Exhibit
10.1


 


EXECUTION VERSION


 




 





 


 


TERM FACILITY CREDIT AND GUARANTY

AGREEMENT


 


Dated as of May 29,
2009


 


Among


 


CAPMARK FINANCIAL GROUP
INC.,

as Borrower


 


and


 


THE GUARANTORS PARTY HERETO,


 


and


 


CITICORP NORTH AMERICA,
INC.,

as Administrative Agent


 


and


 


CITIBANK, N.A.,

as Collateral Agent


 


and


 


JPMORGAN CHASE BANK, N.A.,


as Syndication Agent


 


and


 


THE INITIAL LENDERS AND THE
OTHER LENDERS PARTY HERETO


 


 




 





 


 


CITIGROUP GLOBAL MARKETS
INC.,


 


and


 


J.P. MORGAN SECURITIES, INC.,

as Joint Lead Arrangers and Joint Bookrunners


 




 





 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE
  I

  
	
   

  
	
  DEFINITIONS
  AND ACCOUNTING TERMS

  
	
   

  
	
  Section 1.01

  	
  Certain Defined Terms

  	
  1

  
	
  Section 1.02

  	
  Computation of Time Periods

  	
  26

  
	
  Section 1.03

  	
  Accounting Terms and Financial Determinations

  	
  26

  
	
  Section 1.04

  	
  Terms Generally

  	
  26

  
				



 


ARTICLE II


 


AMOUNTS AND TERMS OF THE ADVANCES


 


	
  Section 2.01

  	
  The Advances

  	
  26

  
	
  Section 2.02

  	
  Making the Advances

  	
  26

  
	
  Section 2.03

  	
  Repayment of the Advances

  	
  27

  
	
  Section 2.04

  	
  Termination of Commitments

  	
  28

  
	
  Section 2.05

  	
  Prepayments and Cash Collections

  	
  28

  
	
  Section 2.06

  	
  Interest

  	
  31

  
	
  Section 2.07

  	
  Fees

  	
  31

  
	
  Section 2.08

  	
  Conversion of Advances

  	
  31

  
	
  Section 2.09

  	
  Increased Costs, Etc.

  	
  32

  
	
  Section 2.10

  	
  Payments and Computations

  	
  33

  
	
  Section 2.11

  	
  Taxes

  	
  34

  
	
  Section 2.12

  	
  Sharing of Payments, Etc.

  	
  37

  
	
  Section 2.13

  	
  Use of Proceeds

  	
  37

  
	
  Section 2.14

  	
  Defaulting Lenders

  	
  37

  
	
  Section 2.15

  	
  Evidence of Debt

  	
  39

  
	
  Section 2.16

  	
  Replacement of Certain Lenders

  	
  39

  
	
  Section 2.17

  	
  Specified Repayment Right

  	
  40

  



 


ARTICLE III


 


CONDITIONS TO EFFECTIVENESS


 


	
  Section 3.01

  	
  Conditions Precedent to the Closing Date and the Borrowing

  	
  40

  
	
  Section 3.02

  	
  Determinations Under Section 3.01

  	
  43

  



 


i





















 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES


 


	
  Section 4.01

  	
  Representations and Warranties of the Loan Parties

  	
  43

  



 


ARTICLE V


 


COVENANTS OF THE LOAN PARTIES


 


	
  Section 5.01

  	
  Affirmative Covenants

  	
  47

  
	
  Section 5.02

  	
  Negative Covenants

  	
  51

  
	
  Section 5.03

  	
  Reporting Requirements

  	
  59

  
	
  Section 5.04

  	
  Financial Covenants

  	
  63

  



 


ARTICLE VI


 


EVENTS OF DEFAULT


 


	
  Section 6.01

  	
  Events of Default

  	
  63

  



 


ARTICLE VII


 


THE AGENTS


 


	
  Section 7.01

  	
  Appointment and Authorization of the Agents

  	
  66

  
	
  Section 7.02

  	
  Delegation of Duties

  	
  66

  
	
  Section 7.03

  	
  Liability of Agents

  	
  67

  
	
  Section 7.04

  	
  Reliance by Agents

  	
  68

  
	
  Section 7.05

  	
  Notice of Default

  	
  68

  
	
  Section 7.06

  	
  Credit Decision; Disclosure of Information by Agents

  	
  69

  
	
  Section 7.07

  	
  Indemnification of Agents

  	
  69

  
	
  Section 7.08

  	
  Agents in Their Individual Capacity

  	
  70

  
	
  Section 7.09

  	
  Successor Agent

  	
  71

  
	
  Section 7.10

  	
  Administrative Agent May File Proofs of Claim

  	
  71

  
	
  Section 7.11

  	
  Collateral and Guaranty Matters

  	
  72

  
	
  Section 7.12

  	
  Other Agents; Arrangers and Managers

  	
  72

  



 


ARTICLE VIII


 


SUBSIDIARY GUARANTY


 


	
  Section 8.01

  	
  Subsidiary Guaranty

  	
  73

  



 


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  Section 8.02

  	
  Guaranty Absolute

  	
  73

  
	
  Section 8.03

  	
  Waivers and Acknowledgments

  	
  74

  
	
  Section 8.04

  	
  Subrogation

  	
  75

  
	
  Section 8.05

  	
  Additional Guarantors

  	
  75

  
	
  Section 8.06

  	
  Subordination

  	
  75

  
	
  Section 8.07

  	
  Continuing Guarantee; Assignments

  	
  76

  
	
  Section 8.08

  	
  No Reliance

  	
  76

  
	
  Section 8.09

  	
  Debtor Relief Laws

  	
  76

  



 


ARTICLE IX


 


MISCELLANEOUS


 


	
  Section 9.01

  	
  Amendments, Etc.

  	
  77

  
	
  Section 9.02

  	
  Notices, Etc.

  	
  78

  
	
  Section 9.03

  	
  No Waiver; Remedies

  	
  80

  
	
  Section 9.04

  	
  Costs, Fees and Expenses

  	
  80

  
	
  Section 9.05

  	
  Right of Set-off

  	
  81

  
	
  Section 9.06

  	
  Binding Effect

  	
  82

  
	
  Section 9.07

  	
  Successors and Assigns

  	
  82

  
	
  Section 9.08

  	
  Execution in Counterparts; Integration

  	
  85

  
	
  Section 9.09

  	
  Confidentiality; Press Releases, Related Matters and Treatment of
  Information

  	
  85

  
	
  Section 9.10

  	
  Patriot Act Notice

  	
  87

  
	
  Section 9.11

  	
  Jurisdiction, Etc.

  	
  87

  
	
  Section 9.12

  	
  Governing Law

  	
  88

  
	
  Section 9.13

  	
  No Fiduciary Duty

  	
  88

  
	
  Section 9.14

  	
  Waiver of Jury Trial

  	
  88

  



 


iii





















 


SCHEDULES


 


	
  Schedule
  I

  	
  -

  	
  Commitments
  and Applicable Lending Offices

  
	
  Schedule
  II

  	
  -

  	
  Affiliated
  Transactions

  
	
  Schedule
  III

  	
  -

  	
  Agreements
  with Negative Pledge Clauses

  
	
  Schedule 1.01(a)

  	
  -

  	
  Disclosed
  Matters

  
	
  Schedule 1.01(b)

  	
  -

  	
  Surviving
  Debt

  
	
  Schedule 1.01(c)

  	
  -

  	
  Permitted
  Foreign Banks

  
	
  Schedule 1.01(d)

  	
  -

  	
  Excluded
  Mortgage Loan Assets

  
	
  Schedule 4.01(j)

  	
  -

  	
  Disclosures

  
	
  Schedule 4.01(n)

  	
  -

  	
  Environmental
  Matters

  
	
  Schedule 4.01(w)

  	
  -

  	
  Mortgage
  Loan Assets

  
	
  Schedule 5.01(l)

  	
  -

  	
  Hedging
  Program

  
	
  Schedule 5.01(m)

  	
  -

  	
  Post-Closing
  Obligations

  
	
  Schedule 5.02(a)

  	
  -

  	
  Existing
  Liens

  
	
  Schedule 5.02(e)

  	
  -

  	
  Existing
  Investments

  



 


EXHIBITS


 


	
  Exhibit A

  	
  -

  	
  Form of
  Note

  
	
  Exhibit B

  	
  -

  	
  Form of
  Notice of Borrowing

  
	
  Exhibit C

  	
  -

  	
  Form of
  Assignment and Acceptance

  
	
  Exhibit D

  	
  -

  	
  Form of
  Security Agreement

  
	
  Exhibit E

  	
  -

  	
  Form of
  Guaranty Supplement

  
	
  Exhibit F

  	
  -

  	
  Form of
  Operating Expense Rationalization Plan

  
	
  Exhibit G

  	
  -

  	
  Form of
  Thirteen-Week Forecast 

  
	
  Exhibit H

  	
  -

  	
  Form of
  Monthly Asset and Run Rate Operating Expense Report

  
	
  Exhibit I

  	
  -

  	
  Form of
  Opinion of Simpson Thacher & Bartlett LLP, counsel to the Loan
  Parties

  
	
  Exhibit J

  	
  -

  	
  Form of
  Amendment to Existing Credit Agreement

  
	
  Exhibit K

  	
  -

  	
  Form of
  Amendment to Existing Bridge Loan Agreement

  
	
  Exhibit L

  	
  -

  	
  Form of
  Mortgage Loan Asset Summary

  
	
  Exhibit M

  	
  -

  	
  Form of
  Three-Year Business Plan

  



 


iv





















 


TERM FACILITY CREDIT AND GUARANTY
AGREEMENT


 


TERM FACILITY CREDIT AND
GUARANTY AGREEMENT (this “Agreement”) dated as of May 29, 2009
among CAPMARK FINANCIAL GROUP INC., a Nevada corporation (the “Borrower”),
and each of the direct and indirect subsidiaries of the Borrower signatory hereto
(each, a “Guarantor”, and, collectively, together with any person that
becomes a Guarantor hereunder pursuant to Section 8.05, the “Guarantors”),
the Initial Lenders (as hereinafter defined) and the other banks, financial
institutions and other institutional lenders party hereto (each, a “Lender”,
and collectively with the Initial Lenders and any other person that becomes a
Lender hereunder pursuant to Section 9.07, the “Lenders”), CITICORP
NORTH AMERICA, INC. (“CNAI”), as administrative agent (or any successor
appointed pursuant to Article VII, the “Administrative Agent”) for
the Lenders and the other Secured Parties (each as hereinafter defined),
CITIBANK, N.A. (“Citibank”), as collateral agent (or any successor
appointed pursuant to Article VII, the “Collateral Agent”) for the
Lenders and the other Secured Parties, CITIGROUP GLOBAL MARKETS INC. (“CGMI”)
and J.P. MORGAN SECURITIES, INC. (“JPMSI”), as joint lead arrangers and
joint bookrunners (the “Lead Arrangers”) and JPMORGAN CHASE BANK, N.A.,
as syndication agent (the “Syndication Agent”).


 




PRELIMINARY STATEMENTS


 


(1)           The Borrower and its Subsidiaries intend to refinance
certain Debt under the Existing Credit Agreement and the Existing Bridge Loan
Agreement and to pay transaction fees and expenses in connection therewith,
through the entering into of the Term Facility described herein.


 


(2)           In furtherance of the foregoing, the Borrower has
requested that the Lenders provide a term credit facility, and the Lenders have
indicated their willingness to lend on the terms and subject to the conditions
set forth herein.


 


NOW, THEREFORE, in
consideration of the premises and of the mutual covenants and agreements
contained herein, the parties hereto hereby agree as follows:


 


ARTICLE
I


 


DEFINITIONS
AND ACCOUNTING TERMS


 


Section 1.01           Certain Defined Terms.  As used in this Agreement, the following
terms shall have the following meanings:


 


“2010 Notes” means
the Borrower’s Floating Rate Senior Notes due 2010.


 


“2012 Notes” means
the Borrower’s 5.875% Senior Notes due 2012.


 


“2017 Notes” means
the Borrower’s 6.300% Senior Notes due 2017.


 


“Activities” has the
meaning specified in Section 7.08.


 


“Administrative Agent”
has the meaning specified in the recital of parties to this Agreement.


 





















 


“Administrative Agent’s Account”
means the account of the Administrative Agent maintained by the Administrative
Agent with Citibank, N.A. and identified to the Borrower and the Lenders from
time to time.


 


“Advance” has the
meaning specified in Section 2.01.


 


“Affiliate” means, as
to any Person, any other Person that, directly or indirectly, controls, is
controlled by or is under common control with such Person.  For purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control
with”) of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.


 


“Agent Parties” has
the meaning specified in Section 9.02(c).


 


“Agent-Related Persons”
means, the Agents, together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Agents and
Affiliates.


 


“Agents” means the
Administrative Agent, the Collateral Agent, the Syndication Agent, the Lead
Arrangers and, for purposes of Article VII, each member of the Lender
Committee.


 


“Agents Group” has
the meaning specified in Section 7.08.


 


“Agreement Value”
means, for each Hedge Agreement, on any date of determination, an amount equal
to:  (a) in the case of a Hedge
Agreement documented pursuant to the Master Agreement (Multicurrency-Cross
Border) published by the International Swap and Derivatives Association, Inc.
(the “Master Agreement”), the amount, if any, that would be payable by
any Loan Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination and (ii) such Loan Party or Subsidiary was the
sole “Affected Party,”; (b) in the case of a Hedge Agreement traded on an
exchange, the mark-to-market value of such Hedge Agreement, which will be the
unrealized loss or gain on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party to such Hedge Agreement based on the settlement price of such
Hedge Agreement on such date of determination; or (c) in all other cases,
the mark-to-market value of such Hedge Agreement, which will be the unrealized
loss or gain on such Hedge Agreement to the Loan Party or Subsidiary of a Loan
Party to such Hedge Agreement determined as the amount, if any, by which (i) the
present value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds or, as applicable, is less than (ii) the present value
of the future cash flows to be received by such Loan Party or Subsidiary
pursuant to such Hedge Agreement; capitalized terms used and not otherwise
defined in this definition shall have the respective meanings set forth in the
above described Master Agreement.  For
the avoidance of doubt, the foregoing definition of “Agreement Value” does not
affect the rights and obligations of any such Loan Party or such Subsidiary, on
one hand, and such counterparty, on the other hand, under any such Hedge
Agreement, including without limitation as to the calculation of any amount
pursuant to section 6 of a Master Agreement as such section has been amended or
supplemented by a schedule to such Master Agreement.


 


“Applicable Adjustment
Percentage” means (a) for the first Fiscal Quarter ending after a
Servicing Business Disposition, 95%, (b) for the second Fiscal Quarter
ending after a Servicing Business Disposition, 90%, (c) for the third
Fiscal Quarter ending after a Servicing Business Disposition, 85% and (d) for
each Fiscal Quarter ending thereafter, 80%.


 


2





















 


“Applicable Lending
Office” means, with respect to each Lender, such Lender’s Domestic Lending
Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending
Office in the case of a Eurodollar Rate Advance.


 


“Applicable Margin”
means 2.50% per annum in the case of Eurodollar Rate Advances and 1.50% per
annum in the case of Base Rate Advances.


 


“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.


 


“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender and
an Eligible Assignee, and accepted by the Administrative Agent, in accordance
with Section 9.07 and in substantially the form of Exhibit C
hereto.


 


“Bankruptcy Remote
Special Purpose Entity” means (i) a Person that satisfies each of the
following criteria:  (a) such Person
is an entity that is consolidated for accounting purposes with the Borrower and
designed to make remote the possibility that it would enter into bankruptcy or
other receivership; (b) all or substantially all of such Person’s assets
consist of Receivables or securities backed by Receivables plus any rights or
other assets (including cash reserves) designed to assure the servicing or
timely distribution of proceeds to the holders of its obligations; and (c) Receivables
or securities backed by Receivables owned by such Person satisfy the legal
isolation criteria set forth in paragraph 9(a) of Statement of
Financial Accounting Standards No. 140 (“FAS 140”) (in relation to
the Borrower and any Subsidiary that is not a Bankruptcy Remote Special Purpose
Entity) or (ii) any Subsidiary formed as a “successor borrower” in
connection with any loan defeasance activities that satisfies the legal
isolation requirements of FAS 140.


 


“Base Rate” means a
fluctuating interest rate per annum in effect from time to time that for any
day shall be equal to the highest of:


 


(a)           the rate of interest for such day announced publicly by
Citibank, N.A., in New York, New York, as Citibank, N.A.’s base rate (which the
Borrower acknowledges and agrees is announced by such bank and used by the
Administrative Agent for reference purposes only and may not represent the
lowest or best rate available to any of the customers of such bank or the
Administrative Agent);


 


(b)           the Federal Funds Rate in effect on such day plus 0.5% per
annum; and


 


(c)           the Eurodollar Rate for an Interest Period of one month
beginning on such day (or if such day is not a Business Day, the immediately
preceding Business Day) plus 1.0%.


 


“Base Rate Advance”
means an Advance that bears interest as provided in Section 2.06(a)(i).


 


“Borrower” has the
meaning specified in the recital of parties to this Agreement.


 


“Borrower’s Account”
means the account of the Borrower maintained by the Borrower and specified in
writing to the Administrative Agent from time to time.


 


“Borrowing” means the
borrowing of the Advances made by the Lenders to be made on the Closing Date.


 


3





















 


“Business Day” means
a day of the year on which banks are not required or authorized by law to close
in New York City and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank market.


 


“Capital Expenditures”
means, for any Person for any period, the sum (without duplication) of all
expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet of
such Person.  For purposes of this
definition, the purchase price of equipment that is purchased simultaneously
with the trade in of existing equipment or with insurance proceeds shall be
included in Capital Expenditures only to the extent of the gross amount of such
purchase price less the credit granted by the seller of such equipment for the
equipment being traded in at such time or the amount of such proceeds, as the
case may be.


 


“Capitalized Leases”
means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.


 


“Cash Collateral Account”
means a blocked deposit account or joint deposit/securities account of the
Borrower at Citibank, N.A. or an account in the name of the Collateral Agent,
into which proceeds of the Collateral is to be deposited in accordance with Section 2.05(c),
which such account shall be (a) under the sole dominion and control of the
Collateral Agent (including the exclusive right of withdrawal), (b) subject
to an agreement in form and substance reasonably satisfactory to the Collateral
Agent, between the Borrower and the Collateral Agent, providing for the
exclusive collection and control by the Collateral Agent of all deposits,
balances and entitlements held in or credited to such account and (c) otherwise
established in a manner reasonably satisfactory to the Collateral Agent.


 


“Cash Equivalents”
means any of the following:


 


(a)           securities issued or directly and fully guaranteed or
insured by the United States or any agency or instrumentality thereof and
having maturities of not more than 12 months after the date of acquisition;


 


(b)           time deposits or certificates of deposit of (i) any
bank of recognized standing having capital and surplus in excess of
$5,000,000,000 or whose commercial paper rating is at least A-1 by S&P and
P-1 by Moody’s and (ii) in the case of any Foreign Subsidiary of the
Borrower, the banks listed on Schedule 1.01(c) or any other bank
approved by the Administrative Agent in its sole discretion (it being
understood that the Administrative Agent may revoke its approval of any such
bank at any time for purposes of this clause (b), provided that any time
deposits or certificates of deposits of such bank acquired by the Borrower or
any of its Subsidiaries prior to such revocation shall continue to constitute
Cash Equivalents for purposes of this Agreement), in each case having
maturities of not more than six months after the date of acquisition;


 


(c)           commercial paper rated at least A-1 by S&P and P-1 by
Moody’s and having maturities of not more than six months after the date of
acquisition;


 


(d)           direct obligations (or certificates representing an
ownership interest in such obligations) of any state of the United States
(including any agency or instrumentality thereof) the long-term debt of which
is rated A-3 or higher by Moody’s and A- or higher by S&P (or rated the
equivalent by at least one nationally recognized statistical rating
organization) and having maturities of not more than six months after the date
of acquisition; and


 


4





















 


(e)           in the case of any Foreign Subsidiary of the Borrower,
investments (i) in direct obligations of the sovereign nation (or any
agency or instrumentality thereof) in which such Subsidiary is organized or is
conducting a substantial amount of business or in obligations fully and
unconditionally guaranteed by such sovereign nation (or agency or instrumentality)
or (ii) of the type and maturity described in clause (a) through
(d) above of foreign obligors, which investments or obligors (or their
parents) have ratings equivalent to those described above (which may be
equivalent ratings from foreign rating agencies).


 


“CFC” means any
Foreign Subsidiary that is a “controlled foreign corporation” within the
meaning of Internal Revenue Code section 957(a).


 


“CGMI” has the
meaning specified in the recital of parties to this Agreement.


 


“Change of Control” means
and shall be deemed to have occurred upon the occurrence of any of the
following events:  (i) any Person or
“group” (within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, and regulations promulgated thereunder), other
than the Investors, shall have acquired beneficial ownership of more than 40%
of the outstanding Equity Interests in the Borrower and (ii) after the
date hereof, the occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (A) nominated
by the board of directors of the Borrower nor (B) appointed by the
directors so nominated.


 


“Citibank” has the
meaning specified in the recital of parties to this Agreement.


 


“Closing Date” has
the meaning specified in Section 3.01.


 


“CNAI” has the
meaning specified in the recital of parties to this Agreement.


 


“Collateral” means
all “Collateral” referred to in the Collateral Documents and all other property
that is or is intended to be subject to any Lien in favor of the Collateral
Agent for the benefit of the Secured Parties.


 


“Collateral Agent”
has the meaning specified in the recital of parties to this Agreement.


 


“Collateral Disposition”
means any sale, lease, transfer or other disposition of Collateral (including,
for the avoidance of doubt, any REO Property) or series of related sales,
leases, transfers or other dispositions of assets constituting Collateral
(including, for the avoidance of doubt, REO Property) by the Borrower and its
Subsidiaries.


 


“Collateral Documents”
means, collectively, the Security Agreement, the Mortgages, any Security
Agreement Supplements and Uncertificated Security Control Agreements (as each
such term is defined in the Security Agreement) and any other agreement that creates
or purports to create a Lien in favor of the Collateral Agent for the benefit
of the Secured Parties.


 


“Collateral Recovery
Event” means any settlement of or payment in respect of, or any casualty
insurance claim or any condemnation proceeding relating to, any Collateral
(including, for the avoidance of doubt, any REO Property), except as such
settlement or payment is needed in the reasonable judgment of the Borrower and
its Subsidiaries for repairs relating to any such Collateral that arose in connection
with such event which caused the payment of such casualty insurance claim or
condemnation proceeding and such settlement or payment is applied to such
repairs within 180 days of such settlement or payment (or, to the extent so
specified, such later date as may be permitted under the loan or investment
documentation, if any, relating to such Collateral).


 


5




















 


“Commitment” means,
with respect to any Lender at any time, the amount set forth for such time
opposite such Lender’s name on Schedule I hereto under the caption “Commitment”
or, if such Lender has entered into one or more Assignments and Acceptances,
set forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender’s “Commitment”, as
such amount may be reduced at or prior to such time pursuant to Section 2.04.


 


For the avoidance of doubt,
each Lender’s Commitment as of the date hereof shall be equal to the sum of (a) the
product of (x) $937,500,000 multiplied by (y) a ratio the numerator
of which is the sum of (A) the aggregate amount of the “Loans” (under and
as defined in the Existing Credit Agreement) held by such Lender and (B) to
the extent that such Lender holds a participation therein, issued and
outstanding “Letters of Credit” (under and as defined in the Existing Credit
Agreement) and the denominator of which is the sum of (A) the aggregate amount
of the “Loans” (under and as defined in the Existing Credit Agreement) held by
all of the Existing Credit Facility Lenders consenting to the amendments to the
Existing Credit Agreement referred to in Section 3.01(b) and (B) the
aggregate amount of all “Letters of Credit” (under and as defined in the
Existing Credit Agreement) with respect to which Existing Credit Facility
Lenders consenting to the amendments to the Existing Credit Agreement referred
to in Section 3.01(b) hold participations therein (provided
that in the case of any such “Loans” or “Letters of Credit” denominated in a
currency other than Dollars, the foregoing calculation shall be based on the
Equivalent (under and as defined in the Existing Credit Agreement) of the
principal amount or face amount, as the case may be, thereof as of a date
reasonably near the Closing Date as determined by the Administrative Agent)
plus (b) if such Lender holds any of the Existing Bridge Loans, the
product of (x) $562,500,000 multiplied by (y) a ratio the numerator
of which is the aggregate amount of the Existing Bridge Loans held by such
Lender and the denominator of which is the aggregate amount of the Existing
Bridge Loans held by all of the Existing Bridge Loan Lenders consenting to the
amendments to the Existing Bridge Loan Agreement referred to in Section 3.01(b).


 


“Communications” has
the meaning specified in Section 9.02(b).


 


“Confidential Information”
means any and all material non-public information delivered or made available
by any Loan Party or any Subsidiary of a Loan Party relating to any Loan Party
or any Subsidiary thereof or their respective businesses, other than any such
information that is or has been made available publicly by a Loan Party or any
Subsidiary thereof.


 


“Consolidated” refers
to the consolidation of accounts in accordance with GAAP.


 


“Consolidating”
refers to the consolidating financial statements of the Borrower and its
Subsidiaries which sets forth (i) the consolidated accounts of the
Borrower and its Subsidiaries (other than any Specified Subsidiaries) and (ii) the
consolidated accounts of each Specified Subsidiary and its Subsidiaries.


 


“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.


 


“Conversion”, “Convert”
and “Converted” each refers to the conversion of Advances from one Type
to Advances of the other Type.


 


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


 


6

















 


(a)           all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements, convertible securities (to the extent that such convertible
securities are not evidenced by any of the foregoing and have put provisions or
other similar obligations that are exercisable during the term of this
Agreement) 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)           all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts payable not
overdue by more than 120 days incurred in the ordinary course of such Person’s
business);


 


(d)           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;


 


(e)           all obligations of such Person under Capitalized Leases;


 


(f)            all Synthetic Debt of such Person;


 


(g)           all obligations of such Person under Hedge Agreements,
valued at the Agreement Value thereof;


 


(h)           all mandatory obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in cash in respect of any
Equity Interests in such Person or any other Person or any warrants, rights or
options to acquire such Equity Interests in each case on or prior to the
Maturity Date, valued, in the case of Redeemable Preferred Interests, at the
greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends;


 


(i)            all Guarantee Obligations of such Person in respect of
any of the foregoing; and


 


(j)            all indebtedness and other payment Obligations referred
to in clauses (a) through (i) above of another Person secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations. 
The amount of any Debt related to this clause (j) shall be
deemed to be equal to the lesser of (i) the amount of such Debt so secured
and (ii) the fair market value of the property subject to such Lien.


 


Notwithstanding anything to
the contrary herein and solely for purposes of Section 6.01(e), with
respect to any Person (other than any Loan Party), any obligation that is
non-recourse to such Person other than to specified assets of such Person, if
in the reasonable judgment of the management of such Person the equity value of
collateral that would be preserved or protected as a result of the repayment of
such obligation is less than the amount necessary to repay such obligation,
shall not be deemed Debt of such Person.


 


“Debt For Borrowed Money”
means (a) all indebtedness of a Person of the type described in
clauses (a) and (b) (other than direct or contingent obligations
of such Person arising under surety bonds) of the definition of “Debt”, (b) all
obligations of such Person in respect of other transactions 


 


7

















 


entered into by such Person
that are intended to function primarily as a borrowing of funds and (c) all
Guarantee Obligations of such Person in respect of any of the foregoing.


 


“Debtor Relief Laws”
means the U.S. Bankruptcy Code (11 U.S.C. §§ 101 et seq) 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 of Default or any event that would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.


 


“Defaulted Amount”
means, with respect to any Lender at any time, any amount required to be paid
by such Lender to the Administrative Agent or any other Lender hereunder or
under any other Loan Document at or prior to such time which has not been so
paid as of such time, including, without limitation, any amount required to be
paid by such Lender to (a) any other Lender pursuant to Section 2.12
to purchase any participation in Advances owing to such other Lender and (b) the
Administrative Agent pursuant to Section 7.07 to reimburse the
Administrative Agent for such Lender’s ratable share of any amount required to
be paid by the Lenders to the Administrative Agent as provided therein; provided
that no such amount shall be a Defaulted Amount to the extent that such amount
is being contested by such Lender in good faith by appropriate
proceedings.  In the event that a portion
of a Defaulted Amount shall be deemed paid pursuant to Section 2.14(a),
the remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.


 


“Defaulting Lender”
means, at any time, any Lender that, at such time, owes a Defaulted Amount.


 


“Disclosed Matters”
means the matters disclosed on Schedule 1.01(a).


 


“Dollar” means the
lawful currency of the United States.


 


“Domestic Lending Office”
means, with respect to any Lender, the office of such Lender specified as its “Domestic
Lending Office” opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, as the case may be, or such
other office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.


 


“Eligible Assignee”
means:  (a) a Lender; (b) an
Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person
(other than an individual) approved by the Administrative Agent (such
consent not to be unreasonably withheld or delayed); provided, however,
that no Loan Party (or any Affiliate of a Loan Party) shall qualify as an
Eligible Assignee under this definition.


 


“Environmental Action”
means any action, suit, written demand, demand letter, written claim, written
notice of noncompliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit, any
Hazardous Material, or arising from alleged injury or threat to public or
employee health or safety, as such relates to the actual or alleged exposure to
Hazardous Material, or to the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.


 


8

















 


“Environmental Law”
means any applicable federal, state, local or foreign statute, law, ordinance,
rule, regulation, code, order, writ, judgment, injunction or decree, or
judicial or agency interpretation, relating to pollution or protection of the
environment, public or employee health or safety, as such relates to the actual
or alleged exposure to Hazardous Material, or natural resources, including,
without limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.


 


“Environmental Permit”
means any permit, approval, identification number, license or other
authorization required under any Environmental Law.


 


“Equity Interests”
means, with respect to any Person, shares of capital stock of (or other
ownership or profit interests in) such Person, warrants, options or other
rights for the purchase or other acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person,
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 other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized on any date of
determination.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and the regulations promulgated and rulings issued thereunder.


 


“ERISA Affiliate”
means any Person that for purposes of Title IV of ERISA is a member of the
controlled group of any Loan Party, or under common control with any Loan
Party, within the meaning of Section 414(b), (c), (m) or (o) of
the Internal Revenue Code.


 


“ERISA Event” means (a) (i) the
occurrence of a reportable event, within the meaning of Section 4043 of
ERISA, with respect to any ERISA Plan unless the 30 day notice requirement with
respect to such event has been waived by the PBGC or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of an
ERISA Plan, and an event described in paragraph (9), (10), (11), (12) or (13)
of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such ERISA Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to an ERISA Plan; (c) the
provision by the administrator of any ERISA Plan of a notice of intent to
terminate such ERISA Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of any Loan Party or
any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for imposition of a lien under Section 303(k) of ERISA
shall have been met with respect to any ERISA Plan; (g) the adoption of an
amendment to an ERISA Plan requiring the provision of security to such ERISA
Plan pursuant to Section 307 of ERISA; or (h) the institution by the
PBGC of proceedings to terminate an ERISA Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section 4042
of ERISA that constitutes grounds for the termination of, or the appointment of
a trustee to administer, such ERISA Plan.


 


“ERISA Plan” means a
Single Employer Plan or a Multiple Employer Plan.


 


“Eurodollar Lending
Office” means, with respect to any Lender, the office of such Lender
specified as its “Eurodollar Lending Office” opposite its name on Schedule I
hereto or in the 


 


9

















 


Assignment and Acceptance
pursuant to which it became a Lender, as the case may be, or such other office
of such Lender as such Lender may from time to time specify to the Borrower and
the Administrative Agent.


