EXHIBIT 10.21


 


Execution Version


 




 





Published CUSIP Number:                                 


 


CREDIT AGREEMENT


 


 


Dated as of December 23, 2008


 


among


 


CHICAGO BOARD OPTIONS
EXCHANGE, INCORPORATED


and


CBOE HOLDINGS, INC.,


as the Borrowers,


 


BANK OF AMERICA, N.A.,


as Administrative Agent,


 


and


 


The Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES
LLC,


as


Sole Lead Arranger and Sole Book Manager


 




 




















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  I.

  	
   

  	
  DEFINITIONS
  AND ACCOUNTING TERMS

  	
  1

  
	
  1.01

  	
   

  	
  Defined
  Terms

  	
  1

  
	
  1.02

  	
   

  	
  Other
  Interpretive Provisions

  	
  18

  
	
  1.03

  	
   

  	
  Accounting
  Terms

  	
  19

  
	
  1.04

  	
   

  	
  Rounding

  	
  20

  
	
  1.05

  	
   

  	
  Times
  of Day

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II.

  	
   

  	
  THE
  COMMITMENTS AND CREDIT EXTENSIONS

  	
  20

  
	
  2.01

  	
   

  	
  Committed
  Loans

  	
  20

  
	
  2.02

  	
   

  	
  Borrowings,
  Conversions and Continuations of Committed Loans

  	
  20

  
	
  2.03

  	
   

  	
  Prepayments

  	
  21

  
	
  2.04

  	
   

  	
  Termination
  or Reduction of Commitments

  	
  22

  
	
  2.05

  	
   

  	
  Repayment
  of Loans

  	
  22

  
	
  2.06

  	
   

  	
  Interest

  	
  22

  
	
  2.07

  	
   

  	
  Fees

  	
  23

  
	
  2.08

  	
   

  	
  Computation
  of Interest and Fees; Retroactive Adjustments of Applicable Rate

  	
  24

  
	
  2.09

  	
   

  	
  Evidence
  of Debt

  	
  24

  
	
  2.10

  	
   

  	
  Payments
  Generally; Administrative Agent’s Clawback

  	
  25

  
	
  2.11

  	
   

  	
  Sharing
  of Payments by Lenders

  	
  26

  
	
  2.12

  	
   

  	
  Increase
  in Commitments

  	
  27

  
	
  2.13

  	
   

  	
  Concerning
  Joint and Several Liability of the Borrowers

  	
  28

  
	
  2.14

  	
   

  	
  The
  Borrowing Agent

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III.

  	
   

  	
  TAXES,
  YIELD PROTECTION AND ILLEGALITY

  	
  30

  
	
  3.01

  	
   

  	
  Taxes

  	
  30

  
	
  3.02

  	
   

  	
  Illegality

  	
  34

  
	
  3.03

  	
   

  	
  Inability
  to Determine Rates

  	
  34

  
	
  3.04

  	
   

  	
  Increased
  Costs

  	
  35

  
	
  3.05

  	
   

  	
  Compensation
  for Losses

  	
  36

  
	
  3.06

  	
   

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  36

  
	
  3.07

  	
   

  	
  Survival

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV.

  	
   

  	
  CONDITIONS
  PRECEDENT TO CREDIT EXTENSIONS

  	
  37

  
	
  4.01

  	
   

  	
  Conditions
  to Closing

  	
  37

  
	
  4.02

  	
   

  	
  Settlement
  Condition to Initial Credit Extensions

  	
  39

  
	
  4.03

  	
   

  	
  Conditions
  to all Credit Extensions

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V.

  	
   

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  39

  
	
  5.01

  	
   

  	
  Existence,
  Qualification and Power

  	
  39

  
	
  5.02

  	
   

  	
  Authorization;
  No Contravention

  	
  40

  
	
  5.03

  	
   

  	
  Governmental
  Authorization; Other Consents

  	
  40

  
	
  5.04

  	
   

  	
  Binding Effect

  	
  40

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  5.05

  	
   

  	
  Financial
  Statements; No Material Adverse Effect

  	
  40

  
	
  5.06

  	
   

  	
  Litigation

  	
  41

  
	
  5.07

  	
   

  	
  No
  Default

  	
  41

  
	
  5.08

  	
   

  	
  Ownership
  of Property; Liens

  	
  41

  
	
  5.09

  	
   

  	
  Environmental
  Compliance

  	
  41

  
	
  5.10

  	
   

  	
  Insurance

  	
  41

  
	
  5.11

  	
   

  	
  Taxes

  	
  41

  
	
  5.12

  	
   

  	
  ERISA
  Compliance

  	
  42

  
	
  5.13

  	
   

  	
  Subsidiaries;
  Equity Interests

  	
  42

  
	
  5.14

  	
   

  	
  Margin
  Regulations; Investment Company Act

  	
  42

  
	
  5.15

  	
   

  	
  Disclosure

  	
  43

  
	
  5.16

  	
   

  	
  Compliance
  with Laws

  	
  43

  
	
  5.17

  	
   

  	
  Taxpayer
  Identification Number

  	
  43

  
	
  5.18

  	
   

  	
  Intellectual
  Property; Licenses, Etc

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI.

  	
   

  	
  AFFIRMATIVE
  COVENANTS

  	
  43

  
	
  6.01

  	
   

  	
  Financial
  Statements

  	
  44

  
	
  6.02

  	
   

  	
  Certificates;
  Other Information

  	
  44

  
	
  6.03

  	
   

  	
  Notices

  	
  46

  
	
  6.04

  	
   

  	
  Payment
  of Obligations

  	
  46

  
	
  6.05

  	
   

  	
  Preservation
  of Existence, Etc

  	
  47

  
	
  6.06

  	
   

  	
  Maintenance
  of Properties

  	
  47

  
	
  6.07

  	
   

  	
  Maintenance
  of Insurance

  	
  47

  
	
  6.08

  	
   

  	
  Compliance
  with Laws

  	
  47

  
	
  6.09

  	
   

  	
  Books
  and Records

  	
  47

  
	
  6.10

  	
   

  	
  Inspection
  Rights

  	
  47

  
	
  6.11

  	
   

  	
  Use
  of Proceeds

  	
  48

  
	
  6.12

  	
   

  	
  Additional
  Guarantors

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII.

  	
   

  	
  NEGATIVE
  COVENANTS

  	
  48

  
	
  7.01

  	
   

  	
  Liens

  	
  48

  
	
  7.02

  	
   

  	
  Investments

  	
  49

  
	
  7.03

  	
   

  	
  Restricted
  Subsidiary Indebtedness

  	
  50

  
	
  7.04

  	
   

  	
  Fundamental
  Changes

  	
  51

  
	
  7.05

  	
   

  	
  Dispositions

  	
  51

  
	
  7.06

  	
   

  	
  Change
  in Nature of Business

  	
  51

  
	
  7.07

  	
   

  	
  Transactions
  with Affiliates

  	
  52

  
	
  7.08

  	
   

  	
  Burdensome
  Agreements

  	
  52

  
	
  7.09

  	
   

  	
  Use
  of Proceeds

  	
  52

  
	
  7.10

  	
   

  	
  Financial
  Covenants

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII.

  	
   

  	
  EVENTS
  OF DEFAULT AND REMEDIES

  	
  52

  
	
  8.01

  	
   

  	
  Events of Default

  	
  52

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
  8.02

  	
   

  	
  Remedies
  Upon Event of Default

  	
  55

  
	
  8.03

  	
   

  	
  Application
  of Funds

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX.

  	
   

  	
  ADMINISTRATIVE
  AGENT

  	
  56

  
	
  9.01

  	
   

  	
  Appointment
  and Authority

  	
  56

  
	
  9.02

  	
   

  	
  Rights
  as a Lender

  	
  56

  
	
  9.03

  	
   

  	
  Exculpatory
  Provisions

  	
  56

  
	
  9.04

  	
   

  	
  Reliance
  by Administrative Agent

  	
  57

  
	
  9.05

  	
   

  	
  Delegation
  of Duties

  	
  57

  
	
  9.06

  	
   

  	
  Resignation
  of Administrative Agent

  	
  57

  
	
  9.07

  	
   

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
  58

  
	
  9.08

  	
   

  	
  No
  Other Duties, Etc

  	
  58

  
	
  9.09

  	
   

  	
  Administrative
  Agent May File Proofs of Claim

  	
  58

  
	
  9.10

  	
   

  	
  Guaranty
  Matters

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X.

  	
   

  	
  MISCELLANEOUS

  	
  59

  
	
  10.01

  	
   

  	
  Amendments,
  Etc

  	
  59

  
	
  10.02

  	
   

  	
  Notices;
  Effectiveness; Electronic Communication

  	
  60

  
	
  10.03

  	
   

  	
  No
  Waiver; Cumulative Remedies; Enforcement

  	
  62

  
	
  10.04

  	
   

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  63

  
	
  10.05

  	
   

  	
  Payments
  Set Aside

  	
  64

  
	
  10.06

  	
   

  	
  Successors
  and Assigns

  	
  65

  
	
  10.07

  	
   

  	
  Treatment
  of Certain Information; Confidentiality

  	
  68

  
	
  10.08

  	
   

  	
  Right
  of Setoff

  	
  69

  
	
  10.09

  	
   

  	
  Interest
  Rate Limitation

  	
  69

  
	
  10.10

  	
   

  	
  Counterparts;
  Integration; Effectiveness

  	
  69

  
	
  10.11

  	
   

  	
  Survival
  of Representations and Warranties

  	
  70

  
	
  10.12

  	
   

  	
  Severability

  	
  70

  
	
  10.13

  	
   

  	
  Replacement
  of Lenders

  	
  70

  
	
  10.14

  	
   

  	
  Governing
  Law; Jurisdiction; Etc

  	
  71

  
	
  10.15

  	
   

  	
  Waiver
  of Jury Trial

  	
  72

  
	
  10.16

  	
   

  	
  No
  Advisory or Fiduciary Responsibility

  	
  72

  
	
  10.17

  	
   

  	
  Electronic
  Execution of Assignments and Certain Other Documents

  	
  73

  
	
  10.18

  	
   

  	
  USA
  PATRIOT Act

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SIGNATURES

  	
  S-1

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
  SCHEDULES

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01

  	
   

  	
  Commitments
  and Applicable Percentages

  	
   

  
	
  5.06

  	
   

  	
  Litigation

  	
   

  
	
  5.13

  	
   

  	
  Subsidiaries;
  Other Equity Investments

  	
   

  
	
  5.18

  	
   

  	
  Intellectual
  Property Matters

  	
   

  
	
  7.01

  	
   

  	
  Existing
  Liens

  	
   

  
	
  10.02

  	
   

  	
  Administrative
  Agent’s Office; Certain Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Form of

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Committed
  Loan Notice

  	
   

  
	
  B

  	
   

  	
  Note

  	
   

  
	
  C

  	
   

  	
  Compliance
  Certificate

  	
   

  
	
  D-1

  	
   

  	
  Assignment
  and Assumption

  	
   

  
	
  D-2

  	
   

  	
  Administrative
  Questionnaire

  	
   

  
	
  E

  	
   

  	
  Guaranty

  	
   

  
	
  F

  	
   

  	
  Opinion
  Matters

  	
   

  
					



 


iv

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”)
is entered into as of December 23, 2008, among CHICAGO BOARD OPTIONS
EXCHANGE, INCORPORATED, a Delaware non-stock corporation (the “Initial
Borrower”) and CBOE HOLDINGS, INC., a Delaware corporation (“Holdings”
and, together with the Initial Borrower, the “Borrowers” and each
individually, a “Borrower”), each lender from time to time party hereto
(collectively, the “Lenders” and individually, a “Lender”), and
BANK OF AMERICA, N.A., as Administrative Agent.


 


The Borrowers have requested
that the Lenders provide a revolving credit facility, and the Lenders are
willing to do so on the terms and conditions set forth herein.


 


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


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


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


 


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


 


“Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or account
as the Administrative Agent may from time to time notify the Borrowers and the
Lenders.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the
form of Exhibit D-2 or any other form approved by the
Administrative Agent.


 


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


 


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


 


“Agreement” means
this Credit Agreement.


 


“Applicable Percentage”
means with respect to any Lender at any time, the percentage (carried out to
the ninth decimal place) of the Aggregate Commitments represented by such
Lender’s Commitment at such time.  If the
commitment of each Lender to make Loans have been terminated pursuant to Section 8.02
or if the Aggregate Commitments have expired, then the Applicable Percentage of
each Lender shall be determined based on the Applicable Percentage of such
Lender most recently in effect, giving effect to any subsequent assignments.


 

















 


The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.


 


“Applicable Rate”
means the following percentages per annum, based upon the Consolidated Leverage
Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(b):


 


	
  Pricing Level

  	
   

  	
  Consolidated Leverage Ratio

  	
   

  	
  Commitment Fee

  	
   

  	
  Eurodollar Rate Loans

  	
   

  	
  Base Rate Loans

  	
   

  
	
  1

  	
   

  	
  < 1.00 to 1.00

  	
   

  	
  37.5

  	
   

  	
  150.0

  	
   

  	
  150.0

  	
   

  
	
  2

  	
   

  	
  > 1.00 to 1.00

  	
   

  	
  50.0

  	
   

  	
  200.0

  	
   

  	
  200.0

  	
   

  



 


Any increase or decrease in
the Applicable Rate resulting from a change in the Consolidated Leverage Ratio
shall become effective as of the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then, upon the request of
the Required Lenders, Pricing Level 2 shall apply as of the first Business Day
after the date on which such Compliance Certificate was required to have been
delivered and shall remain in effect until the date on which such Compliance
Certificate is delivered.  The Applicable
Rate in effect from the Closing Date until the delivery of the Compliance
Certificate for the fiscal quarter ending December 31, 2008 in accordance
with the preceding sentence shall be determined based upon Pricing Level 1.


 


Notwithstanding anything to
the contrary contained in this definition, the determination of the Applicable
Rate for any period shall be subject to the provisions of Section 2.08(b).


 


“Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


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


 


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


 


“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and
an assignee (with the consent of any party whose consent is required by Section 10.06(b)),
and accepted by the Administrative Agent, in substantially the form of Exhibit D-1
or any other form approved by the Administrative Agent.


 


“Attorney Costs”
means and includes all fees, expenses and disbursements of any law firm or
other external counsel.


 


2

















 


“Attributable
Indebtedness” means, on any date, (a) in respect of any capital lease
of any Person, the capitalized a mount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, and (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease were accounted for as a capital lease.


 


“Audited Financial
Statements” means the audited consolidated balance sheet of the Initial
Borrower and its Subsidiaries for the fiscal year ended December 31, 2007,
and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year of the Initial Borrower and its
Subsidiaries, including the notes thereto.


 


“Availability Period”
means the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.04, and (c) the date of termination of
the commitment of each Lender to make Loans pursuant to Section 8.02.


 


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


 


“Base Rate” means,
for any day, a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate plus 0.50%, (b) the Prime Rate and (c) except
during a Eurodollar Unavailability Period, a reference rate equal to the
Eurodollar Base Rate plus 0.50%.


 


“Base Rate Committed Loan”
means a Committed Loan that is a Base Rate Loan.


 


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


 


“Borrower” and “Borrowers”
have the meanings specified in the introductory paragraph hereto, subject in
all cases (including references to the “applicable Borrower”) to Section 2.14.


 


“Borrower Materials”
has the meaning specified in Section 6.02.


 


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


 


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


 


“Change of Control”
means, with respect to any Person, an event or series of events by which:


 


3

















 


(a)           any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time (such right, an “option right”)), directly or
indirectly, of 40% or more of the equity securities of the applicable Borrower
entitled to vote for members of the board of directors or equivalent governing
body of the applicable Borrower on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire
pursuant to any option right); or


 


(b)           during any period of 24 consecutive
months, a majority of the members of the board of directors or other equivalent
governing body of the applicable Borrower cease to be composed of individuals (i) who
were members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or equivalent
governing body was approved by either (x) individuals referred to in
clause (i) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body or (y) the
nominating committee of the applicable Borrower, or (iii) whose election
or nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at
the time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group other than
a solicitation for the election of one or more directors by or on behalf of the
board of directors);


 


provided that neither
the change in reference to “applicable Borrower” pursuant to Section 2.14
as a result of the Demutualization, nor the change in ownership of either
Borrower pursuant to the Demutualization, will constitute a Change of Control.


 


“Closing Date” means
the first date all the conditions precedent in Section 4.01 are
satisfied or waived in accordance with Section 10.01.


 


“Code” means the
Internal Revenue Code of 1986.


 


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


 


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


 


4

















 


“Committed Loan” has
the meaning specified in Section 2.01.


