  covenant  as  provided  in  sub-clause  (iv)  in  the  immediately  preceding  paragraph,  such  Lender  further  (a)  represents  and  warrants,  as  of  the  date  such  Person  became  a  Lender  party  hereto,  to,  and  (b)  covenants, from the date such Person became a Lender party hereto to the date such  Person  ceases  being  a  Lender  party  hereto,  for  the  benefit  of  the  Agents,  the  Arrangers, and their respective Affiliates, and not, for the avoidance of doubt, to or  for the benefit of the Borrower, that:                (i) none  of  the  Administrative  Agent,  the  London  Agent,  the        Arrangers, or any of their respective Affiliates is a fiduciary with respect to        the  assets  of  such  Lender  (including  in  connection  with  the  reservation  or                                       116  





 






         exercise  of  any  rights  by  the  Administrative  Agent  or  the  London  Agent        under this Agreement or any documents related to hereto);               (ii) the  Person  making  the  investment  decision  on  behalf  of  such        Lender with respect to the entrance into, participation in, administration of        and  performance  of  the  Loans,  the  Commitments  and  this  Agreement  is        independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an        insurance  carrier,  an  investment  adviser,  a  broker-dealer  or  other  person        that  holds,  or  has  under  management  or  control,  total  assets  of  at  least        US$50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-       (E);               (iii) the  Person  making  the  investment  decision  on  behalf  of  such        Lender with respect to the entrance into, participation in, administration of        and  performance  of  the  Loans,  the  Commitments  and  this  Agreement  is        capable  of  evaluating  investment  risks  independently,  both  in  general  and        with regard to particular transactions and investment strategies;                (iv) the  Person  making  the  investment  decision  on  behalf  of  such        Lender with respect to the entrance into, participation in, administration of        and  performance  of  the  Loans,  the  Commitments  and  this  Agreement  is  a        fiduciary under ERISA or the Code, or both, with respect to the Loans, the        Commitments  and  this  Agreement  and  is  responsible  for  exercising        independent judgment in evaluating the transactions hereunder; and               (v) no fee or other compensation is being paid directly to the Agents,        the Arrangers, or any of their respective Affiliates for investment advice (as        opposed to other services) in connection with the Loans, the Commitments or        this Agreement.               The Agents and the Arrangers hereby inform the Lenders that each  such Person is  not undertaking to provide impartial  investment advice, or to give  advice  in  a  fiduciary  capacity,  in  connection  with  the  transactions  contemplated  hereby,  and  that  such  Person  has  a  financial  interest  in  the  transactions  contemplated  hereby  in  that  such  Person  or  an  Affiliate  thereof  (i)  may  receive  interest  or  other  payments  with  respect  to  the  Loans,  the  Commitments  and  this  Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments  for an amount less than the amount being paid for an interest in the Loans or the  Commitments  by  such  Lender  or  (iii)  may  receive  fees  or  other  payments  in  connection  with  the  transactions  contemplated  hereby  or  otherwise,  including  structuring  fees,  commitment  fees,  arrangement  fees,  facility  fees,  upfront  fees,  underwriting fees, ticking fees, agency fees, administrative agent or collateral agent  fees,  utilization fees,  minimum usage fees,  letter of credit fees,  fronting fees,  deal- away  or  alternate  transaction  fees,  amendment  fees,  processing  fees,  term  out  premiums,  banker’s  acceptance  fees,  breakage  or  other  early  termination  fees  or  fees similar to the foregoing.                                       117  





 






                                 ARTICLE IX                                                                      Miscellaneous               SECTION 9.01. Notices¶.  (a)  Except  in  the  case  of  notices  and  other  communications expressly permitted to be given by telephone (and subject to paragraph  (b) of this Section), 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 facsimile, as follows:               (i) if  to  the  Company,  to  it  at  333  108th  Avenue  NE,  Bellevue,  WA        98004,  Attention  of  Treasurer  (Facsimile  No.  (425)  679-3163)  and  of  General        Counsel (Facsimile No. (425) 679-7251), and if to any Borrowing Subsidiary, to        it in care of the Company;               (ii) if to  the Administrative Agent  or the London Agent, to  JPMorgan        Chase  Bank,  N.A.,  500  Stanton  Christiana  Road,  Ops  2,  3rd  Floor,  Newark,        Delaware 19713, Attention of Jonathan KrepolDemetrius Dixon (Facsimile No.        (302)  634-3301),  with  a  copy  to  JPMorgan  Chase  Bank,  N.A.,  383  Madison        Avenue, 24th Floor, New York, NY 10179, Attention of Timothy Lee (Facsimile        No. (212) 270-5127);               (iii) if to the London Agent, to JPMorgan Europe Limited, 125 London        Wall, London EC2Y 5AJ, Attention  of Agency  Department  (Facsimile No. 44-       207-777-2360), with a copy to the Administrative Agent as provided under clause        (ii) above;               (iii) (iv) if to any Issuing Bank, to it at the address most recently specified        by it in a notice delivered to the Administrative Agent and the Company; and               (iv) (v) if to any other Lender, to it at its address (or facsimile number)        set forth 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, and notices sent by  facsimile  shall  be  deemed  to  have  been  given  when  sent;  provided  that,  if  not  given  during  normal  business  hours  for  the  recipient,  notices  shall  be  deemed  to  have  been  given at the opening of business on the next Business Day for the recipient); and notices  delivered through electronic communications to the extentas provided in paragraph (b) of  this Section shall be effective as provided in such paragraph.               (b) Notices and other communications to the Lenders and Issuing Banks  hereunder may be delivered or furnished by electronic communications (including email  and Internet and intranet websitesor using Electronic Systems) pursuant to procedures  approved  by  the  Administrative  Agent;  provided  that  the  foregoing  shall  not  apply  to  notices under Article II to any Lender or Issuing Bank if such Lender or Issuing Bank,  as  applicable,  has  notified  the  Administrative  Agent  that  it  is  incapable  of  receiving  notices under such Article by electronic communication or using Electronic Systems.                                       118  





 






   Any  notices  or  other  communications  to  any  Agent,  the  Company  or  any  Borrowing  Subsidiary  may  be  delivered  or  furnished  by  electronic  communications  pursuant  to  procedures  approved  by  the  recipient  thereof  prior  thereto;  provided  that  approval  of  such procedures may be limited or rescinded by any such Person by notice to each other  such Person.               (c) Each Borrowing Subsidiary hereby irrevocably appoints the Company  as its agent for the purpose of receiving or giving on its behalf any notice and taking any  other action provided for in this Agreement and any other Loan Document and hereby  agrees that it shall be bound by any such notice or action received, given or taken by the  Company hereunder or thereunder irrespective of whether or not  any such notice shall  have in fact been authorized by such Borrowing Subsidiary and irrespective of whether or  not the agency provided for herein or therein shall have theretofore been terminated.               (c) (d) Any party hereto may change its address or facsimile number for  notices and other communications hereunder by notice to the other parties hereto.               (d) (e) Each  Borrower  agrees  that  the  Agents  may,  but  shall  not  be  obligated  to,  make  any  Communication  by  posting  such  Communication  on Debt  Domain, Intralinks, Syndtrak, ClearPar or a substantially similar electronic transmission  system (the “Platform”). The Platforman Electronic System. Any Electronic System  used by the Agents is provided “as is” and “as available”. None of the Agents or any of  their  Related  Parties  warrants,  or  shall  be  deemed  to  warrant,  the  adequacy  of the  Platformany Electronic System and the Agents expressly disclaim liability for errors or  omissions in the Communications.  None of the Agents or any of their Related Parties  is  responsible  for  approving  or  vetting  the  representatives  or  contacts  of  any  Lender that are added to any Electronic System.  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, or shall be deemed to be made, by the Agents or any of their Related  Parties  in  connection  with  the  Communications  or the  Platform.  any  Electronic  System.  In no event shall any Agent or any of its Related Parties have any liability  to any Loan Party, any Lender, any Issuing Bank or any other Person for damages  of  any  kind,  including  direct  or  indirect,  special,  incidental,  consequential  or  punitive  damages,  losses  or  expenses  (whether  in  tort,  contract  or  otherwise)  arising  out  of  any  Loan  Party’s  or  any  Agent’s  transmission  of Communications  through  an  Electronic  System,  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 any Agent or any of its Related Parties.               (e) Each Borrowing Subsidiary hereby irrevocably appoints the Company  as its agent for the purpose of receiving or giving on its behalf any notice and taking any  other action provided for in this Agreement and any other Loan Document and hereby  agrees that it shall be bound by any such notice or action received, given or taken by the  Company hereunder or thereunder irrespective of whether or not any such notice shall                                       119  