 


“Eurocurrency Liabilities”
has the meaning specified in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.


 


“Eurodollar Rate”
means, for any Interest Period, a rate per annum equal to the rate per annum
obtained by dividing (X) the higher of (a) 1.50% per annum and (b) (i) the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or another commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from time to time) at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period, for U.S. dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period or (ii) if the rate described in clause (i) is
not available at such time for any reason, the rate per annum determined by the
Administrative Agent to be the rate at which U.S. dollar deposits with a term
equivalent to such Interest Period would be offered by Citibank, N.A. in
London, England to major banks in the London or other offshore interbank market
at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period by (Y) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.


 


“Eurodollar Rate Advance”
means an Advance that bears interest as provided in Section 2.06(a)(ii).


 


“Eurodollar Rate Reserve
Percentage” for any Interest Period for all Eurodollar Rate Advances means
the reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.


 


“Events of Default”
has the meaning specified in Section 6.01.


 


“Excluded Mortgage Loan
Assets” has the meaning specified on Schedule 1.01(d).


 


“Excluded Subsidiary”
means any Subsidiary of the Borrower that is: (a) not a wholly-owned
Subsidiary; (b) not a Material Subsidiary; (c) a Foreign Subsidiary; (d) a
Specified Subsidiary; (e) a Bankruptcy Remote Special Purpose Entity; (f) a
CFC; (g) an entity that is prohibited by any Requirement of Law or
Contractual Obligation from providing any guaranty of the Loan Parties’
Obligations under the Loan Documents; provided that any such Contractual
Obligation (i) shall have been entered into or incurred prior to the
Closing Date (or, in the case of any Subsidiary formed or acquired by the
Borrower subsequent to the Closing Date, prior to such formation or
acquisition) and (ii) in any event, shall not have been entered into or
incurred in contemplation of this provision; or (h) any Subsidiary which
is a broker-dealer registered with the SEC and applicable state securities
commissions in the United States.


 


“Excluded Taxes” has
the meaning specified in Section 2.11(a).


 


10

















 


“Existing Bridge Loan
Agreement” means the $5,250,000,000 Bridge Loan Agreement, dated as of March 23,
2006, among the Borrower, the lenders party thereto, Citicorp North America
Inc., as administrative agent, and the other financial institutions as agents
party thereto.


 


“Existing Bridge Loan
Agreement Repayment” means any ratable repayment or prepayment in cash of
outstanding Existing Bridge Loans held by (a) Existing Bridge Loan Lenders
that (i) enter into this Agreement as a Lender, (ii) consent to the
amendments to the Existing Bridge Loan Agreement referred to in Section 3.01(b) and
(iii) if such Existing Bridge Loan Lenders are also Existing Credit
Facility Lenders, consent to the amendments to the Existing Credit Agreement
referred to in Section 3.01(b) and (b) such Existing Bridge Loan
Lenders’ permitted assigns.


 


“Existing Bridge Loan
Lender” means any “Lender” under and as defined in the Existing Bridge Loan
Agreement.


 


“Existing Bridge Loans”
means any “Loans” under and as defined in the Existing Bridge Loan Agreement.


 


“Existing Credit
Agreement” means the $5,500,000,000 Credit Agreement, dated as of March 23,
2006, among the Borrower, certain Subsidiaries of the Borrower as designated
borrowers, the lenders party thereto, Citibank, N.A., as administrative agent,
and the other financial institutions as agents party thereto.


 


“Existing Credit
Agreement Repayment”  means any
ratable repayment or prepayment of outstanding “Loans” under and as defined in
the Existing Credit Agreement in cash (accompanied, in the case of any repaid
Revolving Credit Loans, with a permanent reduction in the corresponding
Revolving Credit Commitments (as such terms are defined in the Existing Credit
Agreement)) held by (a) Existing Credit Facility Lenders that (i) enter
into this Agreement as a Lender, (ii) consent to the amendments to the
Existing Credit Agreement referred to in Section 3.01(b) and (iii) if
such Existing Credit Facility Lenders are also Existing Bridge Loan Lenders,
consent to the amendments to the Existing Bridge Loan Agreement referred to in Section 3.01(b) and
(b) such Existing Credit Facility Lenders’ permitted assigns.


 


“Existing Credit
Facilities” means the “Facilities” under and as defined in the Existing
Credit Agreement.


 


“Existing Credit Facility
Lender” means any “Lender” under and as defined in the Existing Credit
Agreement.


 


“Existing Indentures”
means, collectively (a) the Indenture, dated as of May 10, 2007,
among the Borrower, the guarantors named therein and Deutsche Bank Trust
Company Americas, as trustee, with respect to the 2010 Notes, (b) the
Indenture, dated as of May 10, 2007, among the Borrower, the guarantors
named therein and Deutsche Bank Trust Company Americas, as trustee, with
respect to the 2012 Notes and (c) the Indenture, dated as of May 10,
2007, among the Borrower, the guarantors named therein and Deutsche Bank Trust
Company Americas, as trustee, with respect to the 2017 Notes.


 


“Existing Notes”
means the 2010 Notes, the 2012 Notes and/or the 2017 Notes, as the context may
require.


 


“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day
during such period to (a) the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the preceding Business Day) by the 


 


11

















 


Federal Reserve Bank of New
York, or (b) if such rate is not so published for any day that is a Business
Day, the average of the quotations at approximately 11:00 a.m., New York
City time, for the day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.


 


“Fee Letter” means,
collectively (a) the fee letter dated as of May 8, 2009 among the
Borrower, the Lead Arrangers, Citibank, N.A. and JPMorgan Chase Bank, N.A. and (b) the
administrative agent fee letter dated as of May 8, 2009 among the
Borrower, CGMI, Citibank, N.A. and CNAI.


 


“Fiscal Quarter”
means any fiscal quarter of any Fiscal Year, which quarter shall end on the
last day of each March, June, September and December of such Fiscal
Year in accordance with the fiscal accounting calendar of the Borrower and its
Subsidiaries.


 


“Fiscal Year” means a
fiscal year of the Borrower and its Subsidiaries ending on December 31,
except for Subsidiaries of the Borrower organized in certain jurisdictions in
Asia with fiscal years ending on March 31, April 30, June 30 or September 30.


 


“Fitch” means Fitch
Inc.


 


“Foreign Subsidiary”
means, at any time, any of the direct or indirect Subsidiaries of the Borrower
that are organized outside of the laws of the United States, any state thereof
or the District of Columbia at such time.


 


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


 


“GAAP” has the
meaning specified in Section 1.03.


 


“Government Related
Enterprises” means the collective reference to (a) the Federal Home
Loan Mortgage Corporation (Freddie Mac), (b) the Federal National Mortgage
Association (Fannie Mae) and (c) the United States Department of Housing
and Urban Development, including the Government National Mortgage Association
(Ginnie Mae).


 


“Granting Lender” has
the meaning specified in Section 9.07(j).


 


“Guarantee Obligation”
means, as to any Person, any financial obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person or
in any manner providing for the payment of any Debt of any other Person,
including any Obligation of such Person, whether or not contingent, (a) to
purchase any primary obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
assets, securities or services primarily for the purpose of assuring the owner
of any primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (d) otherwise to assure or hold harmless the
holder of any primary obligation against loss in respect thereof; provided
that the term “Guarantee Obligation” shall not include endorsements for
collection or deposit in the ordinary course of business.  The amount of any Guarantee Obligation shall
be determined by reference to the carrying value of such Guarantee Obligation,
with the “carrying value” being determined in a manner consistent with the
carrying value of the Guarantee Obligations as reflected on the Borrower’s
financial statements delivered pursuant to Section 5.03(b) and (c).


 


12

















 


“Guaranteed Obligations”
has the meaning specified in Section 8.01.


 


“Guarantor” has the
meaning specified in the recital of parties to this Agreement.


 


“Guaranty” has the
meaning specified in Section 8.01.


 


“Hazardous Materials”
means (a) petroleum or petroleum products, by-products or breakdown
products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls, mold and radon gas and (b) any other chemicals, materials or
substances designated, classified or regulated as hazardous, toxic or words of
similar import under any Environmental Law.


 


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


 


“Indemnified Liabilities”
has the meaning specified in Section 9.04(b).


 


“Indemnitees” has the
meaning specified in Section 9.04(b).


 


“Informational Website”
has the meaning specified in Section 5.03.


 


“Initial Lenders”
means the banks, financial institutions and other institutional lenders listed
on the signature pages hereof; provided that any such bank,
financial institution or other institutional lender shall cease to be an
Initial Lender on any date on which it ceases to hold any Advances.


 


“Insufficiency”
means, with respect to any ERISA Plan, the amount, if any, of its unfunded
benefit liabilities, as defined in Section 4001(a)(18) of ERISA.


 


“Interest Cash Collateral
Sub-Account” means any cash collateral account (including a joint
deposit/securities account) (subject to the terms of the Security Agreement) or
sub-account of the Cash Collateral Account to which interest collected in
respect of, or arising out of, any Collateral is to be credited pursuant to Section 2.05(c)(iii).


 


“Interest Cash Collateral
Sub-Account Notice” means a written notice executed by a Responsible
Officer of the Borrower requesting an amount of funds to be withdrawn or
transferred from the Interest Cash Collateral Sub-Account and (a) setting
forth (i) the amount of such funds which are to be applied to the payment
of interest in respect of the Advances and (ii) if applicable, the amount
of such funds which are to be used by the Borrower and its Subsidiaries for
general corporate purposes and (b) certifying, in the case of any withdrawal
or transfer referred to in clause (a)(ii) above, compliance with the
conditions set forth in the proviso to Section 2.05(c)(iv)(B).


 


“Interest Period”
means, for each Eurodollar Rate Advance, the period commencing on the date of
such Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the 


 


13

















 


immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. 
The duration of each such Interest Period shall be one, two or three
months, as the Borrower may, upon notice received by the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided, however,
that:


 


(a)           the Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance that ends after the Maturity Date (or
the Specified Repayment Date, if earlier) unless, after giving effect to such
selection, the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on or prior to the
Maturity Date (or the Specified Repayment Date, if earlier) shall be at least
equal to the aggregate principal amount of Advances due and payable on or prior
to such date;


 


(b)           whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause the last
day of such Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding Business
Day; and


 


(c)           whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial calendar
month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such
succeeding calendar month.


 


“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.


 


“Investment” means,
with respect to any Person, (a) any direct or indirect purchase or other
acquisition (whether for cash, securities, property, services or otherwise) by
such Person of, or of a beneficial interest in, any Equity Interests or Debt of
any other Person, (b) any direct or indirect purchase or other acquisition
(whether for cash, securities, property, services or otherwise) by such Person
of all or substantially all of the property and assets of any other Person or
of any division, branch or other unit of operation of any other Person, and (c) any
direct or indirect loan, advance, other extension of credit or capital
contribution by such Person to, or any other investment by such Person in, any
other Person (including, without limitation, any arrangement pursuant to which
the investor incurs indebtedness of the types referred to in clause (i) or
(j) of the definition of “Debt” set forth in this Section 1.01 in
respect of such other Person).


 


“Investors” has the
meaning specified in the Existing Credit Agreement.


 


“JPMSI” has the
meaning specified in the recital of parties to this Agreement.


 


“Lead Arrangers” has
the meaning specified in the recital of parties to this Agreement.


 


“Lender Committee”
means a committee comprising five Lenders, which as of the Closing Date shall
be CNAI, JPMorgan Chase Bank, N.A., Deutsche Bank AG Caymans Islands Branch,
The Royal Bank of Scotland and Wachovia Bank, N.A.  After the Closing Date, members of the Lender
Committee may resign in their sole discretion. 
Any Lender that shall cease to be a member of the Lender Committee shall
be replaced with another Lender not then a member of the Lender Committee
selected by the remaining members of the Lender Committee pursuant to a vote of
a majority in number of such remaining members of the Lender Committee (provided
that, if the remaining members of the Lender 


 


14

















 


Committee are not able to so
appoint a replacement for such Lender prior to a decision of such Lender
Committee being required hereunder, a replacement shall be appointed by the
Required Lenders).  Except as otherwise
expressly set forth in this definition of “Lender Committee”, decisions by the
Lender Committee shall be made by a vote of a majority in number of all members
of the Lender Committee.


 


“Lenders” has the
meaning specified in the recital of parties to this Agreement.


 


“Lien” means any
lien, security interest or other charge or encumbrance of any kind, or any
other type of preferential arrangement in the nature of a security interest,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.


 


“Liquidity Availability”
means, at any time, an amount equal to the unrestricted cash and Cash
Equivalents of the Borrower and its Subsidiaries (other than any Specified
Subsidiaries or any Subsidiaries that are broker-dealers registered with the
SEC and with state securities commissions in the United States under state
securities laws) (which unrestricted cash and Cash Equivalents, for greater
certainty, shall exclude any such property (a) held in the Cash Collateral
Account, (b) that is being held as cash collateral or that constitutes
escrowed funds or (c) that is otherwise subject to a currently applicable
restriction on its withdrawal or distribution to the Borrower or any of its
Subsidiaries); provided that Liquidity Availability shall be reduced by
the amount of any tax liability reasonably estimated by the Borrower to be incurred
as a result of the repatriation from any Foreign Subsidiary of any such cash or
Cash Equivalents to the Borrower or any of its domestic Subsidiaries, provided
that no such reduction pursuant to this clause (c) shall be required
with respect to any funds that are eligible to be used and that the Borrower
intends to use to meet the liquidity needs of the Foreign Subsidiary holding
such funds (not to exceed $100,000,000 in the aggregate to meet the liquidity
needs of all Foreign Subsidiaries).


 


“Liquidity Condition”
means that (a) the Borrower and its Subsidiaries shall have maintained a
Liquidity Availability of at least $450,000,000 on an average daily basis for
each of the three months ending immediately prior to any utilization of the
Notes Cash Basket and (b) before and after giving effect to the proposed
utilization of the Notes Cash Basket, the Borrower shall be in compliance with
Sections 5.04(a) and (b).


 


“Loan Documents”
means (a) this Agreement, (b) the Notes, if any, (c) the
Collateral Documents, (d) the Fee Letter (e) any Guaranty Supplement
and (f) any other document, agreement or instrument executed and delivered
by a Loan Party in connection with the Term Facility, including, without
limitation, any intercreditor agreement entered into by the Collateral Agent
pursuant to Section 5.02(a)(viii), in each case as amended, supplemented
or otherwise modified from time to time in accordance with the terms thereof.


 


“Loan Parties” means,
collectively, the Borrower and the Guarantors.


 


“Margin Stock” has
the meaning specified in Regulation U.


 


“Material Adverse Change”
means any event or occurrence that has resulted in or could reasonably be
expected to result in any material adverse change in the business, financial
condition, operations or properties of the Borrower and its Subsidiaries, taken
as a whole.


 


“Material Adverse Effect”
means a material adverse effect on (a) the business, financial condition,
operations or properties of the Borrower and its Subsidiaries, taken as a
whole, (b) the rights and remedies of the Administrative Agent or any
Lender under any Loan Document or (c) the ability of any Loan Party to
perform its Obligations under any Loan Document to which it is or is to be a
party.


 


15
















 


“Material Subsidiary”
means (a) on any date of determination, any direct or indirect Subsidiary
of the Borrower that, on such date, has (i) total assets, together with
the total assets of all of its Subsidiaries, greater than or equal to 5% of the
total consolidated assets of the Borrower and its Subsidiaries or (ii) total
revenue, together with the total revenue of all of its Subsidiaries, greater
than or equal to 5% of the total consolidated revenue of the Borrower and its
Subsidiaries, all as determined in accordance with GAAP and (b) REO
Holdco; provided that, notwithstanding the foregoing, any Subsidiary of
the Borrower that (A) provides a Guarantee Obligation in respect of any of
the Existing Notes, the Existing Credit Facilities, the Existing Bridge Loans
or any Permitted Refinancing Debt or (B) owns any REO Property or any
other North American mortgage loan or real estate interest, shall in each case
be deemed to be a Material Subsidiary (provided that no Subsidiary that
holds solely REO Property other than REO Holdco shall be deemed to be a
Material Subsidiary pursuant to this proviso); and provided  further
that, in no event shall the Subsidiaries of the Borrower (excluding any
Excluded Subsidiaries) that are not Material Subsidiaries or Guarantors have (X) total
assets greater than or equal to 10% of the total consolidated assets of the
Borrower and its Subsidiaries and (Y) total revenue greater than or equal
to 10% of the total consolidated revenue of the Borrower and its Subsidiaries,
all as determined in accordance with GAAP (it being understood that the
Borrower may designate one or more Subsidiaries that would not otherwise
qualify as Material Subsidiaries as Material Subsidiaries in order to comply
with the terms of this proviso).


 


“Maturity Date” means
March 23, 2011.


 


“Moody’s” means Moody’s
Investor Service.


 


“Mortgage Loan Assets”
means the mortgage loan assets (including mortgage loan assets and mezzanine
loans, and in each case, any agreement, note or instrument evidencing a direct
or indirect interest therein, interests in respect of “new market tax credit”
loans, any mortgage loan assets similar to any of the foregoing, participation
interests in any of the foregoing, and any REO Property, but excluding Excluded
Mortgage Loan Assets and mortgage servicing rights) of the Loan Parties and
their respective Subsidiaries (other than any Specified Excluded Subsidiaries)
to the extent relating to real property located in the United States or Canada.


 


“Mortgages” shall
mean deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold
deeds of trust in form and substance satisfactory to the Administrative Agent,
pursuant to which, among other things, a Loan Party owning or leasing real
property grants a first priority perfected Lien on such real property securing
the Secured Obligations to the Collateral Agent for its own benefit and the
benefit of the other Secured Parties.


 


“Multiemployer Plan”
means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.


 


“Multiple Employer Plan”
means a single employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and at least one Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained within any of the preceding five plan
years and in respect of which any Loan Party or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.


 


16

















 


“Net Cash Proceeds”
means:


 


(a)           with respect to any Collateral Disposition, Collateral
Recovery Event or any Other Collateral Collection, the gross cash proceeds
received in connection with such Collateral Disposition, Collateral Recovery
Event or Other Collateral Collection, net of attorneys’ fees, accountants’
fees, investment banking fees and other customary fees and expenses actually
incurred in connection therewith and in each case directly related to such
Collateral Disposition, Collateral Recovery Event or Other Collateral
Collection, as the case may be, and net of taxes paid or reasonably estimated
to be payable as a direct result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements); and


 


(b)           with respect to the sale or issuance of any Equity
Interests by any Loan Party or any of its Subsidiaries, or the incurrence or
issuance of any Debt by any Loan Party or any of its Subsidiaries, the gross
cash proceeds received in connection with such transaction, net of attorneys’
fees, investment banking fees, accountants’ fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith and in each case directly related to such transaction.


 


“Non-Loan Party”
means any Subsidiary of a Loan Party that is not a Loan Party.


 


“Non-Performing Mortgage
Loan” means any Mortgage Loan Asset classified as non-performing in
accordance with the Loan Parties’ internal procedures, consistent with past
practice.


 


“Non-Reserve Cash Collateral
Sub-Account” means any cash collateral account (subject to the terms of the
Security Agreement) or any sub-account of the Cash Collateral Account to which
Non-Reserve Funds are to be credited pursuant to Section 2.05(c)(iii).


 


“Non-Reserve Funds”
has the meaning specified in Section 2.05(c)(iii).


 


“Non-U.S. Lender” has
the meaning specified in Section 2.11(e).


 


“Note” means a
promissory note of the Borrower payable to the order of any Lender, in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Advances made by
such Lender.


 


“Notes Cash Basket”
has the meaning specified in Section 5.02(k).


 


“Notice of Borrowing”
has the meaning specified in Section 2.02(a).


 


“Notice of Default”
has the meaning specified in Section 7.05.


 


“Obligation” means,
with respect to any Person, any payment, performance or other obligation of
such Person of any kind, including, without limitation, any liability of such
Person on any claim, whether or not the right of any creditor to payment in
respect of such claim is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding under any Debtor Relief Law.  Without limiting the generality of the
foregoing, the Obligations of the Loan Parties under the Loan Documents include
(a) the obligation to pay principal, interest, charges, expenses, fees,
attorneys’ fees and disbursements, indemnities and other amounts payable by any
Loan Party under any Loan Document and (b) the obligation of any Loan
Party to reimburse any amount in 


 


17

















 


respect of any of the
foregoing that any Lender, in its sole discretion, may elect to pay or advance
on behalf of such Loan Party.


 


“Other Collateral
Collections” means any amounts received or collected in respect of, or
arising out of any Collateral (including, for the avoidance of doubt, any REO
Property) (including payments and prepayments of principal, payments of
interest and fees, settlements and sales of participation interests, in each
case in respect of Collateral or REO Property), other than in each case to the
extent constituting a Collateral Disposition.


 


“Other Taxes” has the
meaning specified in Section 2.11(b).


 


“Patriot Act” means
the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001, Pub.  L. 107-56, signed into law October 26,
2001.


 


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


 


“Permitted Lien”
means:


 


(a)       Liens in favor of the Administrative Agent and/or the
Collateral Agent for the benefit of the Secured Parties and the other parties
intended to share the benefits of the Collateral granted pursuant to any of the
Loan Documents;


 


(b)       Liens for taxes and other obligations or requirements owing to
or imposed by governmental authorities existing or having priority, as
applicable, by operation of law which in either case (i) are not yet
overdue or (ii) are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted so long as appropriate
reserves in accordance with GAAP shall have been made with respect to such
taxes or other obligations;


 


(c)       statutory Liens of banks and other financial institutions (and
rights of set-off);


 


(d)       statutory Liens of landlords, carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law
(other than any such Lien imposed pursuant to Section 430(k) of the
Internal Revenue Code or by ERISA), in each case incurred in the ordinary
course of business (i) for amounts not yet overdue or (ii) for
amounts that are overdue and that (in the case of any such amounts overdue for
a period in excess of five days) are being contested in good faith by
appropriate proceedings, so long as such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made for any
such contested amounts;


 


(e)       Liens incurred in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other types
of social security;


 


(f)        Liens, pledges and deposits to secure the performance of
tenders, statutory obligations, performance and completion bonds, surety bonds,
appeal bonds, bids, leases, licenses, government contracts, trade contracts,
performance and return-of-money bonds and other similar obligations;


 


(g)       easements, rights-of-way, zoning restrictions, licenses,
encroachments, restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business, in each case that
were not incurred in connection with and do not secure Debt 


 


18

















 


and do not materially and
adversely affect the use of the property encumbered thereby for its intended
purposes;


 


(h)       (i) any interest or title of a lessor under any lease by
the Borrower or any Subsidiary of the Borrower and (ii) any leases or
subleases by the Borrower or any Subsidiary of the Borrower to another
Person(s), incurred in the ordinary course of business and that do not
materially and adversely affect the use of the property encumbered thereby for
its intended purposes;


 


(i)        the filing of precautionary UCC financing statements relating
to leases entered into in the ordinary course of business and the filing of UCC
financing statements by bailees and consignees in the ordinary course of business;


 


(j)        Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods;


 


(k)       leases and subleases or licenses and sublicenses of patents,
trademarks and other intellectual property rights granted by the Borrower or
any of its Subsidiaries in the ordinary course of business and not interfering
in any respect with the ordinary conduct of the business of the Borrower or
such Subsidiary; and


 


(l)        Liens arising out of judgments not constituting an Event of
Default hereunder.


 


“Permitted Notes
Refinancing” means the refinancing, refunding, exchange or replacement of
any of the Existing Notes with Permitted Refinancing Debt.


 


“Permitted Refinancing
Debt” means any Debt issued or incurred in connection with the refinancing,
refunding, exchange or replacement of the Existing Notes (and, to the extent
that any such Debt (x) is accepted by any Existing Credit Facility Lenders
to refinance, refund, exchange or replace Debt under the Existing Credit
Facilities, the Existing Credit Facilities or (y) is accepted by any
Existing Bridge Loan Lenders to refinance, refund, exchange or replace the
Existing Bridge Loans, the Existing Bridge Loans); provided that (a) no
Default shall have occurred and be continuing before and after giving effect to
such issuance or incurrence, (b) in connection with any such issuance or
incurrence, the Existing Credit Facility Lenders and the Existing Bridge Loan
Lenders shall be offered, on a proportionate basis in accordance with the
provisions of the Existing Credit Agreement and the Existing Bridge Loan
Agreement, as applicable, such Permitted Refinancing Debt on the same terms and
conditions (including, without limitation, the same security package) (provided,
however, that in connection with any payment, redemption, exchange or
repurchase of the Existing Notes in which availability under the Notes Cash
Basket is utilized in connection with such transaction, any such proportionate
offer to the Existing Credit Facility Lenders and the Existing Bridge Loan
Lenders (i) need not include any cash payment to the Existing Credit
Facility Lenders or the Existing Bridge Loan Lenders to the extent that a cash
payment is made out of the proceeds from the Notes Cash Basket (and in the
event that no cash payment is made to the Existing Credit Facility Lenders and
the Existing Bridge Loan Lenders, such proportionate offer shall be determined
as if no cash payment were made to the holders of the Existing Notes) and (ii) may
include a cash payment to the Existing Credit Facility Lenders and/or the
Existing Bridge Loan Lenders, provided that any such cash payment to the
Existing Credit Facility Lenders or the Existing Bridge Loan Lenders shall not
reduce the Notes Cash Basket), (c) no Permitted Refinancing Debt shall
have any scheduled or mandatory principal repayments prior to August 23,
2011 and (d) the principal amount of the Debt being refinanced, refunded,
exchanged or replaced shall not be increased above the principal amount thereof
outstanding immediately prior to such refinancing, refunding, exchange or
replacement.


 


19

















 


“Person” means an
individual, partnership, corporation (including a business trust), limited liability
company, joint stock company, trust, unincorporated association, joint venture
or other entity, or a government or any political subdivision or agency
thereof.


 


“Platform” has the
meaning specified in Section 9.02(b).


 


“Post-Petition Interest”
has the meaning specified in Section 8.06.


 


“Preferred Interests”
means, with respect to any Person, Equity Interests issued by such Person that
are entitled to a preference or priority over any other Equity Interests issued
by such Person upon any distribution of such Person’s property and assets,
whether by dividend or upon liquidation.


 


“Projections” has the meaning specified in Section 5.03(f).


 


“Real Estate Collateral
Deliverables” means the delivery of Mortgages covering each REO Property
and any other real property that constitutes Collateral duly executed by the
appropriate Loan Party, together with:


 


(a)           evidence that counterparts of the Mortgages have been duly
executed, acknowledged and delivered on or before the date specified in
Sections 5.01(i) or (q), as applicable, and are in form suitable for
filing or recording in all filing or recording offices that the Collateral
Agent may deem necessary or may reasonably request in order to create a valid
first and subsisting Lien (subject to Permitted Liens) on the property
described therein in favor of the Collateral Agent for the benefit of the
Secured Parties and that all filing and recording taxes and fees have been or,
contemporaneous with the recording of such Mortgage, will be, paid;


 


(b)           to the extent not already pledged to the Collateral Agent
pursuant to the Security Agreement at such time, a pledge of the Equity
Interests in the Subsidiary holding such REO Property;


 


(c)           favorable opinions of local counsel for the Loan Parties (i) in
states in which the REO Properties or real properties are located, with respect
to the enforceability and perfection of the Mortgages and any related fixture
filings in form and substance reasonably satisfactory to the Collateral Agent
and (ii) in states in which the Loan Parties party to the Mortgages are
organized or formed, with respect to the valid existence, corporate power and
authority of such Loan Parties in the granting of the Mortgages, in form and
substance satisfactory to the Collateral Agent; and


 


(d)           such other evidence that all other actions that the
Collateral Agent may deem necessary or may reasonably request in order to
create valid first and subsisting Liens on the property described in the
Mortgages has been taken.


 


“Receivable” means
any right of payment from or on behalf of any obligor (including mortgagor),
whether constituting an account, chattel paper, instrument, general intangible
or otherwise, acquired or arising from the financing or leasing by the Borrower
or any of its Subsidiaries of property or services, and monies due thereunder,
security interests in the property and services financed or leased thereby and
any and all other related rights.


 


“Redeemable” means,
with respect to any Equity Interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the control
of the issuer or (b) is redeemable at the option of the holder.


 


20

















 


“Register” has the
meaning specified in Section 9.07(d).


 


“Regulation U” means
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.


 


“REO Holdco” means
Capmark REO Holding LLC, a Delaware limited liability company.


 


“REO Mortgage Condition”
has the meaning specified in Section 5.01(q).


 


“REO Property” means (a) real
property acquired by the Borrower (or any of its Subsidiaries (other than any
Specified Subsidiaries)) by foreclosure, acceptance of a deed-in-lieu of
foreclosure, abandonment or reclamation from bankruptcy in connection with a
default in partial or total satisfaction of a Non-Performing Mortgage Loan and (b) any
Equity Interests in any Person owning property of the type described in the
foregoing clause (a).


 


“Required Lenders”
means, at any time, Lenders owed or holding at least a majority in interest of
the aggregate principal amount of the Advances outstanding at such time (or, if
the Advances are not outstanding at such time, the aggregate amount of the
Commitments at such time); provided, however, that if any Lender
shall be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time the unused Commitment of, and
the aggregate principal amount of the Advances owing to such Lender (in its
capacity as a Lender) and outstanding at such time.


 


“Requirement of Law”
means, as to any Person, any law, treaty, rule or regulation or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.


 


“Reserve Cash Collateral
Sub-Account” means any cash collateral account (including a joint
deposit/securities account) (subject to the terms of the Security Agreement) or
any sub-account of the Cash Collateral Account to which Reserve Funds are to be
credited pursuant to Section 2.05(c)(iii).


 


“Reserve Cash Collateral
Sub-Account Notice” means a written notice executed by a Responsible
Officer of the Borrower requesting an amount of funds to be withdrawn or
transferred from the Reserve Cash Collateral Sub-Account and certifying compliance
with the conditions set forth in the proviso to Section 2.05(c)(v).


 


“Reserve Funds” has
the meaning specified in Section 2.05(c)(iii).


 


“Responsible Officer”
means the chief executive officer, president, senior vice president, executive
vice president, vice president, chief financial officer, chief accounting
officer, controller, treasurer or assistant treasurer of a Loan Party.  Any document delivered hereunder or under any
other Loan Document 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 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.


 


“Restricting Information”
has the meaning set forth in Section 9.09(c).