 


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


 


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


 


“Consolidated EBIT”
means, for any period, for the applicable Borrower and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus
(a) the following to the extent deducted in calculating such Consolidated
Net Income:  (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state,
local and foreign income taxes payable by the such Borrower and its
Subsidiaries for such period, (iii) other non-recurring expenses of such
Borrower and its Subsidiaries reducing such Consolidated Net Income which do
not represent a cash item in such period or any future period and (iv) payments
of all or a portion of the Settlement Amount, and minus (b) the
following to the extent included in calculating such Consolidated Net Income: (i) Federal,
state, local and foreign income tax credits of such Borrower and its
Subsidiaries for such period and (ii) all non-cash items increasing
Consolidated Net Income for such period.


 


“Consolidated EBITDA”
means, for any period, for the applicable Borrower and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated EBIT for such period plus,
to the extent deducted in calculating Consolidated Net Income for such period,
depreciation and amortization expense.


 


“Consolidated Funded
Indebtedness” means, as of any date of determination, for the applicable
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all
obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business), (e) Attributable
Indebtedness in respect of capital leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) through (e) above of Persons other
than the applicable Borrower or any Subsidiary, and (g) all Indebtedness
of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the applicable Borrower or a
Subsidiary is a general partner or joint venturer, unless such Indebtedness is
expressly made nonrecourse to the applicable Borrower or such Subsidiary.


 


“Consolidated Interest
Charges” means, for any period, for the applicable Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the applicable
Borrower and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the


 


5














 


deferred
purchase price of assets, in each case to the extent treated as interest in
accordance with GAAP, and (b) the portion of rent expense of the
applicable Borrower and its Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with GAAP and (c) the
amount of payments in respect of Synthetic Lease Obligations that are in the
nature of interest.


 


“Consolidated Interest
Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated
EBIT for the period of the four prior fiscal quarters ending on such date to
Consolidated Interest Charges for such period; provided that for
purposes of calculating Consolidated Interest Coverage Ratio for any period of
four consecutive fiscal quarters ending on or prior to June 30, 2009,
Consolidated Interest Charges for the four quarter period ending on (a) December 31,
2008 shall be deemed to be Consolidated Interest Charges for such fiscal
quarter multiplied by four, (b) March 31, 2009 shall be deemed to be
Consolidated Interest Charges for the two-fiscal quarter period ending on such
date multiplied by two and (c) June 30, 2009 shall be deemed to be
Consolidated Interest Charges for the three-fiscal quarter period ending on
such date multiplied by 4/3.


 


“Consolidated Leverage
Ratio” means, as of any date of determination, the ratio of (a) Consolidated
Funded Indebtedness as of such date to (b) Consolidated EBITDA for the
period of the four fiscal quarters most recently ended.


 


“Consolidated Net Income”
means, for any period, the applicable Borrower and its Subsidiaries on a
consolidated basis, the net income of such Borrower and its Subsidiaries
(excluding extraordinary gains and extraordinary losses) for that period.


 


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


 


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


 


“Credit Extension”
means a Committed Borrowing.


 


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


 


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


 


6

















 


“Default Rate” means
an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate
Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such Loan plus
2% per annum.


 


“Defaulting Lender”
means any Lender that (a) has refused (which may be given verbally or in
writing and has not been retracted) or failed to fund any portion of the
Committed Loans required to be funded by it hereunder which refusal or failure
is not cured within one Business Day after the date of such refusal or failure,
(b) has otherwise failed to pay over to the Borrowers, the Administrative
Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good
faith dispute or unless such failure has been cured, or (c) is deemed
insolvent or such Lender becomes subject to a Lender-Related Distress Event


 


“Demutualization”
means the demutualization and reorganization of the Initial Borrower from a
Delaware non-stock corporation to a Delaware corporation and otherwise
accomplished in a manner substantially as set forth in Holdings’ S-4, as
amended through and including the amendment filed on November 19, 2008,
with only such changes as are not materially adverse to the interests of the
Lenders (including the identity and corporate structure of the Borrowers), as a
result of which Holdings will be owned by former members of the Initial
Borrower (and certain other persons) and the Initial Borrower will be a
wholly-owned, direct subsidiary of Holdings. 
It is understood that the payment of the Settlement Amount shall be
deemed not to be materially adverse to the interest of the Lenders.


 


“Disposition” or “Dispose”
means the sale, transfer, license, lease or other disposition (including any
sale and leaseback transaction) of any property by any Person, including any
sale, assignment, transfer or other disposal, with or without recourse, of any
notes or accounts receivable or any rights and claims associated therewith.


 


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


 


“Domestic Subsidiary”
means any Subsidiary that is organized under the laws of any political subdivision
of the United States.


 


“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii),
(v) and (vi) (subject to such consents, if any, as may
be required under Section 10.06(b)(iii)).


 


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


 


“Environmental Liability”
means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities),
of a Borrower, any other Loan Party or any of their respective Subsidiaries
directly or indirectly 


 


7

















 


resulting
from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment
or (e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the foregoing.


 


“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or
other ownership or profit interests in) such Person, all of the warrants,
options or other rights for the purchase or acquisition from such Person of
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of
determination.


 


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


 


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


 


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


 


“Eurodollar Base Rate”
has the meaning specified in the definition of Eurodollar Rate.


 


“Eurodollar Rate”
means, for any Interest Period with respect to a Eurodollar Rate Loan, a rate
per annum determined by the Administrative Agent pursuant to the following
formula:


 


	
  Eurodollar

  	
  =

  	
  Eurodollar Base Rate

  
	
   

  	
   

  	
  1.00-Eurodollar Reserve Percentage

  



Where,


 


“Eurodollar Base Rate”
means:


 


8

















 


(a)           for any Interest Period with respect
to a Eurodollar Rate Loan, the rate per annum equal to (i) the British
Bankers Association LIBOR Rate as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) (“BBA LIBOR”), at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, for Dollar deposits (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period or (ii) if
such published rate is not available at such time for any reason, the rate
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch to major banks in the
London interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period, or


 


(b)           for any interest rate calculation
with respect to a Base Rate Loan, the rate per annum equal to (i) BBA
LIBOR, at approximately 11:00 a.m., London time on the date of
determination (provided that if such day is not a Business Day with respect to
the determination of the Eurodollar Rate, the next preceding Business Day) for
Dollar deposits being delivered in the London interbank market for a term of
one month commencing that day or (ii) if such published rate is not
available at such time for any reason, the rate determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery
on the date of determination in same day funds in the approximate amount of the
Base Rate Loan being made, continued or converted by Bank of America and with a
term equal to one month would be offered by Bank of America’s London Branch to
major banks in the London interbank eurodollar market at their request at the
date and time of determination.


 


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


 


“Eurodollar Rate Loan”
means a Committed Loan that bears interest at a rate based on the Eurodollar
Rate; provided that, for the avoidance of doubt, a Base Rate Loan for
which the Base Rate is determined by reference to the Eurodollar Base Rate
shall not constitute a Eurodollar Rate Loan.


 


“Eurodollar
Unavailability Period” means any period of time during which a notice
delivered to the Borrowers in accordance with Section 3.03 shall
remain in effect.


 


“Event of Default”
has the meaning specified in Section 8.01.


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of a
Borrower 


 


9

















 


hereunder,
(a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) under the Laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which a Borrower is located, (c) any
backup withholding tax that is required by the Code to be withheld from amounts
payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii),
and (d) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrowers under Section 10.13), any United
States withholding tax that (i) is required to be imposed on amounts
payable to such Foreign Lender pursuant to the Laws in force at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from a Borrower with respect to such withholding
tax pursuant to Section 3.01(a)(ii) or (iii).


 


“Exercise Rights
Litigation” means the cause of action and all claims contained in the
complaints filed in or joined as part of CME Group, Inc., et al. v.
Chicago Board Options Exchange, Incorporated, et al. (Civil Action No. 2369-VCN)
(Delaware Chancery).


 


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


 


“Fee Letter” means
the letter agreement, dated November 11, 2008, among the Borrowers, the
Administrative Agent and the Arranger.


 


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


 


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


 


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


 


10

















 


“GAAP” means
generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession in the United
States, that are applicable to the circumstances as of the date of
determination, consistently applied.


 


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


 


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


 


“Guarantors” means
each wholly-owned Domestic Subsidiary of a Borrower at the Closing Date (other
than Holdings) and each other Person who joins as a Guarantor pursuant to Section 6.12,
together with their successors and permitted assigns.


 


“Guaranty” means the
Guaranty made by the Guarantors in favor of the Administrative Agent and the
Lenders, substantially in the form of Exhibit E.


 


“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, 


 


11

















 


infectious
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.


 


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


 


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


 


(a)           all
obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;


 


(b)           all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;


 


(c)           net
obligations of such Person under any Swap Contract;


 


(d)           all
obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business);


 


(e)           indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;


 


(f)            capital
leases and Synthetic Lease Obligations;


 


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


 


(h)           all
Guarantees of such Person in respect of any of the foregoing.


 


For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or a joint
venturer, unless such Indebtedness is expressly made non-recourse to such
Person.  The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap Termination
Value thereof as of such date.  The
amount of any capital lease or Synthetic Lease Obligation as of any date shall
be deemed to be the amount of Attributable Indebtedness in respect thereof as
of such date.


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


 


“Indemnitees” has the
meaning specified in Section 10.04(b).


 


12

















 


“Information” has the
meaning specified in Section 10.07.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Investment” means,
as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance
or capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. 
For purposes of covenant compliance, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.


 


“IP Rights” has the
meaning specified in Section 5.17.


 


“IRS” means the
United States Internal Revenue Service.


 


“Laws” means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and 


 


13

















 


permits
of, and agreements with, any Governmental Authority, in each case whether or
not having the force of law.


 


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


 


“Lender-Related Distress
Event” means, with respect to any Lender or any Person that directly or
indirectly Controls such Lender (each, a “Distressed Person”), as the
case may be, a voluntary or involuntary case with respect to such Distressed
Person under the Bankruptcy Code or any similar bankruptcy laws of its
jurisdiction of formation, or a custodian, conservator, receiver or similar
official is appointed for such Distressed Person or any substantial part of
such Distressed Person’s assets, or such Distressed Person or any Person that
directly or indirectly Controls such Distressed Person is subject to a forced
liquidation, merger, sale or other change of control supported in whole or in
part by guaranties or other support of (including without limitation the
nationalization or assumption of ownership or operating control by) the U.S.
government or other Governmental Authority, or such Distressed Person makes a
general assignment for the benefit of creditors or is otherwise adjudicated as,
or determined by any Governmental Authority having regulatory authority over
such Distressed Person or its assets to be, insolvent, bankrupt, or deficient
in meeting any capital adequacy or liquidity standard of any such Governmental
Authority.


 


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


 


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


 


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


 


“Loan Documents”
means this Agreement, each Note, the Fee Letter, and the Guaranty.


 


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


 


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


 


“Maturity Date” means
December 23, 2011; provided, however, that if such date is
not a Business Day, the Maturity Date shall be the next preceding Business Day.


 


14

















 


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


 


“Note” means a
promissory note made by the Borrowers in favor of a Lender evidencing Loans
made by such Lender, substantially in the form of Exhibit B.


 


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


 


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


 


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


 


“Outstanding Amount”
means with respect to Committed Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of Committed Loans occurring on such date.


 


“Participant” has the
meaning specified in Section 10.06(d).


 


“PBGC” means the
Pension Benefit Guaranty Corporation.


 


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


 


15














 


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


 


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


 


“Platform” has the
meaning specified in Section 6.02.


 


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


 


“Public Lender” has
the meaning specified in Section 6.02.


 


“Register” has the
meaning specified in Section 10.06(c).


 


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


 


“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other
than events for which the 30 day notice period has been waived.


 


“Request for Credit
Extension” means with respect to a Borrowing, conversion or continuation of
Committed Loans, a Committed Loan Notice.


 


“Required Lenders”
means, as of any date of determination, Lenders having more than 50% of the
Aggregate Commitments or, if the commitment of each Lender to make Loans have
been terminated pursuant to Section 8.02, Lenders holding in the
aggregate more than 50% of the Total Outstandings; provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


“Responsible Officer”
means the chief executive officer, the president, the chief financial officer,
the vice president and controller, the treasurer or the assistant treasurer of
a Loan Party, and any other individual that is an officer of the applicable
Loan Party and is so designated by any of the foregoing officers in a written
notice to the Administrative Agent.  Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.


 


16

















 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other Equity Interest of a
Borrower or any Subsidiary, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such capital stock or other Equity Interest, or on account of any return
of capital to a Borrower’s stockholders, partners or members (or the equivalent
Person thereof).


 


“Restricted Subsidiary”
means any Subsidiary of the applicable Borrower that is not a Guarantor.


 


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


 


“Settlement Agreement”
means the Stipulation of Settlement, dated as of August 20, 2008 and
preliminarily approved on August 22, 2008 by the Court of Chancery of the
State of Delaware in the Exercise Rights Litigation.


 


“Settlement Amount”
means the cash payments provided for in the Settlement Agreement, provided
that the maximum aggregate amount thereof shall not exceed $400,000,000.


 


“Subsidiary” of a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person.  Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the applicable Borrower.


 


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


 


17

















 


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


 


“Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a so
called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do
not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).


 


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


 


“Threshold Amount”
means $25,000,000.


 


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


 


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


 


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


 


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


 


1.02              Other Interpretive Provisions. 
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:


 


(a)           The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” 
Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “herein,” “hereof”
and “hereunder,” and words of similar import when used in any Loan 


 


18

















 


Document, shall be
construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include
all statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


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


 


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


 


1.03              Accounting Terms.  (a) Generally.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed
herein.


 


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


 


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


 


19

















 


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


 


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


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01              Committed Loans. 
Subject to the terms and conditions set forth herein (including Section 2.14),
each Lender severally agrees to make loans (each such loan, a “Committed
Loan”) to a Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Commitment; provided, however,
that after giving effect to any Committed Borrowing, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender shall not
exceed such Lender’s Commitment.  Within
the limits of each Lender’s Commitment, and subject to the other terms and
conditions hereof, a Borrower may borrow under this Section 2.01,
prepay under Section 2.03, and reborrow under this Section 2.01.  Committed Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.


 


2.02              Borrowings, Conversions and Continuations
of Committed Loans.


 


(a)           Each Committed Borrowing, each
conversion of Committed Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon a Borrower’s irrevocable notice to
the Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Committed Loans, and (ii) on the requested date of any
Borrowing of Base Rate Committed Loans. 
Each telephonic notice by Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of such Borrower.  Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof.  Each Borrowing of or conversion
to Base Rate Committed Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. 
Each Committed Loan Notice (whether telephonic or written) shall specify
(i) whether the applicable Borrower is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion
or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv) the
Type of Committed Loans to be borrowed or to which existing Committed Loans are
to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto.  If a
Borrower fails to specify a Type of Committed Loan in a 


 


20

















 


Committed Loan Notice or
if a Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or
converted to, Base Rate Loans.  Any such
automatic conversion to Base Rate Loans shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans.  If a Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.


 


(b)           Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Lender of the
amount of its Applicable Percentage of the requested Committed Loans, and if no
timely notice of a conversion or continuation is provided by a Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection.  In the case of a Committed Borrowing, each
Lender shall make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice.  Upon
satisfaction of the applicable conditions set forth in Section 4.03
(and, if such Borrowing is the initial Credit Extension, Section 4.01
and 4.02), the Administrative Agent shall make all funds so received
available to the applicable Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of such Borrower
on the books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided
to (and reasonably acceptable to) the Administrative Agent by such Borrower.


 


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


 


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


 


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


 


2.03              Prepayments.


 


(a)           A Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay Committed
Loans in whole or in part without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent not later than 11:00 a.m.
(A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Committed Loans, (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of 


 


21

















 


$1,000,000 in excess
thereof and (iii) any prepayment of Base Rate Committed Loans shall be in
a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then
outstanding.  Each such notice shall
specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid,
the Interest Period(s) of such Loans. 
The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Applicable Percentage
of such prepayment.  If such notice is
given by a Borrower, such Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.  Any prepayment of a Eurodollar
Rate Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Committed Loans of the Lenders in accordance with their respective Applicable
Percentages.


 


(b)           If for any reason the Total
Outstandings at any time exceed the Aggregate Commitments then in effect, the
Borrowers shall immediately prepay Loans in an aggregate amount equal to such
excess.


 


2.04              Termination or Reduction of
Commitments.  The Borrowers may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Borrowers
shall not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments. 
The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Commitments.  Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Applicable
Percentage.  All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.