 






   have in fact been authorized by such Borrowing Subsidiary and irrespective of whether  or not the agency provided for herein or therein shall have theretofore been terminated.               SECTION 9.02. Waivers;  Amendments¶.  (a)  No failure  or  delay  by  either Agent, any Issuing Bank or any Lender in exercising any right or power hereunder  or under any other Loan Document shall operate as a waiver thereof, nor shall any single  or partial exercise of any such right or power, or any abandonment or discontinuance of  steps to enforce such a right or power, preclude any other or further exercise thereof or  the  exercise  of  any  other  right  or  power.   The  rights  and  remedies  of  the  Agents,  the  Issuing  Banks  and  the  Lenders  hereunder  and  under  the  other  Loan  Documents  are  cumulative  and  are  not  exclusive  of  any  rights  or  remedies  that  they  would  otherwise  have.  No waiver of any provision of any Loan Document or consent to any departure by  any  Loan  Party  therefrom  shall  in  any  event  be  effective unless  the  same  shall  be  permitted  by  paragraph  (b)  of  this  Section,  and  then  such  waiver  or  consent  shall  be  effective  only  in  the  specific  instance  and  for  the specific purpose  for  which  given.   Without  limiting  the  generality  of  the  foregoing,  the  execution  and  delivery  of  this  Agreement, the making of a Loan or issuance of a Letter of Credit shall not be construed  as a waiver of any Default, regardless of whether either Agent, any Lender or any Issuing  Bank may have had notice or knowledge of such Default at the time.               (b) Except as set forth in Sections 2.09(d), 2.14(b) and 9.02(c) and the  definition  of  the  term  LC  Commitment,  neither  any  Loan  Document  nor  any  provision  thereof  may  be  waived,  amended  or  modified  except,  in  the  case  of  this  Agreement,  pursuant  to  an  agreement  or  agreements  in  writing  entered  into  by the  Companyeach Borrower and the Required Lenders, or, in the case of any other Loan  Document,  pursuant  to  an  agreement  or  agreements  in  writing  entered  into  by  the  Administrative Agent and the Loan Party or Loan Parties that are party thereto, in each  case with the consent of the Required Lenders;  provided that (i) any provision of this  Agreement or any other Loan Document may be amended by an agreement in writing  entered  into  by  the  Company  and  the  Administrative  Agent  to  cure  any  ambiguity,  omission,  defect  or  inconsistency  so  long  as,  in  each  case,  the  Lenders  shall  have  received  at  least ten10  Business  Days’  prior  written  notice  thereof  and  the  Administrative Agent shall not have received, within ten10 Business Days of the date of  such notice to the Lenders, a written notice from the Required Lenders stating that the  Required  Lenders  object  to  such  amendment  and  (ii)  no  such  agreement  shall  (A)  increase the Commitment of any Lender without the written consent of such Lender, (B)  reduce  the  principal  amount  of  any  Loan  or  LC  Disbursement  or  reduce  the  rate  of  interest thereon (other than as a result of any waiver of any increase in the interest  rate applicable to any Loan or LC Disbursement pursuant to Section 2.13(c)), or  reduce any fees payable hereunder, without the written consent of each Lender affected  thereby, (C) postpone the scheduled maturity date of any Loan or the required date of  reimbursement of any LC Disbursement, or any date for the payment of any interest or  fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or  postpone  the  scheduled  date  of  expiration  of  any  Commitment,  or  waive,  amend  or  modify Section 7.01(a), without the written consent of each Lender affected thereby, (D)  change Section 2.18 (b) or 2.18(c) in a manner that would alter the pro rata sharing of  payments required thereby without the written consent of each Lender, (E) change any                                       120  





 






   of the provisions of this Section or the percentage set forth in the definition of the term  “Required  Lenders”  or  any  other  provision  of  any  Loan  Document  specifying  the  number or percentage of Lenders (or Lenders of any Class) required to waive, amend or  modify  any  rights  thereunder  or  make  any  determination  or  grant  any  consent  thereunder, without the written consent of each Lender (or each Lender of such Class, as  the case may be), (F) release Guarantees representing all or substantially all the value of  the Guarantees under the Guarantee Agreement, or limit the liability of the Company or  any Subsidiary Loan Parties in respect of such Guarantees, without the written consent  of each Lender or (G) change any provision of any Loan Document in a manner that by  its  terms  adversely  affects  the  rights  in  respect  of  payments  due  to  Lenders  holding  Loans of any Class differently from those holding Loans of another Class, without the  written consent of Lenders holding a majority in interest of the outstanding Revolving  Credit Exposures and unused Commitments of the affected Class; provided further that  (1) no such agreement shall amend, modify or otherwise affect the rights or obligations  of either Agent or any Issuing Bank hereunder without the prior written consent of such  Agent or such Issuing Bank, as the case may be, and (2) any amendment, modification  or  waiver  of  this  Agreement  that  by  its  terms  affects  the  rights  or  duties  under  this  Agreement  of  the  Lenders  under  one  Tranche  (but  not  the  Lenders  under  the  other  Tranche or Tranches) may be effected by an agreement or agreements in writing entered  into  by  the  Company  and  the  requisite  percentage  in  interest  of  Lenders  under  the  affected  Tranche  that  would  be  required  to  consent  thereto  under  this  Section  if  such  Tranche  of  Lenders  were  the  only  Tranche  of  Lenders  hereunder  at  the  time.   Notwithstanding the foregoing, (i) no consent with respect to any amendment, waiver or  other modification of this Agreement or any other Loan Document shall be required of  any  Defaulting  Lender,  except  with  respect  to  any  amendment,  waiver  or  other  modification referred to in clause (A), (B) or (C) of clause (ii) of the first proviso of this  paragraph and then only in the event such Defaulting Lender shall be affected by such  amendment, waiver or other modification, and (ii) any provision of this Agreement may  be  amended  by  an  agreement  in  writing  entered  into  by  the  Company,  the  Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing  Banks)  and  the  Lenders  that  will  remain  parties  hereto  after  giving  effect  to  such  amendment if (x) by the terms of such agreement the Commitment of each Lender not  consenting to the amendment provided for therein shall terminate upon the effectiveness  of such amendment, (y) at the time such amendment becomes effective, each Lender not  consenting thereto receives payment in full of the principal of and interest accrued on  each Loan made by it and all other amounts owing to it or accrued for its account under  this Agreement and (z) after giving effect to such amendment and all contemporaneous  repayments of Loans and reductions of Commitments, the sum of the total Revolving  Credit  Exposures  under  each  Tranche  shall  not  exceed  the  total  Commitments  under  such  Tranche.   Any  amendment  or  modification  effected  in  accordance  with  this  paragraph will be binding on each Borrowing Subsidiary whether or not such Borrowing  Subsidiary shall have consented thereto.                 (c) Notwithstanding  anything  in  paragraph  (b)  of  this  Section  to  the  contrary, this Agreement and the other Loan Documents may be amended at any time  and  from  time  to  time  to  add  a  currency  or  pricing  option  under  any  Tranche  or  to  establish one or more additional Classes  of revolving credit commitments  to  be made                                      121  





 






   available  to  one  or  more  Borrowers  by  an  agreement  in  writing  entered  into  by  the  Company,  such  Borrower  or  Borrowers,  the  Administrative  Agent  and  each  Person  (including  any  Lender)  that  shall  agree  to  provide  such  currency,  pricing  option  or  commitment (but without the consent of any other Lender), and each such Person that  shall  not  already  be  a  Lender  shall,  at  the  time  such  agreement  becomes  effective,  become a Lender with the same effect as if it had originally been a Lender under this  Agreement  with  the  commitment  set  forth  in  such  agreement;  provided  that  (i)  the  aggregate outstanding principal amount of the new commitments of all such Classes and  Tranches  established  pursuant  to  this  paragraph after  the  Fourth  Amendment  Effective  Date shall,  when  taken  together  with  the  net  amount  (if  positive)  of  Commitment Increases over Commitment Decreases undereffected pursuant to (and as  defined in) Section 2.09(d) after the Fourth Amendment Effective Date, at no time,  without the consent of the Required Lenders, exceed US$500,000,000 and (ii) the terms  applicable to any additional revolving credit commitments of a Class or Tranche and the  Loans  and  Letters  of  Credit  thereunder  shall  be  the  same  as  those  applicable  to  the  existing  Commitments  of  such  Class  or  Tranche  and  the  Loans  and  Letters  of  Credit  thereunder (after giving effect to any amendment in connection with the establishment  of such additional revolving credit commitments).  Any such agreement establishing any  such  new  commitments  shall  amend  the  provisions  of  this  Agreement  and  the  other  Loan  Documents  to  set  forth  the  terms  of  each  Class  or  Tranche  established  thereby  (including the amount and final stated maturity thereof (which shall not be earlier than  the  Maturity  Date),  the  interest  to  accrue  and  be  payable  thereon  and  any  fees  to  be  payable in respect thereof) and to effect such other changes (including changes to the  provisions of this Section, Section 2.18 and the definition of “Required Lenders”) as the  Company and the Administrative Agent shall deem necessary or advisable in connection  with the establishment of any such Class or Tranche; provided that no such agreement  shall:  (A) effect  any change described in  any of  clauses  (A),  (B), (C), (F) and (G) of  clause  (ii)  of  the  first  proviso  of  paragraph  (b)  of  this  Section  without  the  consent  of  each  Person  required  to  consent  to  such  change  under  such  clause  (it  being  agreed,  however, that any establishment of any Class will not, of itself, be deemed to effect a  change described in clause (G) of such clause (ii)); or (B) amend Article V, VI or VII to  establish any affirmative or negative covenant, Event of Default or remedy that by its  terms  benefits  one  or  more  Classes  or  Tranches,  but  not  all  Classes  or  Tranches,  of  Loans or Borrowings, or provide for any guarantee or security that benefits one or more  Classes or Tranches, but not all Classes or Tranches, of Loans or Borrowings, without  the  prior  written  consent  of  Lenders  holding  a  majority  in  interest  of  the  Revolving  Credit Exposures and unused Commitments of each Class or Tranche not so benefited.   The  loans,  commitments  and  borrowings  under  any  Class  or  Tranche  established  pursuant to this paragraph shall constitute Loans, Commitments and Borrowings under,  and shall be entitled to all the benefits afforded by, this Agreement and the other Loan  Documents, and shall, without limiting the foregoing, benefit equally and ratably from  the  Guarantees  created  by  the  Guarantee  Agreement.   Each  Borrower  shall  take  any  actions reasonably required by the Administrative Agent to ensure and/or demonstrate  that the Guarantee Requirement continues to be satisfied after the establishment of any  such Class or Tranche of new commitments.                                        122  