 


“Run Rate Operating
Expense” means, for any period, an amount equal to:  (a) total operating expenses of the
Borrower and its Subsidiaries on a Consolidated basis for such period; less
(b) total operating expenses of the Specified Subsidiaries on a
Consolidated basis for such period (other 


 


21

















 


than any such operating
expenses that, (x) prior to such period, were operating expenses of the
Borrower or any of its Subsidiaries (other than any Specified Subsidiaries) and
(y) have been migrated to the Specified Subsidiaries in connection with
the implementation of any restructuring, winding down or disposition of
business units or assets of the Borrower and its Subsidiaries or the
implementation of the operating cost reduction plan of the Borrower); less
(c) the sum of (without duplication): 
(i) the amount of depreciation and amortization expense and
impairment charges in respect of fixed assets, mortgage servicing rights and
intangible assets; (ii) non-cash expenses or charges incurred in
connection with the granting of, or accretion on, options, warrants or other
Equity Interests pursuant to any management or director equity plan, stock option
plan or similar employee compensation arrangement; (iii) any expenses or
charges directly related to the restructuring of the Existing Notes, the
Existing Credit Facilities or the Existing Bridge Loans accounted for in such
period, including the ongoing fees and expenses required to be paid to the
Lenders or their advisors in connection with the restructuring of the Existing
Credit Facilities and the Existing Bridge Loans; (iv) solely with respect
to the Fiscal Quarters ended June 30, 2009, September 30, 2009, December 31,
2009 and March 31, 2010, the amount of any one-time restructuring charges,
costs or other business optimization expenses directly incurred in connection
with the restructuring, winding down or disposition of business units or assets
outside of the ordinary course of business of the Borrower and its Subsidiaries
or the implementation of the operating cost reduction plan of the Borrower
(including professional fees and expenses, severance costs, contract breakage
costs and costs related to the closure and/or consolidation of facilities)
during such period; provided that the amount of restructuring charges,
costs and expenses deducted from Run Rate Operating Expenses pursuant to this
clause (iv) shall not exceed $50,000,000 in the aggregate; and (v) operating
expenses of variable interest entities that are required to be Consolidated
with the Borrower pursuant to FASB Interpretation No. 46(R), operating
expenses of investment partnerships and similar entities that are required to
be Consolidated with the Company pursuant to Emerging Issues Task Force Issue No. 04-5  and operating expenses of entities that are
required to be Consolidated with the Borrower pursuant to Statement of
Financial Accounting Standards No. 66 or similar accounting principles
implemented by applicable accounting standards bodies after the date hereof
relating to consolidation of subsidiaries; in each case of the Borrower and its
Subsidiaries (excluding the Specified Subsidiaries) for such period; plus
(c) (X) the Applicable Adjustment Percentage times (Y) the
aggregate amount of operating expenses of any Servicing Business subject to a
Servicing Business Disposition prior to or during such period for the portion
of such period occurring after the date of such Servicing Business Disposition
(determined on a pro forma basis based on the last full fiscal quarter period
ending immediately prior to the date of such Servicing Business Disposition and
making the adjustments, to the extent applicable, set forth in this definition
of “Run Rate Operating Expense”); all as determined for such period in
accordance with GAAP.


 


“S&P” means
Standard & Poor’s Financial Services LLC, a subsidiary of The Mc-Graw
Hill Companies, Inc.


 


“SEC” means the
United States Securities and Exchange Commission or any governmental authority
succeeding to any of its principal functions.


 


“Secured Obligation”
has the meaning specified in the Security Agreement.


 


“Secured Parties”
means, collectively, each Agent and the Lenders.


 


“Security Agreement”
has the meaning specified in Section 3.01(a).


 


“Servicing Advance Assets”
means the assets, whether now owned or hereafter acquired, of the Borrower and
its Subsidiaries comprising (a) Servicing Advances and (b) all
reimbursement rights and other amounts owing to the Borrower and its
Subsidiaries with respect to Servicing Advances.


 


22

















 


“Servicing Advances”
means advances made by the Borrower or any of its Subsidiaries, in its
respective capacity as servicer under any Servicing Agreement, in connection
with the servicing and administering of any mortgage loans or any mortgaged
property including but not limited to (i) advances of principal and
interest payments on mortgage loans and (ii) advances of out-of-pocket
costs and expenses incurred by the applicable servicer in respect of mortgage
loans in which a default, delinquency or other unanticipated event has occurred
or as to which a default is imminent, including, with respect to any underlying
mortgaged property, advances necessary for the purpose of effecting the payment
of real estate taxes, assessments and other similar items that are or may
become a lien thereon, premiums on insurance policies, advances generally known
as “emergency advances” or “property protection advances” under any Servicing
Agreement, costs of any enforcement or judicial proceedings, maintenance and
liquidation of any acquired mortgaged property, extraordinary trust fund
expenses, ground rents and similar charges or assessments.


 


“Servicing Advance
Facility” means any credit facility, securitization facility or other
financing facility obtained by the Borrower or any of its Subsidiaries in
connection with the financing of any Servicing Advance Assets.


 


“Servicing Advance
Facility Document” means any credit agreement or any other document,
agreement or instrument executed and delivered by the Borrower or any of its
Subsidiaries in connection with any Servicing Advance Facility.


 


“Servicing Agreement”
means any pooling and servicing agreement, trust and servicing agreement,
primary servicing agreement or other similar document pursuant to which the
Borrower or any of its Subsidiaries services mortgage loans or any mortgaged
property acquired through foreclosure, acceptance of a deed-in-lieu of foreclosure
or otherwise in accordance with applicable law in connection with the default
or imminent default of any mortgage loans, and makes Servicing Advances with
respect thereto.


 


“Servicing Business”
means the North American “servicing” segment of the Borrower and its
Subsidiaries.


 


“Servicing Business
Disposition” means any sale, transfer or other disposition of, or closure
of the Servicing Business or any material portion thereof pursuant to any
transaction or any series of related transactions (including by means of a
disposition of any Person or a disposition of all or substantially all of the
assets or property of such Servicing Business).


 


“Single Employer Plan”
means a single employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained within any of the preceding five plan years and in
respect of which any Loan Party or any ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to be
terminated.


 


“Specified Excluded
Subsidiaries” means:  (a) Excluded
Subsidiaries of the type described in clauses (d), (e) or (h) of
the definition thereof; (b) variable interest entities that are required
to be Consolidated with the Borrower pursuant to FASB Interpretation No. 46(R),
investment partnerships and similar entities that are required to be
Consolidated with the Company pursuant to Emerging Issues Task Force Issue No. 04-5
and entities that are required to be Consolidated with the Borrower pursuant to
Statement of Financial Accounting Standards No. 66 or similar accounting
principles implemented by applicable accounting standards bodies after the date
hereof relating to consolidation of subsidiaries; and (c) Subsidiaries
comprising investment funds organized in connection with the “low income
housing tax credit program” or “new markets tax credit program” of the
Borrower, 


 


23

















 


or special purpose entities
formed in connection with investment funds managed by the Borrower and its
Subsidiaries or entities owned by such investment funds.


 


“Specified Repayment Date”
has the meaning specified in Section 2.17.


 


“Specified Servicing
Advance Facility” means the proposed Servicing Advance Facility disclosed
by the Borrower to the Lead Arrangers prior to the Closing Date, to the extent
that such Servicing Advance Facility is consummated on substantially the same
terms and conditions as disclosed by the Borrower to the Lead Arrangers.


 


“Specified Subsidiaries”
means the collective reference to (a) Capmark Bank, an industrial bank
chartered under the laws of the State of Utah, (b) Escrow Bank USA, an
industrial bank chartered under the laws of the State of Utah, (c) Capmark
Bank Europe PLC, an Irish licensed bank and (d) any Subsidiary of any of
the foregoing.


 


“SPC” has the meaning
specified in Section 9.07(j).


 


“Subordinated Obligations”
has the meaning specified in Section 8.06.


 


“Subsidiary” of any
Person means any corporation, partnership, joint venture, limited liability
company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership, joint venture or
limited liability company or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person’s other Subsidiaries.


 


“Supermajority Lenders”
means, at any time, Lenders owed or holding at least 66 2/3% in interest of the
aggregate principal amount of the Advances outstanding at such time (or, if the
Advances are not outstanding at such time, the aggregate amount of the
Commitments at such time); provided, however, that if any Lender shall
be a Defaulting Lender at such time, there shall be excluded from the
determination of Supermajority Lenders at such time the unused Commitment of,
and the aggregate principal amount of the Advances owing to such Lender (in its
capacity as a Lender) and outstanding at such time.


 


“Supplemental Collateral
Agent” has the meaning specified in Section 7.02.


 


“Surviving Debt”
means Debt of the Borrower and its Subsidiaries outstanding immediately after
giving effect to the Closing Date and the Transactions; provided that,
to the extent that such Debt is Debt For Borrowed Money, such Debt is described
on Schedule 1.01(b).


 


“Syndication Agent”
has the meaning specified in the recital of parties to this Agreement.


 


“Synthetic Debt”
means, with respect to any Person, without duplication of any clause within the
definition of “Debt,” all (a) obligations of such Person under any lease
that is treated as an operating lease for financial accounting purposes and a
financing lease for tax purposes (i.e., a “synthetic lease”), (b) obligations
(other than syndication proceeds in the ordinary course) of such Person in
respect of transactions entered into by such Person (other than deposit
liabilities), the proceeds from which would be reflected on the financial
statements of such Person in accordance with GAAP as cash flows from 


 


24

















 


financings at the time such
transaction was entered into (other than as a result of equity contributions or
the issuance of equity interests) and (c) obligations of such Person in
respect of other transactions entered into by such Person that are not
otherwise addressed in the definition of “Debt” or in clause (a) or (b) above
that are intended to function primarily as a borrowing of funds (including,
without limitation, any non-controlling interest transactions that function
primarily as a borrowing).


 


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


 


“Term Facility”
means, at any time, (a) prior to the funding of the Advances pursuant to Section 2.01,
the aggregate amount of the Lenders’ Commitments at such time and (b) on
and after the funding of the Advances pursuant to Section 2.01, the
outstanding principal amount of the Advances at such time.


 


“Termination Date”
means the earliest to occur of (i) the Maturity Date, (ii) the
Specified Repayment Date and (ii) the date of the acceleration of the
Advances pursuant to Section 6.01.


 


“Test Period” means,
with respect to the financial covenant contained in Section 5.04(a):  (a) at any date of determination on or
prior to June 30, 2009, the most recently completed Fiscal Quarter; (b) at
any date of determination after June 30, 2009 and on or prior to September 30,
2009, the most recently completed two Fiscal Quarters of the Borrower ending on
or prior to such date; (c) at any date of determination after September 30,
2009 and on or prior to December 31, 2009, the most recently completed
three Fiscal Quarters of the Borrower ending on or prior to such date; and (d) at
any date of determination after December 31, 2009, the most recently
completed four Fiscal Quarters of the Borrower ending on or prior to such date.


 


“Transactions” means,
collectively, (a) the entering into by the Loan Parties and their
applicable Subsidiaries of the Loan Documents to which they are or are intended
to be a party, and the borrowings hereunder on the Closing Date and application
of the proceeds as contemplated hereby (including the refinancing of a portion
of the Debt outstanding under the Existing Credit Facilities and a portion of
the Existing Bridge Loans in each case on the Closing Date) and (b) the
payment of the fees and expenses incurred in connection with the consummation
of the foregoing.


 


“Type” refers to the
distinction between Advances bearing interest at the Base Rate and Advances
bearing interest at the Eurodollar Rate.


 


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


 


“Voting Stock” means
capital stock issued by a corporation, or equivalent interests in any other
Person, the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by
the happening of such a contingency.


 


“Withdrawal Liability”
has the meaning specified in Part I of Subtitle E of Title IV of
ERISA.


 


25
















 


Section 1.02           Computation of Time Periods.  In this Agreement and the other Loan
Documents, in the computation of periods of time from a specified date to a
later specified date, the word “from” means “from and including” and the words “to”
and “until” each mean “to but excluding”.


 


Section 1.03           Accounting Terms and Financial
Determinations.  All accounting terms
not specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States of America in effect from
time to time (“GAAP”).


 


Section 1.04           Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including”
shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have
the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, restated,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to
Sections, Schedules and Exhibits shall be construed to refer to Sections of, and
Schedules and Exhibits to, this Agreement, (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all real property, tangible and intangible assets and properties, including
cash, securities, accounts and contract rights, and interests in any of the
foregoing, and (f) any reference to a statute, rule or regulation is
to that statute, rule or regulation as now enacted or as the same may from
time to time be amended, re-enacted or expressly replaced.  Any reference herein to the “ordinary course
of business of the Borrowers and its Subsidiaries consistent with past practice”
shall include reasonable adaptations of such past practice of the Borrower and
its Subsidiaries taking into account changes in the business condition of the
Borrower and its Subsidiaries or industry or counterparty practices or
requirements.


 


ARTICLE
II


 


AMOUNTS
AND TERMS OF THE ADVANCES


 


Section 2.01           The Advances.  Each Lender, severally and not jointly with
the other Lenders agrees, upon the terms and subject to the conditions herein
set forth, to make a single advance (each, an “Advance”) to the Borrower
on the Closing Date in an amount not to exceed such Lender’s Commitment.  The Borrowing shall consist of Advances made
simultaneously by the Lenders ratably according to the Lenders’
Commitments.  Amounts borrowed under this
Section 2.01 and repaid or prepaid may not be reborrowed.


 


Section 2.02           Making the Advances.


 


(a)           The Borrowing shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third Business Day prior to the
Closing Date if the Borrowing consists of Eurodollar Rate Advances, or the
first Business Day prior to the Closing Date if the Borrowing consists of Base
Rate Advances, by the Borrower to the Administrative Agent, which shall give to
each applicable Lender prompt notice thereof by telecopier or other electronic
communication.  Such notice of the
Borrowing (the “Notice of Borrowing”) shall be by telephone, confirmed
immediately in writing, or telecopier, in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of 


 


26

















 


the Borrowing, (ii) Type of Advances
comprising the Borrowing, (iii) aggregate amount of the Borrowing and (iv) if
the Borrowing consists of Eurodollar Rate Advances, initial Interest Period for
each such Advance.  Each applicable
Lender shall, before 11:00 A.M. (New York City time) on the date of the
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at the Administrative Agent’s Account, in same day
funds, such Lender’s ratable portion of the Borrowing in accordance with the
respective Commitments of such Lender and the other applicable Lenders.  After the Administrative Agent’s receipt of
such funds and upon fulfillment of the applicable conditions set forth in Article III,
the Administrative Agent will make such funds available to the Borrower by
crediting the Borrower’s Account or such other account as the Borrower shall
request in the applicable Notice of Borrowing.


 


(b)           (i) Anything in Section 2.02(a) above to
the contrary notwithstanding, the Borrower may not select Eurodollar Rate
Advances for the Borrowing hereunder if the aggregate amount of the Borrowing
is less than $5,000,000 or if the obligation of the Lenders to make Eurodollar
Rate Advances shall then be suspended pursuant to Section 2.08 or 2.09 and
(ii) anything in Section 2.02(a) above or Section 2.08
below to the contrary notwithstanding, there shall not at any time be more than
ten Interest Periods in effect.


 


(c)           The Notice of Borrowing shall be irrevocable and binding
on the Borrower.  If the Notice of
Borrowing specifies that the Borrowing is to be composed of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for the Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Advance to be made by such Lender as
part of the Borrowing when such Advance, as a result of such failure, is not
made on such date.


 


(d)           Unless the Administrative Agent shall have received notice
from an applicable Lender prior to the date of the Borrowing that such Lender
will not make available to the Administrative Agent such Lender’s ratable
portion of the Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of the
Borrowing in accordance with Section 2.02(a) and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount.  If and
to the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay or pay to the Administrative Agent forthwith on demand such
corresponding amount and to pay interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid or paid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at such time under Section 2.06 to
Advances comprising the Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate.  If such Lender shall
pay to the Administrative Agent such corresponding amount, such amount so paid
shall constitute such Lender’s Advance as part of the Borrowing for all
purposes of this Agreement.


 


(e)           The failure of any Lender to make the Advance to be made
by it shall not relieve any other Lender of its obligation, if any, hereunder
to make its Advance on the date of the Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Advance to be made
by such other Lender on the date of the Borrowing.


 


Section 2.03           Repayment of the Advances.  The Borrower shall repay the Advances to the
Administrative Agent for the ratable account of the Lenders on the Termination
Date and in any event, 


 


27

















 


such repayment shall be in an amount equal to the aggregate principal
amount of the Advances outstanding on such date.


 


Section 2.04           Termination of Commitments.  The Commitments shall be automatically and
permanently reduced and terminated on the Closing Date, by the amount, if any,
by which the aggregate Commitments exceed the Advances outstanding on such date
(after giving effect to the Borrowing on such date).  Upon the making of the Advance pursuant to Section 2.01
by any Lender, the Commitment of such Lender shall be automatically and
permanently reduced by the amount of such Advance.


 


Section 2.05           Prepayments and Cash Collections.


 


(a)           Optional. 
The Borrower may, upon at least three Business Days’ notice to the
Administrative Agent received not later than 12:00 noon (New York, New York
time) stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the
outstanding aggregate principal amount of Advances, in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
aggregate principal amount prepaid; provided, however, that (i) each
partial prepayment shall be in an aggregate principal amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof or, if less, the aggregate
outstanding principal amount of all Advances and (ii) that no prepayment
of Eurodollar Rate Advances shall be permitted pursuant to this Section 2.05(a) other
than on the last day of the Interest Period applicable thereto unless such
prepayment is accompanied by the payment of the amounts required by Section 9.04(c).


 


(b)           Mandatory.


 


(i)            If at any time any Loan Party or any of its Subsidiaries
(excluding any Specified Excluded Subsidiary or any Subsidiary which is
prohibited from applying such Net Cash Proceeds to the prepayment of the
Advances by any Contractual Obligation entered into prior to the Closing Date
(or, in the case of any Subsidiary formed or acquired by the Borrower
subsequent to the Closing Date, prior to such formation or acquisition) and not
in contemplation of this provision) shall receive Net Cash Proceeds from the
issuance or incurrence of any Debt (other than any Debt permitted under Section 5.02(b)),
the Borrower shall, within one Business Day after the date of receipt (or the
Borrower’s knowledge of receipt) of such Net Cash Proceeds by such Loan Party
or any of its Subsidiaries (excluding any Specified Excluded Subsidiary or any
Subsidiary which is prohibited from applying such Net Cash Proceeds to the
prepayment of the Advances by any Contractual Obligation entered into prior to
the Closing Date (or, in the case of any Subsidiary formed or acquired by the
Borrower subsequent to the Closing Date, prior to such formation or
acquisition) and not in contemplation of this provision), prepay the Advances
in an amount equal to 100% of such Net Cash Proceeds.


 


(ii)           If at any time any Loan Party or any of its Subsidiaries
shall receive Net Cash Proceeds from the issuance by such Loan Party or any of
its Subsidiaries of any of its Equity Interests (other than (A) Equity
Interests issued pursuant to employee stock plans or (B) to the extent
permitted hereunder, Equity Interests issued to a Loan Party), the Borrower shall,
within one Business Day after the date of receipt (or the Borrower’s knowledge
of receipt) of such Net Cash Proceeds by such Loan Party or any of its
Subsidiaries, prepay the Advances in an amount equal to 100% of such Net Cash
Proceeds.


 


(iii)          All prepayments under this Section 2.05(b) shall
be made together with accrued interest to the date of such prepayment on the
principal amount prepaid, and, if any such 


 


28

















 


prepayment is made on a day other than on the
last day of the Interest Period applicable thereto, such prepayment shall be
accompanied by the payment of the amounts required by Section 9.04(c).


 


(c)           Cash Collateral Account.


 


(i)            On or prior to the Closing Date, the Collateral Agent
shall establish the Cash Collateral Account, the Interest Cash Collateral
Sub-Account, the Reserve Cash Collateral Sub-Account and the Non-Reserve Cash
Collateral Sub-Account on behalf of the Borrower.


 


(ii)           If at any time any Loan Party or any of its Subsidiaries shall
receive Net Cash Proceeds from any (A) Collateral Disposition, (B) Collateral
Recovery Event or (C) without duplication to the foregoing
clause (A), Other Collateral Collections, the Borrower shall promptly, but
in any event within one Business Day (or, in the case of any such Net Cash
Proceeds received in Canadian dollars, within three Business Days) after the
date of receipt or collection of such Net Cash Proceeds by such Loan Party or
any of its Subsidiaries, deposit into the Cash Collateral Account an amount
equal to 100% of the Dollar equivalent of such Net Cash Proceeds.


 


(iii)          On each date on which the amounts deposited in the Cash
Collateral Account are reconciled by the Borrower in accordance with the
Borrower’s customary procedures consistent with past practice (which
reconciliation shall in any event occur at least once every calendar month),
the Borrower shall notify the Collateral Agent in writing of such
reconciliation (providing reasonable detail thereof) and request the Collateral
Agent to credit the funds deposited in the Cash Collateral Account to cash
collateral accounts (including joint deposit/securities accounts) (subject to
the terms of the Security Agreement) or sub-accounts of the Cash Collateral
Account as follows:


 


(A)          funds
in the Cash Collateral Account consisting of interest received or collected in
respect of, or otherwise arising out of any Collateral shall be credited to the
Interest Cash Collateral Sub-Account;


 


(B)           the
first $150,000,000 of funds in the Cash Collateral Account (excluding any funds
described in the foregoing clause (A)), shall be credited to the Reserve
Cash Collateral Sub-Account (such funds credited to the Reserve Cash Collateral
Sub-Account are referred to herein as the “Reserve Funds”); and


 


(C)           funds
in the Cash Collateral Account (excluding any funds described in the foregoing
clauses (A) and (B)) shall be transferred to the Non-Reserve Cash
Collateral Sub-Account (such funds credited to the Non-Reserve Cash Collateral
Sub-Account are referred to herein as the “Non-Reserve Funds”).


 


(iv)          Within three Business Days prior to any date on which
interest is required to be paid in respect of the Advances, the Borrower shall
deliver an Interest Cash Collateral Sub-Account Notice to the Collateral
Agent.  The Collateral Agent shall, on
such scheduled interest payment date, transfer funds from the Interest Cash
Collateral Sub-Account (A) first, to the Administrative Agent to
pay outstanding interest in respect of the Advances that is due on or prior to
such date, and (B) second, to the Borrower as so requested in such
Interest Cash Collateral Sub-Account Notice; provided that, before and
after giving effect to any transfer pursuant to this clause (B) (other
than transfers that are utilized to prepay Advances), (w) the balance of
the funds contained in or credited to the Interest Cash Collateral Sub-Account
shall not be less than the 


 


29

















 


amount of any accrued and unpaid interest in
respect of the Advances as of the date of such transfer, (x) no Default or
Event of Default of the type described in paragraphs (a), (c) (to the
extent resulting from a breach of Section 5.04) or (f) of Section 6.01
shall have occurred and be continuing, (y) the Collateral Agent shall not
have exercised remedies against the Cash Collateral Account following any Event
of Default and (z) the Administrative Agent shall not have accelerated the
Advances pursuant to the last paragraph of Section 6.01.


 


(v)           Upon the request of the Borrower at any time pursuant to a
Reserve Cash Collateral Sub-Account Notice the Collateral Agent shall transfer
to the Borrower Reserve Funds to the extent set forth in such Reserve Cash
Collateral Sub-Account Notice; provided that, before and after giving
effect to such transfer or transfers (other than transfers that are utilized to
prepay Advances), (1) no Default or Event of Default of the type described
in paragraphs (a), (c) (to the extent resulting from a breach of Section 5.04)
or (f) of Section 6.01 shall have occurred and be continuing, (2) the
Administrative Agent shall not have accelerated the Advances pursuant to the
last paragraph of Section 6.01, (3) the Collateral Agent shall not
have exercised remedies against the Cash Collateral Account following any Event
of Default and (4) except in each case to the extent that such funds are
utilized to prepay Advances, no Reserve Funds may be transferred from the
Reserve Cash Collateral Sub-Account for purposes other than to finance or
reimburse itself for financing unfunded commitments, protective participation
purchases, protective advances in respect of REO Property and similar funding
obligations, in each case solely in respect of the Collateral.


 


(vi)          On each date that the reconciliation statement for the Cash
Collateral Account described in Section 5.03(d)(ii) is delivered (or,
if a reconciliation statement is not delivered during any calendar month,
within seven days of the last day of such calendar month), any and all amounts
credited to the Non-Reserve Cash Collateral Sub-Account as of such date shall
be transferred by the Collateral Agent to the Administrative Agent to be
applied to (i) the prepayment of the Advances and (ii) any other
Obligations that are then due and outstanding under the Loan Documents.


 


(vii)         On the date that is the earlier of (A) eighteen (18)
months following the Closing Date and (B) the Termination Date, and on the
last Business Day of each calendar month thereafter, so long as any Advances or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any and all amounts contained in or thereafter credited to the Reserve
Cash Collateral Sub-Account and the Non-Reserve Cash Collateral-Sub Account as
of such date or Business Day shall be transferred by the Collateral Agent to
the Administrative Agent to be applied (i) to the prepayment of the
Advances and (ii) any other Obligations that are then due and outstanding
under the Loan Documents.


 


(viii)        Upon the occurrence and during the
continuation of an Event of Default, the Collateral Agent shall at the request,
or may with the consent, of the Required Lenders, transfer to the
Administrative Agent all amounts deposited in or otherwise credited to the Cash
Collateral Account, the Interest Cash Collateral Sub-Account, the Reserve Cash
Collateral Sub-Account and the Non-Reserve Cash Collateral Sub-Account, to be
applied (i) to the prepayment of the Advances and (ii) any other
Obligations that are then due and outstanding under the Loan Documents.


 


(ix)           All prepayments under this Section 2.05(c) shall
be made together with accrued interest to the date of such prepayment on the
principal amount prepaid, and, if any such prepayment is made on a day other
than on the last day of the Interest Period applicable thereto, 


 


30

















 


such prepayment shall be accompanied by the
payment of the amounts required by Section 9.04(c).


 


Section 2.06           Interest.  (a) Scheduled Interest.  The Borrower shall pay interest on each
Advance owing to each Lender from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:


 


(i)            Base Rate Advances.  During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable
Margin in effect from time to time, payable quarterly in arrears on the last
day of each Fiscal Quarter during such periods and upon repayment of such
Advance.


 


(ii)           Eurodollar Rate Advances.  During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance plus (B) the Applicable Margin in
effect from time to time, payable in arrears on the last Business Day of such
Interest Period and on the date such Eurodollar Rate Advance shall be Converted
or paid in full.


 


(b)           Default Interest. 
The Borrower shall pay interest, (i) (x) upon the occurrence
and during the continuance of an Event of Default of the type described in
paragraphs (a), (c) (to the extent resulting from a breach of Section 5.04)
or (f) of Section 6.01 or (y) upon the acceleration of the
Advances by the Administrative Agent pursuant to the last paragraph of Section 6.01,
on the unpaid principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a) above and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (a) above and (ii) to
the fullest extent permitted by law, on the amount of any interest, fee or
other amount payable hereunder or any other Loan Document that is not paid when
due, from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on Advances pursuant to clause (a)(i) above.


 


(c)           Notice of Interest Rate.  Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), the Administrative Agent shall give
notice to the Borrower and each Lender of the interest rate determined by the
Administrative Agent for purposes of clause (a) above.


 


Section 2.07           Fees.  The Borrower shall pay to the Administrative
Agent for the account of the Lenders (and their respective Affiliates) such
fees as may be from time to time agreed in writing among the Borrower and the
Lenders (and their respective Affiliates). 
The Borrower shall pay to each Agent for its own account such fees as
may from time to time be agreed between the Borrower and such Agent, including
pursuant to the Fee Letter.


 


Section 2.08           Conversion of Advances.


 


(a)           Optional. 
The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Conversion and subject to
the provisions of Section 2.09, Convert all or any portion of the Advances
of one Type into Advances of the other Type; provided, however,
that any Conversion of Eurodollar Rate Advances into Base Rate Advances shall
be made only on the last day of an Interest Period for such Eurodollar Rate
Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances
shall be in an amount not less than the minimum amount specified in Section 2.02(b),
no Conversion of any Advances shall result in more separate Interest Periods
than 


 


31

















 


permitted under Section 2.02(b) and
each Conversion of Advances shall be made ratably among the applicable Lenders
in accordance with the respective amount of Advances under the Term Facility
held by or owed to such Lenders.  Each
such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be
Converted and (iii) if such Conversion is into Eurodollar Rate Advances,
the duration of the initial Interest Period for such Advances.  Each notice of Conversion shall be
irrevocable and binding on the Borrower.


 


(b)           Mandatory.


 


(i)            On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising the Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than $5,000,000, such Advances
shall, at the end of the applicable Interest Period, automatically Convert into
Base Rate Advances.


 


(ii)           If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of “Interest Period” in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the
applicable Lenders, whereupon each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
be continued as a Eurodollar Advance having an Interest Period with a one-month
duration.


 


(iii)          Upon the occurrence and during the continuance of any Event
of Default, (x) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (y) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.


 


Section 2.09           Increased Costs, Etc.


 


(a)           If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or of making,
funding or maintaining Eurodollar Rate Advances (excluding, for purposes of
this Section 2.09, any such increased costs resulting from all Taxes,
Excluded Taxes or Other Taxes (as to which Section 2.11 shall govern),
then the Borrower shall from time to time, upon demand by such Lender (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost; provided that the
Borrower shall not be responsible for costs under this Section 2.09(a) arising
more than 180 days prior to receipt by the Borrower of the demand from the
affected Lender pursuant to this Section 2.09(a); and provided, further,
that a Lender claiming additional amounts under this Section 2.09(a) agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.  A certificate as to the amount
of such increased cost, submitted to the Borrower by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.


 


(b)           If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased 


 


32

















 


by or based upon the existence of such Lender’s
commitment to lend hereunder and other commitments of such type, then, upon
demand by such Lender or such corporation (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender’s
commitment to lend hereunder; provided, that the Borrower shall not be
responsible for costs under this Section 2.09(b) arising more than
180 days prior to receipt by the Borrower of the demand from the affected
Lender pursuant to this Section 2.09(b). 
A certificate as to such amounts submitted to the Borrower by such
Lender shall be conclusive and binding for all purposes, absent manifest error.


 


(c)           If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their Eurodollar Rate Advances
for such Interest Period, the Administrative Agent shall forthwith so notify
the Borrower and the Lenders, whereupon (i) each such Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation
of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower
that such Lenders have determined that the circumstances causing such
suspension no longer exist.


 


(d)           Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before
making any such demand, such Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to
continue to perform its obligations to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances and would not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender.


 


Section 2.10           Payments and Computations.


 


(a)           The Borrower shall make each payment hereunder and under
the other Loan Documents, irrespective of any right of counterclaim or set-off
(except as otherwise provided in Section 2.14), not later than 12:00 noon
(New York, New York time) on the day when due (or, in the case of payments made
by a Guarantor pursuant to Section 8.01, on the date of demand therefor)
in U.S. dollars to the Administrative Agent at the Administrative Agent’s
Account in same day funds, with payments being received by the Administrative Agent
after such time being deemed to have been received on the next succeeding
Business Day.  The Administrative Agent
will promptly thereafter cause like funds to be distributed (i) if such
payment by the Borrower is in respect of principal, interest, fees or any other
Obligation then payable hereunder and under the other Loan Documents to more
than one Lender, to such Lenders for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lenders and (ii) if such payment by the
Borrower is in respect of any Obligation then payable hereunder to one Lender,
to 


 


33

















 


such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement.  Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(d), from and after the effective
date of such Assignment and Acceptance, the Administrative Agent shall make all
payments hereunder and under the other Loan Documents in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.


 


(b)           If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest, fees and expenses then due hereunder, such funds shall be applied (i) first,
toward payment of fees and expenses then due under Sections 2.07 and 9.04,
ratably among the parties entitled thereto in accordance with the amounts of fees
and expenses then due to such parties, (ii) second, towards payment
of interest and fees then due on account of Advances (including any interest
payable pursuant to Section 2.06(b)), ratably among the parties entitled
thereto in accordance with the amounts of such interest and fees then due to
such parties, and (iii) third, towards payment of principal of the
Advances then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties; provided
that the proceeds from the exercise of remedies in respect of any Collateral
shall be applied as set forth in the Security Agreement.


 


(c)           All computations of interest based on the Base Rate, of
fees shall be made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate shall be made by the Administrative
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest, fees or commissions are payable.  Each determination by the Administrative
Agent of an interest rate, fee or commission hereunder shall be conclusive and
binding for all purposes, absent manifest error.