 


2.05              Repayment of Loans. 
The Borrowers shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.


 


2.06              Interest.


 


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


 


(b)           (i)            If
any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, 


 


22

















 


such unpaid amount shall
thereafter bear interest until paid at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


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


 


(iii)          Upon
the request of the Required Lenders, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding Loans
hereunder at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.


 


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


 


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


 


2.07              Fees.


 


(a)           Commitment Fee.  The Borrowers shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage, a commitment fee equal to the Applicable Rate times the
actual daily amount by which the Aggregate Commitments exceed the Outstanding
Amount of Committed Loans.  The
commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV
is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with
the first such date to occur after the Closing Date, and on the last day of the
Availability Period.  The commitment fee
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.


 


(b)           Other Fees.  (i)  The Borrowers shall pay to the
Arranger and the Administrative Agent for their own respective accounts fees in
the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


 


(ii)           The
Borrowers shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


 


23

















 


2.08              Computation of Interest and Fees;
Retroactive Adjustments of Applicable Rate.  (a) All
computations of interest for Base Rate Loans when the Base Rate is determined
by Bank of America’s “prime rate” shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year).  Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day
on which it is made shall, subject to Section 2.10(a), bear
interest for one day.  Each determination
by the Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.


 


(a)           If, as a result of any restatement of
or other adjustment to the financial statements of either Borrower or for any
other reason, either Borrower or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by either Borrower as of any
applicable date was inaccurate and (ii) a proper calculation of the
Consolidated Leverage Ratio would have resulted in higher pricing for such
period, the Borrowers shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Lenders promptly on
demand (and in no event later than 10 Business Days after such demand) by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of
an order for relief with respect to either Borrower under the Bankruptcy Code
of the United States, automatically and without further action by the
Administrative Agent), an amount equal to the excess of the amount of interest
and fees that should have been paid for such period over the amount of interest
and fees actually paid for such period. 
This paragraph shall not limit the rights of the Administrative Agent or
any Lender, as the case may be, under 2.06(b) or under Article VIII;
provided that such rights, to the extent arising solely as a result of an
occurrence described in the first sentence of this clause (b), may not be
exercised until the expiration of the 10-Business Day period set forth
above.  The Borrowers’ obligations under
this paragraph shall survive the termination of the Aggregate Commitments and
the repayment of all other Obligations hereunder.


 


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


 


24

















 


2.10              Payments
Generally; Administrative Agent’s Clawback.


 


(a)           General.  All payments to be made by either Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by either Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the
date specified herein.  The Administrative
Agent will promptly distribute to each Lender its Applicable Percentage (or
other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by either Borrower
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.


 


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


 


(ii)           Payments
by Borrowers; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have
received notice from either Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the


 


25














 


Lenders hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that the Borrowers have made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. 
In such event, if either Borrower has not in fact made such payment,
then each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender, in immediately
available funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


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


 


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


 


(d)           Obligations of Lenders Several.  The obligations of the Lenders hereunder to
make Committed Loans and to make payments pursuant to Section 10.04(c) are
several and not joint.  The failure of
any Lender to make any Committed Loan, to fund any such participation or to
make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Committed Loan, to purchase its participation or to
make its payment under Section 10.04(c).


 


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


 


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


 


26

















 


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


 


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


 


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


 


2.12              Increase in Commitments.


 


(a)           Request for Increase.  Provided there exists no Default, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), the
Borrowers may from time to time, request an increase in the Aggregate
Commitments by an aggregate amount (for all such requests) not exceeding
$100,000,000.


 


(b)           Notification by Administrative
Agent; Lenders; Additional Lenders. 
To achieve the full amount of a requested increase the Borrowers may
invite any of the following to provide the increase in the Aggregate
Commitments: (i) subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld), one or more additional
Eligible Assignees who become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and/or (ii) one or more
Lenders.  For the avoidance of doubt, no
Lender shall be required to provide any portion of the requested increase
without its express consent.


 


(c)           Effective Date and Allocations.  If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrowers shall
determine the effective date (the “Increase Effective Date”) and the
final allocation of such increase.  The
Administrative Agent shall promptly notify the Borrowers and the Lenders of the
final allocation of such increase and the Increase Effective Date and the
revised Commitments, which shall be reflected on an updated Schedule 2.01.


 


(d)           Conditions to Effectiveness of
Increase.  As a condition precedent
to such increase, the Borrowers shall deliver to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan
Party approving or consenting to such increase, and (ii) in the case of
the Borrowers, certifying that, before and after giving effect to such
increase, (A) the representations and 


 


27

















 


warranties contained in Article V
and the other Loan Documents are true and correct on and as of the Increase
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section 2.12,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
(B) no Default exists and (C) the Borrowers are in pro forma covenant
compliance with each of the financial covenants set forth in Section 7.10
accompanied by reasonably detailed calculations to evidence such compliance in
form and substance substantially similar to the calculations contemplated by
the Compliance Certificate.  The
Borrowers shall prepay any Committed Loans outstanding on the Increase Effective
Date (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the outstanding Committed Loans ratable with
any revised Applicable Percentages arising from any nonratable increase in the
Commitments under this Section.


 


(e)           Conflicting Provisions.  This Section shall supersede any
provisions in Section 2.11 or 10.01 to the contrary.


 


2.13              Concerning Joint and Several
Liability of the Borrowers.


 


(a)           Each of the Borrowers is accepting
joint and several liability hereunder in consideration of the financial
accommodation to be provided by the Lenders under this Agreement and the other
Loan Documents, for the mutual benefit, directly and indirectly, of each of the
Borrowers and in consideration of the undertakings of each of the Borrowers to
accept joint and several liability for the obligations of each of them.


 


(b)           Each Borrower shall be jointly and
severally liable for all Obligations owing under this Agreement and the other
Loan Documents, regardless of which Borrower actually receives Loans hereunder
or the amount of such Loans received or the manner in which the Lenders account
for such Loans on their respective books and records.  Each Borrower’s direct Obligations (including
with respect to Loans made to it) and each Borrower’s Obligations arising as a
result of the joint and several liability of such Borrower hereunder (including
with respect to Loans made to the other Borrower hereunder), shall be separate
and distinct obligations, but all such Obligations shall be primary obligations
of each Borrower.


 


(c)           Each Borrower’s Obligations arising
as a result of the joint and several liability of such Borrower hereunder with
respect to Loans made to or Obligations owing by the other Borrower hereunder
shall, to the fullest extent permitted by law, be unconditional irrespective of
the validity or enforceability, avoidance or subordination of the Obligations
of the other Borrower or of any promissory note or other document evidencing
all or any part of the Obligations of the other Borrower, (ii) the absence
of any attempt to collect the Obligations from the other Borrower, any
Guarantor, any other guarantor, or any other security therefor, or the absence
of any other action to enforce the same, (iii) the waiver, consent, extension,
forbearance or granting of any indulgence by the Administrative Agent or the
Lenders, or any of them, with respect to any provision of any instrument
evidencing the Obligations of the other Borrower, or any part thereof, or any
other agreement now or hereafter executed by the other Borrower and delivered
to the Administrative Agent or the Lenders, (iv) the failure by the
Administrative 


 


28

















 


Agent or the Lenders to
take any steps to perfect and maintain their security interest in, or to
preserve its rights to, any security or collateral for the Obligations of the
other Borrower, (v) the Administrative Agent’s or any Lender’s election,
in any proceeding instituted under the Bankruptcy Code of the United States, of
the application of Section 1111(b)(2) of the Bankruptcy Code of the
United States, (vi) any borrowing or grant of a security interest by the
other Borrower, as Debtor In Possession under Section 364 of the
Bankruptcy Code of the United States, (vii) the disallowance of all or any
portion of the Administrative Agent’s or any Lender’s claim(s) for the
repayment of the Obligations of the other Borrower under Section 502 of
the Bankruptcy Code of the United States, or (viii) any other circumstances
which might constitute a legal or equitable discharge or defense of a
Guarantor, any other guarantor or of the other Borrower.  With respect to each Borrower’s Obligations
arising as a result of the joint and several liability of such Borrower
hereunder with respect to Loans made to or Obligations owing by the other
Borrower hereunder, such Borrower waives, until the Obligations shall have been
paid in full and this Agreement and the other Loan Documents shall have been
terminated, any right to enforce any right of subrogation or any remedy which
the Administrative Agent or any Lender now has or may hereafter have against
such Borrower, any endorser or any Guarantor or any other guarantor of all or
any part of the Obligations, and any benefit of, and any right to participate
in, any security or collateral given to the Administrative Agent or any Lender
to secure payment of the Obligations or any other liability of the Borrowers to
the Administrative Agent or the Lenders.


 


(d)           Without limitation of any other
provision of any Loan Document, upon the occurrence and during the continuation
of any Event of Default, the Lenders may proceed directly and at once, without
notice, against any Borrower to collect and recover the full amount, or any
portion of the Obligations, without first proceeding against the other
Borrower, any Guarantor or any other Person, or against any security or
collateral for the Obligations.  Each
Borrower consents and agrees that the Lenders shall be under no obligation to
marshal any assets in favor of any Borrower, any Guarantor or any other Person,
or against or in payment of any or all of the Obligations.


 


(e)           Notwithstanding any provision to the
contrary contained herein or in any other of the Loan Documents, the
obligations of each Borrower hereunder shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance under Section 548 of the Bankruptcy Code of the
United States or any comparable provisions of any applicable Debtor Relief Law.


 


2.14              The Borrowing Agent.


 


(a)           Prior to the consummation of the
Demutualization, (i) the Loans shall be available solely to the Initial
Borrower, (ii) with respect to all financial statements, covenants, Change
of Control and a Responsible Officer, all references to the “applicable
Borrower” shall mean the Initial Borrower and (iii) Holdings hereby
appoints the Initial Borrower to act as its agent for all purposes under this
Agreement (including, without limitation, with respect to all matters related
to the borrowing and repayment of Loans) and agrees that (A) the Initial
Borrower may execute such documents on behalf of Holdings as the Initial
Borrower deems appropriate in its sole discretion and Holdings shall be
obligated by all of the terms of any such document executed on its behalf, (B) any
notice or communication delivered by the Administrative Agent or Lender to 


 


29

















 


the Initial Borrower
shall be deemed delivered to Holdings and (C) the Administrative Agent and
the Lenders may accept, and be permitted to rely on, any document, instrument
or agreement executed by the Initial Borrower on behalf of Holdings.


 


(b)           Upon and after the consummation of
the Demutualization, (i) the Loans shall be available to the Initial
Borrower and Holdings, (ii) with respect to all financial statements,
covenants, Change of Control and a Responsible Officer, all references to the “applicable
Borrower” shall mean Holdings and (iii) the Initial Borrower hereby
appoints Holdings to act as its agent for all purposes under this Agreement
(including, without limitation, with respect to all matters related to the
borrowing and repayment of Loans) and agrees that (A) Holdings may execute
such documents on behalf of the Initial Borrower as Holdings deems appropriate
in its sole discretion and the Initial Borrower shall be obligated by all of
the terms of any such document executed on its behalf, (B) any notice or
communication delivered by the Administrative Agent or any Lender to Holdings
shall be deemed delivered to the Initial Borrower and (C) the
Administrative Agent and the Lenders may accept, and be permitted to rely on,
any document, instrument or agreement executed by Holdings on behalf of the
Initial Borrower.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01              Taxes.


 


(a)           Payments Free of Taxes; Obligation
to Withhold; Payments on Account of Taxes. 
(i) Any and all payments by or on account of any obligation of the
Borrowers hereunder or under any other Loan Document shall to the extent
permitted by applicable Laws be made free and clear of and without reduction or
withholding for any Taxes.  If, however,
applicable Laws require either Borrower or the Administrative Agent to withhold
or deduct any Tax, such Tax shall be withheld or deducted in accordance with
such Laws as determined by the Borrowers or the Administrative Agent, as the
case may be, upon the basis of the information and documentation to be
delivered pursuant to subsection (e) below.


 


(ii)           If
either Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup
withholding and withholding taxes, from any payment, then (A) the
Administrative Agent shall withhold or make such deductions as are determined
by the Administrative Agent to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to
the relevant Governmental Authority in accordance with the Code, and (C) to
the extent that the withholding or deduction is made on account of Indemnified
Taxes or Other Taxes, the sum payable by the Borrowers shall be increased as
necessary so that after any required withholding or the making of all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent or Lender receives an amount equal to
the sum it would have received had no such withholding or deduction been made.


 


30

















 


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


 


(c)           Tax Indemnifications.  (i)  Without limiting the provisions of
subsection (a) or (b) above, the Borrowers shall, and each Borrower
does hereby, indemnify the Administrative Agent and each Lender, and shall make
payment in respect thereof within 10 Business Days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) withheld or deducted by either Borrower or the
Administrative Agent or paid by the Administrative Agent or such Lender 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; provided
that such indemnity shall not, as to the demanding Lender or Administrative
Agent, be available to the extent that such liabilities are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Lender or
Administrative Agent.  The Borrowers
shall also, and each Borrower does hereby, indemnify the Administrative Agent,
and shall make payment in respect thereof within 10 Business Days after demand
therefor, for any amount which a Lender for any reason fails to pay
indefeasibly to the Administrative Agent as required by clause (ii) of
this subsection; provided that such payment shall not prejudice the Borrowers’
rights against such Lender.  A
certificate as to the amount of any such payment or liability, with a
reasonably detailed calculation thereof, delivered to the Borrowers by a Lender
(with a copy to the Administrative Agent), or by the Administrative Agent on
its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.


 


(ii)           Without
limiting the provisions of subsection (a) or (b) above, each Lender
shall, and does hereby, indemnify the Borrowers and the Administrative Agent,
and shall make payment in respect thereof within 10 Business Days after demand
therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including Attorney Costs for the
Borrowers or the Administrative Agent) incurred by or asserted against the
Borrowers or the Administrative Agent by any Governmental Authority as a result
of the failure by such Lender to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such
Lender to the Borrowers or the Administrative Agent pursuant to subsection
(e).  Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing
to such Lender under this Agreement or any other Loan Document against any
amount due to the Administrative Agent under this clause (ii) and such
amounts shall be deemed to have been paid by the Borrowers or the
Administrative Agent, as applicable.  The
agreements in this clause (ii) shall survive the resignation and/or
replacement of the Administrative Agent, any assignment of rights by, or the
replacement of, a Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all other Obligations.


 


(d)           Evidence of Payments.  Upon request by the Borrowers or the
Administrative Agent, as the case may be, after any payment of Taxes by the
Borrowers or by the 


 


31

















 


Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the
Borrowers shall deliver to the Administrative Agent or the Administrative Agent
shall deliver to the Borrowers, as the case may be, the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other
evidence of such payment reasonably satisfactory to the Borrowers or the Administrative
Agent, as the case may be.


 


(e)           Status of Lenders; Tax
Documentation.  (i) Each Lender
shall deliver to the Borrowers and to the Administrative Agent, on or prior to
the Closing Date and otherwise at the time or times prescribed by applicable
Laws or when reasonably requested by the Borrowers or the Administrative Agent,
such properly completed and executed documentation prescribed by applicable
Laws or by the taxing authorities of any jurisdiction and such other reasonably
requested information as will permit the Borrowers or the Administrative Agent,
as the case may be, to determine (A) whether or not payments made
hereunder or under any other Loan Document are subject to Taxes, (B) if
applicable, the required rate of withholding or deduction, and (C) such
Lender’s entitlement to any available exemption from, or reduction of,
applicable Taxes in respect of all payments to be made to such Lender by the
Borrowers pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in the applicable jurisdiction.


 


(ii)           Without
limiting the generality of the foregoing, if either Borrower is resident for
tax purposes in the United States,


 


(A)          any
Lender that is a “United States person” within the meaning of Section 7701(a)(30)
of the Code shall deliver to the Borrowers and the Administrative Agent
executed originals of Internal Revenue Service Form W-9 or such other
documentation or information prescribed by applicable Laws or reasonably
requested by the Borrowers or the Administrative Agent as will enable the
Borrowers or the Administrative Agent, as the case may be, to determine whether
or not such Lender is subject to backup withholding or information reporting
requirements; and


 


(B)           each
Foreign Lender that is entitled under the Code or any applicable treaty to an
exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrowers and
the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the request
of the Borrowers or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is applicable:


 


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


 


(II)           executed
originals of Internal Revenue Service Form W-8ECI,


 


32

















 


(III)         executed
originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation,


 


(IV)         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 to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of a Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) executed originals of Internal
Revenue Service Form W-8BEN, or


 


(V)           executed
originals of any other form prescribed by applicable Laws as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
together with such supplementary documentation as may be prescribed by
applicable Laws to permit the Borrowers or the Administrative Agent to
determine the withholding or deduction required to be made.