 






               (d) The Administrative Agent may, but shall have no obligation to, with  the  written  concurrence  of  any  Lender,  execute  amendments,  waivers  or  other  modifications on behalf of such Lender.  Any amendment, waiver or other modification  effected in accordance with this Section 9.02 shall be binding upon each Person that is at  the time thereof a Lender and each Person that subsequently becomes a Lender.               SECTION 9.03. Expenses;  Indemnity;  Damage  Waiver¶.  (a)  The  Company  shall  pay,  or  cause  the  applicable  Borrowing  Subsidiary  to  pay, (i)  all  reasonable  out-of-pocket  expenses  incurred  by  the  Agents,  the  Arrangers  and  their  Affiliates,  including  the  reasonable  fees,  charges  and  disbursements  of  one  firm  of  counsel for the Agents and, if deemed reasonably necessary by the Agents, one firm of  local counsel in each appropriate jurisdiction, in connection with the arrangement and the  syndication  of  the  credit  facilities  provided  for  herein,  the  preparation,  execution,  delivery and administration of the Loan Documents or any amendments, modifications or  waivers of the provisions thereof (whether or not the transactions contemplated hereby or  thereby  shall  be  consummated),  (ii)  all  reasonable  out-of-pocket  expenses  incurred  by  any Issuing Bank in connection with the issuance, amendment, renewal or extension of  any  Letter  of  Credit  or  any  demand  for  payment  thereunder  and  (iii)  all  out-of-pocket  expenses  incurred by  the  Agents,  any  Issuing  Bank  or  any  Lender,  including  the  fees,  charges  and  disbursements  of  any  counsel  for  the  Agents,  any  Issuing  Bank  or  any  Lender, in connection with the enforcement or protection of its rights in connection with  the  Loan Documents,  including its  rights  under  this  Section, or 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) The  Company  shall  indemnify,  or  cause  the  applicable  Borrowing  Subsidiary  to  indemnify,  the  Agents  (and  any  sub-agent  thereof),  the  Arrangers,  each  Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons  (each  such  Person  being  called  an  “Indemnitee”),  against,  and  hold  each  Indemnitee  harmless  from,  any  and  all  losses,  claims,  damages,  liabilities  and  related  expenses,  including  the  fees,  charges  and  disbursements  of  any  counsel  for  any  Indemnitee,  incurred by or asserted against any Indemnitee arising out of, in connection with or as a  result  of  (i)  the  arrangement  and  the  syndication  of  the  credit  facility  provided  for  herein, the preparation, execution, delivery and administration of the Loan Documents  or  any  agreement  or  instrument  contemplated  thereby,  the  performance  by  the  parties  thereto  of  their  respective  obligations  thereunder  or  the  consummation  of  the  Transactions or any other transactions contemplated thereby, (ii) any Loan or Letter of  Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank  to honor a demand for payment under a Letter of Credit if the documents presented in  connection with  such demand do not  strictly  comply  with  the terms  of such  Letter of  Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from  any  property  currently  or  formerly  owned  or  operated  by  the  Company  or  any  of  the  Subsidiaries, or any Environmental Liability related in any way to the Company or any  of the Subsidiaries,  or (iv) any actual  or prospective claim,  litigation, investigation or  proceeding relating to any of the foregoing, whether based on contract, tort or any other  theory  and  regardless  of  whether  any  Indemnitee  is  a  party  thereto  and  regardless  of                                       123  





 






   whether  such  matter  is  initiated  by  a  third  party  or  by  the  Company  or  any  Affiliate  thereof; provided that such indemnity shall not, as to any Indemnitee, be available to the  extent that such losses, claims, damages, liabilities or related expenses are determined  by  a  court  of  competent  jurisdiction  by  final  and  nonappealable  judgment  to  have  resulted from the gross negligence or wilful misconduct of such Indemnitee.               (c) To the extent that any Borrower fails to pay any amount required to  be  paid  by  it  to  either  Agent  (or  any  sub-agent  thereof)  or  any  Issuing  Bank,  or  any  Related Party of any of the foregoing, under paragraph (a) or (b) of this Section, each  Lender severally agrees to pay to such Agent (or any such sub-agent), such Issuing Bank  or such Related Party, as the case may be, such Lender’s pro rata share (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 such Agent (or such sub-agent) or such Issuing Bank in its capacity as such, or  against any Related Party of any of the foregoing acting for either Agent (or any such  sub-agent) or any Issuing Bank in connection with such capacity.  For purposes hereof, a  Lender’s “pro rata share” shall be determined based upon its share of the sum of the total  Revolving  Credit  Exposures  and  unused  Commitments  at  the  time  (or  most  recently  outstanding and in effect).               (d) To  the  extent  permitted  by  applicable  law,  the  Borrowers  shall  not  assert,  or  permit  any  of  their  Affiliates  or  Related  Parties  to  assert,  and  each  hereby  waives, any claim against any Indemnitee (i) for any damages arising from the use by  others of information or other materials obtained through telecommunications, electronic  or  other  information  transmission  systems  (including  the  Internet  and  Electronic  Systems) or (ii) 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,  any  Loan  Document  or  any  agreement  or  instrument  contemplated  thereby,  the  Transactions,  any  Loan  or  Letter  of  Credit  or  the  use  of  the  proceeds  thereof.               (e) All amounts due under this Section shall be payable not later than 10  days after written demand therefor.               SECTION 9.04. Successors  and  Assigns¶.  (a)  The  provisions  of  this  Agreement shall be binding upon and inure to the benefit of the parties hereto and their  respective  successors  and  assigns  permitted  hereby  (including  any  Affiliate  of  any  Issuing Bank that issues any Letter of Credit), except that (i) except in accordance with  Section  6.04(a), neither  the  Company  nor  any  Borrowing Subsidiary  may  assign  or  otherwise  transfer  any  of  its  rights  or  obligations  hereunder  without  the  prior  written  consent of each Lender (and any attempted assignment or transfer by any of them without  such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer  its rights or obligations hereunder except in accordance with this Section.  Nothing in this  Agreement,  expressed  or  implied,  shall  be  construed  to  confer  upon  any  Person  (other  than  the  parties  hereto,  their  respective  successors  and  assigns  permitted  hereby  (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants                                       124  





 






   (to  the  extent  provided  in  paragraph  (c)  of  this  Section)  and  the  Arrangers  and,  to  the  extent  expressly  contemplated  hereby, the  sub-agents  of  the  Agents  and the  Related  Parties of any of the Agents, the Arrangers, the Issuing Banks and the Lenders) any legal  or equitable right, remedy or claim under or by reason of this Agreement.               (b) (i)  Subject to the conditions set forth in paragraph (b)(ii) below, any  Lender may assign to  one or more assigneesEligible Assignees  all or a portion  of its  rights  and  obligations  under  this  Agreement  (including  all  or  a  portion  of  its  Commitment and the Loans at the time owing to it) with the prior written consent (such  consent not to be unreasonably withheld or delayed) of:               (A)   the  Company;  provided  that  no  consent  of  the  Company  shall  be        required  for  an  assignment  to  a  Lender,  an  Affiliate  of  a  Lender,  an  Approved        Fund or, if an Event of Default has occurred and is continuing, any other assignee;        provided further that the Company shall be deemed to have consented to any such        assignment unless it shall object thereto by written notice to the Administrative        Agent within ten10 Business Days after having received written notice thereof;               (B)  the Administrative Agent; and               (C)  each Issuing Bank.               (ii)  Assignments shall be subject to the following additional conditions:               (A) except  in  the  case  of  an  assignment  to  a  Lender,  an  Affiliate  of  a        Lender or an Approved Fund or an assignment of the entire remaining amount of        the  assigning  Lender’s  Commitment  or  Loans  of  any  Class,  the  amount  of  the        Commitment or Loans of the assigning Lender subject to each such assignment        (determined as of the date the Assignment and Assumption with respect to such        assignment  is  delivered  to  the  Administrative  Agent)  shall  not  be  less  than        US$10,000,000  unless  each  of  the  Company  and  the  Administrative  Agent        otherwise consents;  provided  that (x) no such consent  of the Company shall be        required  if  an  Event  of  Default  has  occurred  and  is  continuing  and  (y)  the        Company  shall  be  deemed  to  have  consented  to  any  such  assignment  unless  it        shall  object  thereto  by  written  notice  to  the  Administrative  Agent  within ten10        Business Days after having received written notice thereof;               (B) each  partial  assignment  shall  be  made  as  an  assignment  of  a        proportionate part of all the assigning Lender’s rights and obligations under this        Agreement;  provided  that  this  clause  (B)  shall  not  be  construed  to  prohibit  the        assignment  of  a  proportionate  part  of  all  the  assigning  Lender’s  rights  and        obligations in respect of one Class of Commitments or Loans;               (C) the  parties  to  each  assignment  shall  execute  and  deliver  to  the        Administrative  Agent  an  Assignment  and  Assumption  (or  an  agreement        incorporating by reference a form of Assignment and Assumption posted on        the  Electronic  System),  together  with  a  processing  and  recordation  fee  of        US$3,500; and                                      125  