 


(d)           Whenever any payment hereunder or under the other Loan
Documents shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of payment of
interest or commitment fee, as the case may be; provided, however,
that, if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.


 


(e)           Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender.  If and to the extent the Borrower shall not
have so made such payment in full to the Administrative Agent, each such Lender
shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent, at the Federal Funds Rate.


 


Section 2.11           Taxes.


 


(a)           Except as otherwise provided herein, any and all payments
by any Loan Party to or for the account of any Lender or any Agent hereunder or
under any other Loan Document shall be made, in accordance with Section 2.10
or the applicable provisions of such other Loan Document, if 


 


34

















 


any, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and each Agent, (x) taxes, levies, imposts,
deductions, charges or withholdings that are imposed on or measured by its
overall net income and franchise taxes imposed in lieu thereof by the United
States of America or by the state or foreign jurisdiction or any political
subdivision thereof under the laws of which such Lender or such Agent, as the
case may be, is organized or, in the case of each Lender, such Lender’s Applicable
Lending Office is located or (y) any branch profit taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction
in which such Applicable Lending Office is located (all such excluded taxes,
levies, imposts, deductions, charges, withholdings being hereinafter referred
to as “Excluded Taxes”).  If any
Loan Party shall be required by law to deduct any taxes, levies, imposts,
deductions, charges or withholdings, including any liabilities with respect
thereto (other than Excluded Taxes) (“Taxes”) from or in respect of any
sum payable hereunder or under any other Loan Document to any Lender or any
Agent, (i) the sum payable by such Loan Party shall be increased as may be
necessary so that after such Loan Party and the Administrative Agent have made
all required deductions (including deductions applicable to additional sums
payable under this Section 2.11) such Lender or such Agent, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make all such deductions
and (iii) such Loan Party shall pay the full amount deducted to the
relevant taxing authority or other authority in accordance with applicable law;
provided, however, that, except to the extent that such Lender’s
assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from such Loan Party pursuant to this paragraph, such Loan
Party shall not be required to increase the amounts payable to any Lender with
respect to any Taxes (1) that are attributable to such Lender’s failure to
comply with the requirements of paragraph (e) of this Section (other
than if such failure is due to a change in law, or in the interpretation or
application thereof, occurring after the date on which the relevant form,
certificate or other document originally was required to be provided) or (2) that
are United States withholding taxes imposed on amounts payable to such Lender
at the time such Lender becomes a party to this Agreement.


 


(b)           In addition, each Loan Party shall pay any present or
future stamp, documentary, excise, property, intangible, mortgage recording or
similar taxes, charges or levies that arise from any payment made by such Loan
Party hereunder or under any other Loan Documents or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement or the other Loan Documents (hereinafter referred to as “Other
Taxes”).


 


(c)           Except as otherwise provided herein, if any Loan Party
fails to pay any Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts
or other required documentary evidence, the Loan Parties shall indemnify each
Lender and each Agent for and hold them harmless against any taxes, interest or
penalties and any liability (including penalties, additions to tax, interest
and reasonable expenses) arising from or with respect to such failure, but
excluding penalties, interest or other expenses to the extent attributable to
the gross negligence or willful misconduct of the Person claiming such
indemnity.  This indemnification shall be
made within 30 days from the date such Lender or such Agent (as the case may
be) makes written demand therefor, which written demand shall be accompanied by
copies of the applicable documentation evidencing the amount of such taxes.


 


(d)           Within 30 days after the date of any payment of Taxes, the
appropriate Loan Party shall furnish to the Administrative Agent, at its
address referred to in Section 9.02, the original or a certified copy of a
receipt evidencing such payment, to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Administrative Agent. 
For purposes of subsections (d) and (e) of this Section 2.11,
the terms “United States person” shall have the meanings specified in Section 7701
of the Internal Revenue Code.


 


35
















 


(e)                                  Each Lender that is not a
United States person (a “Non-U.S. Lender”) shall, on or prior to the
date of its execution and delivery of this Agreement in the case of each
Initial Lender, on the date of the Assignment and Acceptance pursuant to which
it becomes a Lender in the case of each other Lender (or, in the case of a
participation, on or prior to the date on which such participant purchases the
participation), and at the time or times prescribed by applicable law, or from
time to time thereafter as reasonably requested in writing by the Borrower (but
only so long as such Lender remains lawfully able to do so), provide each of
the Administrative Agent and Borrower with two original properly completed
Internal Revenue Service Forms W-8BEN, W-8IMY or W-8ECI, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Non-U.S. Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or the
other Loan Documents or, in the case of a Non-U.S. Lender that is relying on
the portfolio interest exemption, certifying that such Non-U.S. Lender is a
foreign corporation, partnership, estate or trust.  In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender (provided that such Non-U.S.
Lender remains lawfully able to do so). 
Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose).  If the forms provided by a Non-U.S. Lender at
the time such Non-U.S. Lender first becomes a party to this Agreement indicate
a United States interest withholding tax rate in excess of zero, withholding
tax at such rate shall be considered excluded from Taxes unless and until such
Non-U.S. Lender provides the appropriate properly completed and executed forms
to the Borrower (with a copy to the Administrative Agent) certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall
be considered excluded from Taxes for periods governed by such forms; provided,
however, that if, at the effective date of the Assignment and Acceptance
pursuant to which a Non-U.S. Lender becomes a party to this Agreement (or, in
the case of a participation, the date on which the participant purchases the participation),
the Non-U.S. Lender assignor (or, in the case of a participation, the Non-U.S.
Lender seller) was entitled to payments under Section 2.11(a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
participant or Non-U.S. Lender assignee on such date.  Each Lender that is a United States person
(other than persons who are corporations or otherwise exempt from United States
backup withholding tax) shall, at the time such Lender becomes a party to this
Agreement (or, in the case of a participation, on or before the date on which
the participant purchases the participation) or at such time (or times)
reasonably requested by the Borrower, deliver to the Borrower a properly
completed and duly executed U.S. Internal Revenue Service Form W-9 or any
successor form certifying that such person is exempt from United States backup
withholding tax on payments made hereunder. 
If any form or document referred to in this Section 2.11(e) requires
the disclosure of information, other than information necessary to compute the
tax payable and information required on the date hereof by Internal Revenue
Service Form W-8BEN, W-8IMY, W-8ECI, W-9 or any successor, or the related
certificate described above, that the applicable Lender reasonably considers to
be confidential, such Lender shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.


 


(f)                                    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 any Loan
Party or with respect to which such Loan Party has paid additional amounts
pursuant to this Section 2.11, it shall pay over such refund to the
Borrower, net of all out-of-pocket expenses of the Administrative Agent or such
Lender and without Interest (other than any interest paid by the relevant
governmental authority with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent or such Lender, agrees
to repay the amount paid over to the Borrower (plus 


 


36

















 


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
paragraph shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to the Borrower or any other Person.


 


Section 2.12                                Sharing of
Payments, Etc.  If any
Lender shall obtain at any time any payment, whether voluntary, involuntary,
through the exercise of any right of set off, or otherwise (other than pursuant
to Section 2.09, 2.11 or 9.04), (a) on account of Obligations due and
payable to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender at such time (other
than pursuant to Section 2.09, 2.11 or 9.04) to (ii) the aggregate
amount of the Obligations due and payable to all Lenders hereunder and under
the other Loan Documents at such time) of payments on account of the
Obligations due and payable to all Lenders hereunder (other than pursuant to Section 2.09,
2.11 or 9.04) and under the other Loan Documents at such time obtained by all
the Lenders at such time or (b) on account of Obligations owing (but not
due and payable) to such Lender hereunder and under the other Loan Documents at
such time (other than pursuant to Section 2.09, 2.11 or 9.04) in excess of
its ratable share (according to the proportion of (i) the amount of such
Obligations owing to such Lender at such time (other than pursuant to Section 2.09,
2.11 or 9.04) to (ii) the aggregate amount of the Obligations owing (but
not due and payable) to all Lenders hereunder and under the other Loan
Documents at such time) of payments on account of the Obligations owing (but
not due and payable) to all Lenders hereunder (other than pursuant to Section 2.09,
2.11 or 9.04) and under the other Loan Documents at such time obtained by all
of the Lenders at such time, such Lender shall forthwith purchase from the
other Lenders such interests or participating interests in the Obligations due
and payable or owing to them, as the case may be, as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them; provided, however, that, if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each other Lender shall be rescinded and such other Lender shall
repay to the purchasing Lender the purchase price to the extent of such Lender’s
ratable share (according to the proportion of (i) the purchase price paid
to such Lender to (ii) the aggregate purchase price paid to all Lenders)
of such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (i) the amount of such other Lender’s
required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered.  The Borrower agrees that any Lender so
purchasing an interest or participating interest from another Lender pursuant
to this Section 2.12 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to such
interest or participating interest, as the case may be, as fully as if such
Lender were the direct creditor of the Borrower in the amount of such interest
or participating interest, as the case may be.


 


Section 2.13                                Use of Proceeds.  The proceeds of the Advances shall be
utilized solely to make an Existing Bridge Loan Agreement Repayment and an
Existing Credit Agreement Repayment.


 


Section 2.14                                Defaulting
Lenders.


 


(a)                                  In the event that, at any
time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Amount to the Administrative Agent or
any of the other Lenders and (iii) the Borrower shall make any payment
hereunder or under any other Loan Document to the Administrative Agent for the
account of such Defaulting Lender, then the Administrative Agent may, on its
behalf or on behalf of such other Lenders and to the fullest extent permitted
by applicable law, apply at such time the amount so paid by the Borrower to or
for the account of such Defaulting Lender to the payment of each such Defaulted
Amount to the extent 


 


37

















 


required to pay such Defaulted Amount. 
In the event that the Administrative Agent shall so apply any such
amount to the payment of any such Defaulted Amount on any date, the amount so
applied by the Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date.  Any such
amount so applied by the Administrative Agent shall be retained by the
Administrative Agent or distributed by the Administrative Agent to such other
Lenders, ratably in accordance with the respective portions of such Defaulted
Amounts payable at such time to the Administrative Agent and such other Lenders
and, if the amount of such payment made by the Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent and the other Lenders, in the following order of priority:


 


(i)                                     first, to the Administrative
Agent for any Defaulted Amount then owing to the Administrative Agent in its
capacity as Administrative Agent; and


 


(ii)                                  second, to any Lenders for
any Defaulted Amounts then owing to such Lenders, ratably in accordance with
such respective Defaulted Amounts then owing to such Lenders.


 


Any portion of such amount paid by the
Borrower for the account of such Defaulting Lender remaining, after giving
effect to the amount applied by the Administrative Agent pursuant to this
subsection (a), shall be applied by the Administrative Agent as specified
in Section 2.14(b).


 


(b)                                 In the event that, at any
time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting
Lender shall not owe a Defaulted Amount and (iii) the Borrower, the
Administrative Agent or any other Lender shall be required to pay or distribute
any amount hereunder or under any other Loan Document to or for the account of
such Defaulting Lender, then the Borrower or such other Lender shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it.  Any
funds held by the Administrative Agent in escrow under this Section 2.14(b) shall
be deposited by the Administrative Agent in an account with Citibank, N.A., in
the name and under the control of the Administrative Agent, but subject to the
provisions of this Section 2.14(b). 
The terms applicable to such account, including the rate of interest
payable with respect to the credit balance of such account from time to time,
shall be Citibank, N.A.’s standard terms applicable to escrow accounts
maintained with it.  Any interest
credited to such account from time to time shall be held by the Administrative
Agent in escrow under, and applied by the Administrative Agent from time to
time in accordance with the provisions of, this Section 2.14(b).  The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in escrow
from time to time to the extent necessary to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender, as and when such amounts are required
to be paid and, if the amount so held in escrow shall at any time be
insufficient to pay all such amounts required to be paid at such time, in the
following order of priority:


 


(i)                                     first, to the
Administrative Agent for any amount then due and payable by such Defaulting
Lender to the Administrative Agent hereunder in its capacity as Administrative
Agent; and


 


(ii)                                  second, to any
Lenders for any amount then due and payable by such Defaulting Lender to such
Lenders hereunder, ratably in accordance with such respective amounts then due
and payable to such Lenders.


 


38

















 


In the event that any Lender that is a
Defaulting Lender shall, at any time, cease to be a Defaulting Lender, any
funds held by the Administrative Agent in escrow at such time with respect to
such Lender shall be distributed by the Administrative Agent to such Lender and
applied by such Lender to the Obligations owing to such Lender at such time
under this Agreement and the other Loan Documents ratably in accordance with
the respective amounts of such Obligations outstanding at such time.


 


(c)                                  The rights and remedies
against a Defaulting Lender under this Section 2.14 are in addition to
other rights and remedies that the Administrative Agent or any Lender may have
against such Defaulting Lender with respect to any Defaulted Amount.


 


Section 2.15                                Evidence of
Debt.  The Advances 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 Advances made by the Lenders to the Borrower and the
interest and payments thereon.  Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations hereunder or under any other Loan
Document.  In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts
and records of the Administrative Agent shall control in the absence of
manifest error.  Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and deliver
to such Lender (through the Administrative Agent) a Note, which shall evidence
such Lender’s Advances in addition to such accounts or records.  Each Lender may attach schedules to its Note
and endorse thereon the date, amount and maturity of its Advances and payments
with respect thereto.


 


Section 2.16                                Replacement of
Certain Lenders.  In the
event a Lender (“Affected Lender”) shall have (i) become a Defaulting
Lender under Section 2.14, (ii) requested reimbursement from the Borrower under
Section 2.11 with respect to Taxes or Other Taxes or with respect to
increased costs or capital or under Section 2.09 or other additional costs
incurred by such Lender which, in any case, are not being incurred generally by
the other Lenders, or (iii) delivered a notice pursuant to Section 2.09(d) claiming
that such Lender is unable to extend Eurodollar Rate Advances to the Borrower
for reasons not generally applicable to the other Lenders, then, in any case,
the Borrower or the Administrative Agent may make written demand on such
Affected Lender (with a copy to the Administrative Agent in the case of a
demand by the Borrower and a copy to the Borrower in the case of a demand by
the Administrative Agent) for the Affected Lender to assign, and such Affected
Lender shall use commercially reasonable efforts to assign pursuant to one or
more duly executed Assignments and Acceptances five Business Days after the
date of such demand, to one or more financial institutions that comply with the
provisions of Section 9.07 which the Borrower or the Administrative Agent,
as the case may be, shall have engaged for such purpose (“Replacement Lender”),
all of such Affected Lender’s rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, its Commitment and all
Advances owing to it) in accordance with Section 9.07.  The Administrative Agent is authorized to
execute one or more of such Assignments and Acceptances as attorney-in-fact for
any Affected Lender failing to execute and deliver the same within five
Business Days after the date of such demand. 
Further, with respect to such assignment, the Affected Lender shall have
concurrently received, in cash, all amounts due and owing to the Affected
Lender hereunder or under any other Loan Document; provided that upon
such Affected Lender’s replacement, such Affected Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.09 and 9.04, as well as to any fees accrued for its account
hereunder and not yet paid, and shall continue to be obligated under Section 7.07
with respect to losses, obligations, liabilities, damages, penalties, actions,
judgments, costs, expenses or disbursements for matters which occurred prior to
the date the Affected Lender is replaced.


 


39

















 


Section 2.17                                Specified
Repayment Right.  In the
event that, as of April 15, 2010, 90% of the outstanding principal amount
of the 2010 Notes has not been repaid, redeemed, refinanced, exchanged or
extended beyond June 30, 2011 and/or converted to Equity Interests (other
than an aggregate principal amount of 2010 Notes not to exceed the unused
portion of the Notes Cash Basket on April 15, 2010), the Required Lenders
may, within three Business Days thereof, upon written notice by the
Administrative Agent to the Borrower, designate a date (the “Specified
Repayment Date”) between April 22, 2010 and April 26, 2010 on
which all outstanding Advances must be repaid in full in cash.


 


ARTICLE
III


 


CONDITIONS
TO EFFECTIVENESS


 


Section 3.01                                Conditions
Precedent to the Closing Date and the Borrowing.  This Agreement shall become effective on and
as of the first date (the “Closing Date”) on or prior to May 29,
2009 on which the following conditions precedent have been satisfied (and the
obligation of each Lender to make an Advance hereunder is subject to the
satisfaction of such conditions precedent before or concurrently with the
Closing Date):


 


(a)                                  The Administrative Agent
shall have received on or before the Closing Date the following, each dated
such day (unless otherwise specified), in form and substance reasonably
satisfactory to the Initial Lenders (unless otherwise specified) and in
sufficient copies for each Initial Lender:


 


(i)                                     Duly executed counterparts of
this Agreement.


 


(ii)                                  A security agreement in
substantially the form of Exhibit D hereto (the “Security
Agreement”), duly executed by each Loan Party, together with:


 


(A)                              certificates
representing certificated securities included in the Initial Pledged Equity (as
defined in the Security Agreement) accompanied by undated stock powers executed
in blank and instruments evidencing the Initial Pledged Debt (as defined in the
Security Agreement), indorsed in blank;


 


(B)                                proper
financing statements in form appropriate for filing under the Uniform
Commercial Code of all jurisdictions that the Collateral Agent deems necessary
in order to perfect and protect the first priority liens and security interests
created under the Security Agreement, covering the Collateral described in the
Security Agreement, in each case completed in a manner in conformance with the
UCC;


 


(C)                                completed
requests for information, dated on or before the Closing Date, listing all
effective financing statements filed in the jurisdictions referred to in
clause (B) above that name any Loan Party as a debtor, together with
copies of such other financing statements;


 


(D)                               [reserved];


 


(E)                                 evidence that
all other action that the Collateral Agent may deem reasonably necessary to
establish that the Collateral Agent has perfected first priority (subject to
Permitted Liens) security interests in the Collateral shall have been taken;
and


 


40

















 


(F)                                 a control
agreement in respect of the Cash Collateral Account, duly executed by the
Borrower, the Collateral Agent and the depositary bank.


 


(iii)                               A certificate from the
Secretary or Assistant Secretary of each Loan Party certifying as to (A) a
true and correct copy of the resolutions of the boards of directors of each
Loan Party approving the Transactions and the execution and delivery of this
Agreement and each other Loan Document to which it is, or is intended to be a
party, (B) all documents evidencing other necessary constitutive action
and, if any, material governmental and other third party approvals and
consents, if any, with respect to this Agreement, the other Transactions and
each other Loan Document; (C) the accuracy and completeness of the charter
(or other applicable formation document) of such Loan Party and the absence of
any changes thereto since the date of the Secretary of State’s certificate
referred to in Section 3.01(a)(iv); (D) the accuracy and completeness
of the bylaws (or other applicable organizational document) of such Loan Party
as in effect on the date on which the resolutions of the board of directors (or
persons performing similar functions) of such Person referred to in Section 3.01(a)(iii)(A)
were adopted and the absence of any changes thereto (a copy of which shall be
attached to such certificate); and (E) the names and true signatures of
the officers of such Loan Party authorized to sign each Loan Document to which
it is or is intended to be a party and the other documents to be delivered
hereunder and thereunder.


 


(iv)                              A copy of a certificate of
the Secretary of State of the jurisdiction of organization of each Loan Party,
dated reasonably near the Closing Date certifying (A) as to a true and
correct copy of the charter of such Loan Party and each amendment thereto on
file in such Secretary’s office and (B) that (1) such amendments are
the only amendments to such Loan Party’s charter on file in such Secretary’s
office, (2) such Loan Party has paid all franchise taxes to the date of
such certificate and (3) such Loan Party is duly organized and in good standing
or presently subsisting under the laws of the State of the jurisdiction of its
organization.


 


(v)                                 A certificate of each Loan
Party signed on behalf of such Loan Party by a Responsible Officer, or if no
such Responsible Officer exists, an authorized officer, dated the Closing Date
(the statements made in which certificate shall be true on and as of the
Closing Date), certifying as to:  (A) the
absence of any proceeding known to be pending for the dissolution, liquidation
or other termination of the existence of such Loan Party; (B) the accuracy
in all material respects of the representations and warranties made by such
Loan Party in the Loan Documents to which it is or is to be a party as though
made on and as of the Closing Date, before and after giving effect to all of
the Borrowings and to the application of proceeds, therefrom; and (C) the
absence of any event occurring and continuing, or resulting from any of the
Borrowings or the application of proceeds, if any, therefrom, that would
constitute a Default or Event of Default.


 


(vi)                              An operating expense
rationalization plan, substantially in the form of Exhibit F.


 


(vii)                           A statement of projected
cash receipts and cash disbursements for the Borrower and its Subsidiaries for
each week in the period of thirteen continuous weeks commencing with the week
immediately following most recently-completed calendar month prior to the
Closing Date, substantially in the form of Exhibit G.


 


(viii)                        A Run Rate Operating Expense
report, dated as of the end of the most recently-completed calendar month prior
to the Closing Date, substantially in the form of Exhibit H.


 


(ix)                                A Notice of Borrowing.


 


41

















 


(x)                                   A favorable opinion of (A) Simpson
Thacher & Bartlett LLP, counsel to the Loan Parties, substantially in
the form of Exhibit I and (B) such other opinions of local and
in-house counsel to the Loan Parties as the Administrative Agent, may
reasonably request (including as to customary corporate matters of the Loan
Parties), in each case, in form and substance satisfactory to the
Administrative Agent.


 


(b)                                 The Administrative Agent
shall have received satisfactory evidence of such amendments to the Existing
Credit Agreement and the Existing Bridge Loan Agreement, in each case as are
necessary to the Initial Lenders to facilitate the Transactions and which
amendments are in form and substance satisfactory to the Initial Lenders and
have become effective in accordance with their respective terms (it being
understood that the form of amendment to the Existing Credit Agreement attached
hereto as Exhibit J and the form of amendment to the Existing Bridge Loan
Agreement attached hereto as Exhibit K are in each case in form and
substance satisfactory to the Initial Lenders).


 


(c)                                  Substantially
contemporaneously with the Borrowing made hereunder,


 


(i)                                     not less than $984,375,000
of an Existing Credit Agreement Repayment shall occur; and


 


(ii)                                  not less than
$590,625,000 of an Existing Bridge Loan Agreement Repayment shall occur.


 


(d)                                 Except for the Disclosed
Matters, there shall not have occurred since December 31, 2008 any event
or condition that has had or could be reasonably expected, either individually
or in the aggregate, to have a Material Adverse Effect.


 


(e)                                  All costs, fees and expenses
of the Agents (including, without limitation, reasonable legal fees and
expenses of Shearman & Sterling LLP, counsel for the Lead Arrangers
(plus the reasonable legal fees and expenses of one local counsel for the Lead
Arrangers in each relevant jurisdiction)) for which the Borrower has received
an invoice at least one day prior to the Closing Date) and any other
compensation contemplated by the Fee Letter and payable to the Agents or the
Lenders pursuant to the Loan Documents shall have been paid in full in cash to
the extent due and payable.


 


(f)                                    The Lenders shall have
received all documentation and other information required by bank regulatory
authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including without limitation, the
Patriot Act.


 


(g)                                 The obligation of each
Lender to make an Advance on the occasion of the Borrowing shall be subject to
the further conditions precedent that on the date of the Borrowing, the
following statements shall be true (and each of the giving of the Notice of
Borrowing and the acceptance by the Borrower of the proceeds of the Borrowing
shall constitute a representation and warranty by the Borrower that both on the
date of such notice and on the date of the Borrowing such statements are true):


 


(i)                                     the
representations and warranties contained in each Loan Document, are correct in
all material respects, or in all respects to the extent that such
representation and warranty is otherwise qualified by materiality or Material
Adverse Effect on and as of such date, before and after giving effect to the
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date, other than any such representations or warranties that, by
their terms, refer to a specific date other than the date of the Borrowing, in
which case as of such specific date; and


 


42

















 


(ii)                                  no Default has
occurred and is continuing, or would result from the Borrowing or from the
application of the proceeds therefrom.


 


Section 3.02                                Determinations
Under Section 3.01.  For
purposes of determining compliance with the conditions specified in Section 3.01,
each Lender 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 the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the Closing Date specifying its objection thereto, and if a Borrowing
occurs on the Closing Date, such Lender shall not have made available to the
Administrative Agent such Lender’s ratable portion of the Borrowing.


 


Section 3.03                                Direction.  The Borrower hereby directs the
Administrative Agent to, on the Closing Date, transfer the proceeds from the
Advances to the “Administrative Agent” under each of the Existing Credit
Agreement and the Existing Bridge Loan Agreement for immediate application to
an Existing Bridge Loan Repayment and an Existing Credit Agreement Repayment,
such repayments to be applied to the “Loans” under each of the Existing Credit
Agreement and the Existing Bridge Loan Agreement in accordance with the terms
of the Existing Credit Agreement and Existing Bridge Loan Agreement (in each
case, for the avoidance of doubt, as amended as of the Closing Date).


 


ARTICLE
IV


 


REPRESENTATIONS
AND WARRANTIES


 


Section 4.01                                Representations
and Warranties of the Loan Parties.  Each Loan Party represents and warrants as
follows:


 


(a)                                  Each Loan Party and each
Material Subsidiary (i) is a corporation, partnership, limited liability
company or other organization duly organized, validly existing and in good standing
(or to the extent that such concept is applicable to a Foreign Subsidiary, the
functional equivalent thereof) under the laws of the jurisdiction of its
incorporation or formation, (ii) is duly qualified as a foreign
corporation (or other entity) and in good standing (or the functional
equivalent thereof, if applicable) in each other jurisdiction in which it owns
or leases property or in which the conduct of its business requires it to so
qualify or be licensed, except where the failure to so qualify or be licensed
and in good standing (or the functional equivalent thereof, if applicable),
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Effect, and (iii) has all requisite power and authority
(including, without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted, except where the
failure to have such power or authority, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.


 


(b)                                 As of the Closing Date, the
Guarantors include all of the Material Subsidiaries (other than Excluded
Subsidiaries) of the Borrower.


 


(c)                                  The execution, delivery and
performance by each Loan Party of this Agreement, the Notes and each other Loan
Document to which it is or is to be a party, and the consummation of the
Transactions, are within such Loan Party’s constitutive powers, have been duly
authorized by all necessary constitutive action, and do not (i) contravene
such Loan Party’s constitutive 


 


43

















 


documents, (ii) violate any applicable law (including, without
limitation, the Securities Exchange Act of 1934), rule, regulation (including,
without limitation, Regulation X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree, determination or
award (other than any violation which individually or in the aggregate could
not reasonably be expected to result in a Material Adverse Effect), (iii) 
result in the breach of, or constitute a default or require any payment to be
made under, any material contract, loan agreement, indenture, mortgage, deed of
trust, lease or other material instrument binding on or affecting any Loan
Party, any of its Subsidiaries, or any of their properties or (iv) except
for the Liens created under the Loan Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of any Loan Party or any of its Subsidiaries.  No Loan Party or any of its Subsidiaries is
in violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such material
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
material instrument, the violation or breach of which could be reasonably
expected to result in a Material Adverse Effect.


 


(d)                                 Except for filing or recordings
of Collateral Documents, filings or recordings already made or to be made
pursuant to any federal law, rule or regulation or filings or recordings
to be made in any jurisdiction outside of the United States or filings or
recordings the failure of which to obtain could not reasonably be expected to
result in a Material Adverse Effect, no authorization, approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes or any other Loan Document to which it is or is to be a
party, or for the consummation of the Transactions or any other transactions
contemplated hereby, (ii) the grant by any Loan Party of the Liens granted
by it pursuant to the Collateral Documents, (iii) the perfection or
maintenance of the Liens created under the Collateral Documents or (iv) the
exercise by the Administrative Agent or any Lender of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents.


 


(e)                                  This Agreement has been, and
each of the Notes, if any, and each other Loan Document when delivered
hereunder will have been, duly executed and delivered by each Loan Party party
thereto.  This Agreement is, and each of
the Notes and each other Loan Document when delivered hereunder will be the
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against such Loan Party in accordance with its terms, subject in
each case to Debtor Relief Laws.


 


(f)                                    The Consolidated balance
sheet of the Borrower and its Subsidiaries as of December 31, 2008, and
the related Consolidated statements of operations and cash flows for the Fiscal
Year then ended, which have in each case been furnished to each Lender, present
fairly the financial condition and results of operations of the Borrower and
its Subsidiaries as of such date and for such period all in accordance with GAAP
consistently applied.


 


(g)                                 Except for the Disclosed
Matters, since December 31, 2008, there has not occurred a Material
Adverse Change.


 


(h)                                 The most recent annual
audited and quarterly unaudited consolidated financial statements of the
Borrower and its Subsidiaries filed by the Borrower with the SEC prior to the
Closing Date, and the related consolidated statements of income or operations,
shareholders’ equity (in the case of annual financial statements only) and cash
flows for the fiscal quarter or fiscal year ended on that date, as the case may
be (i) were prepared in accordance with GAAP throughout the period covered
thereby, except as otherwise expressly noted therein, and (ii) fairly
present in all material respects the financial condition of the Borrower and
its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of such quarterly financial
statements, to the absence of footnote disclosures and to customary year-end
audit adjustments.


 


44

















 


(i)                                     No written information
contained in any schedules or exhibits to any Loan Document or reports
expressly required to be furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender by the terms of any Loan Document (other
than to the extent that any such information constitutes projections or
forward-looking statements) taken as a whole and in light of the circumstances
in which made, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements made therein, in light
of the circumstances in which any such statements were made, not misleading.


 


(j)                                     Except as set forth on
Schedule 4.01(j), there is no action, suit, or proceeding against, or to
the best knowledge of the Loan Parties, affecting, any Loan Party or any
Material Subsidiary pending or, to the best knowledge of the Loan Parties,
threatened before any court, governmental agency or arbitrator that (i) if
adversely determined, could reasonably be expected to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability
of this Agreement, any Note or any other Loan Document.


 


(k)                                  The Borrower is not engaged
in the business of extending credit for the purpose of purchasing or carrying
Margin Stock, and no proceeds of any Advance will be used to purchase or carry
any Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.


 


(l)                                     No ERISA Event has occurred
or is reasonably expected to occur with respect to any ERISA Plan that has
resulted in or could reasonably be expected to result in a Material Adverse
Effect.


 


(m)                               The present value of all
accumulated benefit obligations under each ERISA Plan (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of such ERISA Plan by an
amount which, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.  The
present value of all accumulated benefit obligations of all underfunded ERISA
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value of
the assets of all such underfunded ERISA Plans by an amount which could
reasonably be expected to have a Material Adverse Effect.  Neither the Loan Parties, nor any Material
Subsidiary, nor any ERISA Affiliates has incurred within the previous five
years or is reasonably expected to incur any Withdrawal Liability in an amount
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


(n)                                 Except as set forth in
Schedule 4.01(n) hereto, and except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, the
operations and properties of each Loan Party and each Material Subsidiary
comply with all applicable Environmental Laws and Environmental Permits, all
past non-compliance with such Environmental Laws and Environmental Permits has
been resolved in a manner that could not be reasonably likely to result in a
liability, and, to the knowledge of the Loan Parties after reasonable inquiry,
no circumstances exist that could be reasonably likely to (i) form the
basis of an Environmental Action against any Loan Party or any Material
Subsidiary or any of their properties that could be reasonably likely to impact
any Loan Party or any of their properties or (ii) cause any such property
to be subject to any restrictions on ownership, occupancy, use or transferability
under any Environmental Law.