 


(iii)          Each
Lender shall promptly (A) notify the Borrowers and the Administrative
Agent of any change in circumstances which would modify or render invalid any
claimed exemption or reduction, and (B) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws of any jurisdiction that
the Borrowers or the Administrative Agent make any withholding or deduction for
taxes from amounts payable to such Lender.


 


(f)            Treatment of Certain Refunds.  Unless required by applicable Laws, at no
time shall the Administrative Agent have any obligation to file for or
otherwise pursue on behalf of a Lender, or have any obligation to pay to any
Lender, any refund of Taxes withheld or deducted from funds paid for the
account of such Lender.  If the
Administrative Agent or any Lender determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by either Borrower or with respect to which either Borrower has
paid additional amounts pursuant to this Section, it shall pay to such Borrower
an amount equal to such refund (but only to the extent of indemnity payments
made, or additional amounts paid, by such Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent or such Lender, as
the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided
that the Borrowers, upon the request of the Administrative Agent, or such
Lender, agree to repay the amount paid over to either Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such Governmental
Authority.  This subsection shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrowers or any other Person.


 


33

















 


3.02              Illegality.   If any Lender
determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine
or charge interest rates based upon the Eurodollar Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the London interbank
market, then, on notice thereof by such Lender to the Borrowers through the
Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
or, if such notice relates to the unlawfulness or asserted unlawfulness of
charging interest based on the Eurodollar Rate, to make Base Rate Loans as to
which the interest rate is determined with reference to the Eurodollar Base
Rate shall be suspended until such Lender notifies the Administrative Agent and
the Borrowers that the circumstances giving rise to such determination no
longer exist (which such Lender agrees to do as promptly as practicable
thereupon).  Upon receipt of such notice,
the Borrowers shall, upon demand from such Lender (with a copy to the
Administrative Agent), either (at the option of the Borrowers) prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender and Base Rate Loans as to
which the interest rate is determined with reference to the Eurodollar Base
Rate to Base Rate Loans as to which the rate of interest is not determined with
reference to the Eurodollar Base Rate, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans or a Base Rate Loan as
to which the interest rate is determined with reference to the Eurodollar Base
Rate.  Notwithstanding the foregoing and
despite the illegality for such a Lender to make, maintain or fund Eurodollar
Rate Loans or Base Rate Loans as to which the interest rate is determined with
reference to the Eurodollar Base Rate, that Lender shall remain committed to
make Base Rate Loans as to which the rate of interest is not determined with
reference to the Eurodollar Base Rate and shall be entitled to recover interest
at such Base Rate.  Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.


 


3.03              Inability to Determine Rates. 
If the Required Lenders determine that for any reason in connection with
any request for a Eurodollar Rate Loan or a Base Rate Loan as to which the
interest rate is determined with reference to the Eurodollar Base Rate or a
conversion to or continuation thereof that (a) Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the
applicable amount and Interest Period of such Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan or in
connection with a Base Rate Loan, or (c) the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan or in
connection with a Base Rate Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Borrowers and each Lender.  Thereafter, the obligation of the Lenders to
make or maintain Eurodollar Rate Loans and Base Rate Loans as to which the
interest rate is determined with reference to the Eurodollar Base Rate shall be
suspended until the Administrative Agent (upon the instruction of the Required
Lenders, which shall be given as promptly as practicable upon the relevant
circumstances ceasing to exist) revokes such notice (which shall be revoked as
promptly as practicable upon the instruction of the Required Lenders) and
during such period Base Rate Loans shall be made and continued based on the
interest rate determined by the greater of clauses (a) and (b) in the
definition of Base Rate.  Upon receipt of



 


34

















 


such notice, the Borrower
may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.


 


3.04              Increased Costs.


 


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


 


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


 


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


 


(iii)          impose
on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;


 


and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Rate Loan (or of maintaining its obligation to make any such
Loan), or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender, the Borrowers will pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.


 


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


 


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


 


35














 


(d)           Delay in Requests.  Each Lender shall notify the Borrowers of any
event entitling such Lender to compensation under subsection (a) or (b) of
this Section as promptly as practicable, but failure or delay on the part
of any Lender to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender’s right to
demand such compensation, provided that the Borrowers shall not be
required to compensate a Lender pursuant to the foregoing provisions of this Section for
any increased costs incurred or reductions suffered more than six months prior
to the date that such Lender notifies the Borrowers of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s intention to
claim compensation therefor (except that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof).


 


3.05              Compensation for Losses. 
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, which demand shall provide a reasonably detailed calculation of
the amount requested pursuant to this Section, the Borrowers shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:


 


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


 


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


 


(c)           any assignment of a Eurodollar Rate
Loan on a day other than the last day of the Interest Period therefor as a
result of a request by the Borrowers pursuant to Section 10.13;


 


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


 


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


 


3.06              Mitigation Obligations;
Replacement of Lenders.


 


(a)           Designation of a Different Lending
Office.  If any Lender requests
compensation under Section 3.04, or the Borrowers are required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, or if any Lender
gives a notice pursuant to Section 3.02, then such Lender shall use
reasonable efforts to designate a different Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the 


 


36

















 


judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.01 or 3.04, as the case may
be, in the future, or eliminate the need for the notice pursuant to Section 3.02,
as applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender.  The Borrowers hereby agree to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.


 


(b)           Replacement of Lenders.  If any Lender requests compensation under Section 3.04,
or if the Borrowers are required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice and requires prepayment or conversion of Loans
pursuant to Section 3.02, the Borrowers may replace such Lender in
accordance with Section 10.13.


 


3.07              Survival. 
All of the Borrowers’ obligations under this Article III
shall survive termination of the Aggregate Commitments, repayment of all other
Obligations hereunder, and resignation of the Administrative Agent.


 


ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01              Conditions to Closing.  The closing of this credit facility is subject to
satisfaction of the following conditions precedent:


 


(a)           The Administrative Agent’s receipt of
the following, each of which shall be originals or telecopies (followed
promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or,
in the case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance reasonably satisfactory to the
Administrative Agent and each of the Lenders:


 


(i)            executed
counterparts of this Agreement and the Guaranty;


 


(ii)           a
Note executed by the Borrowers in favor of each Lender requesting a Note;


 


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


 


(iv)          such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Loan Party is duly organized or formed, and that each
Loan Party is validly existing, in good standing and qualified to engage in
business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;


 


37

















 


(v)           favorable
opinions of internal counsel to certain of the Loan Parties, and of Schiff
Hardin LLP, counsel to the Loan Parties, in each case addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit F
and such other matters concerning the Loan Parties and the Loan Documents as
the Required Lenders may reasonably request;


 


(vi)          a
copy of the Settlement Agreement, along with all amendments and modifications
thereto, with only such changes from the Settlement Agreement, as amended
through November 11, 2008, as are not materially adverse to the interests
of the Lenders;


 


(vii)         a
certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the
execution, delivery and performance by such Loan Party and the validity against
such Loan Party of the Loan Documents to which it is a party, and such
consents, licenses and approvals shall be in full force and effect, or (B) stating
that no such consents, licenses or approvals are so required;


 


(viii)        a
certificate signed by a Responsible Officer of the Initial Borrower certifying (A) that
there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect and (B) a
calculation of the Consolidated Leverage Ratio as of the last day of the fiscal
quarter of the Initial Borrower’s most recently ended prior to the Closing
Date;


 


(ix)           such
other assurances, certificates, documents, consents or opinions as the
Administrative Agent or the Required Lenders reasonably may require.


 


(b)           Any fees required to be paid on or
before the Closing Date shall have been paid.


 


(c)           Unless waived by the Administrative
Agent, the Borrowers shall have paid all reasonable and documented Attorney
Costs (directly to such counsel if requested by the Administrative Agent) of
the Administrative Agent to the extent invoiced at least two Business Days
prior to the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute its reasonable estimate of such Attorney Costs incurred by it
through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts among the Borrowers and the
Administrative Agent).


 


Without limiting the
generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


38

















 


4.02              Settlement Condition to Initial
Credit Extensions.  The obligation of each Lender to make its
initial Credit Extension hereunder is subject to the prior or simultaneous satisfaction
of the conditions in Sections 4.01 and 4.03 and the following
conditions precedent:


 


(a)           The Administrative Agent’s receipt of
evidence of (i) the final, non-appealable settlement of the Exercise
Rights Litigation in a manner substantially consistent with the Settlement
Agreement delivered to the Administrative Agent pursuant to Section 4.01(a)(vi),
with only such changes as are not materially adverse to the interests of the
Lenders, and (ii) arrangements reasonably satisfactory to the Administrative
Agent for the payment in full of the Settlement Amount (if not then already
paid) substantially concurrent with (but in no event more than two Business
Days after) such initial Credit Extension.


 


(b)           a certificate signed by a Responsible
Officer of the applicable Borrower certifying that the conditions specified in Sections
4.03(a) and (b) have been satisfied.


 


4.03              Conditions to all Credit
Extensions.  The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting
only a conversion of Committed Loans to the other Type, or a continuation of
Eurodollar Rate Loans), including the initial Credit Extension, is subject to
the following conditions precedent:


 


(a)           The representations and warranties of
the Borrowers contained in Article V or any other Loan Document,
shall be true and correct on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of
such earlier date, and except that for purposes of this Section 4.03,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.


 


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


 


(c)           The Administrative Agent shall have
received a Request for Credit Extension in accordance with the requirements
hereof.


 


Each Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of
Committed Loans to the other Type or a continuation of Eurodollar Rate Loans)
submitted by a Borrower shall be deemed to be a representation and warranty
that the conditions specified in Sections 4.03(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


The Borrowers represent and
warrant to the Administrative Agent and the Lenders that:


 


5.01              Existence, Qualification and
Power.  Each Loan Party and each Subsidiary thereof (a) is
duly organized or formed, validly existing and, as applicable, in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power 


 


39

















 


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


 


5.02              Authorization; No
Contravention.  The execution, delivery and performance
by each Loan Party of each Loan Document to which such Person is party have
been duly authorized by all necessary corporate or other organizational action,
and do not and will not (a) contravene the terms of any of such Person’s
Organization Documents, (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a
party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject or (c) violate any Law.


 


5.03              Governmental Authorization; Other
Consents.  No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document, except
such as have been duly obtained.


 


5.04              Binding Effect.  This Agreement has been, and each other Loan Document,
when delivered hereunder, will have been, duly executed and delivered by each
Loan Party that is party thereto.  This
Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against each Loan Party that is party thereto in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting the enforcement of
creditors’ rights generally and by general equitable principles.


 


5.05              Financial Statements; No Material
Adverse Effect.


 


(a)           The Audited Financial Statements (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, (ii) fairly
present the financial condition of the applicable Borrower and its Subsidiaries
as of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein and (iii) show
all material indebtedness and other liabilities, direct or contingent, of such
Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


 


(b)           The unaudited consolidated financial
statements of the applicable Borrower and its Subsidiaries dated September 30,
2008, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, 


 


40

















 


except as otherwise
expressly noted therein, and (ii) fairly present the financial condition
of such Borrower and its Subsidiaries as of the date thereof and their results
of operations for the period covered thereby, subject, in the case of clauses (i) and
(ii), to the absence of footnotes and to normal year-end audit adjustments.


 


(c)           Since the date of the Audited
Financial Statements, there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.


 


5.06              Litigation. 
There are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of the Borrowers, threatened, at law, in equity, in
arbitration or before any Governmental Authority, by or against a Borrower or
any of its Subsidiaries or against any of their properties or revenues that (a) purport
to affect or pertain to this Agreement or any other Loan Document, or any of
the transactions contemplated hereby, or (b) except as specifically
disclosed in Schedule 5.06, either individually or in the aggregate, if
determined adversely, could reasonably be expected to have a Material Adverse
Effect.


 


5.07              No Default. 
Neither any Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that could, either individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.  No Default has occurred and is
continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.


 


5.08              Ownership of Property; Liens. 
Each of the Borrowers and their Subsidiaries has good record and
marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business, except for
such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  The property of the Borrowers and their
Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.


 


5.09              Environmental Compliance. 
The Borrowers and their Subsidiaries conduct in the ordinary course of
business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties,
and as a result thereof the Borrowers have reasonably concluded that such
Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


5.10              Insurance. 
The properties of the Borrowers and their Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrowers, in such amounts (after giving effect to any self-insurance
compatible with the following standards), with such deductibles and covering
such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrowers or
such Subsidiaries operate.


 


5.11              Taxes. 
The Borrowers and their Subsidiaries have filed all Federal, state and
other material tax returns and reports required to be filed, and have paid all
Federal, state and other material taxes, assessments, fees and other governmental
charges levied or imposed upon 


 


41

















 


them or their properties,
income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against a
Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.  Neither any Loan Party nor any Subsidiary
thereof is party to any tax sharing agreement.


 


5.12              ERISA Compliance.


 


(a)           Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
Federal or state Laws.  Each Plan that is
intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrowers, nothing has occurred which would prevent, or cause
the loss of, such qualification.  The
Borrower and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412
of the Code has been made with respect to any Plan.


 


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


 


(c)           (i) No ERISA Event has occurred
or is reasonably expected to occur, (ii) no Pension Plan has any Unfunded
Pension Liability, (iii) neither Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA
with respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA), (iv) neither Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan and (v) neither Borrower nor any
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069
or 4212(c) of ERISA.


 


5.13              Subsidiaries; Equity
Interests.  The Borrowers have no Subsidiaries other
than those specifically disclosed in Part (a) of Schedule 5.13,
and the Borrowers have no equity investments in any other corporation or entity
other than those specifically disclosed in Part (b) of Schedule
5.13.


 


5.14              Margin Regulations; Investment
Company Act.


 


(a)           Neither Borrower is engaged nor will
engage, principally or as one of its important activities, in the business of
purchasing or carrying margin stock (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.


 


42

















 


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


 


5.15              Disclosure. 
Each Borrower has disclosed to the Administrative Agent and the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  No written
report, financial statement, certificate or other information furnished by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder or under any other Loan Document (in each
case, as modified or supplemented by other information so furnished) contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that, with respect to projected
financial information or other forecasts, the Borrowers represent only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.


 


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


 


5.17              Taxpayer Identification
Number.  Each Loan Party’s true and correct U.S. taxpayer
identification number is set forth on Schedule 5.13.


 


5.18              Intellectual Property; Licenses,
Etc.  The Borrowers and their Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person.  To
the best knowledge of the Borrowers, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by a Borrower or any Subsidiary infringes upon any
rights held by any other Person.  Except
as specifically disclosed in Schedule 5.18, no claim or litigation
regarding any of the foregoing matters set forth in the preceding two sentences
is pending or, to the best knowledge of a Borrower, threatened, which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long as any Lender shall
have any Commitment hereunder or any Loan or other Obligation hereunder shall
remain unpaid or unsatisfied, the applicable Borrower shall (except in the case
of the covenants set forth in Sections 6.01, 6.02, and 6.03)
cause each Subsidiary to:


 


43

















 


6.01              Financial Statements. 
Deliver to the Administrative Agent and each Lender, in form and detail
reasonably satisfactory to the Administrative Agent and the Required Lenders:


 


(a)           as soon as available, but in any
event within 90 days after the end of each fiscal year of the applicable
Borrower (commencing with the fiscal year ended December 31, 2008), a
consolidated balance sheet of the applicable Borrower and its Subsidiaries as
at the end of such fiscal year, and the related consolidated statements of
income or operations, changes in shareholders’ equity, and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing, which report and
opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like qualification
or exception or any qualification or exception as to the scope of such audit;
and


 


(b)           as soon as available, but in any
event within 45 days after the end of each of the first three fiscal quarters
of each fiscal year of the applicable Borrower (commencing with the fiscal
quarter ending March 31, 2009) a consolidated balance sheet of such
Borrower and its Subsidiaries as at the end of such fiscal quarter, the related
consolidated statements of income or operations for such fiscal quarter and for
the portion of such Borrower’s fiscal year then ended, and the related
consolidated statements of changes in shareholders’ equity, and cash flows for
the portion of such Borrower’s fiscal year then ended, in each case setting
forth in comparative form, as applicable, the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, certified by the chief
executive officer, chief financial officer, treasurer or controller of such
Borrower as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of such Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes


 


As to any information
contained in materials furnished pursuant to Section 6.02(d), the
Borrowers shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation
of the obligation of the Borrowers to furnish the information and materials
described in clauses (a) and (b) above at the times specified therein.