 






               (D) the  assignee,  if  it  shall  not  be  a  Lender,  shall  deliver  to  the        Administrative Agent an Administrative Questionnaire.               (iii)   Subject  to  acceptance  and  recording  thereof  pursuant  to  paragraph  (b)(iv) of this Section, from and after the effective date specified in each Assignment and  Assumption  the  assignee  thereunder  shall  be  a  party  hereto  and,  to  the  extent  of  the  interest assigned by such Assignment and Assumption, have the rights and obligations of  a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent  of  the  interest  assigned  by  such  Assignment  and  Assumption,  be  released  from  its  obligations  under  this  Agreement  (and,  in  the  case  of  an  Assignment  and  Assumption  covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of  Sections 2.15, 2.16, 2.17 and 9.03).  Any assignment or transfer by a Lender of rights or  obligations  under this  Agreement that  does  not  comply with  this  Section 9.04 shall be  treated for purposes of this Agreement as a sale by such Lender of a participation in such  rights and obligations in accordance with paragraph (c) of this Section.               (iv)  The Administrative Agent, acting for this purpose as a non-fiduciary  agent of the Borrowers, shall maintain at one of its offices a copy of each Assignment  and  Assumption  delivered  to  it  and  a  register  for  the  recordation  of  the  names  and  addresses  of  the  Lenders,  and  the  Commitment  of,  and  principal  amount  (and  stated  interest)  of  the  Loans  and  LC  Disbursements  owing  to,  each  Lender  pursuant  to  the  terms  hereof  from  time  to  time  (the  “Register”).   The  entries  in  the  Register  shall  be  conclusive  absent  manifest  error,  and  the  Borrowers,  the  Administrative  Agent,  the  Issuing Banks and the Lenders mayshall 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 Borrowers, any  Issuing Bank and any Lender  at  any reasonable time  and from time to time upon reasonable prior notice.               (v)  Upon its receipt of a duly completed Assignment and Assumption (or  an  agreement  incorporating  by  reference  a  form  of  Assignment  and  Assumption  posted on the Electronic System) executed by an assigning Lender and an assignee, the  assignee’s completed Administrative Questionnaire (unless the assignee shall already be  a Lender hereunder), the processing and recordation fee referred to in this Section and  any  written  consent  to  such  assignment  required  by  this  Section,  the  Administrative  Agent  shall  accept  such  Assignment  and  Assumption  and  record  the  information  contained therein in the Register.  No assignment shall be effective for purposes of this  Agreement unless it has been recorded in the Register as provided in this paragraph.               (c) (i)   Any  Lender  may,  without  the  consent  of  the  Borrowers,  the  Administrative Agent or the Issuing Banks, sell participations to one or more banks or  other entitiesEligible Assignees (each such bank or other entity, a “Participant”) in all or  a portion of such Lender’s rights and obligations under this Agreement (including all or  a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s  obligations under this Agreement shall remain unchanged, (B) such Lender shall remain  solely responsible to the other parties hereto for the performance of such obligations and                                       126  





 






   (C) the Borrowers, the Agents, the Issuing Banks and the other Lenders shall continue to  deal solely and directly with such Lender in connection with such Lender’s rights and  obligations  under  this  Agreement.   Any  agreement  or  instrument  pursuant  to  which  a  Lender sells such a participation shall provide that such Lender shall retain the sole right  to  enforce  this  Agreement  and  to  approve  any  amendment,  modification  or  waiver  of  any  provision  of  this  Agreement  or  any  other  Loan  Document;  provided  that  such  agreement or instrument may provide that such Lender will not, without the consent of  the  Participant,  agree  to  any  amendment,  modification  or  waiver  described  in  clauses  (A) through (F) of clause (ii) of the first proviso to Section 9.02(b) that directly affects  such Participant and requires the approval of all the Lenders or all the affected Lenders  (or all the Lenders or all the affected Lenders of a Class).  Subject to paragraph (c)(ii) of  this Section, the Borrowers agree that each Participant shall be entitled to the benefits of  Sections  2.15,  2.16  and  2.17  (subject  to  the  requirements  and  limitations  therein,  including the requirements under Sections 2.17(f) and 2.17(g) (it being understood that  the documentation required under Section 2.17(f) shall be delivered to the participating  Lender and the information and documentation required under Section 2.17(g) will be  delivered to each UK Borrower or the Company, as applicable, and the Administrative  Agent))  to  the  same  extent  as  if  it  were  a  Lender  and  had  acquired  its  interest  by  assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law,  each Participant also shall be entitled to the benefits of Section 9.08 as though it were a  Lender; provided that such Participant agrees to be subject to Section 2.18(c) as though  it  were  a  Lender.   Each  Lender  that  sells  a  participation  shall,  acting  solely  for  this  purpose  as  a  non-fiduciary  agent  of  the  applicable  Borrower,  maintain  a  register  on  which it enters the name and address of each Participant and the principal amounts (and  stated interest) of each Participant’s interest in the Loans or other obligations under the  Loan Documents  (the “Participant Register”);  provided  that no  Lender  shall have any  obligation to disclose all or any portion of the Participant Register (including the identity  of  any  Participant  or  any  information  relating  to  a  Participant’s  interest  in  any  Commitments,  Loans,  Letters  of  Credit  or  its  other  obligations  under  any  Loan  Document)  to  any  Person  except  to  the  extent  that  such  disclosure  is  necessary  to  establish  that  such  Commitment,  Loan,  Letter  of  Credit  or  other  obligation  is  in  registered  form  under  Section  5f.103-1(c)  of  the  United  States  Treasury  Regulations.   The  entries  in  the  Participant  Register  shall  be  conclusive  absent  manifest  error,  and  such Lender shall treat each Person whose name is recorded in the Participant Register  as the owner of such Participation for all purposes of this Agreement notwithstanding  any notice to the contrary.  For the avoidance of doubt, each Agent (in its capacity as  Agent) shall have no responsibility for maintaining a Participant Register.               (ii)   A  Participant  shall  not  be  entitled  to  receive  any  greater  payment  under Section 2.15 or 2.17 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 Company’s prior written consent.               (d) Any Lender may at any time pledge or assign a security interest in all  or any portion of its rights under this Agreement to secure obligations of such Lender,  including any pledge or assignment to secure obligations to a Federal Reserve Bank or  other central banking authority, and this Section shall not apply to any such pledge or                                       127  





 






   assignment  of  a  security  interest;  provided  that  no  such  pledge  or  assignment  of  a  security interest shall release a Lender from any of its obligations hereunder or substitute  any such pledgee or assignee for such Lender as a party hereto.               SECTION 9.05. Survival¶.   All  covenants,  agreements,  representations  and warranties made by the Loan Parties in the Loan Documents and in the certificates or  other instruments delivered in connection with or pursuant to this Agreement or any other  Loan Document shall be considered to have been relied upon by the other parties hereto  and shall survive the execution and delivery of the Loan Documents and the making of  any Loans and issuance of any Letters of Credit, regardless of any investigation made by  any such other party or on its behalf and notwithstanding that either Agent, any Arranger,  any Issuing Bank or any Lender or any Affiliate or Related Party of any of the foregoing,  may have had notice or knowledge of any Default or incorrect representation or warranty  at  the  time  any  Loan  Document  is  executed  and  delivered  or  any  credit  is  extended  thereunder, and shall continue in full force and effect as long as the principal of or any  accrued  interest  on  any  Loan  or  any  fee  or  any  other  amount  payable  under  this  Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as  the  Commitments  have  not  expired  or  terminated.   Notwithstanding  the  foregoing  or  anything else to the contrary set forth in this Agreement or any other Loan Document,  in  the  event  that,  in  connection  with  the  refinancing  or  repayment  in  full  of  the  credit  facility provided for herein, an Issuing Bank shall have provided to the Administrative  Agent  a written consent to  the release of the  Lenders from  their obligations  hereunder  with respect to any Letter of Credit issued by such Issuing Bank (whether as a result of  the obligations of any Borrower (and any other account party) in respect of such Letter of  Credit having been collateralized in full by a deposit of cash with such Issuing Bank, or  being  supported  by  a  letter  of  credit  that  names  such  Issuing  Bank  as  the  beneficiary  thereunder, or otherwise), then from and after such time such Letter of Credit shall cease  to be a “Letter of Credit” outstanding hereunder for all purposes of this Agreement and  the  other  Loan  Documents (including  for  purposes  of  determining  whether  the  Borrowers  are  required  to  comply  with  Articles  V  and  VI  hereof,  but  excluding  Sections  2.15,  2.16,  2.17  and  9.03  and  any  expense  reimbursement  or  indemnity  provisions  set  forth  in  any  other  Loan  Document  that  expressly  survive  the  termination of this Agreement and the other Loan Documents), and the Lenders shall  be  deemed  to  have  no  participations  in  such  Letter  of  Credit,  and  no  obligations  with  respect thereto, under Section 2.06(d) or 2.06(e).  The provisions of Sections 2.15, 2.16,  2.17, 2.18(b) and , 2.18(c), 9.03, 9.08 and 9.10 and Article VIII shall survive and remain  in full force and effect regardless of the consummation of the transactions contemplated  hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit  and the Commitments or the termination of this Agreement or any provision hereof.               SECTION 9.06. Counterparts;  Integration; Effectiveness; Issuing Banks¶.   This  Agreement  may  be  executed  in  counterparts  (and  by  different  parties  hereto  on  different counterparts), each of which shall constitute an original, but all of which when  taken  together  shall  constitute  a  single  contract.   This  Agreement  and  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, including the commitments of the Lenders                                       128  