 


(o)                                 The Collateral Documents are
effective to create a valid and enforceable security interest in the Collateral
securing the payment of the Secured Obligations and will create a 


 


45

















 


perfected security interest or Lien in the Collateral having the
priority set forth therein upon (i) the filing or recordation with the
appropriate governmental authority of UCC financing statements in appropriate
form describing the Collateral with respect to which a security interest may be
perfected only by filing or recordation and (ii) upon the taking of
possession or control by the Administrative Agent or the Collateral Agent of
the Collateral with respect to which a security interest may be perfected only
by possession or control, except that the execution and delivery of local law
governed pledge or analogous documentation with respect to Equity Interests in
Subsidiaries of the Borrower organized in jurisdictions outside the United States,
and the filing, notarization, registration or other publication thereof, and
the taking of other actions, if any, required under local law of the relevant
jurisdictions of organization for the effective grant and perfection of a Lien
on such Equity Interests under laws of such jurisdictions of organization
outside the United States, may be required in order to fully grant, perfect and
protect such security interest under such local laws.  The Loan Parties are the legal and beneficial
owners of the Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.


 


(p)                                 Neither any Loan Party nor
any of its Subsidiaries is an “investment company,” or an “affiliated person”
of, or “promoter” or “principal underwriter” for, an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as amended.  Neither the making of any Advances, nor the
application of the proceeds or repayment thereof by the Borrower, nor the
consummation of the other Transactions, will violate any provision of such Act
or any rule, regulation or order of the SEC thereunder.


 


(q)                                 Each Loan Party and each of
its Subsidiaries has filed or caused to be filed all returns and reports
(federal, state, local and foreign) which are required to have been filed and
has paid or caused to be paid all taxes required to have been paid by it,
together with applicable interest and penalties, except (a) taxes that are
being contested in good faith by appropriate proceedings and for which such
Borrower or such Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.


 


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


 


(s)                                  No Loan Party has any contingent
liability in connection with any release of any Hazardous Materials into the
environment that could reasonably be expected to result in a Material Adverse
Effect.


 


(t)                                    None of the Loan Parties or
their Subsidiaries are in violation of any law, rule or regulation, or in
default with respect to any judgment, writ, injunction or decree of any
governmental authority, except for any such violation or default that could not
reasonably be expected to result in a Material Adverse Effect.


 


(u)                                 No broker, finder or
investment banker is entitled to any brokerage, finder’s or other fee or
commission in connection with this Agreement or the Loan Documents or the
Transactions or the transactions contemplated hereby or thereby based upon
arrangements made by or on behalf of the Borrower, other than fees payable to
the Lead Arrangers, the Agents, the Lenders and the Borrower’s advisors in
connection with the Transactions.


 


46
















 


(v)                                 To the extent applicable,
each Loan Party is in compliance, in all material respects, with the Patriot
Act.


 


(w)                               Set forth in
Schedule 4.01(w) is a complete and accurate list of all Mortgage Loan
Assets of the Loan Parties in the form of Exhibit L hereto describing the
information with respect to each Mortgage Loan Asset described in Exhibit L
hereto.


 


ARTICLE
V


 


COVENANTS
OF THE LOAN PARTIES


 


Section 5.01                                Affirmative
Covenants.  So long as
any Advance or any other Obligation (other than contingent indemnification
obligations not then accrued and payable) of any Loan Party under any Loan
Document shall remain unpaid, each Loan Party will:


 


(a)                                  Corporate Existence.  Preserve and maintain, and cause each
Material Subsidiary to preserve and maintain (i) its legal existence and
good standing under the laws of the jurisdiction of its organization (except (A) in
a transaction permitted by Section 5.02(h) or (B) in the case of
a good standing, to the extent that the failure to preserve or maintain such
good standing could not reasonably be expected to result in a Material Adverse
Effect) and (ii) all governmental rights, privileges, qualifications,
permits, licenses and franchises necessary in the normal conduct of its
business (except to the extent that failure to do so could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect).


 


(b)                                 Compliance with Laws.  Comply, and cause each of its Subsidiaries to
comply with all laws, rules, regulations and orders of any governmental
authority applicable to it or its property, such compliance to include without
limitation, ERISA, Environmental Laws and The Racketeer Influenced and Corrupt
Organizations Chapter of The Organized Crime Control Act of 1970, except to the
extent that failure to do so could not, in the aggregate, reasonably be
expected to result in a Material Adverse Effect.


 


(c)                                  Environmental Matters.  Comply, and cause each Material Subsidiary
and all lessees and other Persons operating or occupying its properties to
comply with all applicable Environmental Laws and Environmental Permits; obtain
and renew, and cause each of its Subsidiaries to obtain and renew, all
Environmental Permits necessary for its operations and properties (including
all Collateral) and conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove and clean up all Hazardous
Materials from any of its properties (including all Collateral), in accordance
with the requirements of all Environmental Laws, in each case to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances.


 


(d)                                 Insurance.  Maintain, and cause each Material Subsidiary
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which such Loan Party or such Subsidiary operates.


 


47

















 


(e)                                  Taxes.  Pay and discharge, and cause each of its
Subsidiaries to pay and discharge promptly all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
in respect of its property, which, if unpaid, could become a Lien or charge
upon such properties or any part thereof; provided, however, that
the Borrower and each Guarantor shall not be required to pay and discharge or
to cause to be paid and discharged any such tax, assessment, charge, levy or
claim so long as the validity or amount thereof shall be contested in good faith
by appropriate proceedings, in each case, if the Borrower and the Guarantors
shall have set aside on their books adequate reserves therefor in conformity
with GAAP, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.


 


(f)                                    Access to Books and Records.


 


(i)                                     Maintain or cause to be
maintained at all times true and complete books and records in accordance with
GAAP of the financial operations of the Borrower and the Guarantors; and provide
the Lenders and their representatives and advisors (which shall coordinate
through the Administrative Agent) access to all such books and records during
regular business hours upon reasonable advance notice, in order that the
Lenders may examine and make abstracts from such books, accounts, records and
other papers for the purpose of verifying the accuracy of the various reports
delivered by the Borrower or the Guarantors to any Agent or the Lenders
pursuant to this Agreement or for otherwise ascertaining compliance with this
Agreement and to discuss the affairs, finances and condition of the Borrower
and the Guarantors with the officers and independent accountants of the
Borrower; provided that the Borrower shall have the right to be present
at any such visit or inspection.


 


(ii)                                  Grant the Lenders (which
shall coordinate through the Administrative Agent) access to and the right to
inspect all reports, audits and other internal information of the Borrower and
the Guarantors relating to environmental matters that are reasonably likely to
materially impact the Borrower upon reasonable advance notice, but subject to
appropriate limitations so as to preserve attorney-client privilege.


 


(iii)                               At any reasonable time and
from time to time during regular business hours, upon reasonable notice by the
Administrative Agent or the Collateral Agent, permit such Agent or any Lenders
and/or any representatives designated by such Agent or such Lender (it being
understood that all such visits by Lenders shall be coordinated through the
Administrative Agent) (including any internal and third party consultants,
accountants, lawyers and appraisers retained by such Agent or Lender) to visit
the properties of the Borrower and the Guarantors to conduct reasonable
evaluations, appraisals, environmental assessments (provided that an Event of
Default is continuing or the Agent has a reasonable basis to believe that there
exist violations of Environmental Laws or that there exist any environmental
liabilities, that would, in the aggregate, result in a Material Adverse Effect)
and ongoing maintenance and monitoring in connection with the assets and
properties of the Borrower or its Subsidiaries (including all Collateral) as
such Agent or Lender may reasonably require, and to monitor the Collateral and
all related systems, and pay the reasonable fees and expenses in connection
therewith (including the reasonable and customary fees and expenses of such
Agents and Lenders (including their respective representatives and advisors),
as forth in Section 9.04); provided that the Borrower shall have
the right to be present at any such visit and, unless a Default has occurred
and is continuing, such visits permitted under this clause (iii) shall
be coordinated through the Administrative Agent or the Collateral Agent and,
except with respect to access by FTI Consulting, Inc. to the Borrower and
its Subsidiaries pursuant to that certain engagement letter, dated February 13,
2009, between FTI Consulting, Inc., Citibank and Shearman &
Sterling LLP (as supplemented by the memorandum of FTI Consulting, Inc. to
Citibank dated May 28, 2009), shall be made no more 


 


48

















 


frequently than twice in any Fiscal Year (in addition to, at the
request of the Administrative Agent, an annual audit with respect to the data
processing and other systems of the Borrower and its Subsidiaries).


 


(g)                                 Use of Proceeds.  Use the proceeds of the Advances solely for
the purposes, and subject to the restrictions, set forth in Section 2.13.


 


(h)                                 [Reserved].


 


(i)                                     Additional Domestic
Subsidiaries, Collateral.  If (A) any
Loan Party shall form or directly acquire all or substantially all of the
outstanding Equity Interests of a Subsidiary that constitutes a Material
Subsidiary (other than any Excluded Subsidiary) after the Closing Date, (B) a
Person (other than an Excluded Subsidiary) becomes a Material Subsidiary (or a
Material Subsidiary ceases to be an Excluded Subsidiary) after the Closing
Date, or (C) any Loan Party or any Subsidiary (other than any Excluded
Subsidiary) shall acquire any property of a type which constitutes Collateral,
which in the judgment of the Collateral Agent, shall not already be subject to
a perfected first priority security interest in favor of the Collateral Agent for
the benefit of the Secured Parties, then in each case at the Borrower’s expense
(1) the Borrower will promptly notify the Administrative Agent and the
Collateral Agent thereof and (2) within fifteen Business Days of such
formation, re-characterization or acquisition (or such longer period as the
Administrative Agent may agree in its reasonable discretion), such Loan Party
shall (x) cause such Subsidiary to become a Loan Party hereunder and under
each applicable Loan Document (including the execution and delivery by such
Subsidiary of a Guaranty Supplement) and (y) take such actions to create
and perfect Liens on such Loan Party’s and Subsidiary’s assets constituting
Collateral to secure the Secured Obligations as the Administrative Agent or the
Collateral Agent shall reasonably request in accordance with and subject to the
Collateral Documents; provided that, no Subsidiary will be required to
become or remain a Guarantor or provide or maintain a Lien on any of its assets
as security for any of the Obligations (1) if, in the reasonable
discretion of the Administrative Agent, the cost of providing a Guarantee
Obligation hereunder is excessive in relation to the benefits to be obtained by
the Lenders therefrom or (2) to the extent that doing so would, with respect
to any CFC or any assets of a CFC, result in any materially adverse tax
consequences; and provided  further that, no Subsidiary shall be
excluded from being a Guarantor to the extent that such Subsidiary provides a
Guarantee Obligation in respect of any of the Existing Notes, the Existing
Bridge Loans, the Existing Credit Facilities or any Permitted Refinancing
Debt.  Without limitation of the
foregoing, if any Loan Party or any Subsidiary shall acquire any property of a
type which constitutes REO Property, then in each case at the Borrower’s
expense the Borrower shall take or cause its Subsidiaries to take such actions
to create and perfect Liens on such REO Property to secure the Secured
Obligations to the extent set forth in and in accordance with Section 5.01(q).


 


(j)                                     Further Assurances.


 


(i)                                     Promptly upon reasonable
request by the Administrative Agent or the Collateral Agent, correct, and cause
each of its Subsidiaries promptly to correct, any material defect or error that
may be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof.


 


(ii)                                  Promptly upon reasonable
request by the Administrative Agent or the Collateral Agent, do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, conveyances, pledge agreements,
mortgages, deeds of trust, trust deeds, assignments, financing statements and
continuations thereof, termination statements, notices of assignment,
transfers, certificates, landlords’ and bailees’ waiver and consent agreements,
assurances and other instruments as any Agent may reasonably require from time
to 


 


49

















 


time in order to (A) carry out more effectively the purposes of
the Loan Documents, (B) to the fullest extent permitted by applicable law,
subject any Loan Party’s properties, assets, rights or interests to the Liens
now or hereafter intended to be covered by any of the Collateral Documents, (C) perfect
and maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens required to be created thereunder and (D) assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any Loan
Party or any of its Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.


 


(k)                                  Maintenance of Properties,
Etc.  Maintain and preserve all of
its properties that are necessary in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and will from time
to time make or cause to be made all appropriate repairs, renewals and
replacements thereof except where failure to do so could not have a Material
Adverse Effect; provided that, this Section 5.01(k) shall not
prohibit the sale, transfer or other disposition of any such property
consummated in accordance with the other terms of this Agreement.


 


(l)                                     Interest Rate and Currency
Protection.  Maintain
its interest rate and currency hedging program substantially as described on
Schedule 5.01(1).


 


(m)                               Post-Closing Obligations.  Take each action set forth on
Schedule 5.01(m) within the time period set forth on
Schedule 5.01(m) for such action; provided that in each case,
the Administrative Agent may, in its sole discretion, grant extensions of the
time periods set forth in this Section 5.01(m).


 


(n)                                 Three-Year
Business Plan.  Within 60
days following the Closing Date, the Borrower shall deliver to the
Administrative Agent a reasonably detailed Consolidated and Consolidating
business plan of the Borrower and its Subsidiaries for the Fiscal Years 2009
through 2011, including projected income statements, balance sheets and cash
flow statements and segment level projections, substantially in the form of Exhibit M
or in such other form reasonably satisfactory to the Lender Committee.


 


(o)                                 Debt Restructuring Proposal.  Within 90 days following the Closing Date,
the Borrower shall deliver a reasonably detailed debt restructuring proposal in
respect of the Borrower and its Subsidiaries.


 


(p)                                 Chief Restructuring Officer.  Within 30 days following the Closing Date,
the Borrower shall have appointed a chief restructuring officer acceptable to
the Lead Arrangers, having such duties as are usual and customary in connection
with such office (it being understood that Moshsin Y. Meghji of Loughlin Meghji &
Company shall be acceptable to the Lead Arrangers as a chief restructuring
officer).


 


(q)                                 REO Property.  (i)  On or prior to the Closing Date,
the Borrower shall establish REO Holdco. 
REO Holdco shall not engage in any business or activity, hold or acquire
any assets, incur any Debt, make any Investments or create or suffer to exist
any Liens on any of its assets, other than (A) the ownership and
maintenance of REO Property of the type described in clause (b) of
the definition thereof, (B) maintaining its existence, (C) the
performance of obligations under the Loan Documents to which it is a party, (D) the
receipt of Restricted Payments permitted under Section 5.02(c) and
the use thereof as contemplated therein, (E) the consummation of the
Transactions, (F) the issuance and sale of its Equity Interests, (G) the
performance of its Guarantee Obligations 


 


50

















 


permitted under Section 5.02(b)(xv) and (H) activities
incidental to the businesses or activities described in clauses (A)-(F) above.  REO Holdco shall be a direct wholly-owned
Subsidiary of a Loan Party.  The Loan
Parties shall grant in favor of the Collateral Agent a first priority
fully-perfected pledge of, and security interest in, 100% of the Equity
Interests of REO Holdco.  REO Holdco
shall grant in favor of the Collateral Agent a first priority, fully perfected
pledge of, and security interest in, each of its existing and future direct Subsidiaries
(subject to the terms of the Security Agreement).


 


(ii)                                  On or prior to
the Closing Date (or as soon as practicable thereafter, but in any event within
five Business Days following the Closing Date), the Borrower shall cause all
REO Property of the Borrower and its Subsidiaries existing as of the Closing
Date to be directly or indirectly transferred to REO Holdco.  After the Closing Date, upon the acquisition
by the Borrower or any of its Subsidiaries of any additional REO Property, the
Borrower shall transfer, or cause such Subsidiary to transfer, promptly, but in
any event within five Business Days of such acquisition, such REO Property to
REO Holdco.


 


(iii)                               Without
limitation of Section 5.01(i), on any date when the fair market value of
all REO Property held by the Borrower and its Subsidiaries of the type
described in clause (a) of the definition thereof that is not subject
to a Mortgage exceeds 10% of the unpaid principal balance of all Mortgage Loan
Assets, the Borrower shall (A) promptly notify the Collateral Agent
thereof, and (B) at the reasonable request of the Lender Committee, the
Subsidiary owning such REO Property shall promptly deliver to the Collateral
Agent Real Estate Collateral Deliverables in respect of one or more parcels of
real property constituting REO Property such that the fair market value of all
REO Property held by the Borrower and its Subsidiaries of the type described in
clause (a) of the definition thereof that is not subject to a
Mortgage is less than or equal to 10% of the unpaid principal balance of all
Mortgage Loan Assets (the “REO Mortgage Condition”); provided
that this clause (B) shall not require (i) the pledge of any
such REO Property the pledge of which is prohibited by any Contractual
Obligation entered into prior to the Closing Date (or, in the case of any
Subsidiary formed or acquired by the Borrower subsequent to the Closing Date,
prior to such formation or acquisition) and not in contemplation of this
provision or (ii) the pledge of any such REO Property that is not
wholly-owned by the Borrower and its Subsidiaries.


 


(iv)                              Without
limitation of Section 5.01(i) or Section 5.01(q)(iii), upon the
occurrence and during the continuation of an Event of Default, upon the request
of the Required Lenders, the Borrower shall promptly deliver to the Collateral
Agent Real Estate Collateral Deliverables in respect of such parcels of real
property constituting REO Property as may be requested by the Required Lenders;
provided that this Section 5.01(q)(iv) shall not require (i) the
pledge of any such REO Property the pledge of which is prohibited by any
Contractual Obligation entered into prior to the Closing Date (or, in the case
of any Subsidiary formed or acquired by the Borrower subsequent to the Closing
Date, prior to such formation or acquisition) and not in contemplation of this
provision or (ii) the pledge of any such REO Property that is not
wholly-owned by the Borrower and its Subsidiaries.


 


Section 5.02                                Negative
Covenants.  So long as
any Advance or any other Obligation (other than contingent indemnification
obligations not then accrued and payable) of any Loan Party under any Loan
Document shall remain unpaid, no Loan Party will, at any time:


 


(a)                                  Liens.  Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character (including,
without limitation, accounts) whether now owned or hereafter acquired, or sign
or file or suffer to exist, or permit any of its Subsidiaries to sign or file
or suffer to exist, under the 


 


51

















 


Uniform Commercial Code of any jurisdiction, a financing statement that
names a Loan Party or any of its Subsidiaries as debtor, or sign or suffer to
exist, or permit any of its Subsidiaries to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its Subsidiaries to assign,
any accounts or other right to receive income, except:


 


(i)                         Liens created under the Loan
Documents;


 


(ii)                      Liens existing on the date
hereof and, to the extent securing Debt For Borrowed Money, described on
Schedule 5.02(a) hereto, and renewals, refinancings or extensions
thereof with respect to any Surviving Debt comprising securitizations or
similar financings of the Loan Parties and their Subsidiaries; provided
that (A) the principal amount of the related Debt shall not be increased
above the principal amount of the Debt being renewed, refinanced or extended
(excluding the amount of any premium paid in respect of such refinancing,
renewal or extension and the amount of reasonable expenses incurred by the Loan
Parties in connection therewith), (B) none of the Loan Parties or their
Subsidiaries shall become a new direct or contingent obligor, (C) no
additional assets shall be transferred to the applicable special purpose entity
and (D) the property covered thereby shall not be changed;


 


(iii)                  Permitted Liens;


 


(iv)                  Liens in connection with Debt permitted to be
incurred pursuant to Section 5.02(b)(v) so long as such Liens extend
solely to the property (and improvements and proceeds of such property)
acquired or financed with the proceeds of such Debt or subject to the
applicable Capitalized Lease;


 


(v)                     any deposit of assets of any
Loan Party with any surety company or clerk of any court, or escrow, as
collateral in connection with, or in lieu of, any bond on appeal by such Loan
Party from any judgment or decree against it, or in connection with other
proceedings in actions at law or in equity by or against such Loan Party;


 


(vi)                  Liens on any assets that are owned by any
Specified Excluded Subsidiary;


 


(vii)               Liens securing Debt relating to Hedge
Agreements permitted to be incurred pursuant to Section 5.02(b)(vi) pursuant
to agreements existing on the date hereof or similar agreements not for
speculative purposes replacing or renewing such agreements, whether or not with
the same counterparties; provided that in no event shall initial margin
collateral in respect of all such Hedge Agreements (excluding collateral
securing back-to-back hedging arrangements with any Specified Subsidiary)
exceed $100,000,000 in the aggregate;


 


(viii)            Liens on Servicing Advance Assets that secure any
Servicing Advance Facility permitted under Section 5.02(b)(x); provided
that for so long as such Servicing Advance Facility remains outstanding, (A) if
such Servicing Advance Facility is a securitization facility, the Collateral
Agent (for the benefit of the Lenders) shall have a perfected first-priority
pledge and security interest in the Equity Interests in the related special
purpose vehicle that holds any of the Servicing Advance Assets and to the
extent necessary (as reasonably determined by the Administrative Agent) the
Collateral Agent shall have entered into intercreditor arrangements reasonably
satisfactory to the Collateral Agent with any collateral agent and/or the
lenders under such Servicing Advance Facility and (B) if such Servicing
Advance Facility is not a securitization facility, to the extent that such
Servicing Advance Assets constitute property of the Loan Parties, the
Collateral Agent (for the benefit of the Lenders) shall have a perfected 


 


52

















 


second-priority pledge and security interest in such Servicing Advance
Assets (subject only to the Liens in favor of the collateral agent and/or
lenders under such Servicing Advance Facility) and the Collateral Agent shall
have entered into intercreditor arrangements reasonably satisfactory to the
Collateral Agent with any collateral agent and/or the lenders under such
Servicing Advance Facility;


 


(ix)                    Liens securing Debt (other
than Debt For Borrowed Money or Debt in respect of Hedge Agreements) on assets
with a fair market value at any time not to exceed $200,000,000 to the extent
that such Liens are incurred in the ordinary course of business of the Borrower
and its Subsidiaries consistent with past practice;


 


(x)                       Liens required by agreements
with Government Related Enterprises in the ordinary course of business of the
Borrower and its Subsidiaries consistent with past practice;


 


(xi)                    Liens to secure any
Permitted Refinancing Debt; provided that no such Lien shall extend to
or cover any Servicing Advance Assets; and


 


(xii)                 other Liens securing Debt outstanding in an
aggregate principal amount not to exceed $5,000,000; provided that no
such Lien shall extend to or cover any Servicing Advance Assets;


 


provided that,
notwithstanding anything in this Section 5.02(a) to the contrary, no
Lien shall extend to or cover any Collateral, except for Liens described in Section 5.02(a)(iii) to
the extent that such Liens arise automatically by operation of law.


 


(b)                                 Debt.  Contract, create, incur, assume or suffer to
exist any Debt, or permit any of its Subsidiaries to contract, create, incur,
assume or suffer to exist any Debt, except:


 


(i)                         Debt under this Agreement
and the other Loan Documents;


 


(ii)                      the Surviving Debt and (A) solely
with respect to any Surviving Debt other than as described in clause (B) below,
any Debt extending the maturity of, or refunding or refinancing, in whole or in
part, such Surviving Debt, in each case upon the maturity of such Surviving
Debt; provided that the terms of any such extending, refunding or
refinancing Debt, and of any agreement entered into and of any instrument
issued in connection therewith, are otherwise permitted by the Loan Documents; provided
further that the principal amount of such Surviving Debt shall not be
increased above the principal amount thereof outstanding immediately prior to
such extension, refunding or refinancing, no assets shall be added as
collateral and no additional direct or indirect credit support shall be added
therefor, and the direct and contingent obligors therefor shall not be changed,
as a result of or in connection with such extension, refunding or refinancing;
and provided  further that the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if any), and
other material terms taken as a whole, of any such extending, refunding or
refinancing Debt, and of any agreement entered into and of any instrument
issued in connection therewith, are no less favorable in any material respect
to the Loan Parties or the Lenders than the terms of any agreement or
instrument governing the Surviving Debt being extended, refunded or refinanced
and the interest rate applicable to any such extending, refunding or
refinancing Debt does not exceed the then applicable market interest rate for
similar type of Debt and (B) solely with respect to the Existing Notes,
the Existing Credit Facilities and the Existing Bridge Loans, any Permitted
Refinancing Debt in respect thereof.


 


53

















 


(iii)                   Debt arising from Investments among the
Borrower and its Subsidiaries that are permitted hereunder;


 


(iv)                  Debt in respect of netting services,
customary overdraft protections and otherwise in connection with deposit
accounts in the ordinary course of business;


 


(v)                     Debt constituting purchase
money debt and Capitalized Lease obligations (not otherwise included in
subclause (ii) above) in an aggregate outstanding amount not in
excess of $5,000,000;


 


(vi)                  Debt in respect of Hedge Agreements under the
hedging program described on Schedule 5.01(l);


 


(vii)               Debt which may be deemed to exist pursuant to
any surety bonds, appeal bonds or similar obligations incurred in connection
with any judgment not constituting an Event of Default;


 


(viii)            Debt incurred by the Borrower or any of its
Subsidiaries in any Investment expressly permitted hereunder or any
Disposition, in each case limited to indemnification obligations or obligations
in respect of purchase price;


 


(ix)                    Debt consisting of the
financing of insurance premiums in each case, in the ordinary course of
business;


 


(x)                       Debt in respect of one or
more Servicing Advance Facilities, the aggregate outstanding principal amount
of which shall not exceed $900,000,000; provided that (A) the
Borrower shall, within one Business Day after the date of receipt of (1) any
amount of the first $100,000,000 of the Net Cash Proceeds from the Specified
Servicing Advance Facility by such Loan Party or any of its Subsidiaries, apply
62.5% of such Net Cash Proceeds to an Existing Credit Agreement Repayment and
37.5% of such Net Cash Proceeds to an Existing Bridge Loan Agreement Repayment
and (2) any amount of the first $200,000,000 of the Net Cash Proceeds from
any Servicing Advance Facility (other than the Specified Servicing Advance
Facility) by such Loan Party or any of its Subsidiaries, apply 50% of such Net
Cash Proceeds to an Existing Credit Agreement Repayment and an Existing Bridge
Loan Repayment, with 62.5% of such Net Cash Proceeds to be applied to such
Existing Credit Agreement Repayment and 37.5% of such Net Cash Proceeds to be
applied to such Existing Bridge Loan Agreement Repayment; provided that,
in no event shall the aggregate Net Cash Proceeds applied to Existing Credit
Agreement Repayments and Existing Bridge Loan Agreement Repayments pursuant to
this clause (A) be required to exceed $100,000,000 and (B) the
Lenders shall be offered the right to provide the first $500,000,000 of
commitments in respect of any such Servicing Advance Facility;


 


(xi)                    Debt secured by Liens
permitted by Section 5.02(a)(vi);


 


(xii)                 Debt incurred by any Specified Excluded
Subsidiary and Debt of the Borrower arising under any capital maintenance or
support agreement relating to any Specified Subsidiary;


 


(xiii)              to the extent constituting Debt, any undertaking of
the Borrower and its Subsidiaries to maintain capital requirements in
accordance with any applicable law or 


 


54

















 


regulation, the requirements of any Government Related Enterprise or
any order of, or agreement entered into with, any governmental or regulatory
authority;


 


(xiv)             the carrying value of Debt (other than Debt For
Borrowed Money or Debt in respect of Hedge Agreements or Debt not otherwise
permitted hereunder) outstanding in an aggregate principal amount not to exceed
$200,000,000 to the extent that such Debt is incurred in the ordinary course of
business of the Borrower and its Subsidiaries consistent with past practice
(with the “carrying value” being determined in a manner consistent with the
carrying value of Debt as reflected on the Borrower’s financial statements
delivered pursuant to Section 5.03(b) and (c));


 


(xv)                Guarantee Obligations of any Guarantor in
respect of Surviving Debt (including Debt under the Existing Credit Facilities,
the Existing Bridge Loan and the Existing Notes) to the extent that such
Guarantee Obligations are required pursuant to the terms of agreements in
respect of such Surviving Debt existing on the date hereof; and


 


(xvi)             Debt not otherwise permitted hereunder in an
aggregate outstanding principal amount of $5,000,000.


 


(c)                                  Dividends; Capital Stock.  Declare or pay any dividends, purchase,
repurchase, redeem, retire, defease or otherwise acquire for value any of its
Equity Interests now or hereafter outstanding, return any capital to its stockholders,
partners or members (or the equivalent Persons thereof) as such, make any
distribution of assets, Equity Interests, obligations or securities to its
stockholders, partners or members (or the equivalent Persons thereof) as such,
or permit any of its Subsidiaries to do any of the foregoing, or permit any of
its Subsidiaries to purchase, repurchase, redeem, retire, defease or otherwise
acquire for value any Equity Interests in such Loan Party, any other Loan Party
or any direct or indirect Subsidiaries thereof (collectively, “Restricted
Payments”), except that:


 


(i)                                     to the extent constituting
Restricted Payments, a Loan Party may enter into and consummate any
transactions permitted under Section 5.02(d), (e) and (h);


 


(ii)                                  to the extent constituting
Restricted Payments, a Loan Party may make repurchases of Equity Interests from
employees, former employees, directors or former directors pursuant to
mandatory repurchase plans upon the death or disability of such persons, in
each case in amounts not to exceed the fair market value of the Equity
Interests so repurchased;


 


(iii)                               to the extent constituting
Restricted Payments, a Loan Party may pay customary investment banking fees to
national investment banks that are Affiliates of its stockholders, partners or
members on an arm’s-length basis in order to consummate any capital markets
financing transactions;


 


(iv)                              to the extent constituting
Restricted Payments, a Loan Party may pay dividends to permit the Borrower to
pay any taxes that are due and payable by the Borrower and the Loan Party as
part of the Consolidated group;


 


(v)                                 any Loan Party (other than
the Borrower) or any of its Subsidiaries may make Restricted Payments to any
other Loan Party or any of its Subsidiaries; and


 


(vi)                              repurchases of Equity Interests
in the ordinary course of business in the Borrower (or any direct or indirect
parent thereof) or any of its Subsidiaries deemed to occur upon exercise 


 


55

















 


of stock options or warrants if such Equity Interests represent a
portion of the exercise price of such options or warrants.


 


(d)                                 Transactions with Affiliates.  Enter into or permit any of its Subsidiaries
to enter into any transaction with any of its Affiliates, other than on terms
and conditions at least as favorable to such Loan Party or such Subsidiary as
would reasonably be obtained at that time in a comparable arm’s-length
transaction with a Person other than an Affiliate, except for the
following:  (i) any transaction
between any Loan Party and any other Loan Party or between any Non-Loan Party
and any other Non-Loan Party; (ii) any transaction between any Loan Party
and any Non-Loan Party (other than any Specified Subsidiary) that is, together
with all such transactions between such Loan Party and such Non-Loan Party
taken as a whole, at least as favorable to such Loan Party as would reasonably
be obtained at that time in a comparable arm’s-length transaction with a Person
other than an Affiliate; (iii) any transaction between the Borrower or any
of its Subsidiaries and any Specified Subsidiary entered into in the ordinary
course of business of the Borrower and its Subsidiaries consistent with past
practice; (iv) any transaction individually or of a type expressly
permitted pursuant to the terms of the Loan Documents; (v) reasonable and
customary director, officer and employee compensation (including, without
limitation, incentive compensation) and other benefits (including retirement,
health, stock option and other benefit plans) and indemnification arrangements;
(vi) transactions of the type in existence on the Closing Date and set
forth on Schedule II and any renewal or replacement thereof on substantially
identical terms; or (vii) transactions entered into in connection with any
Servicing Advance Facility.