 


6.02              Certificates; Other Information. 
Deliver to the Administrative Agent and each Lender, in form and detail
reasonably satisfactory to the Administrative Agent and the Required Lenders:


 


(a)           concurrently with the delivery of the
financial statements referred to in Section 6.01(a), a certificate
of its independent certified public accountants certifying such financial
statements and stating that in making the examination necessary therefor no
actual knowledge was obtained of any Default insofar as such Default relates to
financial and accounting matters or, if any such Default shall exist, stating
the nature and status of such event, it being understood that such examination
was not being directed primarily toward obtaining knowledge of noncompliance with
any provisions hereunder;


 


44

















 


(b)           concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and (b) (commencing
with the delivery of the financial statements for the fiscal quarter ending December 31,
2008), a duly completed Compliance Certificate signed by a Responsible Officer
of the applicable Borrower;


 


(c)           promptly after any request by the
Administrative Agent or any Lender, copies of any detailed audit reports, management
letters or recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the applicable Borrower by independent
accountants in connection with the accounts or books of such Borrower or any
Subsidiary, or any audit of any of them;


 


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


 


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


 


Documents required to be
delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to
the extent any such documents are included in materials otherwise filed with
the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which a Borrower posts such
documents, or provides a link thereto on a Borrower’s website on the Internet
at the website address listed on Schedule 10.02, or (ii) on which
such documents are posted on either Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i) the Borrowers shall
deliver paper copies of such documents to the Administrative Agent or any
Lender that requests the Borrowers to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent
or such Lender and (ii) the Borrowers shall notify the Administrative
Agent and each Lender (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, in
every instance the Borrowers shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(b) to the
Administrative Agent.  Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Borrowers with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.


 


The Borrowers hereby
acknowledge that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders materials and/or information provided by or on


 


45














 


behalf
of the Borrowers hereunder (collectively, “Borrower Materials”) by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain of the Lenders (each, a “Public
Lender”) may have personnel who do not wish to receive material non-public
information with respect to a Borrower or its Affiliates, or the respective
securities of any of the foregoing, and who may be engaged in investment and
other market-related activities with respect to such Persons’ securities.  The Borrowers hereby agree that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof, (x) by
marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have
authorized the Administrative Agent, the Arranger and the Lenders to treat such
Borrower Materials as not containing any material non-public information with
respect to a Borrower or its securities for purposes of United States Federal
and state securities laws (provided, however, that to the extent
such Borrower Materials constitute Information, they shall be treated as set
forth in Section 10.07), (y) all Borrower Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated
“Public Side Information” and (z) the Administrative Agent and the
Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform that is not
designated “Public Side Information.” 
Notwithstanding the foregoing, the Borrowers shall be under no
obligation to mark any Borrower Materials “PUBLIC.”


 


6.03              Notices. 
Promptly notify the Administrative Agent and each Lender:


 


(a)           of the occurrence of any Default;


 


(b)           of any matter that has resulted or
could reasonably be expected to result in a Material Adverse Effect, including (i) breach
or non-performance of, or any default under, a Contractual Obligation of a
Borrower or any Subsidiary, (ii) any dispute, litigation, investigation,
proceeding or suspension between a Borrower or any Subsidiary and any
Governmental Authority, or (iii) the commencement of, or any material
development in, any material litigation or proceeding affecting a Borrower or
any Subsidiary, including pursuant to any applicable Environmental Laws;


 


(c)           of the occurrence of any ERISA Event;
and


 


(d)           of any material change in accounting
policies or financial reporting practices by a Borrower or any Subsidiary.


 


Each notice pursuant to this
Section 6.03 shall be accompanied by a statement of a Responsible
Officer of the Borrowers setting forth details of the occurrence referred to
therein and stating what action the Borrowers have taken and propose to take
with respect thereto.  Each notice
pursuant to Section 6.03(a) shall describe with particularity
any and all provisions of this Agreement and any other Loan Document that have
been breached.


 


6.04              Payment of Obligations. 
Pay and discharge, as the same shall become due and payable, all its
obligations and liabilities, including (a) all tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being 


 


46

















 


contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the appropriate Borrower or such
Subsidiary, (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property, except in the case of Liens permitted by Section 8.01
and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.


 


6.05              Preservation of Existence, Etc. 
Except to the extent occurring as a direct result of the
Demutualization, (a) preserve, renew and maintain in full force and effect
its legal existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05,
(b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.


 


6.06              Maintenance of Properties.  (a) Maintain,
preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary
wear and tear excepted, (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect and (c) use the
standard of care typical in the industry in the operation and maintenance of
its facilities.


 


6.07              Maintenance of Insurance. 
Maintain with financially sound and reputable insurance companies not
Affiliates of either Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts (after giving effect to any self-insurance compatible with the
following standards) as are customarily carried under similar circumstances by
such other Persons.


 


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


 


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


 


6.10              Inspection Rights. 
Permit representatives and independent contractors of the Administrative
Agent and each Lender, at such Persons’ cost and expense and to the extent 


 


47

















 


reasonably related to the
Loans or the administration or enforcement thereof, to visit and inspect any of
its properties, to examine its corporate, financial and operating records, and
make copies thereof or abstracts therefrom (provided that such
representatives and independent contractors shall not be permitted to examine
any such records if either Borrower or any Subsidiary is prohibited by
applicable Laws from disclosing information contained in such records), and to
discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrowers; provided, however, that when an
Event of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrowers at any time during normal business
hours and without advance notice.


 


6.11              Use of Proceeds.  Use the proceeds of the Credit Extensions (a) for
general corporate purposes not in contravention of any Law or of any Loan
Document, (b) to fund a portion of the Settlement Amount and/or (c) to
pay dividends to Holdings’ shareholders in connection with the Demutualization.


 


6.12              Additional Guarantors. 
Notify the Administrative Agent at the time that any Person (other than
the Initial Borrower) becomes a wholly-owned Domestic Subsidiary, and promptly
thereafter (and in any event within 30 days), cause such Person to (a) become
a Guarantor by executing and delivering to the Administrative Agent a
counterpart of or joinder to the Guaranty or such other document as the
Administrative Agent shall reasonably deem appropriate for such purpose and (b) deliver
to the Administrative Agent documents of the types referred to in clauses (iii) and
(iv) of Section 4.01(a) and, when requested by the
Administrative Agent in its reasonable discretion, favorable opinions of counsel
to such Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to in clause
(a)), all in form, content and scope reasonably satisfactory to the
Administrative Agent.


 


ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any Lender shall
have any Commitment hereunder or any Loan or other Obligation hereunder shall
remain unpaid or unsatisfied, the applicable Borrower shall not, nor shall it
permit any Subsidiary to, directly or indirectly:


 


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


 


(a)           Liens pursuant to any Loan Document;


 


(b)           Liens existing on the date hereof and
listed on Schedule 7.01 and any renewals or extensions thereof, provided
that (i) the property covered thereby is not changed, (ii) the amount
secured or benefited thereby is not increased except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder and (iii) the direct or
any contingent obligor with respect thereto is not changed;


 


48

















 


(c)           Liens for taxes not yet due or which
are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the books
of the applicable Person in accordance with GAAP;


 


(d)           carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business which are not overdue for a period of more than 30 days or which
are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person;


 


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


 


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


 


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


 


(h)           Liens securing judgments for the
payment of money not constituting an Event of Default under Section 8.01(h) or
securing appeal or other surety bonds related to such judgment;


 


(i)            Liens securing Indebtedness incurred
to finance the acquisition, construction or improvement of any fixed or capital
assets (including any Indebtedness assumed in connection with the acquisition
of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof) and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof; provided
that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness, (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition, (iii) the
Indebtedness secured thereby is incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement and (iv) the
aggregate principal amount of Indebtedness permitted by this clause (i) shall
not exceed $25,000,000 at any time outstanding; and


 


(j)            Liens not otherwise permitted
hereunder securing Indebtedness the amount of which shall not exceed
$25,000,000 in the aggregate at any time outstanding.


 


7.02              Investments. 
Make any Investments, except:


 


(a)           Investments held by a Borrower or a
Subsidiary in the form of cash equivalents or short-term marketable debt
securities in the ordinary course of business pursuant to the Borrowers’ usual
and customary cash management polices and procedures;


 


49

















 


(b)           advances to officers, directors and
employees of the Borrowers and Subsidiaries in an aggregate amount not to
exceed $1,000,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;


 


(c)           Investments (i) of any Loan
Party in any other Loan Party, (ii) of any Restricted Subsidiary in any
other Restricted Subsidiary and (iii) of any Loan Party in any Restricted
Subsidiary in the aggregate not to exceed $25,000,000;


 


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


 


(e)           Guarantees permitted by Section 7.03;
and


 


(f)            other Investments not exceeding
$25,000,000 in the aggregate in any fiscal year of the Borrowers (it being
understood that any amount of an Investment made pursuant to this clause (f) that
is returned to, or recovered by, the investing Person as a return of capital
may be reinvested pursuant to this provision).


 


7.03              Restricted Subsidiary
Indebtedness.  Permit any Restricted Subsidiary to create,
incur, assume or permit to exist any Indebtedness, except:


 


(a)           Indebtedness owing to a Borrower or
any Subsidiary; provided that the Investment related thereto is
permitted by Section 7.02(c);


 


(b)           Guarantees of Indebtedness of any
other Restricted Subsidiary to the extent such Indebtedness is otherwise
permitted by this Section 7.03;


 


(c)           Indebtedness of any Person that
becomes a Restricted Subsidiary after the date hereof; provided that (i) such
Indebtedness exists at the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Subsidiary and (ii) after giving effect thereto, the Borrowers are in pro
forma compliance with the financial covenant set forth in Section 7.10(a);


 


(d)           Indebtedness incurred to finance the
acquisition, construction or improvement of any fixed or capital assets
(including any Indebtedness assumed in connection with the acquisition of any
such assets or secured by a Lien on any such assets prior to the acquisition
thereof) and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof; provided
that (i) such Indebtedness is incurred prior to or within 180 days after
such acquisition or the completion of such construction or improvement and (ii) the
aggregate principal amount of Indebtedness permitted by this clause (d) shall
not exceed $5,000,000 at any time outstanding; and


 


(e)           other Indebtedness in an aggregate
principal amount (for all Restricted Subsidiaries combined, but without
duplication) not exceeding $10,000,000 at any time outstanding.


 


50

















 


7.04              Fundamental Changes. 
Except to the extent occurring as a direct result of the
Demutualization, merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its assets (whether now owned or hereafter
acquired) to or in favor of any Person, except that, so long as no Event of
Default exists or would result therefrom:


 


(a)           any Subsidiary may merge with (i) a
Borrower, provided that such Borrower shall be the continuing or
surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Guarantor is merging with another Subsidiary, a Guarantor shall
be the continuing or surviving Person; and


 


(b)           any Subsidiary may Dispose of all or
substantially all of its assets (upon voluntary liquidation or otherwise) to a
Borrower or to another Subsidiary; provided that if the transferor in
such a transaction is a Guarantor, then the transferee must either be a
Borrower or a Guarantor.


 


7.05              Dispositions. 
Make any Disposition or enter into any agreement to make any
Disposition, except:


 


(a)           Dispositions of obsolete or worn out
property, whether now owned or hereafter acquired, in the ordinary course of
business;


 


(b)           Dispositions of inventory in the
ordinary course of business;


 


(c)           Dispositions of equipment or real
property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase
price of such replacement property;


 


(d)           Dispositions of property by any
Subsidiary to a Borrower or to a wholly-owned Subsidiary; provided that
if the transferor of such property is a Guarantor, the transferee thereof must
either be a Borrower or a Guarantor;


 


(e)           Dispositions permitted by Section 7.04;


 


(f)            Dispositions by a Borrower and its
Subsidiaries not otherwise permitted under this Section 7.05; provided
that (i) at the time of such Disposition, no Default shall exist or would
result from such Disposition and (ii) the aggregate book value of all
property Disposed of in reliance on this clause (f) in any fiscal year
shall not exceed $10,000,000; and


 


provided, however,
that any Disposition pursuant to clauses (a) through (f) shall be for
fair market value (as determined in such Borrower’s or such Subsidiary’s good
faith judgment).


 


7.06              Change in Nature of Business. 
Engage in any material line of business substantially different from
those lines of business conducted by the Borrowers and their Subsidiaries on
the date hereof or any business substantially related or incidental
thereto.  For purposes of this Section 7.06,
the following shall not be considered substantially different from the lines of
business conducted by the Borrowers and their Subsidiaries on the date hereof: (a) acting
as intermediary for the trading of any securities or futures, (b) the
sale, leasing or licensing 


 


51

















 


of software or other
services in connection with financial trading technology, (c) the sale of
market data and (d) the outsourcing of any of the foregoing or any other
line of business of the Borrowers and their Subsidiaries.


 


7.07              Transactions with Affiliates. 
Enter into any transaction of any kind with any Affiliate of a Borrower,
whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to such Borrower or such Subsidiary
as would be obtainable by such Borrower or such Subsidiary at the time in a
comparable arm’s length transaction with a Person other than an Affiliate.


 


7.08              Burdensome Agreements. 
Enter into any Contractual Obligation (other than this Agreement or any
other Loan Document) that (a) limits the ability (i) of any
Subsidiary to make Restricted Payments to any Loan Party or to otherwise
transfer property to any Loan Party, (ii) of any Subsidiary to Guarantee
the Indebtedness of a Borrower or (iii) of a Borrower or any Subsidiary to
create, incur, assume or suffer to exist Liens on property of such Person; provided,
however, that this clause (iii) shall not prohibit any negative
pledge incurred or provided in favor of any holder of Indebtedness secured by a
Lien permitted under Section 7.01(i) solely to the extent any
such negative pledge relates to the property financed by or the subject of such
Indebtedness or (b) requires the grant of a Lien to secure an obligation
of such Person if a Lien is granted to secure another obligation of such
Person.


 


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


 


7.10              Financial Covenants.


 


(a)           Consolidated Leverage Ratio.  Permit the Consolidated Leverage Ratio at any
time during any period of four fiscal quarters of the applicable Borrower to be
greater than 1.50 to 1.00.


 


(b)           Consolidated Interest Coverage
Ratio.  Permit the Consolidated
Interest Coverage Ratio as of the end of any fiscal quarter of the applicable
Borrower to be less than 5.00 to 1.00.


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


8.01              Events of Default. 
Any of the following shall constitute an Event of Default:


 


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


 


52

















 


(b)           Specific Covenants.  Any Loan Party fails to perform or observe
any term, covenant or agreement contained in any of Section 6.03, 6.05,
6.10, 6.11 or 6.12 or Article VII; or


 


(c)           Other Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after the earlier of (i) receipt of notice
of such default by a Responsible Officer of either Borrower from the
Administrative Agent or any Lender and (ii) any Responsible Officer of
either Borrower knows or reasonably should have known of such default; or


 


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


 


(e)           Cross-Default.  (i) Either Borrower or any Subsidiary (A) fails
to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise but subject to any applicable
grace period) in respect of any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to
observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs (in each
case, subject to any applicable grace period), the effect of which default or
other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to be
demanded or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be
demanded or (ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of
default under such Swap Contract as to which either Borrower or any Subsidiary
is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which either
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by such Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or


 


(f)            Insolvency Proceedings, Etc.  Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors, or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property, or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and 


 


53

















 


the appointment continues
undischarged or unstayed for 60 calendar days, or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or


 


(g)           Inability to Pay Debts; Attachment.  (i) Either Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 60 days after its issue or levy; or


 


(h)           Judgments.  There is entered against either Borrower or
any Subsidiary (i) one or more final judgments or orders for the payment
of money in an aggregate amount (as to all such judgments or orders) exceeding
the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 30
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; provided that any
judgment in connection with the settlement of the Exercise Rights Litigation
that satisfies the requirements set forth in Section 4.02(a)(i) shall
not constitute an Event of Default under this clause (h); or


 


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


 


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


 


(k)           Change of Control.  There occurs any Change of Control with
respect to the applicable Borrower; or


 


(l)            Repayment of Settlement Amount.  The Settlement Amount is not paid in full,
substantially in accordance with the arrangements provided in Section 4.02(a)(ii),
within two Business Days after the date of the initial Credit Extension
hereunder.


 


54

















 


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


 


(a)           declare the commitment of each Lender
to make Loans to be terminated, whereupon such commitments and obligation shall
be terminated;


 


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


 


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


 


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


 


8.03              Application of Funds.  After the exercise of remedies provided for in Section 8.02
(or after the Loans have automatically become immediately due and payable as
set forth in the proviso to Section 8.02), any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the
following order:


 


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


 


Second, to payment of
that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal and interest) payable to the Lenders (including
Attorney Costs to the respective Lenders and amounts payable under Article III),
ratably among them in proportion to the respective amounts described in this
clause Second payable to them;


 


Third, to payment of
that portion of the Obligations constituting accrued and unpaid interest on the
Loans and other Obligations, ratably among the Lenders in proportion to the
respective amounts described in this clause Third payable to them;


 


Fourth, to payment of
that portion of the Obligations constituting unpaid principal of the Loans,
ratably among the Lenders in proportion to the respective amounts described in
this clause Fourth held by them; and


 


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


 


55














 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01              Appointment and Authority. 
Each of the Lenders hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders, and no Borrower shall have rights as a third
party beneficiary of any of such provisions.