 






   and,  if  applicable,  their  Affiliates  under  the  Commitment  Letter  and  any  commitment  advices  submitted  by  them  (but  do  not  supersede  any  other  provisions  of  the  Commitment Letter or any fee letter referred to therein (or any separate letter agreements  with respect to fees payable to the Administrative Agent or any Issuing Bank) that do not  by  the  terms  of  such  documents  terminate  upon  the  effectiveness  of  this  Agreement).   Except as provided in Section 4.01, 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 signatures of  each  of  the  other  parties  hereto,  and  thereafter  shall  be  binding  upon  and  inure  to  the  benefit of the parties hereto and their respective successors and assigns.  Delivery of an  executed  counterpart  of  a  signature  page  of  this  Agreement  by  facsimile  or  other  electronic transmission shall be effective as delivery of a manually executed counterpart  of  this  Agreement.   Each  financial  institution  that  shall  be  party  to  an  Issuing  Bank  Agreement executed by the Company and the Administrative Agent shall be a party to  and an Issuing Bank under this Agreement, and shall have all the rights and duties of an  Issuing  Bank  hereunder  and  under  its  Issuing  Bank  Agreement.   Each  Lender  hereby  authorizes the Administrative Agent to enter into Issuing Bank Agreements.               SECTION 9.07. Severability¶.  Any  provision  of this  Agreement  held  to  be invalid,  illegal  or unenforceable in  any jurisdiction  shall, as  to  such jurisdiction, be  ineffective to the extent of such invalidity, illegality or unenforceability without affecting  the  validity,  legality  and  enforceability  of  the  remaining  provisions  hereof,  and  the  invalidity  of  a  particular  provision  in  a  particular  jurisdiction  shall  not  invalidate  such  provision  in  any  other  jurisdiction.   The  parties hereto  shall  endeavor  in  good  faith  negotiations  to  replace  the  invalid,  illegal  or  unenforceable  provision  with  valid  provisions the economic effect of which comes as close as possible to that of the invalid,  illegal or unenforceable provision.               SECTION 9.08. Right  of  Setoff¶.   If  an  Event  of  Default  shall  have  occurred and be continuing, each Lender and Issuing Bank, and each Affiliate of any of  the foregoing, is hereby authorized at any time and from time to time, to the fullest extent  permitted by applicable law, to set off and apply any and all deposits (general or special,  time or demand, provisional or final, in whatever currency) or other amounts at any time  held and other obligations (in whatever currency) at any time owing by such Lender or  Issuing Bank, or by such an Affiliate, to or for the credit or the account of any Borrower  against any of and all the obligations then due of such Borrower (or, other than in the  case  of  any  Non-Guarantor  Borrower,  any  other  Borrower) now  or  hereafter  existing  under this Agreement held by such Lender or Issuing Bank, irrespective of whether or not  such Lender or Issuing Bank shall have made any demand under this Agreement.  The  rights of each Lender and Issuing Bank, and each Affiliate of any of the foregoing, under  this Section are in addition to other rights and remedies (including other rights of setoff)  that such Lender, Issuing Bank or Affiliate may have.               SECTION 9.09. Governing  Law;  Jurisdiction;  Consent  to  Service  of  Process¶.  (a)  This Agreement shall be construed in accordance with and governed by the  law of the State of New York.                                       129  





 






               (b) Each  of  the  parties  hereto  hereby  irrevocably  and  unconditionally  submits, for itself and its property, to the jurisdiction of the Supreme Court of the State  of New York sitting in New York County and of the United States District Court of the  Southern District of New York, and any appellate court from any thereof, in any action  or proceeding arising out of or relating to this Agreement or any other Loan Document,  or for recognition or enforcement of any judgment, and each of the parties hereto hereby  irrevocably and unconditionally agrees that all claims in respect of any such action or  proceeding  may  be  heard  and  determined  in  such  New  York  State  or,  to  the  extent  permitted  by  law,  in  such  Federal  court.   Each  Borrower  hereby  irrevocably  and  unconditionally agrees that all claims arising out of or relating to this Agreement or any  other Loan Document brought by it or any of its Affiliates shall be brought, and shall be  heard and determined, exclusively in such New York State or, to the extent permitted by  law, inUnited States  District Court or, if that court does  not have subject  matter  jurisdiction, such Federal courtSupreme 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 any other Loan Document shall affect any right  that any Agent, any Issuing Bank or any Lender may otherwise have to bring any action  or proceeding relating to this Agreement or any other Loan Document against any other  party hereto or its property in the courts of any jurisdiction.               (c) Each  of  the  parties  hereto  hereby  irrevocably  and  unconditionally  waives, to the fullest extent it may legally and effectively do so, any objection which it  may  now  or  hereafter  have  to  the  laying  of  venue  of  any  suit,  action  or  proceeding  arising out of or relating to this Agreement 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 law, the defense of an inconvenient  forum to the maintenance of such action or proceeding in any such court.               (d) Each  party  to  this  Agreement  irrevocably  consents  to  service  of  process in the manner provided for notices in Section 9.01.  Nothing in this Agreement  or any other Loan Document will affect the right of any party to this Agreement to serve  process in any other manner permitted by law.               (e) To  the  extent  that  any  Borrowing  Subsidiary  has  or  hereafter  may  acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding,  from jurisdiction of any court or from set-off or any legal process (whether service or  notice,  attachment  prior  to  judgment,  attachment  in  aid  of  execution  of  judgment,  execution of judgment or otherwise) with respect to itself or any of its property, such  Borrowing Subsidiary hereby irrevocably waives and agrees not to plead or claim such  immunity in respect of its Obligations under its Borrowing Subsidiary Agreement and,  this Agreement or any other Loan Document.               (f) Each Borrowing Subsidiary hereby agrees that the waivers set forth in  this  Section  shall  have  the  fullest  extent  permitted  under  the  Foreign  Sovereign  Immunities  Act  of  1976  of  the  United  States  of  America  and  are  intended  to  be  irrevocable and not subject to withdrawal for purposes of such Act.                                       130  





 






               (g) Each  Borrowing  Subsidiary  hereby  irrevocably  designates,  appoints  and empowers the Company, and the Company hereby accepts such appointment, as its  designee, appointee and agent to receive, accept and acknowledge for and on its behalf,  and in respect of its property, service of any and all legal process, summons, notices and  documents that may be served in any such action or proceeding arising out of or relating  to this Agreement and any other Loan Document.  Such service may be made by mailing  or  delivering  a  copy  of  such  process  to  any  Borrowing  Subsidiary  in  care  of  the  Company at  the Company’s address  used for purposes  of giving notice under Section  9.01,  and  each  Borrowing  Subsidiary  hereby  irrevocably  authorizes  and  directs  the  Company to accept such service on its behalf.               SECTION 9.10. WAIVER OF JURY TRIAL¶.  EACH PARTY HERETO  HEREBY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW,  ANY  RIGHT  IT  MAY  HAVE  TO  A  TRIAL  BY  JURY  IN  ANY  LEGAL  PROCEEDING  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  PARTY  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO  ENFORCE  THE  FOREGOING  WAIVER  AND  (B)  ACKNOWLEDGES  THAT  IT  AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER  INTO  THIS  AGREEMENT  BY,  AMONG  OTHER  THINGS,  THE  MUTUAL  WAIVERS  AND CERTIFICATIONS IN THIS SECTION.               SECTION 9.11. Headings¶.  Article and Section headings and the Table of  Contents  used  herein  are  for  convenience  of  reference  only,  are  not  part  of  this  Agreement  and  shall  not  affect  the  construction  of,  or  be  taken  into  consideration  in  interpreting, this Agreement.               SECTION 9.12. Confidentiality¶.  Each of the Agents, the Issuing Banks  and  the  Lenders  agrees  to  maintain  the  confidentiality  of  the  Information  (as  defined  below), except that Information may be disclosed (a) to its and its Affiliates’ directors,  officers, employees and agents, including accountants, legal counsel and other advisors  (it being understood that the Persons to whom such disclosure is made will be informed  of the confidential  nature of such  Information  and instructed to  keep such  Information  confidential),  (b)  to  the  extent  requested  by  any  regulatory  authority,  (c)  to  the  extent   required by applicable laws or regulations or by any subpoena or similar legal process,  (d)  to  any  other  party  to  this  Agreement,  (e)  in  connection  with  the  exercise  of  any  remedies  hereunder or  any  other  Loan  Document or  any  suit,  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, other than, in the case of any such disclosure to a Participant or a prospective  Participant, any such Participant or prospective Participant that shall have been identified,                                       131  