 


(e)                                  Investments.  Make or hold, or permit any of its
Subsidiaries (excluding Specified Subsidiaries) to make, any Investment in any
Person, except:


 


(i)                         Investments in (A) cash
and Cash Equivalents; provided that any Investments in cash made by any
such Person shall be made solely in Dollars or in any functional currency of
the jurisdiction in which such Person is located or (B) securities issued
by Government Related Enterprises and having maturities of not more than 24
months after the date of acquisition;


 


(ii)                      Investments
among the Borrower and its Subsidiaries; provided that any Investment by
a Loan Party in a Non-Loan Party shall be in the form of intercompany Debt
(except (A) for investments in any Specified Subsidiary, (B) to the
extent that an equity investment is necessary to comply with applicable
regulatory capital requirements in any applicable jurisdiction pursuant to any
agreement, order, law, regulation or other requirement of any regulatory
authority, (C) in connection with the contribution of Equity Interests to
the REO Holdco or (D) in connection with any Investment for tax planning
purposes in the ordinary course of the Borrower’s business);


 


(iii)                   Investments (A) received
in satisfaction or partial satisfaction thereof from financially troubled
account debtors or in connection with the settlement of delinquent accounts and
disputes with customers and suppliers, or (B) received in settlement of
debts created in the ordinary course of business and owing to the Borrower or
any of its Subsidiaries or in satisfaction of judgments;


 


(iv)                  Investments (A) in
the form of deposits, prepayments and other credits to suppliers made in the
ordinary course of business consistent with current market practices or (B) in
the form of prepaid expenses and deposits to other Persons in the ordinary
course of business;


 


56
















 


(v)       guaranties
of leases and trade payables and other similar obligations entered into in
the ordinary course of business;


 


(vi)      Investments
required in the reasonable judgment of the Borrower and its Subsidiaries
(taking into account, among other things, the impact of any such Investments on
the liquidity position of the Borrower and its Subsidiaries) and entered into
in the ordinary course of business of the Borrower and its Subsidiaries
consistent with past practice, to preserve the value of any existing Investment
or avoid or mitigate a loss under any guarantee, loss sharing or
indemnification agreement existing on the date hereof; and


 


(vii)     Investments
by the Borrower and its Subsidiaries existing on the date hereof and described
in the most recent Form 10-K (as amended) or Form 10-Q of the
Borrower filed with the SEC prior to the Closing Date, or if not so described
in such Form 10-K or Form 10-Q, as described on Schedule 5.02(e) and
additional Investments by the Borrower and its Subsidiaries to the extent that
such Investments are required pursuant to agreements existing on the date
hereof (including, for the avoidance of doubt, Investments pursuant to existing
Servicing Agreements and Investments in REO Property pursuant to existing
agreements) and, to the extent that the aggregate amount of unfunded
obligations in respect of any such Investments is greater than $2,000,000, such
agreements and required Investments are described on Schedule 5.02(e) hereto;
provided that, immediately before and immediately after giving effect to
any such Investment (other than Servicing Advances under Servicing Agreements),
no Event of Default of the type described in paragraphs (a), (c) (to the
extent resulting from a breach of Section 5.04) or (f) of Section 6.01
shall have occurred and be continuing.


 


(f)            Disposition of Assets.  Sell or otherwise dispose of, or permit any
of its Subsidiaries to sell or otherwise dispose of (including in each case
pursuant to any settlement in respect of any assets), all or substantially all
of the assets of the Borrower and its Subsidiaries, taken as a whole.


 


(g)           Nature of Business. 
Enter into, or permit any of its Subsidiaries to enter into any business
of a nature or type other than those conducted at or prior to the Closing Date
or that are reasonably related thereto.


 


(h)           Mergers. 
Merge into or consolidate with any Person or permit any Person to merge
into it, or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or dispose of all or substantially all of its property or
business which would result in the disposition of all or substantially all of
the assets of the Borrower and its Subsidiaries, taken as a whole, except:


 


(i)        mergers
or consolidation constituting permitted Investments under Section 5.02(e) (other
than Section 5.02(e)(ii)) or asset dispositions permitted pursuant to Section 5.02(f);


 


(ii)       mergers,
consolidations, liquidations or dissolutions (A) by any Loan Party (other
than the Borrower) with or into any other Loan Party, (B) by any Non-Loan
Party with or into any Loan Party or (C) by any Non-Loan Party with or
into any other Non-Loan Party; provided that, in the case of any such
merger or consolidation, the person formed by such merger or consolidation
shall be a wholly owned Subsidiary of the Borrower, and provided  further
that in the case of any such merger or consolidation (x) to which the
Borrower is a party, the Person formed by such merger or consolidation shall be
the Borrower and (y) to which a Loan Party (other than the Borrower) is a
party (other than a merger or consolidation made in accordance 


 


57

















 


with subclause (B) above), the Person formed by such merger
or consolidation shall be a Loan Party on the same terms; and


 


(iii)      the
dissolution, liquidation or winding up of any Loan Party other than the
Borrower, provided that such dissolution, liquidation or winding up
could not reasonably be expected to have a Material Adverse Effect and the
assets of the Person so dissolved, liquidated or wound-up are distributed to
the Borrower or to another Loan Party.


 


(i)            Accounting Changes.  Make or permit any changes in (i) accounting
policies or reporting practices, except as permitted or required by GAAP, or (ii) its
Fiscal Year.


 


(j)            Negative Pledge; Payment Restrictions Affecting
Subsidiaries.  Except as may be
contemplated or expressly permitted hereunder, enter into, or allow any
Subsidiary (other than any Specified Subsidiary) to enter into, any agreement
prohibiting or conditioning the ability of the Borrower or any such Subsidiary
to (i) create any Lien upon any of its property or assets, (ii) make
dividends to, or pay any indebtedness owed to, any Loan Party, (iii) make
loans or advances to, or other investments in, any Loan Party, or (iv) transfer
any of its assets to any Loan Party other than (A) any such agreement with
or in favor of the Administrative Agent, the Collateral Agent or the Lenders; (B) in
connection with (1) any agreement evidencing any Liens permitted pursuant
to Section 5.02(a)(iv) (so long as such prohibitions or
conditions relate solely to the assets that are the subject of such Liens) or (2) any
Debt permitted to be incurred under Sections 5.02(b)(v) above (so
long as such prohibitions or conditions are limited to the assets securing such
Debt; (C) any agreement setting forth customary restrictions on the
subletting, assignment or transfer of any property or asset that is a lease,
license, conveyance or contract of similar property or assets; (D) any
restriction or encumbrance imposed pursuant to an agreement that has been
entered into by the Borrower or any Subsidiary of the Borrower for the
disposition of any of its property or assets so long as such disposition is
otherwise permitted under the Loan Documents; (E) any such agreement
imposed in connection with consignment agreements entered into in the ordinary
course of business; (F) customary anti-assignment provisions contained in
any agreement entered into in the ordinary course of business; (G) any
agreement in existence at the time a Subsidiary is acquired so long as such
agreement was not entered into in contemplation of such acquisition; (H) such
encumbrances or restrictions required by applicable law or regulation; (I) any
agreement in existence on the Closing Date and listed on Schedule III, the
terms of which shall have been disclosed in writing to the Administrative Agent
prior to the date thereof; or (J) any Servicing Advance Facility Document;
provided that, to the extent that any such restrictions contained in any
Servicing Advance Facility Document which provides for recourse to any Loan
Party are more restrictive than the restrictions set forth in this Article V,
(1) the Borrower shall promptly (but in any event, within one Business Day
after effectiveness of any such Servicing Advance Facility Document) notify the
Administrative Agent of such restrictions, (2) the Required Lenders shall
have the right, by way of one or more amendments to this Agreement in form and
substance reasonably acceptable to the Administrative Agent, to provide that
such restrictions contained in such Servicing Advance Facility Document shall
apply under this Agreement and (3) the Loan Parties shall consent to any
such amendment to this Agreement.


 


(k)           Prepayments, Amendments, Etc. of Debt.  (i) Prepay, redeem, purchase,
repurchase, exchange, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner, or make any payment in violation of any
subordination terms of, any Debt For Borrowed Money (other than intercompany
Debt owed to the Borrower or any Subsidiary of the Borrower), except (x) the
prepayment of the Advances in accordance with the terms of this Agreement, and (y) regularly
scheduled or required repayments or redemptions of Surviving Debt, or (ii) amend,
modify or change in any manner any term or condition of any Surviving Debt
(other than the amendments to the Existing Bridge Loan Agreement and the
Existing Credit Agreement referred to in Section 3.01(b)), 


 


58

















 


or permit any of its Subsidiaries to do any
of the foregoing other than to prepay any Debt For Borrowed Money payable to
the Borrower; provided that so long as no Default shall have occurred
and be continuing, (A) if the Liquidity Condition is satisfied immediately
prior to any such prepayment, redemption or purchase, the Borrower may use up
to $150,000,000 in the aggregate (the “Notes Cash Basket”) to prepay,
redeem or purchase the Existing Notes prior to the scheduled maturity thereof, (B) the
Borrower may prepay, redeem or purchase the Existing Notes prior to the
scheduled maturity thereof to the extent that such prepayment, redemption or
purchase constitutes a Permitted Notes Refinancing and (C) the Borrower
may prepay, redeem or purchase Debt under the Existing Credit Agreement and the
Existing Bridge Loan Agreement so long as (w) any such Debt that is
redeemed or purchased shall be retired immediately upon the consummation of
such redemption or purchase, (x) each of the “Lenders” under and as
defined in the Existing Credit Agreement and the Existing Bridge Loan
Agreement, as applicable, shall be offered an opportunity to ratably
participate (in accordance with the provisions of the Existing Credit Agreement
and the Existing Bridge Loan Agreement, as applicable) in such prepayment,
redemption or purchase and (y) with respect to any redemption or purchase,
on a pro forma basis (after giving effect to such redemption or purchase), (1) the
Loan Parties shall have maintained a Liquidity Availability of at least
$300,000,000 on an average daily basis for each of the three months ending
immediately prior to such redemption or purchase and (2) the Borrower
shall be in compliance with the covenants set forth in Section 5.04 before
and after giving effect to such redemption or purchase.


 


(l)            Capital Expenditures.  Make, or permit any of its Subsidiaries to
make, any Capital Expenditures, except (i) to the extent permitted under Section 5.02(e) and
(ii) up to $20,000,000 of Capital Expenditures in any calendar year.


 


(m)          Holding Company Status.  In the case of any domestic Subsidiary that
is a CFC, engage in any business or activity or incur liabilities other than (i) the
ownership of the Equity Interests of a CFC, (ii) maintaining its corporate
existence and (iii) activities incidental to the businesses or activities
described in the foregoing clauses (i) and (ii).


 


(n)           Other Payments. 
Without limitation to the other provisions of this Section 5.02,
and except as permitted under Sections 5.02(c)(ii) or (iii), make, or
permit any of its Subsidiaries to make, any payments to any direct or indirect
holders of Equity Interests in the Borrower in respect of such Equity Interests
in the Borrower in any form whatsoever, whether through management or similar
fees, dividends, distributions, repurchases of Equity Interests or otherwise.


 


Section 5.03           Reporting Requirements.  So long as any Advance or any other
Obligation (other than contingent indemnification obligations not then accrued
and payable) of any Loan Party under any Loan Document shall remain unpaid, the
Borrower will furnish to the Lenders (through the Administrative Agent):


 


(a)           Default Notice. 
As soon as possible and in any event within three Business Days after
the occurrence of any Default, a statement of a Responsible Officer of the
Borrower setting forth details of such Default or other event and the action
that the Borrower has taken and proposes to take with respect thereto.


 


(b)           Quarterly Financials.  As soon as available and in any event within
60 days after the end of each of the first three quarters of each Fiscal Year
(or such earlier date on which the Borrower has filed such financial statements
with the SEC), a Consolidated and Consolidating balance sheet of the Borrower
and its Subsidiaries as of the end of such quarter, and Consolidated and
Consolidating statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous quarter and
ending with the end of such quarter, and 


 


59

















 


Consolidated and Consolidating statements of
income and cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such quarter, setting forth, in each case in comparative form the corresponding
figures for the corresponding period of the immediately preceding Fiscal Year,
all in reasonable detail and in each case prepared in accordance with GAAP.


 


(c)           Annual Financials. 
As soon as available and in any event no later than 110 days following
the end of each Fiscal Year (or such earlier date on which the Borrower has
filed such financial statements with the SEC), a copy of the annual audit
report for such Fiscal Year, including therein a Consolidated and Consolidating
balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal
Year and Consolidated and Consolidating statements of income and cash flows of
the Borrower and its Subsidiaries for such Fiscal Year, in each case prepared
in accordance with GAAP, and in each case accompanied by an opinion acceptable
to the Administrative Agent of independent public accountants of recognized
national standing acceptable to the Administrative Agent, which report and
opinion shall be prepared in accordance with the standards of the Public
Company Accounting Oversight Board and shall not be subject to any
qualification, exception or other statement as to the scope of such audit or
any other statement to that effect.


 


(d)           Monthly Financials and Other Reports.  (i)  As soon as available and in any
event within 30 days after the end of each calendar month, a Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such month,
and Consolidated statement of income of the Borrower and its Subsidiaries for
such month, in each case prepared in accordance with the Borrower’s internal
management reporting practices;


 


(ii)           As
soon as available and in any event within 30 days after the end of each
calendar month, (A) an asset report which includes an update of the
information set forth in Schedule 4.01(w), (B) a Run Rate Operating
Expense report, (C) a reconciliation statement of the receipts and
disbursements of funds in the Cash Collateral Account, the Interest Cash Collateral
Sub-Account, the Reserve Cash Collateral Sub-Account and the Non-Reserve Cash
Collateral Sub-Account, in each case for such calendar month, including the
amounts used to pay interest, any deposits or utilization of any Reserve Funds
and any amounts used to finance unfunded commitments, protective participation
purchases, protective advances in respect of REO Property and similar funding
obligations, in each case in respect of the Collateral and (D) a schedule
(with weekly detail) of the Agreement Value in respect of any Hedge Agreements
of the Loan Parties as of the end of such month (showing the Agreement Value by
counterparty, the upfront and variation margin with respect to any collateral
posted in connection with such Hedge Agreements and such other information as
may be reasonably requested by the Administrative Agent), together with a
schedule of all Liens incurred by the Loan Parties during such month pursuant
to Sections 5.02(a)(vii), (ix) and (x); all such reports and
reconciliation statements to be in form reasonably satisfactory to the
Administrative Agent and certified by a Responsible Officer of the Borrower;  and


 


(iii)          On
the last day of each calendar month, a schedule in form reasonably satisfactory
to the Administrative Agent of the computations used in determining compliance
with the covenants contained in Section 5.04(b) for the one-month
period ending immediately prior to such date.


 


(e)           Compliance Certificate.  Concurrently with the delivery of the
financial statements referred to in Sections 5.03(b), 5.03(c) and
5.03(d)(i), (i) a certificate of the chief financial officer of the
Borrower stating that, to the best of the chief financial officer’s knowledge, (A) such
financial statements present fairly the financial condition and results of
operations of the Borrower and 


 


60

















 


its Subsidiaries for the period referred to
therein (subject, in the case of interim statements, to normal year-end audit
adjustments), and (B) during such period, each Loan Party has performed
all of its covenants and other agreements contained in this Agreement to be
performed by it, and that no Default or Event of Default has occurred, except
as specified in such certificate and (ii) a schedule in form reasonably satisfactory
to the Administrative Agent of the computations used in determining compliance
with the covenants contained in Section 5.04.


 


(f)            Annual Budget. 
As soon as available, and in any event no later than 30 days after the
end of each Fiscal Year of the Borrower, a reasonably detailed Consolidated and
Consolidating budget for the following Fiscal Year and each subsequent year
thereafter through 2011 (including a projected Consolidated and Consolidating
balance sheet of the Borrower and its Subsidiaries as of the end of the
following Fiscal Year), the related projected Consolidated and Consolidating
statements of cash flow and income for such Fiscal Year expected as of the end
of each month during such Fiscal Year (collectively, the “Projections”)
in the form delivered to the board of directors of the Borrower, which
Projections shall be accompanied by a certificate of the chief financial
officer of the Borrower stating that such Projections are based on then
reasonable estimates and then available information and assumptions; it being
understood that the Projections are made on the basis of the Borrower’s then
current good faith views and assumptions believed to be reasonable when made
with respect to future events, and assumptions that the Borrower believes to be
reasonable as of the date thereof (it being understood that projections are
inherently unreliable and that actual performance may differ materially from
the Projections).


 


(g)           Thirteen-Week Forecast.  As soon as available, and in any event no later
than 10 Business Days after the end of each calendar month, a statement of
projected cash receipts and cash disbursements for the Borrower and its
Subsidiaries for each week in the period of thirteen continuous weeks
commencing with the immediately following week, in a form reasonably
satisfactory to the Administrative Agent, and certified by the chief financial
officer of the Borrower (it being understood that such projections are made on
the basis of the Borrower’s then current good faith views and assumptions
believed to be reasonable when made with respect to future events, and
assumptions that the Borrower believes to be reasonable as of the date thereof
(it being understood that projections are inherently unreliable and that actual
performance may differ materially from such projections)).


 


(h)           Liquidity Availability.  (i) As soon as available, and in any
event no later than the fifth Business Day of each calendar week, a report of
the average daily Liquidity Availability for the immediately preceding calendar
week, in a form reasonably satisfactory to the Administrative Agent and
certified by the chief restructuring officer of the Borrower and (ii) as
soon as available, and in any event no later than the third Business Day prior
to any prepayment, redemption or purchase of the Existing Notes pursuant to
clause (A) of the proviso to Section 5.02(k) or any
redemption or purchase of Debt under the Existing Credit Agreement or the
Existing Bridge Loan Agreement pursuant to clause (C) of such
proviso, a report of the average daily Liquidity Availability for each of the
three months prior to such prepayment, redemption, purchase or buyback.


 


(i)            ERISA Events and ERISA Reports.  Promptly and in any event within 3 Business
Days after any Loan Party or any ERISA Affiliate knows that any ERISA Event has
occurred with respect to an ERISA Plan, a statement of a Responsible Officer of
the Borrower describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with respect
thereto, on the date any records, documents or other information must be
furnished to the PBGC with respect to any ERISA Plan pursuant to Section 4010
of ERISA, a copy of such records, documents and information.


 


61

















 


(j)            Plan Terminations. 
Promptly and in any event within five Business Days after receipt
thereof by any Loan Party or any ERISA Affiliate, copies of each notice from
the PBGC stating its intention to terminate any ERISA Plan or to have a trustee
appointed to administer any ERISA Plan.


 


(k)           ERISA Plan Annual Reports.  Promptly and in any event within 60 days
after the filing thereof with the United States Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) with respect to each ERISA Plan.


 


(l)            Multiemployer Plan Notices.  Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA Affiliate
from the sponsor of a Multiemployer Plan, copies of each notice concerning (i) the
imposition of Withdrawal Liability by any such Multiemployer Plan, (ii) the
reorganization or termination, within the meaning of Title IV of ERISA, of any
such Multiemployer Plan or (iii) the amount of liability incurred, or that
may be incurred, by such Loan Party or any ERISA Affiliate in connection with
any event described in clause (i) or (ii) above.


 


(m)          Litigation. 
Promptly after the commencement thereof, notice of each unstayed action,
suit, investigation, litigation and proceeding before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting any Loan Party or any of its Subsidiaries that (i) is
reasonably likely to be determined adversely and if so determined adversely
could be reasonably likely to have a Material Adverse Effect or (ii) purports
to affect the legality, validity or enforceability of this Agreement, any Note,
any other Loan Document or the consummation of the transactions contemplated
hereby.


 


(n)           Material Events. 
Promptly after the occurrence of any event or development which could
reasonably be expected to have a Material Adverse Effect, a statement of a
Responsible Officer of the Borrower setting forth the details of such event or
development.


 


(o)           Securities Reports. 
Within 30 days after the same become public, copies of all financial
statements and reports which the Borrower may make to, or file with, the SEC or
any successor or analogous governmental authority; provided, that such
financial statements and reports shall be deemed delivered to each Lender upon
filing with the SEC.


 


(p)           Agreement Notices. 
Promptly upon receipt thereof, copies of all material notices, requests
and other documents received by any Loan Party or any of its Subsidiaries under
or pursuant to any instrument, indenture, loan or credit or similar agreement
directly related to any breach or default by any party thereto or any other
event that could have an adverse effect with respect to the Lenders’ interests
or rights in respect of the Collateral or otherwise have a Material Adverse
Effect and, from time to time upon request by the Administrative Agent, such
information and reports regarding such instruments, indentures and loan and
credit and similar agreements as the Administrative Agent may reasonably
request.


 


(q)           Other Information. 
Such other information respecting the business, condition (financial or
otherwise), operations, performance, properties or prospects of any Loan Party
or any of its Subsidiaries (including in respect of the Collateral) as the
Administrative Agent or the Collateral Agent may from time to time reasonably
request.


 


Documents required to be
delivered pursuant to Section 5.01 or this Section 5.03 (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 of receipt by the Administrative Agent
irrespective of when such document or materials are posted on the Borrower’s 


 


62

















 


behalf
on IntraLinks/IntraAgency or another relevant website (the “Informational
Website”), if any, to which each Lender and the Agents have unrestricted
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that the accommodation provided by the
foregoing sentence shall not impair the right of the Administrative Agent to
request and receive from the Loan Parties physical delivery of any specific
information provided for in Section 5.01 or this Section 5.03.  Other than with respect to the bad faith,
gross negligence or willful misconduct on the part of the Lead Arrangers,
Agents or Lenders, none of the Lead Arrangers, Agents or the Lenders shall have
any liability to any Loan Party, each other or any of their respective
Affiliates associated with establishing and maintaining the security and
confidentiality of the Informational Website and the information posted thereto.


 


Section 5.04           Financial Covenants.  (a)  Run Rate Operating Expense.  The Borrower shall not permit the Run Rate
Operating Expense for any Test Period set forth below to be greater than the
amount set forth opposite such period below:


 


	
  Test Period Ending

  	
   

  	
  Run Rate Operating Expense

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  121,000,000

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  238,000,000

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  347,000,000

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  446,000,000

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  416,000,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  391,000,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  373,000,000

  	
   

  



 


(b)           Minimum Liquidity.  The Borrower shall not permit Liquidity
Availability on an average daily basis for any calendar week to be less than
$300,000,000.


 


ARTICLE
VI


 


EVENTS
OF DEFAULT


 


Section 6.01           Events of Default.  If any of the following events (“Events of
Default”) shall occur and be continuing:


 


(a)           (i) the Borrower shall fail to pay any principal of
any Advance when the same shall become due and payable (including, for the
avoidance of doubt, pursuant to Sections 2.05(b) and (c)) or (ii) any
Loan Party shall fail to make any payment of interest on any Advance or any
other payment under any Loan Document in each case under this clause (ii) within
three Business Days after the same becomes due and payable; or


 


(b)           any representation or warranty made by any Loan Party (or
any of its officers) in any Loan Document or in any written certification
required to be furnished by the terms of any Loan Document shall prove to have
been incorrect in any material respect, or in any respect to the extent that 


 


63

















 


such representation and warranty is otherwise
qualified by materiality or Material Adverse Effect, when made or deemed made;
or


 


(c)           any Loan Party shall fail to perform or observe (i) any
term, covenant or agreement contained in Sections 2.13, 5.01(a), 5.01(g),
5.01(m), 5.01(n), 5.01(o), 5.01(q), 5.02, 5.03(a) or 5.04 or (ii) any
term, covenant or agreement (other than those listed in clause (i) above)
contained in Article V hereof, if such failure shall remain unremedied for
five Business Days; or


 


(d)           any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days after the earlier of the date on which (i) a
Responsible Officer of any Loan Party obtains knowledge of such default or (ii) the
Borrower receives notice of such default from any Agent or any Lender;
or


 


(e)           (i) any Loan Party or any of its Subsidiaries (other
than any Bankruptcy Remote Special Purpose Entity or any Specified Excluded
Subsidiary of the type described in clauses (b) and (c) of the
definition thereof) shall default in any payment (x) of principal or
interest under the Existing Credit Agreement or the Existing Bridge Loan
Agreement, (y) of $50,000,000 or more (in the case of any single payment)
or $100,000,000 or more (in the case of all such defaulted payments in the
aggregate) of principal of or interest on any Debt or (z) of $50,000,000
or more (in the case of any single payment) or $100,000,000 or more (in the
case of all such defaulted payments in the aggregate) on account of any
Guarantee Obligation in respect of Debt, and such default, in each case, shall
be continuing beyond the period of grace, if any, provided in the instrument or
agreement under which such Debt or Guarantee Obligation was created or (ii) any
event or condition occurs that results in any Debt of any Loan Party or any of
its Subsidiaries (other than any Bankruptcy Remote Special Purpose Entity or
any Specified Excluded Subsidiary of the type described in clauses (b) and
(c) of the definition thereof) in an aggregate principal amount of
$50,000,000 or more (in the case of any single Debt obligation) or $100,000,000
or more (in the case of all such Debt obligations) becoming due prior to its
scheduled maturity; or


 


(f)            (i) a decree or order by a court having jurisdiction
under any Debtor Relief Law shall have been entered adjudging any Loan Party or
any Material Subsidiary (other than any Bankruptcy Remote Special Purpose
Entity but including, in any event for purposes of this Section 6.01(f),
any Specified Subsidiary) as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization of or by any Loan Party or any Material
Subsidiary (other than any Bankruptcy Remote Special Purpose Entity but
including, in any event for purposes of this Section 6.01(f), any
Specified Subsidiaries) and such decree or order shall have continued undischarged
and unstayed for a period of 60 days; or a decree or order of a court having
jurisdiction under any Debtor Relief Law for the appointment of a receiver or
liquidator or for the liquidation or dissolution of any Loan Party or any
Material Subsidiary (other than any Bankruptcy Remote Special Purpose Entity
but including, in any event for purposes of this Section 6.01(f), any
Specified Subsidiaries), shall have been entered, and such decree or order
shall have continued undischarged and unstayed for a period of 60 days; provided,
however, that any Material Subsidiary (other than any Specified
Subsidiary) may be liquidated or dissolved if, pursuant to such liquidation or
dissolution, all or substantially all of its assets are transferred to the
Borrower or another Material Subsidiary; or


 


(ii) any Loan Party or
any Material Subsidiary (other than any Bankruptcy Remote Special Purpose
Entity but including, in any event for purposes of this Section 6.01(f),
any Specified Subsidiaries) shall institute any proceeding under any Debtor
Relief Law to be adjudicated as voluntarily bankrupt, or shall consent to the
filing of a proceeding against it under any Debtor Relief Law, or shall file a
petition or answer or consent seeking reorganization, or 


 


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shall consent to the filing of any such
petition, or shall consent to the appointment under any Debtor Relief Law of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it
or its property; or


 


(g)           one or more judgments or orders, either individually or in
the aggregate, for the payment of money in excess of $50,000,000 or more, in
the case of any single judgment or order, or $100,000,000 or more in the
aggregate, in the case of all such judgments or orders, shall be rendered
against any Loan Party or any of its Subsidiaries (other than any Bankruptcy
Remote Special Purpose Entity) and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii) such
judgment or order shall not have been vacated, discharged, satisfied, stayed or
bonded pending appeal within 60 days from the entry thereof; provided,
however, that any such judgment or order shall not give rise to an Event of
Default under this Section 6.01(g)(ii) if and for so long as (A) the
amount of such judgment or order is covered by a valid and binding policy of
insurance in favor of such Loan Party or Subsidiary from an insurer that is
rated at least “A” by A.M. Best Company, which policy covers full payment
thereof and (B) such insurer has been notified, and has not disputed the
claim made for payment, of the amount of such judgment or order; or


 


(h)           any provision of any Loan Document shall for any reason
cease to be valid and binding on or enforceable against any Loan Party intended
to be a party to it, or any such Loan Party shall so state in writing; or


 


(i)            any Collateral Document shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected lien on and
security interest in the Collateral purported to be covered thereby; or


 


(j)            any ERISA Event shall have occurred with respect to an
ERISA Plan and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such ERISA Plan and the Insufficiency of any and
all other Plans with respect to which an ERISA Event shall have occurred and
then exist (or the liability of the Loan Parties and the ERISA Affiliates
related to such ERISA Event) could be reasonably likely to have a Material
Adverse Effect; or


 


(k)           any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Loan
Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the
date of such notification), exceeds $50,000,000 or requires payments exceeding
$25,000,000 per annum; or


 


(l)            any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV
of ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization or termination occurs by an amount
exceeding $20,000,000; or


 


(m)          any challenge by any Loan Party to the validity of any Loan
Document or the applicability or enforceability of any Loan Document or which
seeks to void, avoid, limit, or otherwise adversely affect the security
interest created by or in any Loan Document or any payment made pursuant
thereto; or


 


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(n)           a Change of Control shall occur;


 


then, and in any such event,
the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by the Borrower and (ii) exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents and under applicable law; provided,
however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under any Debtor Relief Law, the
unpaid principal amount of all outstanding Advances and all interest and other
amounts as aforesaid shall automatically become due and payable without further
act of any Agent or any Lender.  Any
payment received as a result of the exercise of remedies hereunder shall be
applied in accordance with Section 2.10(b).


 


ARTICLE
VII


 


THE
AGENTS


 


Section 7.01           Appointment and Authorization of
the Agents.


 


(a)           Each Lender hereby irrevocably appoints, designates and
authorizes each of the Agents to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. 
Notwithstanding any provision to the contrary contained elsewhere herein
or in any other Loan Document, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall any Agent
have or be deemed to have any fiduciary relationship with any Lender or
participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against such Agent. 
Without limiting the generality of the foregoing sentence, the use of
the term “agent” herein and in the other Loan Documents with reference to any
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.  The provisions of this Article VII are
solely for the benefit of the Administrative Agent and the Lenders, and neither
the Borrower nor any other Loan Party shall have rights as a third party
beneficiary of any such provisions.


 


(b)           The Lenders hereby appoint Citicorp North America, Inc.
to act as “collateral agent” or as “administrative agent” solely for the
purpose of negotiating, executing, accepting delivery of and otherwise acting
pursuant to collateral access agreements, or any other similar agreement.


 


Section 7.02           Delegation of Duties.


 


(a)           Each Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties.  No Agent shall be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in
the absence of gross negligence or willful misconduct.


 


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(b)           Without limitation of the provisions of Section 7.02(a),
it is the purpose of this Agreement and the other Loan Documents that there
shall be no violation of any law of any jurisdiction denying or restricting the
right of banking corporations or associations to transact business as agent or
trustee in such jurisdiction.  It is recognized
that in case of litigation under this Agreement or any of the other Loan
Documents, and in particular in case of the enforcement of any of the Loan
Documents, or in case the Collateral Agent deems that by reason of any present
or future law of any jurisdiction it may not exercise any of the rights, powers
or remedies granted herein or in any of the other Loan Documents or take any
other action which may be desirable or necessary in connection therewith, it
may be necessary that the Collateral Agent appoint an additional individual or institution
as a separate trustee, co-trustee, collateral agent, collateral sub-agent or
collateral co-agent (any such additional individual or institution being
referred to herein as a “Supplemental Collateral Agent”).


 


(c)           In the event that the Collateral Agent appoints a
Supplemental Collateral Agent with respect to any Collateral, (i) each and
every right, power, privilege or duty expressed or intended by this Agreement
or any of the other Loan Documents to be exercised by or vested in or conveyed
to the Collateral Agent with respect to such Collateral shall be exercisable by
and vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable
by either the Collateral Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Article and of Section 9.04 that refer to the
Collateral Agent shall inure to the benefit of such Supplemental Collateral Agent
and all references therein to the Collateral Agent shall be deemed to be
references to the Collateral Agent and/or such Supplemental Collateral Agent,
as the context may require.