 


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


 


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


 


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


 


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


 


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


 


The Administrative Agent
shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in Sections 10.01 and 8.02) or (ii) in the absence
of its own gross negligence or willful misconduct.  The Administrative Agent shall be 


 


56

















 


deemed
not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by a Borrower or a Lender.


 


The Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


9.04              Reliance by Administrative Agent. 
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person.  The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. 
In determining compliance with any condition hereunder to the making of
a Loan, that by its terms must be fulfilled to the satisfaction of a Lender,
the Administrative Agent may presume that such condition is satisfactory to
such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrowers), 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.


 


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


 


9.06              Resignation of Administrative
Agent.  The Administrative Agent may at any time give
notice of its resignation to the Lenders and the Borrowers.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
the Borrowers, to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the
United States.  If no such successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf
of the Lenders, appoint a successor Administrative Agent 


 


57

















 


meeting the
qualifications set forth above; provided that if the Administrative
Agent shall notify the Borrowers and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until
such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section.  Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and
the retiring Administrative Agent shall be discharged from all of its duties
and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section).  The fees payable by the Borrowers to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such
successor.  After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 10.04 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while the retiring Administrative Agent was acting
as Administrative Agent.


 


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


 


9.08              No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none
of the Bookrunners, Arrangers or other titles as necessary listed on the cover page hereof,
if any, shall have any powers, duties or responsibilities under this Agreement
or any of the other Loan Documents, except in its capacity, as applicable, as
the Administrative Agent or a Lender.


 


9.09              Administrative Agent May File
Proofs of Claim.  In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of
any Loan shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrowers) shall be entitled and empowered, by intervention
in such proceeding or otherwise


 


(a)           to file and prove a claim for the
whole amount of the principal and interest owing and unpaid in respect of the
Loans and all other Obligations 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 and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their 


 


58

















 


respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 2.07 and 10.04) allowed in such judicial
proceeding; and


 


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


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
2.07 and 10.04.


 


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


 


9.10              Guaranty Matters. 
The Lenders irrevocably authorize the Administrative Agent to release
(and the Administrative Agent shall release) any Guarantor from its obligations
under the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.


 


Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its
obligations under the Guaranty pursuant to this Section 9.10.


 


ARTICLE X.

MISCELLANEOUS


 


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


 


(a)           waive any condition set forth in Section 4.01(a) without
the written consent of each Lender;


 


(b)           extend or increase the Commitment of
any Lender (or reinstate any Commitment terminated pursuant to Section 8.02)
without the written consent of such Lender;


 


59

















 


(c)           postpone any date fixed by this
Agreement or any other Loan Document for any payment (excluding mandatory
prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;


 


(d)           reduce the principal of, or the rate
of interest specified herein on, any Loan or (subject to clause (ii) of
the final proviso to this Section 10.01) any fees or other amounts
payable hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby; provided, however, that
only the consent of the Required Lenders shall be necessary (i) to amend
the definition of “Default Rate” or to waive any obligation of the Borrowers to
pay interest at the Default Rate or (ii) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or to reduce any
fee payable hereunder;


 


(e)           change Section 2.11 or Section 8.03
in a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;


 


(f)            change any provision of this Section or
the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to amend, waive or otherwise
modify any rights hereunder or make any determination or grant any consent
hereunder without the written consent of each Lender; or


 


(g)           release all or substantially all of
the value of the Guaranty without the written consent of each Lender, except to
the extent the release of any Guarantor is permitted pursuant to Section 9.10
(in which case such release may be made by the Administrative Agent acting
alone);


 


and, provided  further,
that no amendment, waiver or consent shall (i) unless signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document and (ii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties
thereto.  Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.


 


10.02            Notices; Effectiveness; Electronic
Communication.


 


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


 


(i)            if
to the Borrowers or the Administrative Agent, to the address, telecopier
number, electronic mail address or telephone number specified for such Person
on Schedule 10.02; and


 


60

















 


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


 


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


 


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


 


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


 


(c)           The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER
MATERIALS.  NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or
any of its Related Parties (collectively, the “Agent Parties”) have any
liability to the either Borrower, any Lender or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of a Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a
court of 


 


61

















 


competent jurisdiction by
a final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to either Borrower,
any Lender or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).


 


(d)           Change of Address, Etc.  Each of the Borrowers and the Administrative
Agent may change its address, telecopier, telephone number or electronic mail
address for notices and other communications hereunder by notice to the other
parties hereto.  Each other Lender may
change its address, telecopier, telephone number or electronic mail address for
notices and other communications hereunder by notice to the Borrowers and the
Administrative Agent.  In addition, each
Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.  Furthermore,
each Public Lender agrees to cause at least one individual at or on behalf of
such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in
order to enable such Public Lender or its delegate, in accordance with such
Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower
Materials that are not made available through the “Public Side Information”
portion of the Platform and that may contain material nonpublic information
with respect to the Borrowers or its securities for purposes of United States
Federal or state securities laws.


 


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


 


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


 


Notwithstanding anything to
the contrary contained herein or in any other Loan Document, the authority to
enforce rights and remedies hereunder and under the other Loan Documents
against the Loan Parties or any of them shall be vested exclusively in, and all
actions 


 


62

















 


and
proceedings at law in connection with such enforcement shall be instituted and
maintained exclusively by, the Administrative Agent in accordance with Section 8.02
for the benefit of all the Lenders; provided, however, that the
foregoing shall not prohibit (a) the Administrative Agent from exercising
on its own behalf the rights and remedies that inure to its benefit (solely in
its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) any Lender from exercising setoff rights in accordance with
Section 10.08 (subject to the terms of Section 2.11),
or (c) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to any
Loan Party under any Debtor Relief Law and; provided, further,
that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall
have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02
and (ii) in addition to the matters set forth in clauses (b), (c) and
(d) of the preceding proviso and subject to Section 2.11, any
Lender may, with the consent of the Required Lenders, enforce any rights and
remedies available to it and as authorized by the Required Lenders.


 


10.04            Expenses; Indemnity; Damage Waiver.


 


(a)           Costs and Expenses.  The Borrowers shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including Attorney Costs for the Administrative Agent), in
connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated) and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or any Lender
(including Attorney Costs for the Administrative Agent or any Lender), in
connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.


 


(b)           Indemnification by the Borrowers.  The Borrowers shall indemnify the
Administrative Agent (and any sub-agent thereof), 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 Attorney Costs for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by any Loan Party or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of
this Agreement and the other Loan Documents (including in respect of any
matters addressed in Section 3.01), (ii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by either Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to either Borrower or any of its Subsidiaries or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by any Loan Party, and regardless of 


 


63

















 


whether any Indemnitee is
a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or result from a
claim brought by any Loan Party against an Indemnitee for breach in bad faith
of such Indemnitee’s obligations hereunder or under any other Loan Document, if
such Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.


 


(c)           Reimbursement by Lenders.  To the extent that the Borrowers for any
reason fail to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by them to the Administrative Agent
(or any sub-agent thereof) or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
subagent) or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as such, or
against any Related Party of any of the foregoing acting for the Administrative
Agent (or any such subagent) in connection with such capacity.  The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.10(d).


 


(d)           Waiver of Consequential Damages,
Etc.  To the fullest extent permitted
by applicable law, no party hereto shall assert, and hereby waives, any claim
against any other party, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the
proceeds thereof.  No Indemnitee referred
to in subsection (b) above shall be liable for any damages arising from
the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than for direct or actual damages
resulting from the gross negligence or willful misconduct of such Indemnitee as
determined by a final and nonappealable judgment of a court of competent
jurisdiction.


 


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


 


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


 


10.05            Payments Set Aside. 
To the extent that any payment by or on behalf of a Borrower is made to
the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required 


 


64

















 


(including pursuant to
any settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to
the extent of such recovery, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred, and


 


(a)           each Lender severally agrees to pay to
the Administrative Agent upon demand its applicable share (without duplication)
of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in
effect.  The obligations of the Lenders
under clause (b) of the preceding sentence shall survive the payment in
full of the Obligations and the termination of this Agreement.


 


10.06            Successors and Assigns.


 


(a)           Successors and Assigns Generally.  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; provided that (i) except
to the extent occurring as a direct result of the Demutualization, no Borrower
may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender
and (ii) no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (A) to an assignee in accordance with the
provisions of subsection (b) of this Section, (B) by way of
participation in accordance with the provisions of subsection (d) of this
Section, or (C) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null
and void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)           Assignments by Lenders.  Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement at the time owing to it); provided that any such assignment
shall be subject to the following conditions:


 


(i)            Minimum
Amounts.


 


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


 


(B)           in
any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with


 


65














 


respect to such assignment is delivered to the Administrative Agent or,
if “Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the
Borrowers otherwise consent (each such consent not to be unreasonably withheld
or delayed); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and
members of its Assignee Group) will be treated as a single assignment for
purposes of determining whether such minimum amount has been met.


 


(ii)           Proportionate
Amounts.  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 with respect to the Loans
or the Commitment assigned;


 


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


 


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


 


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


 


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


 


(v)           No
Assignment to Borrower.  No such
assignment shall be made to either Borrower or any Affiliates or Subsidiaries
of a Borrower.


 


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


 


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


 


66

















 


and obligations under this
Agreement, such Lender shall cease to be a party hereto) but shall continue to
be entitled to the benefits of Sections 3.01, 3.04, 3.05,
and 10.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment.  Upon
request, the Borrowers (at their expense) shall execute and deliver a Note to
the assignee Lender.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.


 


(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrowers, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans 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
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrowers and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.


 


(d)           Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrowers or the Administrative Agent, sell
participations to any Person (other than a natural person or either Borrowers
or any Affiliates or Subsidiaries of a Borrower) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing
to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent, the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.


 


Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.01 that
affects such Participant.  Subject to
subsection (e) of this Section, the Borrowers agree that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender, provided such Participant agrees to be
subject to Section 2.11 as though it were a Lender.


 


(e)           Limitations upon Participant
Rights.  A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrowers’ prior written
consent.  A 


 


67

















 


Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrowers are notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as
though it were a Lender.


 


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


 


10.07            Treatment of Certain Information;
Confidentiality.  Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees,
agents, trustees, advisors and representatives (collectively, the “Representatives”),
it being understood that (i) 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 and (ii) each of the Administrative
Agent and the Lenders shall be responsible for any breach of such
confidentiality by any of its Representatives (but not by any other Person’s
Representatives), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process (in which case the Administrative Agent (if applicable)
or the applicable Lender shall (to the extent permitted by law or regulation)
notify the Borrowers of any such disclosure obligation as promptly as
practicable upon its receipt and shall provide commercially reasonable
cooperation to the Borrowers in their efforts, at their sole expense, in
seeking a protective order or other appropriate relief as they may reasonably
request), (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.12
or (ii) any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to the Borrowers and their obligations,
(g) with the consent of the Borrowers or (h) to the extent such
Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Administrative
Agent, any Lender or any of their respective Affiliates on a nonconfidential
basis from a source other than the Borrowers.


 


For purposes of this
Section, “Information” means all information received from the Borrowers
or any Subsidiary relating to the Borrowers or any Subsidiary or any of their
respective businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to disclosure
by the Borrowers or any Subsidiary.  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 


 


68

















 


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


 


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


 


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


 


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


 


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


 


69

















 


hereof that, when taken
together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


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


 


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


 


10.13            Replacement of Lenders. 
If (i) any Lender requests compensation under Section 3.04,
(ii) the Borrowers are required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01,
(iii) any Lender (a “Non-Consenting Lender”) does not consent to a
proposed amendment, waiver or consent with respect to any Loan Document that
has been approved by the Required Lenders as provided in Section 10.01
but requires consent of such Lender, (iv) any Lender requires prepayment
or conversion pursuant to Section 3.02 or (v) any Lender is a
Defaulting Lender, then the Borrowers may, at their sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 10.06),
all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee identified by the Borrowers that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:


 


(a)           the Borrowers shall have paid to the
Administrative Agent the assignment fee specified in Section 10.06(b);


 


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


 


70

















 


(c)           in the case of any such assignment
resulting from a claim for compensation under Section 3.04,
payments required to be made pursuant to Section 3.01, or
prepayments or conversions pursuant to Section 3.02, such assignment
will result in a reduction in such compensation or payments, or the elimination
of the need to make the demanded prepayments or conversions, thereafter;


 


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


 


(e)           in the case of an assignment of a
Non-Consenting Lender’s, the proposed assignee has agreed to consent to the
proposed amendment, waiver or consent; and


 


(f)            the failure of any Lender being
replaced in accordance with the terms of this Section 10.13 to
execute and deliver an Assignment and Assumption shall not impair the validity
of the removal of such Lender, and the mandatory assignment of such Lender’s
Commitments and outstanding Loans pursuant to this Section 10.13
shall nevertheless be effective without the execution by such Lender of an
Assignment and Assumption.


 


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


 


10.14            Governing Law; Jurisdiction; Etc.


 


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


 


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


 


71

















 


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


 


(d)           SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.


 


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


 


10.16            No Advisory or Fiduciary
Responsibility.  In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document), each of the
Borrowers acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arranger,
are arm’s-length commercial transactions between the Borrowers and their
respective Affiliates, on the one hand, and the Administrative Agent and the
Arranger, on the other hand, (B) each of the Borrowers has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) each Borrower is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents, (ii) (A) the
Administrative Agent and the Arranger each is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary
for either Borrower or any of their respective Affiliates, or any other Person
and (B) neither the Administrative Agent nor the Arranger has any
obligation to either Borrower or any of its respective Affiliates with respect
to the transactions contemplated hereby except those obligations expressly set
forth herein and in 


 


72

















 


the other Loan Documents
and (iii) the Administrative Agent and the Arranger and their respective Affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrowers and their respective Affiliates, and neither
the Administrative Agent nor the Arranger has any obligation to disclose any of
such interests to the Borrowers and their respective Affiliates.  To the fullest extent permitted by law, each
Borrower hereby waives and releases any claims that it may have against the
Administrative Agent and the Arranger with respect to any breach or alleged breach
of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.


 


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


 


10.18            USA PATRIOT Act. 
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of the Borrowers and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers in accordance with the Act.  The Borrowers shall, promptly following a
request by the Administrative Agent or any Lender, provide all documentation
and other information that the Administrative Agent or such Lender requests in
order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the
Act.


 


73

















 


 


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


 


	
  BORROWERS:

  	
  CHICAGO
  BOARD OPTIONS EXCHANGE,

  
	
   

  	
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Edward J. Joyce

  
	
   

  	
  Name:
  

  	
  Edward
  J. Joyce

  
	
   

  	
  Title:
  

  	
  President
  and Chief Operating Officer

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Alan J. Dean

  
	
   

  	
  Name:
  

  	
  Alan
  J. Dean

  
	
   

  	
  Title:
  

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  CBOE
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  William J. Brodsky

  
	
   

  	
  Name:
  

  	
  William
  J. Brodsky

  
	
   

  	
  Title:
  

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Alan J. Dean

  
	
   

  	
  Name:
  

  	
  Alan
  J. Dean

  
	
   

  	
  Title:
  

  	
  Vice
  President and Treasurer

  
				



 


Credit Agreement


Chicago Board Options Exchanges


Signature Pages


 

















 


 


	
  ADMINISTRATIVE
  AGENT:

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Don B. Pinzon

  
	
   

  	
  Name:

  	
  Don
  B. Pinzon

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


Credit Agreement


Chicago Board Options Exchanges


Signature Pages


 














 


	
  LENDERS:

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William J. Coupe

  
	
   

  	
  Name:

  	
  William
  J. Coupe

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
				



 


Credit Agreement


Chicago Board Options Exchanges


Signature Pages


 

















 


	
   

  	
  BANK
  OF MONTREAL, CHICAGO BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Linda C. Haven

  
	
   

  	
  Name:

  	
  Linda
  C. Haven

  
	
   

  	
  Title:

  	
  Managing
  Director

  
				



 


Credit Agreement


Chicago Board Options Exchanges


Signature Pages


 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, NA.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alexeev J. Taboas

  
	
   

  	
  Name:

  	
  Alexeev
  J. Taboas

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


Credit Agreement


Chicago Board Options Exchanges


Signature Pages


 

















 


SCHEDULE 2.01


 


COMMITMENTS

AND APPLICABLE PERCENTAGES


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Applicable

  Percentage

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  40.000000000

  	
  %

  
	
  Bank of Montreal, Chicago Branch

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  30.000000000

  	
  %

  
	
  JPMorgan Chase Bank, N.A.