 






   or is actually known to the disclosing Person to be an Affiliate of any Person identified,  on Schedule 9.12, as such Schedule may be supplemented by the Company from time to  time by a writing delivered to the Administrative Agent (it being understood and agreed  that  no  Lender  shall  have  any  obligation  to  determine  whether  any  Participant,  or  any  prospective  Participant,  that  is  not  identified  on  Schedule  9.12  is  an  Affiliate  of  any  Person identified on such Schedule) or (ii) any actual or prospective counterparty (or its  advisors)  to  any  swap  or  derivative  transaction  relating  to  any  Borrower  and  its  obligations, (g) with the consent of the Company, (h) to the extent such Information (i)  becomes  publicly  available  other  than  as  a  result  of  a  breach  of  this  Section  or  (ii)  becomes available to either Agent, any Issuing Bank or any Lender on a nonconfidential  basis from a source other than any Borrower or, (i) to any credit insurance providers or  (j) subject to an agreement containing provisions at least as restrictive as those of  this Section, to (i) any rating agency in connection with rating the Company or the  Subsidiaries  or  the  credit  facilities  provided  for  herein  or  (ii)  the  CUSIP  Service  Bureau  in  connection  with  the  issuance  and  monitoring  of  CUSIP  numbers  with  respect to the credit facilities provided for herein.  For the purposes of this Section,  “Information”  means  all  information  received  from  the  Borrowers  relating  to  the  Borrowers or their business, other than any such information that is available to either  Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by a  Borrower; provided that, in the case of information received from a Borrower after the  date hereof, such information is clearly identified at the time of delivery as confidential.   Any  Person  required  to  maintain  the  confidentiality  of  Information  as  provided  in  this  Section shall be considered to have complied with its obligation to do so if such Person  has exercised the same degree of care to maintain the confidentiality of such Information  as such Person would accord to its own confidential information.               SECTION 9.13. Interest  Rate  Limitation¶.   Notwithstanding  anything  herein to the contrary, if at any time the interest rate applicable to any Loan, together with  all  fees,  charges  and  other  amounts  which  are  treated  as  interest  on  such  Loan  under  applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the  “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by  the  Lender  holding  such  Loan  in  accordance  with  applicable  law,  the  rate  of  interest  payable in respect of such Loan hereunder, together with all Charges payable in respect  thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and  Charges that would have been payable in respect of such Loan but were not payable as a  result of the operation of this  Section shall be cumulated and the interest  and Charges  payable to such Lender in respect of other Loans or periods shall be increased (but not  above the Maximum Rate therefor) until such cumulated amount, together with interest  thereon  at  the New  York  Fed  Bank Rate  to  the  date  of  repayment,  shall  have  been  received by such Lender.               SECTION 9.14. Release of Guarantees¶.  (a)  If the Company shall request  the  release  of  the  Guarantee  of  any  Subsidiary  Loan  Party  either  (i)  upon  the  consummation  of  any  transaction  permitted  by  this  Agreement  (for  the  avoidance  of  doubt, as in effect from  time to time) as a result of which such Subsidiary Loan Party  ceases to be a Subsidiary or (ii) at such time as such Subsidiary Loan Party, immediately  prior  to  giving  effect  to  such  release  (but  giving  effect  to  any  substantially  concurrent                                       132  





 






   repayment (in whole or in part) or release of any obligation under any Indebtedness), is  not  a  Designated  Subsidiary  (but,  in  the  case  of  this  clause  (ii),  with  respect  to  any  Subsidiary Loan Party that is not a Designated Subsidiary in reliance solely on clause (iii)  of the definition of such term, only if the Company and the other Subsidiaries do not own  in the aggregate more than 85% of the Equity Interests in such Subsidiary Loan Party)  and, in each case, the Company shall deliver to the Administrative Agent a certificate of a  Financial Officer or other executive officer of the Company to the effect that (I) in the  case  of  clause  (ii)  above,  no  Event  of  Default  shall  have  occurred  and  be  continuing  immediately prior to, and immediately after giving effect to, such release and (II) in the  case of clause (ii) above and after giving effect to any substantially concurrent repayment  (in whole or in part) or release of any obligation under any Indebtedness, the applicable  Subsidiary Loan party is not a Designated Subsidiary and, if applicable, the condition set  forth in the parenthetical in such clause is satisfied, then the Administrative Agent shall  execute and deliver to the Company, at the Company’s expense, all documents that the  Company shall reasonably request to evidence such release.1               (b) Notwithstanding anything to the contrary herein or in any other Loan  Document,  the  Guarantees  provided  under  any  Guarantee  Agreement  shall  terminate  when all the Obligations (other than contingent obligations for indemnification, expense  reimbursement, tax gross-up or  yield protection as to which no claim has been made)  have been indefeasibly paid in full, all Commitments have terminated or expired, the LC  Exposure has been reduced to zero and the Issuing Banks have no further obligations to  issue Letters of Credit hereunder.  In connection with any such termination pursuant to  this paragraph, the Administrative Agent shall execute and deliver to the Company, at  the  Company’s  expense,  all  documents  that  the  Company  shall  reasonably  request  to  evidence such termination.               (c) Any  execution  and  delivery  of  documents  by  the  Administrative  Agent pursuant to this Section shall be without recourse to, or representation or warranty  by, the Administrative Agent.               SECTION 9.15. Conversion  of  Currencies¶.  (a)  If,  for  the  purpose  of  obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one  currency into another currency, each party hereto agrees, to the fullest extent that it may  effectively do so, that the rate of exchange used shall be that at which in accordance with  normal  banking  procedures  in  the  relevant  jurisdiction  the  first  currency  could  be  purchased with such other currency on the Business Day immediately preceding the day  on which final judgment is given.               (b) The obligations of each Borrower in  respect of any sum due to any  party  hereto  or  any  holder  of  the  obligations  owing  hereunder  (the  “Applicable  Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment Currency”)  other than the currency in which such sum is stated to be due hereunder (the “Agreement                                                          1 Pursuant to the Third Amendment, EXP Global Holdings, Inc. and Classic  Vacations, LLC were released from their Guarantees created under the Guarantee  Agreement.                                       133  





 






   Currency”), be discharged only to the extent that, on the Business Day following receipt  by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency,  the  Applicable  Creditor  may  in  accordance  with  normal  banking  procedures  in  the  relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if  the amount of the Agreement Currency so purchased is less than the sum originally due  to  the  Applicable  Creditor  in  the  Agreement  Currency,  such  Borrower  agrees,  as  a  separate obligation and notwithstanding any such judgment, to indemnify the Applicable  Creditor against such loss.  The obligations of the Borrowers contained in this Section  9.15  shall  survive  the  termination  of  this  Agreement  and  the  payment  of  all  other  amounts owing hereunder.               SECTION 9.16. USA  Patriot  Act  Notice¶.   Each  Lender  and  the  Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each  Loan  Party  that pursuant  to  the  requirements  of  the  USA  Patriot  Act,  it  is  required  to  obtain, verify and record information that identifies each Loan Party, which information  includes the name and address of such Loan Party and other information that will allow  such Lender or the Administrative Agent, as applicable, to identify such Loan Party in  accordance with the USA Patriot Act.                SECTION 9.17. No  Fiduciary  Relationship¶.   The  Company  and  each  Borrowing Subsidiary, on behalf of itself and its subsidiaries, agrees that in connection  with  all  aspects  of  the  transactions  contemplated  hereby  and  any  communications  in  connection  therewith,  the  Company,  the  Subsidiaries  and  their  Affiliates,  on  the  one  hand, and the Agents, the Arrangers, the Lenders, the Issuing Banks and their Affiliates,  on the other hand, will have a business relationship that does not create, by implication or  otherwise, any fiduciary duty on the part of the Agents, the Arrangers, the Lenders, the  Issuing  Banks  or  their  Affiliates,  and  no  such  duty  will  be  deemed  to  have  arisen  in  connection  with  any  such  transactions  or  communications.  The  Company  and  each  Borrowing  Subsidiary,  on  behalf  of  itself  and  its  subsidiaries,  acknowledges  that  each  Agent, each Arranger, each Lender and each Issuing Bank and their respective Affiliates  may have economic interests that conflict with those of the Company, the Subsidiaries,  their equityholders and/or their Affiliates.  The Agents, the Arrangers, the Lenders, the  Issuing Banks and their Affiliates may be engaged, for their own accounts or the accounts  of customers, in a broad range of transactions that involve interests that differ from those  of the Company, the Borrowing Subsidiaries and their Affiliates, and none of the Agents,  the  Arrangers,  the  Lenders,  the  Issuing  Banks  or  their  Affiliates  has  any  obligation  to  disclose any of such interests to the Company, any Borrowing Subsidiary or any of their  Affiliates.   To  the  fullest  extent  permitted  by  law,  the  Company  and  each  Borrowing  Subsidiary, on behalf of itself and its subsidiaries, hereby waives and releases any claims  that it or any of its Affiliates may have against the Agents, the Arrangers, the Lenders,  the  Issuing  Banks  and  their  Affiliates  with  respect  to  any  breach  or  alleged  breach  of  fiduciary  duty  in  connection  with any  aspect  of  any  lending  transaction  contemplated  hereby.               SECTION 9.18. Non-Public Information¶.  Each Lender and Issuing Bank  acknowledges  that  all  information  furnished  to  it  pursuant  to  this  Agreement  by  or  on  behalf of the Company or any Borrowing Subsidiary and relating to the Company, the                                       134  