 


(d)           Should any instrument in writing from any Loan Party be
required by any Supplemental Collateral Agent so appointed by the Collateral
Agent for more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties, such Loan Party shall execute,
acknowledge and deliver any and all such instruments promptly upon request by
the Collateral Agent.  In case any
Supplemental Collateral Agent, or a successor thereto, shall become incapable
of acting, resign or be removed, all the rights, powers, privileges and duties
of such Supplemental Collateral Agent, to the extent permitted by law, shall
vest in and be exercised by the Collateral Agent until the appointment of a new
Supplemental Collateral Agent.


 


Section 7.03           Liability of Agents.


 


(a)           The Administrative Agent’s duties hereunder and under the
other Loan Documents are solely ministerial and administrative in nature and
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 shall not have any duty to take any
discretionary action or exercise any discretionary powers, but shall be
required to act or refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the written direction of 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 or
any of its Affiliates to liability or that is contrary to any Loan Document or
applicable law.


 


(b)           No Agent-Related Person shall (i) be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the


 


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transactions contemplated hereby (except for
its own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (ii) be responsible in any manner to any
Lender or participant for any recital, statement, representation or warranty
made by any Loan Party or any officer thereof, contained herein or in any other
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by any Agent under or in connection
with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other
party to any Loan Document to perform its obligations hereunder or
thereunder.  No Agent-Related Person
shall be under any obligation to any Lender or participant to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Loan Party or any Affiliate thereof.


 


(c)           Nothing in this Agreement or any other Loan Document shall
require the Administrative Agent or any of its Agent-Related Persons to carry
out any “know your customer” or other checks in relation to any person on
behalf of any Lender and each Lender confirms to the Administrative Agent that
it is solely responsible for any such checks it is required to carry out and
that it may not rely on any statement in relation to such checks made by the
Administrative Agent or any of its Agent-Related Persons.


 


Section 7.04           Reliance by Agents.


 


(a)           Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by such Agent, as
applicable.  Each Agent shall be fully
justified in failing or refusing to take any action under any Loan Document unless
it shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such
action.  Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required hereby
in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.


 


(b)           For purposes of determining compliance with the conditions
specified in Section 3.01, 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 relevant Agent
or Agents shall have received notice from such Lender prior to the Closing Date
specifying its objection thereto.


 


Section 7.05           Notice of Default.  No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to any Agent for
the account of the Lenders, unless such Agent shall have received written
notice from a Lender or the Borrower referring to this Agreement, describing
such Default and stating that such notice is a “Notice of Default.”  The Administrative Agent will notify the
Lenders of its receipt of any such notice. 
The Administrative Agent shall take such action with respect to


 


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such Default as may be directed by the Required Lenders in accordance
with Article VI; provided, however, that unless and until
the Administrative Agent has received any such direction, it may (but shall not
be obligated to) take such action, or refrain from taking such action with
respect to such Default as it shall deem advisable or in the best interest of
the Lenders.


 


Section 7.06           Credit Decision; Disclosure of
Information by Agents.  Each Lender
acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by any Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any
Loan Party or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any
matter, including whether Agent-Related Persons have disclosed material
information in their possession.  Each
Lender represents to the Agents that it has, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. 
Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the
Borrower.  Except for notices, reports
and other documents expressly required to be furnished to the Lenders by any
Agent herein, such Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective
Affiliates which may come into the possession of any Agent-Related Person.


 


Section 7.07           Indemnification of Agents.  Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan
Party and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that
no Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
primarily from such Agent-Related Person’s own gross negligence or willful
misconduct; provided, however, that no action taken in accordance
with the directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section.  Without limitation of the foregoing, each
Lender shall reimburse each Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including reasonable fees and expenses of
counsel) incurred by any Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that such Agent is not reimbursed for such expenses by or on behalf of the
Borrower.  The undertaking in this Section shall
survive termination of the Commitments, the payment of all other Obligations
and the resignation of each of the Agents. 
In the case of an investigation, litigation or other proceeding to which
the indemnity in this Section 7.07 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is
brought by any Lender, its directors, shareholders or creditors and whether or
not the transactions contemplated hereby are consummated.


 


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Section 7.08           Agents in Their Individual
Capacity.


 


(a)           Each Agent and their respective Affiliates may make loans
to, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with each of the Loan Parties and their respective Affiliates as though, each
Agent was not an Agent hereunder, and without notice to or consent of the
Lenders.  The Lenders acknowledge that,
pursuant to such activities, each Agent and each of their respective Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that each Agent and their
respective Affiliates shall be under no obligation to provide such information
to them.  With respect to its Advances,
each Agent and their respective Affiliates shall have the same rights and
powers under this Agreement as any other Lender and may exercise such rights
and powers as though it were not an Agent, and the terms “Lender” and “Lenders”
include each Agent in its individual capacity.


 


(b)           Each Lender understands that the Administrative Agent,
acting in its individual capacity, and its Affiliates (collectively, the “Agent’s
Group”) are engaged in a wide range of financial services and businesses
(including investment management, financing, securities trading, corporate and
investment banking and research) (such services and businesses are collectively
referred to in this Section 7.08(b) as “Activities”) and may
engage in the Activities with or on behalf of one or more of the Loan Parties
or their respective Affiliates. 
Furthermore, the Agent’s Group may, in undertaking the Activities,
engage in trading in financial products or undertake other investment businesses
for its own account or on behalf of others (including the Loan Parties and
their Affiliates and including holding, for its own account or on behalf of
others, equity, debt and similar positions in the Borrower, another Loan Party
or their respective Affiliates), including trading in or holding long, short or
derivative positions in securities, loans or other financial products of one or
more of the Loan Parties or their Affiliates. 
Each Lender understands and agrees that in engaging in the Activities,
the Agent’s Group may receive or otherwise obtain information concerning the
Loan Parties or their Affiliates (including information concerning the ability
of the Loan Parties to perform their respective Obligations hereunder and under
the other Loan Documents) which information may not be available to any of the
Lenders that are not members of the Agent’s Group.  None of the Administrative Agent nor any
member of the Agent’s Group shall have any duty to disclose to any Lender or
use on behalf of the Lenders, and shall not be liable for the failure to so
disclose or use, any information whatsoever about or derived from the
Activities or otherwise (including any information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any Loan Party or any Affiliate of any Loan Party) or to
account for any revenue or profits obtained in connection with the Activities,
except that the Administrative Agent shall deliver or otherwise make available
to each Lender such documents as are expressly required by any Loan Document to
be transmitted by the Administrative Agent to the Lenders.


 


(c)           Each Lender further understands that there may be
situations where members of the Agent’s Group or their respective customers
(including the Loan Parties and their Affiliates) either now have or may in the
future have interests or take actions that may conflict with the interests of
any one or more of the Lenders (including the interests of the Lenders
hereunder and under the other Loan Documents). 
Each Lender agrees that no member of the Agent’s Group is or shall be
required to restrict its activities as a result of the Administrative Agent
being a member of the Agent’s Group, and that each member of the Agent’s Group
may undertake any Activities without further consultation with or notification
to any Lender.  None of (i) this
Agreement nor any other Loan Document, (ii) the receipt by the Agent’s
Group of information (including Communications) concerning the Loan Parties or
their Affiliates (including information concerning the ability of the Loan
Parties to perform their respective Obligations hereunder and under the other
Loan Documents) nor (iii) any other matter shall give rise to


 


70

















 


any fiduciary, equitable or contractual
duties (including without limitation any duty of trust or confidence) owing by
the Administrative Agent or any member of the Agent’s Group to any Lender
including any such duty that would prevent or restrict the Agent’s Group from
acting on behalf of customers (including the Loan Parties or their Affiliates)
or for its own account.


 


Section 7.09           Successor Agent.  Each Agent may resign from acting in such
capacity upon 30 days’ notice to the Lenders and the Borrower.  If an Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders.  If no successor agent is appointed
prior to the effective date of the resignation of such Agent, such Agent may
appoint, after consulting with the Lenders, a successor agent from among the
Lenders.  Upon the acceptance of its
appointment as successor agent hereunder, the Person acting as such successor
agent shall succeed to all the rights, powers and duties of the retiring Agent
and the term “Agent” shall mean such successor agent, and the retiring Agent’s
appointment, powers and duties as Agent shall be terminated.  After any retiring Agent’s resignation
hereunder as Agent, the provisions of this Article VII and Section 9.04
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement. 
If no successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent’s notice of resignation, the
retiring Agent’s resignation shall nevertheless thereupon become effective and
the Lenders shall perform all of the duties of the Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above.


 


Section 7.10           Administrative Agent May File
Proofs of Claim.  In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective
of whether the principal of any Advance shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether any Agent
shall have made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:


 


(a)           to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Advances 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 Agents (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Agents and their respective
agents and counsel and all other amounts due the Lenders and the Agents under
Sections 2.07 and 9.04) 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 to the Administrative Agent under
Sections 2.07 and 9.04.


 


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 or to authorize the Administrative Agent to vote in respect of
the claim of any Lender in any such proceeding.


 


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Section 7.11           Collateral and Guaranty Matters.  The Lenders irrevocably authorize the
Administrative Agent and the Collateral Agent, at their option and in their
discretion,


 


(a)           to release any Lien on any property granted to or held by
the Administrative Agent or the Collateral Agent under any Loan Document (i) upon
payment in full of all Obligations (other than contingent indemnification
obligations), (ii) that is sold or to be sold as part of or in connection
with any disposition permitted hereunder or under any other Loan Document
(including in connection with any Servicing Advance Facility), or (iii) subject
to Section 9.01, if approved, authorized or ratified in writing by the
Supermajority Lenders;


 


(b)           to subordinate any Lien on any property granted to or held
by the Administrative Agent or the Collateral Agent under any Loan Document in
connection with any Servicing Advance Facility;


 


(c)           to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder or if all of such Person’s assets are sold or liquidated as
permitted under the terms of the Loan Documents and the proceeds thereof are
distributed to a Loan Party; and


 


(d)           to acquire, hold and enforce any and all Liens on
Collateral granted by and of the Loan Parties to secure any of the Secured
Obligations, together with such other powers and discretion as are reasonably
incidental thereto;


 


provided that, with respect to the foregoing
Sections 7.11(a), (b) and (c), the Borrower certifies to the
Administrative Agent in writing that the transaction necessitating such release
has been consummated in compliance with the terms of this Agreement (and the
Administrative Agent may rely conclusively on such certificate, without further
inquiry).


 


Upon request by the
Administrative Agent or the Collateral Agent at any time, the Required Lenders
(acting on behalf of all the Lenders) will confirm in writing the
Administrative Agent’s authority to release Liens or subordinate the interests
of the Secured Parties in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section 7.11.


 


In addition, with respect to
any Servicing Advance Facility described in Section 5.02(a)(viii), each of
the Lenders hereby authorizes and directs CNAI to enter into any intercreditor
arrangements on behalf of such Lender, in each case to the extent that such
intercreditor arrangements are on the terms and conditions reasonably
satisfactory to the Required Lenders, and agrees that CNAI in its various
capacities thereunder, may take such actions on its behalf as is contemplated
by the terms of such intercreditor arrangements.  Each Lender (and each Person that becomes a
Lender hereunder pursuant to Section 9.07) hereby (i) acknowledges
that CNAI may be acting under such intercreditor arrangements in multiple
capacities as the Administrative Agent (and/or the Collateral Agent) and the
administrative agent and/or the collateral agent or other agent under any
Servicing Advance Facility and (ii) waives any conflict of interest, now
contemplated or arising hereafter, in connection therewith and agrees not to
assert against CNAI any claims, causes of action, damages or liabilities of
whatever kind or nature relating thereto.


 


Section 7.12           Other Agents; Arrangers and
Managers.  None of the Lenders or
other Persons identified on the facing page or signature pages of
this Agreement as a “book runner,” “documentation agent,” “arranger,” “lead
arranger” or “lender committee” member shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than, in the case
of such


 


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Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. 
Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.


 


ARTICLE
VIII


 


SUBSIDIARY
GUARANTY


 


Section 8.01           Subsidiary Guaranty.  Each Guarantor, jointly and severally,
unconditionally and irrevocably guarantees (the undertaking by each Guarantor
under this Article VIII being the “Guaranty”) the punctual payment
when due, whether at scheduled maturity or at a date fixed for prepayment or by
acceleration, demand or otherwise, of all of the Obligations of each of the
other Loan Parties now or hereafter existing under or in respect of the Loan
Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premium, fees, indemnification payments, contract
causes of action, costs, expenses or otherwise (such Obligations being the “Guaranteed
Obligations”), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any of the other Secured Parties solely in enforcing
any rights under this Guaranty.  Without
limiting the generality of the foregoing, each Guarantor’s liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any of the other Loan Parties to the Administrative Agent or
any of the other Secured Parties under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.


 


Section 8.02           Guaranty Absolute.  Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any other Secured Party with respect thereto.  The Obligations of each Guarantor under this
Guaranty are independent of the Guaranteed Obligations or any other Obligations
of any other Loan Party under the Loan Documents, and a separate action or
actions may be brought and prosecuted against such Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against any other Loan
Party or whether any other Loan Party is joined in any such action or actions.  The liability of each Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of, and
each Guarantor hereby irrevocably waives any defenses it may now or hereafter
have in any way relating to, any and all of the following:


 


(a)           any lack of validity or enforceability of any Loan
Document or any other agreement or instrument relating thereto;


 


(b)           any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents, or any other amendment
or waiver of or any consent to departure from any Loan Document, including,
without limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to any Loan Party or any of its Subsidiaries
or otherwise;


 


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(c)           any taking, exchange, release or nonperfection of any
Collateral, or any taking, release or amendment or waiver of or consent to
departure from any Subsidiary Guaranty or any other guaranty, for all or any of
the Guaranteed Obligations;


 


(d)           any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any Collateral for all or any of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan
Documents, or any other property and assets of any other Loan Party or any of
its Subsidiaries;


 


(e)           any change, restructuring or termination of the corporate
structure or existence of any other Loan Party or any of its Subsidiaries;


 


(f)            any failure of the Administrative Agent or any other
Secured Party to disclose to any Loan Party any information relating to the financial
condition, operations, properties or prospects of any other Loan Party now or
hereafter known to the Administrative Agent or such other Secured Party, as the
case may be (such Guarantor waiving any duty on the part of the Secured Parties
to disclose such information);


 


(g)           the failure of any other Person to execute this Guaranty
or any other guarantee or agreement of the release or reduction of the
liability of any of the other Loan Parties or any other guarantor or surety
with respect to the Guaranteed Obligations; or


 


(h)           any other circumstance (including, without limitation, any
statute of limitations or any existence of or reliance on any representation by
the Administrative Agent or any other Secured Party) that might otherwise
constitute a defense available to, or a discharge of, such Guarantor, any other
Loan Party or any other guarantor or surety other than payment in full in cash
of the Guaranteed Obligations.


 


This Guaranty shall continue
to be effective or be reinstated, as the case may be, if at any time any
payment of any of the Guaranteed Obligations is rescinded or must otherwise be
returned by the Administrative Agent or any other Secured Party or by any other
Person upon the insolvency, bankruptcy or reorganization of any Loan Party or
otherwise, all as though such payment had not been made.


 


Section 8.03           Waivers and Acknowledgments.


 


(a)           Each Guarantor hereby unconditionally and irrevocably
waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or
dishonor and any other notice with respect to any of the Guaranteed Obligations
and this Guaranty, and any requirement that the Administrative Agent or any
other Secured Party protect, secure, perfect or insure any Lien or any property
or assets subject thereto or exhaust any right or take any action against any
other Loan Party or any other Person or any Collateral.


 


(b)           Each Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Guaranty, and acknowledges that this Guaranty
is continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.


 


(c)           Each Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based
upon an election of remedies by any Secured Party which in any manner impairs,
reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such
Guarantor or other rights of such Guarantor to proceed against any of the other
Loan Parties, any other guarantor or any other


 


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Person or any Collateral, and (ii) any
defense based on any right of setoff or counterclaim against or in respect of
such Guarantor’s obligations hereunder.


 


(d)           Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section 8.02
and this Section 8.03 are knowingly made in contemplation of such
benefits.


 


Section 8.04           Subrogation.  Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against any other Loan Party or any other insider guarantor
that arise from the existence, payment, performance or enforcement of its
Obligations under this Guaranty or under any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Administrative Agent or any other Secured Party against such
other Loan Party or any other insider guarantor or any Collateral, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from
such other Loan Party or any other insider guarantor, directly or indirectly,
in cash or other property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right, until such time as all of
the Guaranteed Obligations and all other amounts payable under this Guaranty
shall have been paid in full in cash and the Commitments shall have expired or
terminated.  If any amount shall be paid
to any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of all of the
Guaranteed Obligations and all other amounts payable under this Guaranty and (b) the
Termination Date, such amount shall be held in trust for the benefit of the
Administrative Agent and the other Secured Parties and shall forthwith be paid
to the Administrative Agent to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any Guaranteed Obligations or other amounts payable under
this Guaranty thereafter arising.  If (i) any
Guarantor shall pay to the Administrative Agent all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall have been paid in full in cash
and (iii) the Termination Date shall have occurred, the Administrative
Agent and the other Secured Parties will, at such Guarantor’s request and
expense, execute and deliver to such Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer of subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from the payment made by such Guarantor.


 


Section 8.05           Additional Guarantors.  Upon the execution and delivery by any Person
of a guaranty joinder agreement in substantially the form of Exhibit E
hereto (each, a “Guaranty Supplement”), (i) such Person shall be
referred to as an “Additional Guarantor” and shall become and be a Guarantor
hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean
and be a reference to such Additional Guarantor, and each reference in any
other Loan Document to a “Guarantor” shall also mean and be a reference to such
Additional Guarantor, and (ii) each reference herein to “this Guaranty”, “hereunder”,
“hereof” or words of like import referring to this Guaranty, and each reference
in any other Loan Document to the “Guaranty”, “thereunder”, “thereof” or words
of like import referring to this Guaranty, shall include each such duly
executed and delivered Guaranty Supplement.


 


Section 8.06           Subordination.  Each Guarantor hereby subordinates any and
all debts, liabilities and other Obligations owed to such Guarantor by each
other Loan Party (the “Subordinated Obligations”) to the Guaranteed Obligations to
the extent and in the manner hereinafter set forth in this Section 8.06:


 


(a)           Prohibited Payments, Etc.  Except during the continuance of an Event of
Default, each Guarantor may receive regularly scheduled payments from any other
Loan Party on account of the Subordinated Obligations.  After the occurrence and during the
continuance of any Event of Default,


 


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however, unless the Required
Lenders otherwise agree, no Guarantor shall demand, accept or take any action
to collect any payment on account of the Subordinated Obligations.


 


(b)           Prior Payment of Guaranteed
Obligations.  In any proceeding under
any Debtor Relief Law relating to any other Loan Party, each Guarantor agrees
that the Secured Parties shall be entitled to receive payment in full in cash
of all Guaranteed Obligations (including all interest and expenses accruing
after the commencement of a proceeding under any Debtor Relief Law, whether or
not constituting an allowed claim in such proceeding (“Post-Petition Interest”)) before such
Guarantor receives payment of any Subordinated Obligations.


 


(c)           Turn-Over.  After the occurrence and during the
continuance of any Event of Default, each Guarantor shall, if the
Administrative Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Secured Parties and
deliver such payments to the Administrative Agent on account of the Guaranteed
Obligations (including all Post-Petition Interest), together with any necessary
endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of such Guarantor under the other
provisions of this Guaranty.


 


(d)           Administrative Agent Authorization.  After the occurrence and during the
continuance of any Event of Default, the Administrative Agent is authorized and
empowered (but without any obligation to so do), in its discretion, (i) in
the name of each Guarantor, to collect and enforce, and to submit claims in
respect of, the Subordinated Obligations and to apply any amounts received
thereon to the Guaranteed Obligations (including any and all Post-Petition
Interest), and (ii) to require each Guarantor (A) to collect and
enforce, and to submit claims in respect of, the Subordinated Obligations and (B) to
pay any amounts received on such obligations to the Administrative Agent for
application to the Guaranteed Obligations (including any and all Post-Petition
Interest).


 


Section 8.07           Continuing Guarantee; Assignments.  This Guaranty is a continuing guaranty and
shall (a) remain in full force and effect until the latest of (i) the
payment in full in cash of all of the Guaranteed Obligations and all other
amounts payable under this Guaranty and (ii) the Termination Date, (b) be
binding upon each Guarantor and its successors and assigns and (c) inure
to the benefit of, and be enforceable by, the Administrative Agent and the
other Secured Parties and their respective successors, transferees and
assigns.  Without limiting the generality
of clause (c) of the immediately preceding sentence, any Lender may
assign or otherwise transfer all or any portion of its rights and obligations
under this Agreement (including, without limitation, all or any portion of its
Commitments, the Advances owing to it and the Notes held by it) to any other
Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender under this Article VIII
or otherwise, in each case as provided in Section 9.07.


 


Section 8.08           No Reliance.  Each Guarantor has, independently and without
reliance upon any Agent or any Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty and each other Loan Document to which it
is or is to be a party, and such Guarantor has established adequate means of
obtaining from each other Loan Party on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely familiar
with, the business, condition (financial or otherwise), operations,
performance, properties and prospects of such other Loan Party.


 


Section 8.09           Debtor
Relief Laws.  Each Guarantor which is
incorporated or formed under the laws of a jurisdiction located within the
United States, and by its acceptance of this Guaranty, the Agents and each
Secured Party, hereby confirms that it is the intention of all such Persons
that this Guaranty and the Guaranteed Obligations of such Guarantor hereunder
not constitute a fraudulent transfer


 


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or
conveyance for purposes of U.S. bankruptcy laws, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty and the
Guaranteed Obligations of such Guarantor hereunder.  To effectuate the foregoing intention, the
Agents, the Secured Parties and such Guarantors hereby irrevocably agree that
the Guaranteed Obligations of such Guarantor under this Guaranty at any time
shall be limited to the maximum amount as will not result in the Guaranteed
Obligations of such Guarantor under this Guaranty constituting a fraudulent
transfer or conveyance.  Each Guarantor
hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Lender or other Secured Party under this
Guaranty or any other guaranty, such Guarantor will contribute, to the maximum
extent permitted by law, such amounts to each other Guarantor and each other
guarantor so as to maximize the aggregate amount paid to such Lender or Secured
Party under or in respect of the Loan Documents.


 


ARTICLE IX


 


MISCELLANEOUS


 


Section 9.01           Amendments,
Etc.  No amendment or waiver of
any provision of this Agreement or any other Loan Document, and no consent to
any departure by the Borrower or any other Loan Party therefrom, shall be
effective unless the same shall be in writing and signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or
consent shall;


 


(a)           waive any condition set forth in Section 3.01(a) without
the written consent of each Initial Lender;


 


(b)           extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 2.04 or Section 6.01)
without the written consent of such Lender;


 


(c)           postpone any date fixed by this Agreement or any other
Loan Document for any payment 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 Advance, or any fees or other amounts payable hereunder or under
any other Loan Document without the written consent of each Lender directly
affected thereby;


 


(e)           (i) change Section 2.02(a) in a manner that
would alter the pro rata nature of Borrowings required thereby without the
written consent of each Lender or (ii) change Section 2.12 in a
manner that would alter the pro rata sharing of payments required thereby
without the written consent of the Supermajority Lenders;


 


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


 


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(g)           (i) release all or substantially all of the value of
the Guarantors from the Guaranty or release all or substantially all of the
Collateral, without the written consent of each Lender or (ii) release any
of the Liens granted to the Administrative Agent or the Collateral Agent
hereunder or under any other Loan Document, other than Liens on assets that are
sold or otherwise disposed of in transactions permitted pursuant to the Loan
Documents, without the written consent of the Supermajority Lenders;


 


and provided  further
that no amendment, waiver or consent shall, unless in writing and 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.  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.


 


Notwithstanding anything to
the contrary in this Section 9.01, if at any time on or before the date
that is (60) days following the Closing Date, the Administrative Agent and the
Borrower shall have jointly identified an obvious error or any error or
omission of a technical or immaterial nature, in each case, in any provision of
the Loan Documents, then the Administrative Agent and the Loan Parties shall be
permitted to amend such provision and such amendment shall become effective
without any further action or consent of any other party to any Loan Document
(provided that the Administrative Agent shall promptly provide the Lenders with
notice thereof (including a copy of the instrument effecting such amendment))
if the same is not objected to in writing by the Required Lenders within
five Business Days following receipt of notice thereof.


 


The Administrative Agent
shall promptly notify the Lenders of any amendment or waiver granted under this
Section 9.01.


 


Section 9.02           Notices, Etc.


 


(a)           All notices and other communications provided for
hereunder shall be in writing (including telegraphic or telecopy communication)
and mailed, telegraphed, telecopied or delivered, if to the Borrower or any
Guarantor, at the Borrower’s address at 116 Welsh Road, Horsham, Pennsylvania, 19044,
Attention: Chief Financial Officer, fax number 215-328-3620, as well as to the
attention of the general counsel of the Borrower at the Borrower’s address, fax
number 215-441-7238; if to any Initial Lender, at its Applicable Lending
Office, respectively, specified opposite its name on Schedule I hereto; if to
any other Lender, at its Applicable Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender; if to the Administrative Agent,
at its address at 1615 Brett Rd., Bldg 3, New Castle, Delaware, 19720, fax
number 212-994-0961, Attention: Ralph Townley; if to the Collateral Agent, at
its address at 1615 Brett Rd, Bldg 3, New Castle, Delaware, 19720, fax number
212-994-0961, Attention: Ralph Townley; with, in the case of notices and other
communications delivered to the Administrative Agent or the Collateral Agent, a
copy to 388 Greenwich Street, New York, New York, 10013, fax number
646-291-3357, Attention: Michael Schadt, Attention: Paul Decarlo); or, as to
the Borrower, any Guarantor or the Administrative Agent or the Collateral
Agent, at such other address as shall be designated by such party in a written
notice to the other parties.  All such
notices and communications shall, when mailed, telegraphed or telecopied, be
effective three Business Days after being deposited in the U.S. mails, first
class postage prepaid, delivered to the telegraph company or confirmed as
received when sent by telecopier, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III
or VII shall not be effective until received by the Administrative Agent.  Delivery by telecopier or in .pdf or similar
format by electronic mail of an executed counterpart of any amendment or waiver
of any


 


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provision of this Agreement or the Notes or
of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.


 


(b)           The Borrower hereby agrees that it will provide to the
Administrative Agent all information, documents and other materials that it is
obligated to furnish to the Administrative Agent pursuant to the Loan
Documents, including, without limitation, all notices, requests, financial
statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (i) relates to a
request for a new, or a Conversion of an existing, Borrowing or other Extension
of Credit (including any election of an interest rate or interest period
relating thereto), (ii) relates to the payment of any principal or other
amount due under this Agreement prior to the scheduled date therefor, (iii) provides
notice of any Default or Event of Default under this Agreement or (iv) is
required to be delivered to satisfy any condition precedent to the
effectiveness of this Agreement and/or the Borrowing or other Extension of
Credit thereunder (all such non-excluded communications being referred to
herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium in a format acceptable to the
Administrative Agent to oploanswebadmin@citigroup.com.  In addition, the Borrower agrees to continue
to provide the Communications to the Administrative Agent in the manner
specified in the Loan Documents but only to the extent requested by the
Administrative Agent.  The Borrower
further agrees that the Administrative Agent may make the Communications available
to the Lenders by posting the Communications on an Informational Website or a
substantially similar electronic transmission system (the “Platform”).


 


(c)           THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”.  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF
THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN
THE COMMUNICATIONS.  NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.  IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR
ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”)
HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR ENTITY
FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN
TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE
ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET,
EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.


 


(d)           The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its e-mail address set forth
above shall constitute effective delivery of the Communications to the
Administrative Agent for purposes of the Loan Documents.  Each Lender agrees that notice to it (as
provided in the next sentence) specifying that the Communications have been
posted to the Platform shall constitute effective delivery of the Communications
to such Lender for purposes of the Loan Documents.  Each Lender agrees to notify the
Administrative Agent in writing (including by electronic communication) from
time to time of such Lender’s e-mail address to which


 


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the foregoing notice may be sent by
electronic transmission and (ii) that the foregoing notice may be sent to
such e-mail address.  Nothing herein
shall prejudice the right of the Administrative Agent or any Lender to give any
notice or other communication pursuant to any Loan Document in any other manner
specified in such Loan Document.


 


Section 9.03           No Waiver; Remedies.  No failure on the part of any Lender or the
Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.


 


Section 9.04           Costs, Fees and Expenses.


 


(a)           Each Loan Party agrees (i) to pay or reimburse each
Agent for all reasonable costs and expenses incurred by each such Agent
(including the reasonable fees, disbursements and other charges of Shearman &
Sterling LLP, special counsel to the Agents, and any local counsel retained by
the Agents or its counsel in each applicable local jurisdiction) in connection
with (a) the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), (b) the
syndication and funding of the Term Facility, (c) the creation, perfection
or protection of the liens under the Loan Documents (including all reasonable
search, filing and recording fees) and (d) the ongoing administration of
the Loan Documents (including the preparation, negotiation and execution of any
amendments, consents, waivers, assignments, restatements or supplements thereto
and costs associated with insurance reviews, collateral audits, field exams,
collateral valuations and collateral reviews) and (ii)  to pay or
reimburse each Agent and each of the Lenders for all reasonable costs and
expenses, incurred by such Agent or such Lenders (including the reasonable
fees, disbursements and other charges of Shearman & Sterling LLP,
special counsel to the Agents, and any local counsel retained by the Agents or
its counsel in each applicable local jurisdiction) in connection with (a) the
enforcement of the Loan Documents or collection of payments due from any Loan
Party and (b) any legal proceeding relating to or arising out of the
transactions contemplated by the Loan Documents; provided that the Loan
Parties shall not be required to pay or reimburse the legal fees and expenses
of more than one special counsel for the Agents (in addition to up to one local
counsel in each applicable local jurisdiction) pursuant to the foregoing
clause (i) unless, in the reasonable opinion of the Administrative
Agent, representation of all such Agents would be inappropriate due to the
existence of an actual or potential conflict of interest.  All amounts due under this Section 9.04(a) shall
be payable within three Business Days after demand therefor accompanied by an
appropriate invoice.  The agreements in
this Section shall survive the termination of the Commitments and
repayment of all other Obligations.


 


(b)           Whether or not the transactions contemplated hereby are
consummated, each Loan Party shall indemnify and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, members,
directors, officers, employees, counsel, agents, advisors, attorneys-in-fact
and representatives (collectively the “Indemnitees”) from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, fees and disbursements of counsel), joint or several, and
whether direct, indirect, special or consequential, that may be incurred by, or
asserted or awarded against any Indemnitee, in each case arising out of or in
connection with or relating to any investigation, litigation or proceeding or
the preparation of any defense with respect thereto arising out of or in
connection with (i) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby
or the consummation of the transactions contemplated thereby, (ii) any
Commitment or Advance or the use or proposed use of the proceeds therefrom, (iii) any
actual


 


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or alleged presence or release of Hazardous
Materials on or from any property currently or formerly owned or operated by
the Borrower or any other Loan Party, or any Liability related in any way to
the Borrower or any other Loan Party in respect of Environmental Laws, 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
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless of
whether any Indemnitee is a party thereto (all the foregoing, collectively, the
“Indemnified Liabilities”), in all cases, whether or not caused by or
arising, in whole or in part, out of the negligence of the Indemnitee; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such claim, damage, loss, liability or expense is determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
primarily from the gross negligence or willful misconduct of such
Indemnitee.  In the case of an
investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies,
such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by the Borrower or any of its Subsidiaries, any
security holders or creditors of the foregoing an Indemnitee or any other
Person, or an Indemnitee is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated.  No Indemnitee shall have any liability
(whether direct or indirect, in contract, tort or otherwise) to the Borrower or
any of its Subsidiaries for or in connection with the transactions contemplated
hereby, except to the extent such liability is determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnitee’s gross negligence or willful misconduct.  In no event, however, shall any Indemnitee be
liable to the Borrower or any of its Subsidiaries on any theory of liability
for any special, indirect, consequential or punitive damages (including,
without limitation, any loss of profits, business or anticipated savings).  No Indemnitee shall be liable to the Borrower
or any of its Subsidiaries for any damages arising from the use by others of
any information or other materials obtained through an Informational Website or
other similar information transmission systems in connection with this
Agreement.  All amounts due under this Section 9.04(b) shall
be payable within ten Business Days after demand therefor.  The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all the other Obligations.