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  30.000000000

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  150,000,000.00

  	
   

  	
  100.000000000

  	
  %

  



 

















 


SCHEDULE 5.06


 


Litigation


 


The matters identified under
the captions “Litigation with Respect to the Restructuring Transaction,” “Last
Atlantis Litigation,” “Index Options Litigation” and “Patent Litigation”
contained in Note 6 from the Notes to Condensed Consolidated Financial
Statements (“Note 6”) of Chicago Board Options Exchange, Incorporated
and Subsidiaries for the Nine Months Ended September 30, 2008 as filed
with the SEC on November 19, 2008 in Amendment No. 3 to the
Registration Statement on Form S-4 for CBOE Holdings, Inc.
(Registration Statement No. 333-140574) are hereby incorporated by
reference.


 

















 


SCHEDULE 5.13


 


Subsidiaries; Other Equity
Investments


 


Part (a):
Subsidiaries:


 


CBOE
Futures Exchange, LLC


Tax
ID: 32-0044423


 


CBOE,
LLC


Tax
ID: 36-4469218


 


CBOE
II, LLC


Tax
ID: 20-4305905


 


Chicago
Options Exchange Building Corporation


Tax
ID: 36-3139935


 


DerivaTech
Corporation


Tax
ID: 80-0057919


 


Market
Data Express, LLC


Tax
ID: 20-5601036


 


The
Options Exchange, Incorporated


Tax
ID: 26-3884440


 


CBOE
Merger Sub, Inc.


Tax
ID: 26-3884820


 


CBOE
Holdings, Inc. (Subsidiary of Chicago Board Options Exchange, Incorporated
until the Demutualization)


Tax
ID: 20-5446972


 


Chicago
Board Options Exchange, Incorporated (Subsidiary of CBOE Holdings, Inc.
from and after the Demutualization)


Tax
ID: 36-2730838


 


Part (b): Other
Equity Investments


 


One Chicago, LLC: CBOE, LLC
owns a 24.009% membership interest


 


CBOE Stock Exchange, LLC:
Chicago Board Options Exchange, Incorporated owns a 50% membership interest


 

















 


NSX Holdings, Inc.:
Chicago Board Options Exchange, Incorporated owns 14.45% of the common stock
(as of September 30, 2008: 8,424 shares of Class A Voting Stock and
19,656 shares of Class B Non-Voting Stock)


 


National Stock Exchange, Inc.:
Wholly-owned subsidiary of NSX Holdings, Inc.


 


The Options Clearing
Corporation: Chicago Board Options Exchange, Incorporated owns 20% of the
common stock


 

















 


SCHEDULE 5.18


 


Intellectual Property
Matters


 


The matters identified under
the captions “Index Options Litigation” and “Patent Litigation” contained in
Note 6 are hereby incorporated by reference.


 

















 


SCHEDULE 7.01


 


Existing Liens


 


None.


 

















 


SCHEDULE 10.02


 


ADMINISTRATIVE AGENT’S
OFFICE;

CERTAIN ADDRESSES FOR NOTICES


 


CHICAGO BOARD OPTIONS
EXCHANGE, INCORPORATED, and CBOE HOLDINGS, INC.:


 


Chicago
Board Options Exchange, Incorporated


CBOE
Holdings, Inc.


400
South LaSalle Street


Chicago,
Illinois 60605


Attention:
Alan Dean


Telephone:
(312) 786-7023


Telecopier:
(312) 786-7575


Electronic
Mail: Dean@cboe.com


 


Attention:
Joanne Moffic-Silver


Telephone:
(312) 786- 7462


Telecopier:
(312) 786- 7919


Electronic
Mail: Mofficj@cboe.com


 


Website
Address:  www.cboe.com


U.S.
Taxpayer Identification Number (Initial Borrower): 36-2730838


U.S.
Taxpayer Identification Number (Holdings): 20-5446972


 


With
a Copy To:


Schiff
Hardin LLP


6600
Sears Tower


233
South Wacker Drive


Chicago,
Illinois 60606


Attention:
Ross D. Taylor


Electronic
Mail: rdtaylor@schiffhardin.com


Telephone:
(312) 258-5729


Telecopier:
(312) 258-5600


 


ADMINISTRATIVE
AGENT:


 


Administrative
Agent’s Office


(for
payments and Requests for Credit Extensions):


Bank
of America, N.A.


One
Independence Center


101
N Tryon St.


Mail
Code: NC1-001-04-39


Charlotte,
NC 28255-0001


Attention:
Sabrina D. Miles


 














 


Telephone:
704.388.1043


Telecopier:
704.719.8762


Electronic
Mail: sabrina.d.miles@bankofamerica.com


Account
No.: 1366212250600


Account
Name: Credit Services Charlotte


Ref:
Chicago Board Options Exchange, Inc.


ABA#
026009593


 


Other
Notices as Administrative Agent:


Bank
of America, N.A.


Agency
Management Group


335
Madison Avenue, 4th Floor


Mail
Code: NY1-503-04-03


New
York, New York 10017


Attention:
Don B. Pinzon


Telephone:
212.503.8326


Telecopier:
212.901.7843


Electronic
Mail: don.b.pinzon@bankofamerica.com


 

















 


EXHIBIT B


 


FORM OF NOTE


 


        
, 20    


 


FOR VALUE RECEIVED, the
undersigned (the “Borrowers”), hereby promise to pay to
                                          
or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Loan
from time to time made by the Lender to the Borrowers under that certain Credit
Agreement, dated as of December 23, 2008 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among the
Borrowers, the Lenders from time to time party thereto, and Bank of America,
N.A., as Administrative Agent.


 


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


 


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


 


The Borrowers, for
themselves, their successors and assigns, hereby waive diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of
this Note.


 

















 


 


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


 


	
   

  	
  CHICAGO
  BOARD OPTIONS

  
	
   

  	
  EXCHANGE,
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  CBOE
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


EXHIBIT E


 


FORM OF GUARANTY


 

















 


Execution
Copy


 


SUBSIDIARY GUARANTY


 


This SUBSIDIARY GUARANTY
(this “Guaranty”) is entered into as of December 23, 2008, by the
undersigned Guarantor (whether one or more, the “Guarantor”, and if more
than one, jointly and severally) in favor of BANK OF AMERICA, N.A., as
administrative agent (the “Administrative Agent”) and the lenders from
time to time party to the Credit Agreement referred to below (the “Lenders”
and, together with the Administrative Agent, the “Guaranty Beneficiaries”).


 


FOR VALUE RECEIVED, the
sufficiency of which is hereby acknowledged, and in consideration of credit
and/or financial accommodations heretofore or hereafter from time to time made
or granted to CHICAGO BOARD OPTIONS EXCHANGE, INCORPORATED, a Delaware
non-stock corporation (the “Initial Borrower”), and CBOE HOLDINGS, INC.,
a Delaware corporation (“Holdings” and, together with the Initial Borrower,
whether one or more the “Borrower”), pursuant to the Credit Agreement
dated as of even date herewith (as amended restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”; capitalized terms
used herein but not defined herein shall have the meaning provided in the
Credit Agreement) among the Borrower, the Lenders party thereto from time to
time and the Administrative Agent, the Guarantor hereby furnishes its guaranty
of the Guaranteed Obligations (as hereinafter defined) as follows:


 


1.             Guaranty.  The
Guarantor hereby absolutely and unconditionally guarantees, as a guaranty of
payment and performance and not merely as a guaranty of collection, prompt
payment when due, whether at stated maturity, by required prepayment, upon
acceleration, demand or otherwise, and at all times thereafter, of all
Obligations, and any and all existing and future indebtedness and liabilities
of every kind, nature and character, direct or indirect, absolute or
contingent, liquidated or unliquidated, voluntary or involuntary and whether
for principal, interest, premiums, fees, indemnities, damages, costs, expenses
or otherwise, of the Borrower to the Administrative Agent and any other
Guaranty Beneficiary arising under the Credit Agreement, any other Loan
Documents and any instruments, agreements or other documents of any kind or
nature now or hereafter executed in connection therewith (including all
renewals, extensions, amendments, refinancings, restatements and other
modifications thereof and all costs, reasonable attorneys’ fees and expenses
incurred by the Administrative Agent or any other Guaranty Beneficiary in
connection with the collection or enforcement thereof), and whether recovery
upon such indebtedness and liabilities may be or hereafter become unenforceable
or shall be an allowed or disallowed claim under any proceeding or case
commenced by or against any Guarantor or the Borrower under the Debtor Relief
Laws, and including interest that accrues after the commencement by or against
the Borrower of any proceeding under any Debtor Relief Laws (collectively, the “Guaranteed
Obligations”).  The books and records
of the Administrative Agent and the books and records of each Guaranty
Beneficiary, in each case in the absence of manifest error, showing the amount
of the Guaranteed Obligations shall be admissible in evidence in any action or
proceeding, and shall be binding upon the Guarantor and conclusive for the
purpose of establishing the amount of the Guaranteed Obligations.  This Guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Guaranteed
Obligations or any instrument or agreement evidencing any Guaranteed
Obligations, or by the 


 

















 


existence,
validity, enforceability, perfection, non-perfection or extent of any
collateral therefor, or by any fact or circumstance relating to the Guaranteed
Obligations which might otherwise constitute a defense to the obligations of
the Guarantor under this Guaranty, and the Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to any or
all of the foregoing.  Anything contained
herein to the contrary notwithstanding, the obligations of the Guarantor
hereunder at any time shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of the
Bankruptcy Code (Title 11, United States Code) or any comparable provisions of
any similar federal or state law.


 


2.             No Setoff or Deductions; Taxes; Payments.  The Guarantor shall make all payments
hereunder without setoff or counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political subdivision
thereof or taxing or other authority therein unless the Guarantor is compelled
by law to make such deduction or withholding (other than Excluded Taxes).  If any such obligation (other than one
arising with respect to Excluded Taxes) is imposed upon the Guarantor with
respect to any amount payable by it hereunder, the Guarantor will pay to the
Administrative Agent or such other Guaranty Beneficiary, on the date on which
such amount is due and payable hereunder, such additional amount in Dollars as
shall be necessary to enable the Administrative Agent or such other Guaranty
Beneficiary to receive the same net amount which the Administrative Agent or
such other Guaranty Beneficiary would have received on such due date had no
such obligation been imposed upon the Guarantor.  The Guarantor will deliver promptly to the
Administrative Agent or such other Guaranty Beneficiary certificates or other
valid vouchers for all taxes or other charges deducted from or paid with
respect to payments made by the Guarantor hereunder.  The obligations of the Guarantor under this Section 2
shall survive the payment in full of the Guaranteed Obligations and termination
of this Guaranty.


 


3.             Rights of Administrative Agent and Other Guaranty Beneficiaries.  The Guarantor consents and agrees that the
Administrative Agent and the other Guaranty Beneficiaries may, at any time and
from time to time, without notice or demand, and without affecting the
enforceability or continuing effectiveness hereof: (a) amend, extend,
renew, compromise, discharge, accelerate or otherwise change the time for
payment or the terms of the Guaranteed Obligations or any part thereof; (b) take,
hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise
dispose of any security for the payment of this Guaranty or any Guaranteed
Obligations; (c) apply such security and direct the order or manner of sale
thereof as the Administrative Agent and the other Guaranty Beneficiaries in
their sole discretion may determine; and (d) release or substitute one or
more of any endorsers or other guarantors of any of the Guaranteed
Obligations.  Without limiting the
generality of the foregoing, the Guarantor consents to the taking of, or
failure to take, any action which might in any manner or to any extent vary the
risks of the Guarantor under this Guaranty or which, but for this provision,
might operate as a discharge of the Guarantor.


 


4.             Certain Waivers.  The
Guarantor waives (a) any defense arising by reason of any disability or
other defense of the Borrower or any other guarantor, or the cessation from any
cause whatsoever (including any act or omission of the Administrative Agent or
any other Guaranty Beneficiary) of the liability of the Borrower other than
indefeasible payment and 


 


 


2

















 


performance
in full of the Guaranteed Obligations; (b) any defense based on any claim
that the Guarantor’s obligations exceed or are more burdensome than those of
the Borrower; (c) the benefit of any statute of limitations affecting the
Guarantor’s liability hereunder; (d) any right to require the Administrative
Agent or any other Guaranty Beneficiary to proceed against the Borrower,
proceed against or exhaust any security for the Obligations, or pursue any
other remedy in the Administrative Agent’s or any other Guaranty Beneficiary’s
power whatsoever; (e) any benefit of and any right to participate in any
security now or hereafter held by the Administrative Agent or any other
Guaranty Beneficiary; and (f) to the fullest extent permitted by law, any
and all other defenses or benefits that may be derived from or afforded by
applicable Laws limiting the liability of or exonerating guarantors or
sureties.  The Guarantor expressly waives
all setoffs and counterclaims and all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests, notices of protest,
notices of dishonor and all other notices or demands of any kind or nature
whatsoever with respect to the Guaranteed Obligations, and all notices of
acceptance of this Guaranty or of the existence, creation or incurrence of new
or additional Guaranteed Obligations.


 


5.             Obligations Independent. 
The obligations of the Guarantor hereunder are those of primary obligor,
and not merely as surety, and are independent of the Guaranteed Obligations and
the obligations of any other guarantor, and a separate action may be brought
against the Guarantor to enforce this Guaranty whether or not the Borrower or
any other person or entity is joined as a party.


 


6.             Subrogation.  The
Guarantor shall not exercise any right of subrogation, contribution, indemnity,
reimbursement or similar rights with respect to any payments it makes under
this Guaranty until all of the Guaranteed Obligations and any amounts payable
under this Guaranty have been indefeasibly paid and performed in full and any
commitments of the Administrative Agent and each other Guaranty Beneficiary or
facilities provided by the Administrative Agent and each other Guaranty
Beneficiary with respect to the Guaranteed Obligations are terminated.  If any amounts are paid to the Guarantor in
violation of the foregoing limitation, then such amounts shall be held in trust
for the benefit of the Administrative Agent and the other Guaranty
Beneficiaries and shall forthwith be paid to the Administrative Agent (for the
benefit of itself and the other Guaranty Beneficiaries) to reduce the amount of
the Guaranteed Obligations, whether matured or unmatured.


 


7.             Contribution.  Subject
to Section 6 above, at any time there is more than one Guarantor
with respect to the Guaranteed Obligations, each Guarantor hereby agrees with
each other Guarantor that if any Guarantor shall make an Excess Payment (as
defined below), such Guarantor shall have a right of contribution from each
other Guarantor in an amount equal to such other Guarantor’s Contribution Share
(as defined below) of such Excess Payment (as defined below).  The payment obligations of any Guarantor
under this Section 7 shall be subordinate and subject in right of
payment to the Guaranteed Obligations until such time as the Guaranteed
Obligations have been indefeasibly paid and performed in full, and no Guarantor
shall exercise any right or remedy under this Section 7 against any
other Guarantor until such Guaranteed Obligations have been indefeasibly paid
and performed in full.


 


3

















 


For
purposes of this Section 7:


 


(a)           “Excess Payment” shall mean
the amount paid by any Guarantor in excess of its Ratable Share of any
Guaranteed Obligations;


 


(b)           “Ratable Share” shall mean,
for any Guarantor in respect of any payment of Guaranteed Obligations, the
ratio (expressed as a percentage) as of the date of such payment of Guaranteed
Obligations of (i) the amount by which the aggregate present fair salable
value of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including probable contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to the amount by which the aggregate present fair salable
value of all assets and other properties of all of the Guarantors exceeds the
amount of all of the debts and liabilities (including probable contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Guarantors hereunder) of all Guarantors; provided
that, for purposes of calculating the Ratable Shares of the Guarantors in
respect of any payment of Guaranteed Obligations, any Guarantor that became a
Guarantor subsequent to the date of any such payment shall be deemed to have
been a Guarantor on the date of such payment and the financial information for
such Guarantor as of the date such Guarantor became a Guarantor shall be
utilized for such Guarantor in connection with such payment; and


 


(c)           “Contribution Share” shall
mean, for any Guarantor in respect of any Excess Payment made by any other
Guarantor, the ratio (expressed as a percentage) as of the date of such Excess
Payment of (i) the amount by which the aggregate present fair salable
value of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including probable contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of the Guarantors other than
the maker of such Excess Payment exceeds the amount of all of the debts and
liabilities (including probable contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of the Guarantors) of
all Guarantors other than the maker of such Excess Payment; provided
that, for purposes of calculating the Contribution Shares of the Guarantors in
respect of any Excess Payment, any Guarantor that became a Guarantor subsequent
to the date of any such Excess Payment shall be deemed to have been a Guarantor
on the date of such Excess Payment and the financial information for such
Guarantor as of the date such Guarantor became a Guarantor shall be utilized for
such Guarantor in connection with such Excess Payment.