 






   Subsidiaries or their respective businesses may include material non-public information  concerning the Company, the Subsidiaries and their respective securities, and confirms  that  it  has  developed  compliance  procedures  regarding  the  use  of  material  non-public  information and that it will handle such material non-public information in accordance  with such procedures and applicable law, including Federal, state and foreign securities  laws.               All  such  information,  including  requests  for  waivers  and  amendments,  furnished  by  the  Company,  any  Borrowing  Subsidiary  or  the  Administrative  Agent  pursuant  to,  or  in  the  course  of  administering,  this  Agreement  will  be  syndicate-level  information,  which  may  contain  material  non-public  information  concerning  the  Company, the Subsidiaries and their respective securities.  Accordingly, each Lender and  Issuing  Bank  represents  to  the  Company,  the  Borrowing  Subsidiaries  and  the  Administrative  Agent  that  it  has  identified  in  its  Administrative  Questionnaire  a  credit  contact who may receive information that may contain material non-public information in  accordance with its compliance procedures and applicable law, including Federal, state  and foreign securities laws.               SECTION 9.19. Acknowledgement  and  Consent  to  Bail-In  of  EEA  Financial Institutions¶.  Notwithstanding anything to the contrary in any Loan Document  or in any other agreement, arrangement or understanding among or between the parties  hereto, each party hereto acknowledges that any liability of any EEA Financial Institution  arising  under  any  Loan  Document,  to  the  extent  such  liability  is  unsecured,  may  be  subject to the write-downWrite-Down and conversion powersConversion Powers of an  EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to  be bound by:               (a) the  application  of  any  Write-Down  and  Conversion  Powers  by  an  EEA  Resolution  Authority  to  any  such  liabilities  arising  hereunder  which  may  be  payable to it by any party hereto that is an EEA Financial Institution; and               (b) the  effects  of  any  Bail-in  Action  on  any  such  liability,  including,  if  applicable,  (i)  a  reduction  in  full  or  in  part  or  cancelation  of  any  such  liability,  (ii)  a  conversion  of  all,  or  a  portion  of,  such  liability  into  shares  or  other  instruments  of  ownership in such EEA Financial Institution, its parent entity, or a bridge institution that  may  be  issued  to  it  or  otherwise  conferred  on  it,  and  that  such  shares  or  other  instruments of ownership will be accepted by it in lieu of any rights with respect to any  such liability under this Agreement or any other Loan Document or (iii) the variation of  the  terms  of  such  liability  in  connection  with  the  exercise  of  the write-downWrite- Down and conversion powersConversion Powers of any EEA Resolution Authority.                                              135  





 






                              Schedule 2.01   Commitments          See attached.                                                              





 






                                                        US  Lender                                European Tranche            Total                                                          Tranche  JPMorgan Chase Bank, N.A.             US$225,000,000    US$0      US$225,000,000  Bank of America, N.A.                 US$225,000,000    US$0      US$225,000,000  BNP Paribas                           US$225,000,000    US$0      US$225,000,000  Mizuho Bank, Ltd.                     US$225,000,000    US$0      US$225,000,000  HSBC Bank USA, National Association   US$225,000,000    US$0      US$225,000,000  MUFG Bank, Ltd. (f.k.a. The Bank of   US$135,000,000              US$135,000,000                                                          US$0  Tokyo-Mitsubishi UFJ, Ltd.)  Royal Bank of Canada                  US$135,000,000    US$0      US$135,000,000  Sumitomo Mitsui Banking Corporation   US$135,000,000    US$0      US$135,000,000  U.S. Bank National Association        US$135,000,000    US$0      US$135,000,000  The Bank of Nova Scotia               US$135,000,000    US$0      US$135,000,000  Goldman Sachs Bank USA                US$100,000,000    US$0      US$100,000,000  Standard Chartered Bank               US$100,000,000    US$0      US$100,000,000  Total                                 US$2,000,000,000  US$0      US$2,000,000,000        





 






                                        Schedule 6.01          Existing Indebtedness                              See attached.   [Signature Page to Fourth Amendment]                       





 






                              Schedule 6.01                                                                      Indebtedness                                        1. Uncommitted working capital facility in the amount of EUR 50,000,000 pursuant to (i) a     letter agreement, dated as of September 5, 2014, among trivago GmbH, a company     organized under the laws of Germany, Expedia, Inc., a Delaware corporation, and Bank     of America Merrill Lynch International Limited, (ii) a letter agreement, dated as of     December 19, 2014, among trivago GmbH, a company organized under the laws of     Germany, Expedia, Inc., a Delaware corporation, and Bank of America Merrill Lynch     International Limited and (iii) a continuing guaranty, dated as of September 5, 2014, by     Expedia, Inc., a Delaware corporation, in favor of Bank of America Merrill Lynch     International Limited.       2. Letters of credit issued pursuant to an uncommitted letter of credit facility established     pursuant to a letter agreement, dated as of December 30, 2014, between Expedia, Inc., a     Washington corporation, and Standard Chartered Bank, as amended by a letter     agreement, dated as of February 26, 2015, between Expedia, Inc., a Washington     corporation, and Standard Chartered Bank, as further amended by a letter agreement,     dated as of February 12, 2018, between Expedia, Inc., a Washington corporation, and     Standard Chartered Bank.                 3. JPM letter of credit bearing number TFTS-898880 with a face amount of INR     10,000,000.       4. JPM letter of credit bearing number TFTS-157420 with a face amount of BRL 1,070,000.       5. JPM letter of credit bearing number TFTS-157424 with a face amount of BRL 190,000.       6. JPM letter of credit bearing number TFTS-157425 with a face amount of BRL 782,618.       7. Letters of credit issued on behalf of various foreign subsidiaries of Expedia, Inc., a     Delaware corporation, in an aggregate amount of approximately $6.9 million.  





 






                                      Exhibit A-3   Form of Borrowing Request                      See attached.                        





 






                                                            EXHIBIT A-3                                                                                                                                                                         [FORM OF] BORROWING REQUEST   JPMorgan Chase Bank, N.A.     as Administrative Agent and London Agent  500 Stanton Christiana Road, Ops 2   3rd Floor Newark, DE 19713   Attention:  Demetrius Dixon   Fax No. 1 (302) 634-3301  demetrius.dixon@chase.com                                                                      [Date]   Ladies and Gentlemen:         Reference  is  made  to  the  Credit  Agreement  dated  as  of  September  5,  2014  (as  amended, restated, supplemented or otherwise modified from  time to  time, the “Credit  Agreement”),  among  Expedia  Group,  Inc.,  a  Delaware  corporation  (the  “Company”),  Expedia, Inc., a Washington Corporation, Travelscape, LLC, a Nevada limited liability  company, Hotwire, Inc., a Delaware corporation, the other Borrowing Subsidiaries from  time  to  time  party  thereto,  the  Lenders  from  time  to  time  party  thereto  and  JPMorgan  Chase Bank, N.A., as Administrative Agent and London Agent.  Capitalized terms used  but not otherwise defined herein shall have the meanings assigned to them in the Credit  Agreement.        This notice constitutes a Borrowing Request and [the Borrower specified below]  [the Company on behalf of the Borrowing Subsidiary specified below] hereby gives you  notice, pursuant to Section [2.03] of the Credit Agreement, that it requests a Borrowing  under  the  Credit  Agreement,  and  in  connection  therewith  specifies  the  following  information with respect to such Borrowing:              (A)   Name of Borrower:____________________________________               (B)   Class of Borrowing:1 ____________________________________                (C)   Currency  and  aggregate  principal  amount  of  Borrowing:2                    [US$][specify  currency  for  a  Borrowing  of  European  Tranche                    Revolving Loans]_________________               (D)   Date of Borrowing (which is a Business Day): ________________               (E)   Type of Borrowing:3 ____________________________________                                                     1     Specify a Borrowing of European Tranche Revolving Loans or US Tranche Revolving Loans.  2     Must  comply  with  Section  2.02(c)  of  the  Credit  Agreement.  If  no  currency  is  specified  with  respect  to  any  requested  Borrowing,  then  the  applicable  Borrower  shall  be  deemed  to  have  selected  US  Dollars.  