 


(c)           If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.05, 2.08(b)(i) or
2.09(d), acceleration of the maturity of the Advances pursuant to Section 6.01
or for any other reason, or if the Borrower fails to make any payment or
prepayment of an Advance for which a notice of prepayment has been given or
that is otherwise required to be made, whether pursuant to Section 2.03,
2.05 or 6.01 or otherwise, the Borrower shall, upon demand by such Lender (with
a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably
incur as a result of such payment or Conversion or such failure to pay or
prepay, as the case may be, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
to fund or maintain such Advance.


 


Section 9.05           Right of Set-off.  Upon the occurrence and during the
continuance of any Event of Default, each Agent and 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 law, to set off and otherwise apply
any and all deposits (general or special, time or demand, provisional or final;
but in each case excluding any restricted funds held for the benefit of Persons
other than such Loan Party) at any time held and other indebtedness at any time
owing by such Agent, Lender or such Affiliate to or for the credit or the
account of the Borrower or any Guarantor against any and all of the Obligations
of the Borrower and the


 


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Guarantors now or hereafter existing under this Agreement and the other
Loan Documents, irrespective of whether such Agent or Lender shall have made
any demand hereunder or thereunder and although such obligations may be
unmatured.  Each Agent and each Lender
agrees promptly to notify the Borrower and/or Guarantor, as applicable, after
any such set off and application; provided, however, that the
failure to give such notice shall not affect the validity of such set off and
application.  The rights of each Agent,
each Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Agent, Lender and their respective Affiliates may
have.


 


Section 9.06           Binding Effect.  Subject to Section 3.01, this Agreement
shall become effective when it shall have been executed by the Borrower, the
Guarantors and each Agent, and the Administrative Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, each
Guarantor, each Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of each
Lender.


 


Section 9.07           Successors and Assigns.


 


(a)           Each Lender may assign all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of the Advances owing to it and the Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a uniform, and
not a varying percentage of all rights and obligations under and in respect of
the Term Facility, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender, an Affiliate of any
Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s
rights and obligations under this Agreement, the aggregate amount of the
Advances being assigned to such Eligible Assignee pursuant to such assignment
(determined as of the date of the Assignment and Acceptance with respect to
such assignment) shall in no event be less than $1,000,000 for which an Advance
is being assigned, (iii) each such assignment shall be to an Eligible
Assignee and (iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes (if
any) subject to such assignment and a processing and recordation fee of $3,500
(which shall not be payable by the Borrower). 
The parties hereto acknowledge and agree that, at the election of the
Administrative Agent, any such Assignment and Acceptance may be electronically
executed and delivered to the Administrative Agent via an electronic loan
assignment confirmation system acceptable to the Administrative Agent (which
shall include ClearPar, LLC).


 


(b)           Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (ii) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.09, 2.11 and
9.04 to the extent any claim thereunder relates to an event arising prior to
such assignment) and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the remaining
portion of an assigning Lender’s rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).


 


(c)           By executing and delivering an Assignment and Acceptance,
each Lender assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows:  (i) other than as provided in such
Assignment and Acceptance,


 


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such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant thereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon any Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to such Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.


 


(d)           The Administrative Agent, acting for this purpose (but
only for this purpose) as the agent of the Borrower, shall maintain at its
address referred to in Section 9.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation
of the names and addresses of the Lenders and the principal amount of the
Advances owing to, each Lender from time to time (the “Register”).  The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement.  The Register shall be
available for inspection by the Borrower or any Agent or any Lender at any
reasonable time and from time to time upon reasonable prior notice.


 


(e)           Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof and a copy of such Assignment and Acceptance to the Borrower and each
other Agent.  In the case of any
assignment by a Lender, within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes (if any) a
new Note to the order of such Eligible Assignee in an amount equal to the
Advances assumed by it pursuant to such Assignment and Acceptance and, if any
assigning Lender that had a Note or Notes prior to such assignment has retained
an Advance hereunder, a new Note to the order of such assigning Lender in an
amount equal to the Advance retained by it hereunder.  Such new Note or Notes shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto.


 


(f)            Each Lender may sell participations, without the consent
of the Borrower or any Agent, to one or more Persons (other than any Loan Party
or any of its Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of the Advances owing to it and any Note or Notes held by it); provided,
however, that (i) such Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely


 


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responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Advances or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or release a substantial
portion of the value of the Collateral or the value of the Guaranties and (vi) the
participating banks or other entities shall be entitled to the benefit of Section 2.11
to the same extent as if they were a Lender but, with respect to any particular
participant, to no greater extent than the Lender that sold the participation
to such participant and only if such participant agrees to comply with Section 2.11(e) as
though it were a Lender.


 


(g)           Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section 9.07,
disclose to the assignee or participant or proposed assignee or participant any
information relating to the Borrower furnished to such Lender by or on behalf
of the Borrower; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender in accordance with Section 9.09 hereof.


 


(h)           Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time (and without the consent of the
Administrative Agent or the Borrower) create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System


 


(i)            Notwithstanding anything to the contrary contained
herein, any Lender that is a fund that invests in bank loans may create a
security interest in all or any portion of the Advances owing to it and the
Note or Notes held by it to the trustee for holders of obligations owed, or
securities issued, by such fund as security for such obligations or securities,
provided, however, that unless and until such trustee actually
becomes a Lender in compliance with the other provisions of this Section 9.07,
(i) no such pledge shall release the pledging Lender from any of its
obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents
even though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.


 


(j)            Notwithstanding anything to the contrary contained
herein, any Lender (a “Granting Lender”) may grant to a special purpose
funding vehicle identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower (an “SPC”) the
option to provide all or any part of any Advance that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided,
however, that (i) nothing herein shall constitute a commitment by any SPC
to fund any Advance, and (ii) if an SPC elects not to exercise such option
or otherwise fails to make all or any part of such Advance, the Granting Lender
shall be obligated to make such Advance pursuant to the terms hereof.  The making of an Advance by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Advance were made by such Granting Lender.  Each party hereto hereby agrees that (i) no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, (ii) no SPC shall be
entitled to the benefits of Sections 2.09 and 2.11 (or any other increased


 


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costs protection provision) and (iii) the
Granting Lender shall for all purposes, including, without limitation, the
approval of any amendment or waiver of any provision of any Loan Document,
remain the Lender of record hereunder. 
In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior Debt of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof.  Notwithstanding anything to the contrary
contained in this Agreement, any SPC may (i) with notice to, but without
prior consent of, the Borrower and the Administrative Agent, assign all or any
portion of its interest in any Advance to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of
Advances to any rating agency, commercial paper dealer or provider of any
surety or guarantee or credit or liquidity enhancement to such SPC.  This Section 9.07(j) may not be
amended without the prior written consent of each Granting Lender, all or any
part of whose Advances are being funded by the SPC at the time of such
amendment.


 


Section 9.08           Execution in Counterparts; Integration.  This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a
signature page to this Agreement by telecopier or other electronic
communication shall be effective as delivery of a manually executed counterpart
of this Agreement.  This Agreement and
the other Loan Documents,  together with the Fee Letter, 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.


 


Section 9.09           Confidentiality; Press Releases,
Related Matters and Treatment of Information.


 


(a)           No Agent or Lender shall disclose any Confidential
Information to any Person without the consent of the Borrower, other than (i) to
such Agent’s or such Lender’s Affiliates and their officers, directors,
employees, agents and advisors, (ii) to the extent requested by any
regulatory authority purporting to have jurisdiction over it or by the National
Association of Insurance Commissioners, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iv) to
any other party hereto, (v) 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, (vi) subject to an agreement containing
provisions substantially the same or at least as restrictive as those of this
Section, to (A) any assignee of or participant in, or any prospective
assignee of or participant in, any of its rights or obligations under this
Agreement or (B) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Borrower and its obligations,
or (vii) to the extent such Confidential Information (A) becomes
publicly available other than as a result of a breach of this Section or (B) becomes
available to the Administrative Agent, any Lender, any Agent or any of their
respective Affiliates on a nonconfidential basis from a source other than the
Borrower.  In addition, each Agent and
each Lender may disclose the existence of this Agreement and the information
about this Agreement to market data collectors, similar services providers to
the lending industry and service providers to the Agents and the Lenders in
connection with the administration and management of this Agreement and the
other Loan Documents.


 


(b)           Each of the parties hereto and each party joining
hereafter agrees that neither it nor its Affiliates will in the future issue
any press releases or other public disclosure using the name of any Lender or
its Affiliates or referring to this Agreement or any of the other Loan
Documents without


 


85

















 


at least 2 Business Days’ prior notice to
such Lender and without the prior written consent of such Lender or unless (and
only to the extent that) such party or Affiliate is required to do so under law
and then, in any event, such party or Affiliate will consult with the Borrower,
the Administrative Agent and such Lender before issuing such press release or
other public disclosure.  Each party
consents to the publication by the Agents or any Lender of a tombstone or
similar advertising material relating to the financing transactions
contemplated by this Agreement.  The
Agents reserve the right to provide to industry trade organizations such
necessary and customary information needed for inclusion in league table measurements.


 


(c)           Certain of the Lenders may enter into this Agreement and
take or not take action hereunder or under the other Loan Documents on the
basis of information that does not contain material non-public information with
respect to any of the Loan Parties or their securities (“Restricting
Information”).  Other Lenders may
enter into this Agreement and take or not take action hereunder or under the
other Loan Documents on the basis of information that may contain Restricting
Information.  Each Lender acknowledges
that United States federal and state securities laws prohibit any person from
purchasing or selling securities on the basis of material, non-public
information concerning the such issuer of such securities or, subject to
certain limited exceptions, from communicating such information to any other
Person.  Neither the Administrative Agent
nor any of its Agent-Related Persons shall, by making any Communications
(including Restricting Information) available to a Lender, by participating in
any conversations or other interactions with a Lender or otherwise, make or be
deemed to make any statement with regard to or otherwise warrant that any such
information or Communication does or does not contain Restricting Information
nor shall the Administrative Agent or any of its Agent-Related Persons be
responsible or liable in any way for any decision a Lender may make to limit or
to not limit its access to Restricting Information.  In particular, none of the Administrative
Agent nor any of its Agent-Related Persons (i) shall have, and the Administrative
Agent, on behalf of itself and each of its Agent-Related Persons, hereby
disclaims, any duty to ascertain or inquire as to whether or not a Lender has
or has not limited its access to Restricting Information, such Lender’s
policies or procedures regarding the safeguarding of material, nonpublic
information or such Lender’s compliance with applicable laws related thereto or
(ii) shall have, or incur, any liability to any Loan Party or Lender or
any of their respective Agent-Related Persons arising out of or relating to the
Administrative Agent or any of its Agent-Related Persons providing or not
providing Restricting Information to any Lender.


 


(d)           Each Loan Party agrees that (i) all Communications it
provides to the Administrative Agent intended for delivery to the Lenders
whether by posting to the Platform or otherwise shall be clearly and
conspicuously marked “PUBLIC” if such Communications do not contain Restricting
Information which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof, (ii) by marking Communications
“PUBLIC,” each Loan Party shall be deemed to have authorized the Administrative
Agent and the Lenders to treat such Communications as either publicly available
information or not material information (although, in this latter case, such
Communications may contain sensitive business information and, therefore,
remain subject to the confidentiality undertakings of this Agreement) with
respect to such Loan Party or its securities for purposes of United States
Federal and state securities laws, (iii) all Communications marked “PUBLIC”
may be delivered to all Lenders and may be made available through a portion of
the Platform designated “Public Side Information,” and (iv) the
Administrative Agent shall be entitled to treat any Communications that are not
marked “PUBLIC” as Restricting Information and may post such Communications to
a portion of the Platform not designated “Public Side Information.”  Neither the Administrative Agent nor any of
its Affiliates shall be responsible for any statement or other designation by a
Loan Party regarding whether a Communication contains or does not contain
material non-public information with respect to any of the Loan Parties or
their securities nor shall the Administrative Agent or any of its Affiliates
incur any liability to any Loan Party, any Lender or any other Person for any
action taken by the Administrative Agent or any of its Affiliates based upon
such


 


86

















 


statement or designation, including any
action as a result of which Restricting Information is provided to a Lender
that may decide not to take access to Restricting Information.


 


(e)           Each Lender acknowledges that circumstances may arise that
require it to refer to Communications that might contain Restricting
Information.  Accordingly, each Lender
agrees that it will nominate at least one designee to receive Communications
(including Restricting Information) on its behalf.  Each Lender agrees to notify the
Administrative Agent from time to time of such Lender’s designee’s e-mail
address to which notice of the availability of Restricting Information may be
sent by electronic transmission.


 


(f)            Each Lender acknowledges that Communications delivered
hereunder and under the other Loan Documents may contain Restricting
Information and that such Communications are available to all Lenders
generally.  Each Lender that elects not
to take access to Restricting Information does so voluntarily and, by such
election, acknowledges and agrees that the Administrative Agent and other
Lenders may have access to Restricting Information that is not available to
such electing Lender.  None of the
Administrative Agent nor any Lender with access to Restricting Information shall
have any duty to disclose such Restricting Information to such electing Lender
or to use such Restricting Information on behalf of such electing Lender, and
shall not be liable for the failure to so disclose or use, such Restricting
Information.


 


(g)           Clauses (c), (d), (e) and (f) of this Section 9.09
are designed to assist the Administrative Agent, the Lenders and the Loan
Parties, in complying with their respective contractual obligations and
applicable law in circumstances where certain Lenders express a desire not to
receive Restricting Information notwithstanding that certain Communications
hereunder or under the other Loan Documents or other information provided to
the Lenders hereunder or thereunder may contain Restricting Information.  Neither the Administrative Agent nor any of
its Agent-Related Persons warrants or makes any other statement with respect to
the adequacy of such provisions to achieve such purpose nor does the
Administrative Agent or any of its Agent-Related Persons warrant or make any
other statement to the effect that a Loan Party or Lender’s adherence to such
provisions will be sufficient to ensure compliance by such Loan Party or Lender
with its contractual obligations or its duties under applicable law in respect
of Restricting Information and each of the Lenders and each Loan Party assumes
the risks associated therewith.


 


Section 9.10           Patriot Act Notice.  Each Lender and each Agent (for itself and
not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to
the requirements of the Patriot Act, it is required to obtain, verify and
record information that identifies each Loan Party, which information includes
the name and address of such Loan Party and other information that will allow
such Lender or such Agent, as applicable, to identify such Loan Party in
accordance with the Patriot Act.  The
Borrower shall, and shall cause each of its Subsidiaries to, provide such
information and take such actions as are reasonably requested by any Agents or
any Lender in order to assist the Agents and the Lenders in maintaining
compliance with the Patriot Act.


 


Section 9.11           Jurisdiction, Etc.


 


(a)           Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any
of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted


 


87

















 


by law, in such federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.


 


(b)           Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or federal
court.  Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.


 


Section 9.12           Governing Law.


 


This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York without regard to conflicts of laws principles thereof.


 


Section 9.13           No Fiduciary Duty. 
Each Agent, each Lender and their Affiliates (collectively, solely for
purposes of this paragraph, the “Agent and Lender Related Persons”), may
have economic interests that conflict with those of the Borrower, its
stockholders and/or its Affiliates.  The
Borrower agrees that nothing in the Loan Documents or otherwise will be deemed
to create an advisory, fiduciary or agency relationship or fiduciary or other
implied duty between any Agent and Lender Related Person, on the one hand, and
the Borrower, its stockholders or its Affiliates, on the other.  Each Loan Party acknowledges and agrees that (i) the
transactions contemplated by the Loan Documents (including the exercise of
rights and remedies hereunder and thereunder) are arm’s-length commercial
transactions between the Agent and Lender Related Persons, on the one hand, and
the Borrower, on the other, and (ii) in connection therewith and with the
process leading thereto, (x) no Agent and Lender Related Person has
assumed an advisory or fiduciary responsibility in favor of the Borrower, its
stockholders or its Affiliates with respect to the transactions contemplated
hereby (or the exercise of rights or remedies with respect thereto) or the
process leading thereto (irrespective of whether any Agent and Lender Related
Person has advised, is currently advising or will advise the Borrower, its
stockholders or its Affiliates on other matters) or any other obligation to the
Borrower except the obligations expressly set forth in the Loan Documents and (y) each
Agent and Lender Related Person is acting solely as principal and not as the
agent or fiduciary of the Borrower, its management, stockholders, creditors or
any other Person.  The Borrower
acknowledges and agrees that the Borrower has consulted its own legal and
financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such
transactions and the process leading thereto. 
The Borrower agrees that it will not claim that any Agent and Lender
Related Person has rendered advisory services of any nature or respect, or owes
a fiduciary or similar duty to the Borrower, in connection with such transaction
or the process leading thereto.


 


Section 9.14           Waiver of Jury Trial.


 


Each of the parties hereto
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or relating
to any of the Loan Documents, the Advances or the actions of the Administrative
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.


 


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


 


	
   

  	
  CAPMARK
  FINANCIAL GROUP INC.,

  as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  



 


Signature Page to
Term Credit and Guaranty Agreement


 

















 


	
   

  	
  COMMERCIAL
  EQUITY INVESTMENTS, INC.,

  as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Anne E. Kelly

  
	
   

  	
   

  	
  Name:

  	
  Anne
  E. Kelly

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK
  CAPITAL INC.,

  as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NET
  LEASE ACQUISITION LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK
  FINANCE INC.,

  as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer, Executive Vice President

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  CAPMARK
  INVESTMENTS LP,

  as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Keith Kooper

  
	
   

  	
   

  	
  Name:

  	
  Keith
  Kooper

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MORTGAGE
  INVESTMENTS, LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jay N. Levine

  
	
   

  	
   

  	
  Name:

  	
  Jay
  N. Levine

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SJM
  CAP, LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CRYSTAL
  BALL HOLDING OF BERMUDA LIMITED, as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter A. Widmann

  
	
   

  	
   

  	
  Name:

  	
  Peter
  A. Widmann

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  CAPMARK
  AFFORDABLE EQUITY HOLDINGS INC., as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  CAPMARK
  REO HOLDING LLC, as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul W. Kopsky, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Paul
  W. Kopsky Jr.

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  SUMMIT
  CREST VENTURES LLC, as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter A. Widmann

  
	
   

  	
   

  	
  Name:

  	
  Peter
  A. Widmann

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  CITICORP
  NORTH AMERICA, INC., as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael M. Schadt

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Schadt

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A., as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael M. Schadt

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Schadt

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITIGROUP
  GLOBAL MARKETS INC., as Joint Lead Arranger and Joint Bookrunner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael M. Schadt

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Schadt

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITICORP
  NORTH AMERICA, INC., as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael M. Schadt

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Schadt

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  J.P.
  MORGAN SECURITIES, INC., as

  Joint Lead Arranger and Joint Bookrunner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John J. Coffey

  
	
   

  	
   

  	
  Name:

  	
  John
  J. Coffey

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John J. Coffey

  
	
   

  	
   

  	
  Name:

  	
  John
  J. Coffey

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  CITICORP
  NORTH AMERICA, INC., as an Initial Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael M. Schadt

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Schadt

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  J.P.
  Morgan Chase Bank NA, as an Initial Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John J. Coffey

  
	
   

  	
   

  	
  Name:

  	
  John
  J. Coffey

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  GoldenTree
  Asset Management Lux Sarl  as an Initial Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen Weber

  
	
   

  	
   

  	
  Name:

  	
  Karen
  Weber

  
	
   

  	
   

  	
  Title:

  	
  Director
  - Bank Debt

  



 


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Term Credit and Guaranty Agreement


 
















 


	
   

  	
  GoldenTree
  Master Fund, Ltd.

  By:
  GoldenTree Asset Management, LP

  as an Initial Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen Weber

  
	
   

  	
   

  	
  Name:
  

  	
  Karen
  Weber

  
	
   

  	
   

  	
  Title:
  

  	
  Director
  - Bank Debt

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  GoldenTree
  Master Fund II, Ltd.

  By:
  GoldenTree Asset Management, LP

  as
  an Initial Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen Weber

  
	
   

  	
   

  	
  Name:
  

  	
  Karen
  Weber

  
	
   

  	
   

  	
  Title:
  

  	
  Director
  - Bank Debt

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  GoldenTree
  Credit Opportunities Financing I, Limited

  By:
  GoldenTree Asset Management, LP

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen Weber

  
	
   

  	
   

  	
  Name:
  

  	
  Karen
  Weber

  
	
   

  	
   

  	
  Title:
  

  	
  Director
  - Bank Debt

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  GoldenTree
  Leverage Loan Financing I, Limited

  By:
  GoldenTree Leverage Loan Manager LLC

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen Weber

  
	
   

  	
   

  	
  Name:
  

  	
  Karen
  Weber

  
	
   

  	
   

  	
  Title:
  

  	
  Director
  - Bank Debt

  



 


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  CITIC
  Ka Wah Bank, Ltd.

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter Zhao

  
	
   

  	
   

  	
  Name:
  

  	
  Peter
  Zhao

  
	
   

  	
   

  	
  Title:
  

  	
  EVP

  



 


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  Goldman
  Sachs Credit Partners L.P.,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Caroline Benton

  
	
   

  	
   

  	
  Name:
  

  	
  Caroline
  Benton

  
	
   

  	
   

  	
  Title:
  

  	
  Authorized
  Signatory 

  



 


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  Goldman
  Sachs Lending Partners LLC,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Caroline Benton

  
	
   

  	
   

  	
  Name:
  

  	
  Caroline
  Benton

  
	
   

  	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  Goldman
  Sachs Canada Credit Partners Co.,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Caroline Benton

  
	
   

  	
   

  	
  Name:
  

  	
  Caroline
  Benton

  
	
   

  	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  Goldman
  Sachs Mortgage Company,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark Buono

  
	
   

  	
   

  	
  Name:
  

  	
  Mark
  Buono

  
	
   

  	
   

  	
  Title:
  

  	
  Vice
  President

  



 


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Term Credit and Guaranty Agreement


 

















 


	
   

  	
  Hua
  Nan Commercial Bank, Ltd.

  New
  York Agency

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Henry Hsieh

  
	
   

  	
   

  	
  Name:
  

  	
  Henry
  Hsieh

  
	
   

  	
   

  	
  Title:
  

  	
  Assistant
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 
















 


	
   

  	
  Silver
  Oak Capital, LLC,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas M. Fuller

  
	
   

  	
   

  	
  Name:
  

  	
  Thomas
  M. Fuller

  
	
   

  	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 

















 


	
   

  	
  Knighthead
  Master Fund, L.P.

  By:
  Knighthead Capital Management, L.L.C.

  Its
  Investment Manager, as an Initial Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas Wagner

  
	
   

  	
   

  	
  Name:
  

  	
  Thomas
  Wagner

  
	
   

  	
   

  	
  Title:
  

  	
  Managing
  Member

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 

















 


	
   

  	
  Royal
  Bank of Canada,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Leslie P. Vowell

  
	
   

  	
   

  	
  Name:
  

  	
  Leslie
  P. Vowell

  
	
   

  	
   

  	
  Title:
  

  	
  Attorney-in-Fact

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 

















 


	
   

  	
  Taipei Fubon Commercial Bank, 

  New York Agency,

  as an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Tan 

  
	
   

  	
   

  	
  Name:
  

  	
  Michael Tan 

  
	
   

  	
   

  	
  Title:
  

  	
  VP & General
  Manager

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 

















 


	
   

  	
  Longacre
  Capital Partners (QP), L.P.,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven Weissman 

  
	
   

  	
   

  	
  Name:
  

  	
  Steven
  Weissman 

  
	
   

  	
   

  	
  Title:
  

  	
  Manager
  of General Partner 

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 

















 


	
   

  	
  Longacre
  Master Fund, Ltd.,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven Weissman 

  
	
   

  	
   

  	
  Name:
  

  	
  Steven
  Weissman 

  
	
   

  	
   

  	
  Title:
  

  	
  Director
  

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 

















 


	
   

  	
  Dune
  Real Estate Fund LP,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Dune
  Real Estate Partners LLC,

  Its
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joshua P. Eaton 

  
	
   

  	
   

  	
  Name:
  

  	
  Joshua
  P. Eaton 

  
	
   

  	
   

  	
  Title:
  

  	
  General
  Counsel 

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 

















 


	
   

  	
  CCP
  Credit Acquisition Holdings, LLC,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jed Hart 

  
	
   

  	
   

  	
  Name:
  

  	
  Jed
  Hart

  
	
   

  	
   

  	
  Title:
  

  	
  Sr.
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 

















 


	
   

  	
  Natixis,

  as
  an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jacques Beyssade 

  
	
   

  	
   

  	
  Name:
  

  	
  Jacques
  Beyssade

  
	
   

  	
   

  	
  Title:
  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 

















 


	
   

  	
  Marathon
  Special Opportunity Master Fund Ltd., as an Initial Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jim Leahy 

  
	
   

  	
   

  	
  Name:
  

  	
  Jim
  Leahy

  
	
   

  	
   

  	
  Title:
  

  	
  CFO

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Page to Term
  Credit and Guaranty Agreement

  



 
















 


	
   

  	
  Deutsche
  Bank AG

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Emile Van den Bol

  
	
   

  	
   

  	
  Name:

  	
  Emile Van den Bol

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James Rolison

  
	
   

  	
   

  	
  Name:

  	
  James
  Rolison

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


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Credit and Guaranty Agreement


 

















 


	
   

  	
  Lehman
  Brothers Holdings, Inc.,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Douglas J. Lambert

  
	
   

  	
   

  	
  Name:

  	
  Douglas
  J. Lambert

  
	
   

  	
   

  	
  Title:

  	
  SVP

  



 


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Credit and Guaranty Agreement


 

















 


	
   

  	
  Lehman
  Commercial Paper Inc.,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steve Shirreffs

  
	
   

  	
   

  	
  Name:

  	
  Steve Shirreffs

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


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Credit and Guaranty Agreement


 

















 


	
   

  	
  SCOTIABANC
  INC.,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  J.F. Todd

  
	
   

  	
   

  	
  Name:

  	
  J.F.
  Todd

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


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Credit and Guaranty Agreement


 

















 


	
   

  	
  Merrill
  Lynch Bank USA,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Millett

  
	
   

  	
   

  	
  Name:

  	
  David
  Millett

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


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Credit and Guaranty Agreement


 

















 


	
   

  	
  DK
  Acquisition Partners, L.P., by M.H.

  Davidson & Co., its General Partner,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Conor Bastable

  
	
   

  	
   

  	
  Name:

  	
  Conor
  Bastable

  
	
   

  	
   

  	
  Title:

  	
  General
  Partner

  



 


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Credit and Guaranty Agreement


 

















 


	
   

  	
  Sumitomo
  Mitsui Banking Corporation,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Yoshihiro Hyakutome

  
	
   

  	
   

  	
  Name:

  	
  Yoshihiro
  Hyakutome

  
	
   

  	
   

  	
  Title:

  	
  General
  Manager

  



 


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Credit and Guaranty Agreement


 

















 


	
   

  	
  Wachovia
  Bank, N.A.,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Vanessa N. Rodriguez

  
	
   

  	
   

  	
  Name:

  	
  Vanessa
  N. Rodriguez

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  



 


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  The
  Royal Bank of Scotland,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Timothy J. McNaught

  
	
   

  	
   

  	
  Name:

  	
  Timothy
  J. McNaught

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


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  Morgan
  Stanley Senior Funding Inc.,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas Doster

  
	
   

  	
   

  	
  Name:

  	
  Thomas
  Doster

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


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  Shinsei
  Bank Limited,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Shinichirou Seto

  
	
   

  	
   

  	
  Name:

  	
  Shinichirou
  Seto

  
	
   

  	
   

  	
  Title:

  	
  General
  Manager

  
	
   

  	
   

  	
   

  	
  Corporate
  Banking Business Division VI

  



 


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  Credit
  Suisse Loan Funding LLC,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Healey

  
	
   

  	
   

  	
  Name:

  	
  Robert
  Healey

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Francesca Sena

  
	
   

  	
   

  	
  Name:

  	
  Francesca
  Sena

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


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  WestLB
  AG New York Branch,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Tod Angus

  
	
   

  	
   

  	
  Name:

  	
  Tod
  Angus

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Sassos

  
	
   

  	
   

  	
  Name:

  	
  Michael
  Sassos

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


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  Bank
  of America N.A.,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Scott R. Swenson

  
	
   

  	
   

  	
  Name:

  	
  Scott
  R. Swenson

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


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Credit and Guaranty Agreement


 

















 


	
   

  	
  National
  Bank of Egypt (UK) Ltd,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Margaret Bull

  
	
   

  	
   

  	
  Name:

  	
  Margaret Bull

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Credit Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter Nerurker

  
	
   

  	
   

  	
  Name:

  	
  Peter
  Nerurker

  
	
   

  	
   

  	
  Title:

  	
  Supervisor
  Loans Administration

  



 


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  Societe
  Generale,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Nigel Elvey

  
	
   

  	
   

  	
  Name:

  	
  Nigel
  Elvey

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


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  The
  Bank of Nova Scotia,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ajit Goswani

  
	
   

  	
   

  	
  Name:

  	
  Ajit
  Goswani

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


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  BAUPOST
  GROUP SECURITIES LLC,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brian Spector

  
	
   

  	
   

  	
  Name:

  	
  Brian
  Spector

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


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  KING
  STREET ACQUISITION COMPANY, L.L.C.,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  King
  Street Capital Management, L.P.

  Its Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  King
  Street Capital Management GP, L.L.C.

  Its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jay Ryan

  
	
   

  	
   

  	
  Name:

  	
  Jay
  Ryan

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


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  Fifth
  Third Bank,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Randolph J. Stiener

  
	
   

  	
   

  	
  Name:

  	
  Randolph
  J. Steiner

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


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  SPCP
  Group, LLC,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Zachary Zeitlin

  
	
   

  	
   

  	
  Name:

  	
  Zachary
  Zeitlin

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


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  The
  Bank of Tokyo-Mitsubishi UFJ, Ltd.,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Timothy Tracey

  
	
   

  	
   

  	
  Name:

  	
  Timothy
  Tracey

  
	
   

  	
   

  	
  Title:

  	
  General
  Manager

  



 


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  Mega
  International Commercial Bank,  Silicon Valley Branch

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kuang Hua Wei

  
	
   

  	
   

  	
  Name:

  	
  Kuang
  Hua Wei

  
	
   

  	
   

  	
  Title:

  	
  SVP &
  General Manager

  



 


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  The
  Toronto-Dominion Bank,

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jackie Barrett

  
	
   

  	
   

  	
  Name:

  	
  Jackie
  Barrett

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


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  Toronto
  Dominion (Texas) LLC

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jackie Barrett

  
	
   

  	
   

  	
  Name:

  	
  Jackie
  Barrett

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


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  Contrarian
  Funds, LLC

  as an Initial Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jim R. Bauer

  
	
   

  	
   

  	
  Name:

  	
  Jim
  R. Bauer

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Member of Manager

  



 


Signature Page to Term
Credit and Guaranty Agreement