 


Each Guarantor recognizes
and acknowledges that the rights to contribution arising hereunder shall
constitute an asset in favor of the party entitled to such contribution.  This Section 7 shall not be
deemed to affect any right of subrogation, indemnity, reimbursement or
contribution that any Guarantor may have under applicable Laws against the
Borrower in respect of any payment of Guaranteed Obligations.


 


4

















 


8.             Termination; Reinstatement. 
This Guaranty is a continuing and irrevocable guaranty of all Guaranteed
Obligations now or hereafter existing and shall remain in full force and effect
until all Guaranteed Obligations and any other amounts payable under this
Guaranty are indefeasibly paid in full in cash and any commitments of the
Administrative Agent and each other Guaranty Beneficiary or facilities provided
by the Administrative Agent and each other Guaranty Beneficiary with respect to
the Guaranteed Obligations are terminated. 
Notwithstanding the foregoing, this Guaranty shall continue in full
force and effect or be revived, as the case may be, if any payment by or on
behalf of the Borrower or the Guarantor is made, or the Administrative Agent
and any other Guaranty Beneficiary exercises its right of setoff, in respect of
the Guaranteed Obligations and such payment or the proceeds of such setoff or
any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent or any other Guaranty Beneficiary in
its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Laws or otherwise, all
as if such payment had not been made or such setoff had not occurred and
whether or not the Administrative Agent or any other Guaranty Beneficiary is in
possession of or has released this Guaranty and regardless of any prior revocation,
rescission, termination or reduction. 
The obligations of the Guarantor under this Section 8 shall
survive termination of this Guaranty.


 


9.             Subordination.  The
Guarantor hereby subordinates the payment of all obligations and indebtedness
of the Borrower owing to the Guarantor, whether now existing or hereafter
arising, including but not limited to any obligation of the Borrower to the
Guarantor as subrogee of the Administrative Agent and any other Guaranty
Beneficiary or resulting from the Guarantor’s performance under this Guaranty,
to the indefeasible payment in full in cash of all Guaranteed Obligations, provided
that, the Borrower may make ordinary course payments to the Guarantor unless an
Event of Default has occurred and is continuing.  If the Administrative Agent so requests when
an Event of Default has occurred and is continuing, any such obligation or
indebtedness of the Borrower to the Guarantor shall be enforced and performance
received by the Guarantor as trustee for the Administrative Agent and the
proceeds thereof, as well as any other amounts received by the Guarantor in
violation of this Section 9, shall be paid over to the
Administrative Agent on account of the Guaranteed Obligations, but without
reducing or affecting in any manner the liability of the Guarantor under this
Guaranty.


 


10.           Stay of
Acceleration.  In the event
that acceleration of the time for payment of any of the Guaranteed Obligations
is stayed, in connection with any case commenced by or against the Borrower
under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless
be payable by the Guarantor immediately upon demand by the Administrative
Agent.


 


11.           Expenses.  The Guarantor shall pay all out-of-pocket
expenses (including reasonable attorneys’ fees and expenses) in any way
relating to the enforcement or protection of the Administrative Agent’s and
each other Guaranty Beneficiary’s rights under this Guaranty or in respect of
the Guaranteed Obligations, including any incurred during any “workout” or
restructuring in respect of the Guaranteed Obligations and any incurred in the
preservation, protection or enforcement of any rights of the Administrative
Agent and each other Guaranty Beneficiary in any proceeding under any Debtor
Relief Laws.  The obligations of the
Guarantor 


 


5

















 


under
this Section 11 shall survive the payment in full of the Guaranteed
Obligations and termination of this Guaranty.


 


12.           Miscellaneous.  No provision of this Guaranty may be waived, amended,
supplemented or modified, except by a written instrument executed by the
Administrative Agent and the Guarantor. 
No failure by the Administrative Agent or any other Guaranty Beneficiary
to exercise, and no delay in exercising, any right, remedy or power hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy or power hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law or in equity.  The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity of
any other provision herein.  Unless
otherwise agreed by the Administrative Agent and the Guarantor in writing, this
Guaranty is not intended to supersede or otherwise affect any other guaranty
now or hereafter given by the Guarantor or any other guarantor for the benefit
of the Administrative Agent and the other Guaranty Beneficiaries or any term or
provision thereof.


 


13.           Condition of
Borrower.  The Guarantor
acknowledges and agrees that it has the sole responsibility for, and has
adequate means of, obtaining from the Borrower and any other guarantor such
information concerning the financial condition, business and operations of the
Borrower and any such other guarantor as the Guarantor requires, and that the
Administrative Agent and the other Guaranty Beneficiaries have no duty, and the
Guarantor is not relying on the Administrative Agent or any other Guaranty
Beneficiary at any time, to disclose to the Guarantor any information relating
to the business, operations or financial condition of the Borrower or any other
guarantor (the guarantor waiving any duty on the part of the Administrative
Agent and the other Guaranty Beneficiaries to disclose such information and any
defense relating to the failure to provide the same).


 


14.           Setoff.  If and to the extent any payment is not made
when due hereunder, the Guarantor hereby irrevocably authorizes each Guaranty
Beneficiary and each of their respective Affiliates at any time and from time
to time, after obtaining the prior written consent of the Administrative Agent,
to the fullest extent permitted by applicable Laws, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Guaranty Beneficiary or any such Affiliate
to or for the credit or the account of the Guarantor against any and all of the
obligations of the Guarantor now or hereafter existing under this Agreement or
any other Loan Document to such Guaranty Beneficiary, irrespective of whether
or not such Guaranty Beneficiary shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the
Guarantor may be contingent or unmatured or are owed to a branch or office of
such Guaranty Beneficiary different from the branch or office holding such
deposit or obligated on such indebtedness. 
The rights of each Guaranty Beneficiary and its respective Affiliates
under this Section 14 are in addition to other rights and remedies
(including other rights of setoff) that such Guaranty Beneficiary or its
respective Affiliates may have.  Each
Guaranty Beneficiary agrees to notify the Guarantor promptly after any such
setoff and application, provided that the failure to give such notice
shall not affect the validity of such setoff and application.


 


6














 


15.           Representations
and Warranties.  The Guarantor
represents and warrants that it is duly organized and in good standing under
the laws of the jurisdiction of its organization (as such jurisdiction is set
forth underneath its signature on the signature pages hereto) and has full
capacity and right to make and perform this Guaranty, and all necessary
authority has been obtained; (b) this Guaranty constitutes its legal,
valid and binding obligation enforceable against the Guarantor in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar Laws affecting the
enforcement of creditors’ rights generally and by general equitable principles;
(c) the making and performance of this Guaranty does not and will not
violate the provisions of any applicable Laws, and does not and will not result
in the breach of, or constitute a default or require any consent under, any
material agreement, instrument, or document to which it is a party or by which
it or any of its property may be bound or affected, except in each case any
breach, default or consent that could not reasonably be expected to have a
Material Adverse Effect; and (d) all consents, approvals, licenses and
authorizations of, and filings and registrations with, any governmental
authority required under applicable Laws for the making and performance of this
Guaranty have been obtained or made and are in full force and effect.


 


16.           Indemnification
and Survival.  Without
limitation on any other obligations of the Guarantor or remedies of the
Administrative Agent or any other Guaranty Beneficiary under this Guaranty, the
Guarantor shall, to the fullest extent permitted by law, indemnify, defend and
save and hold harmless the Administrative Agent and each other Guaranty
Beneficiary from and against, and shall pay on demand, any and all damages,
losses, liabilities and expenses (including reasonable attorneys’ fees and
expenses) that may be suffered or incurred by the Administrative Agent or any
other Guaranty Beneficiary in connection with or as a result of any failure of
any Guaranteed Obligations to be the legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their terms.  The obligations of the Guarantor under this Section 16
shall survive the payment in full of the Guaranteed Obligations and termination
of this Guaranty.


 


17.           GOVERNING
LAW; Assignment; Jurisdiction; Notices. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.  This Guaranty shall (a) bind the
Guarantor and its successors and assigns, and (b) inure to the benefit of
the Administrative Agent and each other Guaranty Beneficiary and their
respective successors and assigns; provided that, the Guarantor may not
assign its rights or obligations under this Guaranty except as permitted by Section 7.04
of the Credit Agreement.  Each Guaranty
Beneficiary may, without notice to the Guarantor and without affecting the
Guarantor’s obligations hereunder, assign, sell or grant participations in the
Guaranteed Obligations and this Guaranty, in whole or in part, in accordance
with the provisions of the Credit Agreement. 
The Guarantor hereby irrevocably (i) submits to the non-exclusive
jurisdiction of any United States Federal or State court sitting in New York,
New York in any action or proceeding arising out of or relating to this
Guaranty, and (ii) waives to the fullest extent permitted by law any
defense asserting an inconvenient forum in connection therewith.  Service of process by the Administrative
Agent in connection with such action or proceeding shall be binding on the
Guarantor if sent to the Guarantor in the manner set forth below.  The Guarantor agrees that, subject to Section 10.07
of the Credit Agreement, the Administrative Agent and each other Guaranty
Beneficiary may disclose to any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or obligations of
all or part of the 


 


7

















 


Guaranteed
Obligations any and all information in the Administrative Agent’s or such
Guaranty Beneficiary’s possession concerning the Guarantor, this Guaranty and
any security for this Guaranty.  All
notices and other communications to the Guarantor under this Guaranty shall be
in writing and shall be delivered by hand or overnight courier service, mailed
by certified or registered mail or sent by telecopier to the Guarantor at its
address set forth below or at such other address in the United States as may be
specified by the Guarantor in a written notice delivered to the Administrative
Agent in compliance with Section 10.02 of the Credit Agreement.


 


18.           WAIVER OF
JURY TRIAL; FINAL AGREEMENT. 
TO THE EXTENT ALLOWED BY APPLICABLE LAWS, THE GUARANTOR AND, BY THE
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY, THE ADMINISTRATIVE AGENT AND EACH
OTHER GUARANTY BENEFICIARY, IRREVOCABLY WAIVES TRIAL BY JURY WITH RESPECT TO
ANY ACTION, CLAIM, SUIT OR PROCEEDING ON, ARISING OUT OF OR RELATING TO THIS
GUARANTY OR THE GUARANTEED OBLIGATIONS. 
EACH PARTY HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.  THIS GUARANTY REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.


 


19.           Release of Guarantor;
Termination.  Notwithstanding
anything to the contrary herein, if at any time there is more than one
Guarantor with respect to the Guaranteed Obligations, any Guarantor shall be
released from its obligations under this Guaranty if such Person ceases to be a
Subsidiary of Borrower as a result of a transaction permitted under the Credit
Agreement and, if no Guarantors remain party to this Guaranty after giving
effect to such release, this Guaranty shall terminate and be of no further
effect.


 


[Signature Pages Follow]


 


8

















 


JOINDER AGREEMENT


 


THIS JOINDER AGREEMENT (this
“Agreement”), dated as of January 30, 2009, is between CBOE
EXECUTION SERVICES, LLC a Delaware limited liability company (the “New
Subsidiary”) and BANK OF AMERICA, N.A., in its capacity as Administrative
Agent under that certain Credit Agreement (as it may be amended, modified,
restated or supplemented from time to time, the “Credit Agreement”),
dated as of December 23, 2008, among CHICAGO BOARD OPTIONS EXCHANGE,
INCORPORATED, a Delaware non-stock corporation (the “Initial Borrower”)
and CBOE HOLDINGS, INC., a Delaware corporation (“Holdings” and,
together with the Initial Borrower, the “Borrowers” and each
individually, a “Borrower”), the Lenders and Bank of America, N.A., as
Administrative Agent.  All of the defined
terms in the Credit Agreement are incorporated herein by reference.


 


The Loan Parties are
required by Section 6.12 of the Credit Agreement to cause the New
Subsidiary to become a “Guarantor”.


 


Accordingly, the New
Subsidiary hereby agrees as follows with the Administrative Agent, for the
benefit of the Lenders:


 


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


 


2.             The address of the New Subsidiary for purposes of all
notices and other communications is the same as the Borrowers’, as set forth on
Schedule 10.02 of the Credit Agreement.


 


3.             The New Subsidiary hereby waives acceptance by the
Administrative Agent and the Lenders of the guaranty by the New Subsidiary
under the Guaranty upon the execution of this Agreement by the New Subsidiary.


 


4.             This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute one contract.


 


5.             This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York.


 

















 


 


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


 


	
   

  	
  CBOE
  SERVICES, LLC,

  
	
   

  	
  a
  Delaware Limited Liability Company

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Alan J. Dean

  
	
   

  	
  Name:
  

  	
  Alan
  J. Dean

  
	
   

  	
  Title:
  

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  
	
  Acknowledged
  and accepted:

  	
   

  
	
  BANK
  OF AMERICA, N.A.

  	
   

  
	
  as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By:
  

  	
  /s/
  Don B. Pinzon

  	
   

  
	
  Name:
  

  	
  Don
  B. Pinzon

  	
   

  
	
  Title:
  

  	
  Vice
  President

  	
   

  
						



 

















 


SUPPLEMENT TO CREDIT
AGREEMENT SCHEDULE


 


January 30, 2009


 


The undersigned hereby
certify to BANK OF AMERICA, N.A., as administrative agent (the “Administrative
Agent”) and the Lenders (the “Lenders”) from time to time party to
the Credit Agreement, dated as of December 23, 2008, among CHICAGO BOARD
OPTIONS EXCHANGE, INCORPORATED, a Delaware non-stock corporation (the “Initial
Borrower”) and CBOE HOLDINGS, INC., a Delaware Corporation (“Holdings”
and, together with the Initial Borrower, the “Borrowers” and each
individually, a “Borrower”), the Lenders and the Administrative Agent
(as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”; capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Credit Agreement) that:


 


1.             CBOE Execution Services, LLC, a Delaware limited
liability company (the “New Subsidiary”), was formed on January 12,
2009 and the New Subsidiary is a Subsidiary of the Initial Borrower.


 


2.             Attached hereto is a true and correct copy of Schedule
5.13 to the Credit Agreement, updated to reflect the New Subsidiary.


 


IN WITNESS WHEREOF, the
undersigned has executed this Supplement to Credit Agreement Schedule on the
day and year first written above.


 


	
   

  	
  CHICAGO
  BOARD OPTIONS EXCHANGE, 

  
	
   

  	
  INCORPORATED;

  
	
   

  	
  CBOE
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Alan J. Dean

  
	
   

  	
  Name:
  

  	
  Alan
  J. Dean

  
	
   

  	
  Title:
  

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  
				



 

















 


SCHEDULE 5.13


 


Subsidiaries; Other Equity Investments


 


Part (a):  Subsidiaries:


 


CBOE
Futures Exchange, LLC


Tax
ID:  32-0044423


 


CBOE,
LLC


Tax
ID:  36-4469218


 


CBOE
II, LLC


Tax
ID:  20-4305905


 


Chicago
Options Exchange Building Corporation


Tax
ID:  36-3139935


 


DerivaTech
Corporation


Tax
ID:  80-0057919


 


Market
Data Express, LLC


Tax
ID:  20-5601036


 


The
Options Exchange, Incorporated


Tax
ID:  26-3884440


 


CBOE
Merger Sub, Inc.

Tax ID:  26-3884820


 


CBOE  Holdings, Inc. (Subsidiary of Chicago
Board Options Exchange, Incorporated until the Demutualization)


Tax
ID:  20-5446972


 


Chicago
Board Options Exchange, Incorporated (Subsidiary of CBOE Holdings, Inc.
from and after the Demutualization)


Tax
ID:  36-2730838


 


CBOE
Execution Services, LLC


Tax
ID:  26-4023437


 


Part (b):  Other Equity Investments


 


One
Chicago, LLC:  CBOE, LLC owns a 24.009%
membership interest


 

















 


CBOE
Stock Exchange, LLC:  Chicago Board
Options Exchange, Incorporated owns a 50% membership interest


 


NSX
Holdings, Inc.:  Chicago Board
Options Exchange, Incorporated owns 14.45% of the common stock (as of September 30,
2008:  8,424 shares of Class A
Voting Stock and 19,656 shares of Class B Non-Voting Stock)


 


National
Stock Exchange, Inc.:  Wholly-owned
subsidiary of NSX Holdings, Inc.


 


The
Options Clearing Corporation:  Chicago
Board Options Exchange, Incorporated owns 20% of the common stock