 






               (F)     Interest Period and the last day thereof:4 _____________________                  (G)     Location and number of the Borrower’s account to which proceeds                         of the requested Borrowing are to be disbursed:  [Name of Bank]                         (Account No.:_________________________________________)                          [Issuing Bank to which proceeds of the requested Borrowing are to                         be disbursed:__________________________________________]5           [The  Borrower  specified  above]  [The  Company,  on  behalf  of  the  Borrowing  Subsidiary  specified  above,]  hereby  certifies  that  the  conditions  specified  in  Sections  4.02(a) and 4.02(b) of the Credit Agreement have been satisfied.6                                  [Signature Page Follows]                                                                                                                                                      3       Specify  ABR  Borrowing  (if  denominated  in  US  Dollars)  or  Eurocurrency  Borrowing.   If  no  election as to the Type of Borrowing is specified, then the requested Borrowing shall be (a) in the case of a  Borrowing denominated in US Dollars, an ABR Borrowing and (b) in the case of Borrowing denominated  in any other currency, a Eurocurrency Borrowing.  4       Applicable  to  Eurocurrency  Borrowings  only.   Shall  be  subject  to  the  definition  of  “Interest  Period”  and  can  be  a  period  of  one,  two,  three  or  six  months  (or,  with  the  consent  of  each  Lender  participating in the requested Borrowing, twelve months) thereafter.  If an Interest Period is not specified,  then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.  5       Specify only in the case of an ABR Borrowing requested to finance the reimbursement of an LC  Disbursement as provided in Section 2.06(e) of the Credit Agreement.   6       Subject to the last sentence of Section 4.02 of the Credit Agreement.                                             A-3-2  





 






                                      Very truly yours,                                    [NAME OF BORROWER] [NAME OF                   THE COMPANY]                   By:                          Name:                        Title:                       [SIGNATURE PAGE TO BORROWING REQUEST]                       





 






                                        Exhibit A-4   Form of Interest Election Request                          See attached.                        





 






                                                                  EXHIBIT A-4                    [FORM OF] INTEREST ELECTION REQUEST   JPMorgan Chase Bank, N.A.     as Administrative Agent and London Agent  500 Stanton Christiana Road, Ops 2   3rd Floor Newark, DE 19713   Attention:  Demetrius Dixon   Fax No. 1 (302) 634-3301  demetrius.dixon@chase.com                                                                            [Date]   Ladies and Gentlemen:         Reference is made to the Credit Agreement dated as of September 5, 2014 (as amended,  restated,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”),  among  Expedia  Group,  Inc.,  a  Delaware  corporation  (the  “Company”),  Expedia,  Inc.,  a  Washington Corporation, Travelscape, LLC, a Nevada limited liability company, Hotwire, Inc., a  Delaware  corporation,  the  other  Borrowing  Subsidiaries  from  time  to  time  party  thereto,  the  Lenders  from  time  to  time  party  thereto  and  JPMorgan  Chase  Bank,  N.A.,  as  Administrative  Agent and London Agent.  Capitalized terms used but not otherwise defined herein shall have the  meanings assigned to them in the Credit Agreement.        This notice constitutes an Interest Election Request and [the Borrower specified below]  [the Company on behalf of the Borrowing Subsidiary specified below] hereby gives you notice,  pursuant to Section 2.08 of the Credit Agreement, that it requests the conversion or continuation  of  a  Borrowing  under  the  Credit  Agreement,  and  in  that  connection  specifies  the  following  information with respect to such Borrowing and each resulting Borrowing:        1.  Borrowing to which this request applies: _______________________________                Principal Amount:           _______________________________                Class:1                     _______________________________                Type:                       _______________________________                Interest Period2:           _______________________________        2.  Effective date of this election3:  _______________________________        3.  Resulting Borrowing[s]4                Principal Amount5:          _______________________________                                                     1     Specify a Borrowing of US Tranche Revolving Loans or European Tranche Revolving Loans.  2     In the case of a Eurocurrency Borrowing, specify the last day of the current Interest Period therefor.  3     Must be a Business Day.  4     If  different  options  are  being  elected  with  respect  to  different  portions  of  the  Borrowing,  provide  the  information required by this item 3 for each resulting Borrowing.  Each resulting Borrowing shall be in an aggregate  amount that is an integral multiple of, and not less than, the amount specified for a Borrowing of such Class and  Type in Section 2.02(c) of the Credit Agreement.  5     Indicate the principal amount of the resulting Borrowing and the percentage of the Borrowing in  item 1  above.                                             





 






                     Type:6                            _______________________________                    Interest Period:7                 _______________________________                                                                                               Very truly yours,                                                  [NAME OF BORROWER] [NAME OF THE                                               COMPANY]                                                   by                                                                                                                  Name:                                                          Title:                                                            6      Must comply with Section 2.02 of the Credit Agreement.  7      Applicable  only  if  the  resulting  Borrowing  is  to  be  a  Eurocurrency  Borrowing.   Shall  be  subject  to  the  definition of “Interest Period” and can be a period of one, two, three or six  months (or, with the consent of each  Lender participating in the requested Borrowing, twelve months) thereafter.  If an Interest Period is not specified,  then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.                                               A-4-2  





 






                                            Exhibit B-1   Form of Borrowing Subsidiary Agreement                                  See attached.                         





 






                                                            EXHIBIT B-1                                 [FORM OF]                           BORROWING SUBSIDIARY AGREEMENT dated as of [                     ] (this “Agreement”), among EXPEDIA GROUP, INC., a                    Delaware corporation (the “Company”), [                   ], a                    [                   ] (the “New Borrowing Subsidiary”), and JPMorgan                    Chase Bank, N.A., as Administrative Agent (the “Administrative                    Agent”).               Reference is made to the Amended and Restated Credit Agreement dated  as of September 5, 2014 (as amended, restated, supplemented or otherwise modified from  time to time, the “Credit Agreement”), among the Company, the other Borrowers from  time  to  time  party  thereto,  the  Lenders  from  time  to  time  party  thereto  and  JPMorgan  Chase Bank, N.A., as Administrative Agent and London Agent.  Capitalized terms used  but not otherwise defined herein shall have the meanings assigned to them in the Credit  Agreement.               Under the Credit Agreement, the Lenders and Issuing Banks have agreed,  upon the terms and subject to the conditions therein set forth, to make Loans and to issue  Letters of Credit to the Borrowing Subsidiaries.  The Company and the New Borrowing  Subsidiary  desire  that  the  New  Borrowing  Subsidiary  become  a  Borrowing  Subsidiary  under the Credit Agreement pursuant to Section 2.04 thereof.  The Company and the New  Borrowing Subsidiary represent that the New Borrowing Subsidiary is a Wholly Owned  Subsidiary of the Company organized under the laws of [                      ].  The Company  represents and warrants that the representations  and warranties of the Borrowers in the  Credit Agreement are true and correct in all material respects on and as of the date hereof  after giving effect to this Agreement (except in the case of any such representation and  warranty  that  expressly  relates  to  a  prior  date,  in  which  case  such  representation  and  warranty shall have been true and correct in all material respects on and as of such prior  date).  The  Company  agrees  that  the  Guarantees  of  the  Company  and  the  Subsidiaries  contained  in  the  Guarantee  Agreement  will  apply  to  the  Obligations  of  the  New  Borrowing Subsidiary.  [The New Borrowing Subsidiary represents and warrants that the  information set forth in the certification regarding beneficial ownership, as required by 31  C.F.R.  §  1010.230  (the  “Beneficial  Ownership  Certification”)  and  delivered  to  the  Administrative  Agent  on  or  before  the  date  hereof,  is  true  and  correct  in  all  material  respects (it being understood and agreed that the Beneficial Ownership Certification shall  not include beneficial ownership information above the level of the Company).]1  Upon  execution  of  this  Agreement  by  each  of  the  Company,  the  New  Borrowing  Subsidiary  and  the  Administrative  Agent,  the  New  Borrowing  Subsidiary  shall  be  a  party  to  the  Credit Agreement and shall constitute a “Borrowing Subsidiary” for all purposes thereof,  and the New Borrowing Subsidiary hereby agrees to be bound by all provisions of the  Credit Agreement.                                                        1 To be inserted if the New Borrowing Subsidiary qualifies as a "legal entity  customer" under 31 C.F.R. § 1010.230.     





 






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





 






                                                                                       IN WITNESS WHEREOF, the parties hereto have caused this Agreement  to be duly executed by their authorized officers as of the date first appearing above.                                       EXPEDIA GROUP, INC.,                                          By                                                                                           Name:                                             Title:                                           [NAME OF NEW BORROWING                                      SUBSIDIARY],                                          By                                                                                           Name:                                             Title:                                           JPMORGAN CHASE BANK, N.A. , AS                                      ADMINISTRATIVE AGENT,                                          By                                                                                           Name:                                             Title:                         [Signature Page to Borrowing Subsidiary Agreement]