Exhibit 10.1


 


EXECUTION
COPY


 




 





 


$225,000,000


 


SENIOR CREDIT AGREEMENT


 


among


 


WEBSENSE, INC.,

as Borrower,


 


The Several Lenders

from Time to Time Parties Hereto,


 


MORGAN STANLEY SENIOR FUNDING, INC.,

as Senior Administrative Agent,


 


BANK OF AMERICA, N.A.,

as Syndication Agent,


 


KEY BANK NATIONAL ASSOCIATION, 

JP MORGAN CHASE BANK, N.A. and 

CITIBANK, N.A.,

as Co-Documentation Agents


 


and


 


MORGAN STANLEY & CO. INCORPORATED,

as Senior Collateral Agent


 


Dated as of October 11, 2007


 




 





 


MORGAN STANLEY SENIOR FUNDING, INC.,

as Sole Lead Arranger and Sole Bookrunner


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Defined Terms

  	
   

  	
  1

  
	
  1.2

  	
   

  	
  Other Definitional Provisions

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
   

  	
  AMOUNT AND TERMS OF TERM
  COMMITMENTS

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Term Commitments

  	
   

  	
  37

  
	
  2.2

  	
   

  	
  Procedure for Term Loan
  Borrowing

  	
   

  	
  37

  
	
  2.3

  	
   

  	
  Repayment of Term Loans

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
   

  	
  AMOUNT AND TERMS OF REVOLVING
  COMMITMENTS

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Revolving Commitments

  	
   

  	
  38

  
	
  3.2

  	
   

  	
  Procedure for Revolving Loan
  Borrowing

  	
   

  	
  38

  
	
  3.3

  	
   

  	
  Swingline Commitment

  	
   

  	
  39

  
	
  3.4

  	
   

  	
  Procedure for Swingline
  Borrowing; Refunding of Swingline Loans

  	
   

  	
  39

  
	
  3.5

  	
   

  	
  Commitment Fees, etc.

  	
   

  	
  41

  
	
  3.6

  	
   

  	
  Termination or Reduction of
  Revolving Commitments

  	
   

  	
  41

  
	
  3.7

  	
   

  	
  L/C Commitment

  	
   

  	
  41

  
	
  3.8

  	
   

  	
  Procedure for Issuance of Letter
  of Credit

  	
   

  	
  42

  
	
  3.9

  	
   

  	
  Fees and Other Charges

  	
   

  	
  42

  
	
  3.10

  	
   

  	
  L/C Participations

  	
   

  	
  43

  
	
  3.11

  	
   

  	
  Reimbursement Obligation of the
  Borrower

  	
   

  	
  44

  
	
  3.12

  	
   

  	
  Obligations Absolute

  	
   

  	
  44

  
	
  3.13

  	
   

  	
  Letter of Credit Payments

  	
   

  	
  45

  
	
  3.14

  	
   

  	
  Applications

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
   

  	
  GENERAL PROVISIONS APPLICABLE
  TO LOANS AND LETTERS OF CREDIT

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Optional Prepayments

  	
   

  	
  45

  
	
  4.2

  	
   

  	
  Mandatory Prepayments and
  Commitment Reductions

  	
   

  	
  46

  
	
  4.3

  	
   

  	
  Conversion and Continuation
  Options

  	
   

  	
  47

  
	
  4.4

  	
   

  	
  Limitations on Eurodollar
  Tranches

  	
   

  	
  47

  
	
  4.5

  	
   

  	
  Interest Rates and Payment
  Dates

  	
   

  	
  48

  
	
  4.6

  	
   

  	
  Computation of Interest and
  Fees

  	
   

  	
  48

  
	
  4.7

  	
   

  	
  Inability to Determine Interest
  Rate

  	
   

  	
  49

  
	
  4.8

  	
   

  	
  Pro Rata Treatment and Payments

  	
   

  	
  49

  
	
  4.9

  	
   

  	
  Requirements of Law

  	
   

  	
  51

  
	
  4.10

  	
   

  	
  Taxes

  	
   

  	
  52

  
	
  4.11

  	
   

  	
  Indemnity

  	
   

  	
  54

  
	
  4.12

  	
   

  	
  Change of Lending Office

  	
   

  	
  54

  
	
  4.13

  	
   

  	
  Replacement of Lenders

  	
   

  	
  55

  
	
  4.14

  	
   

  	
  Evidence of Debt

  	
   

  	
  55

  



 


i

















 


	
  4.15

  	
   

  	
  Illegality

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Financial Condition

  	
   

  	
  56

  
	
  5.2

  	
   

  	
  No Change

  	
   

  	
  57

  
	
  5.3

  	
   

  	
  Corporate Existence; Compliance
  with Law

  	
   

  	
  58

  
	
  5.4

  	
   

  	
  Power; Authorization;
  Enforceable Obligations

  	
   

  	
  58

  
	
  5.5

  	
   

  	
  No Legal Bar

  	
   

  	
  58

  
	
  5.6

  	
   

  	
  Litigation

  	
   

  	
  59

  
	
  5.7

  	
   

  	
  No Default

  	
   

  	
  59

  
	
  5.8

  	
   

  	
  Ownership of Property; Liens

  	
   

  	
  59

  
	
  5.9

  	
   

  	
  Intellectual Property

  	
   

  	
  59

  
	
  5.10

  	
   

  	
  Taxes

  	
   

  	
  59

  
	
  5.11

  	
   

  	
  Federal Regulations

  	
   

  	
  59

  
	
  5.12

  	
   

  	
  Labor Matters

  	
   

  	
  60

  
	
  5.13

  	
   

  	
  ERISA

  	
   

  	
  60

  
	
  5.14

  	
   

  	
  Investment Company Act; Other
  Regulations

  	
   

  	
  60

  
	
  5.15

  	
   

  	
  Subsidiaries

  	
   

  	
  60

  
	
  5.16

  	
   

  	
  Use of Proceeds

  	
   

  	
  61

  
	
  5.17

  	
   

  	
  Environmental Matters

  	
   

  	
  61

  
	
  5.18

  	
   

  	
  Accuracy of Information, etc.

  	
   

  	
  62

  
	
  5.19

  	
   

  	
  Security Documents

  	
   

  	
  62

  
	
  5.20

  	
   

  	
  Solvency

  	
   

  	
  63

  
	
  5.21

  	
   

  	
  Indebtedness

  	
   

  	
  63

  
	
  5.22

  	
   

  	
  Anti-Terrorism Laws

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
   

  	
  CONDITIONS PRECEDENT

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Effective Date

  	
   

  	
  65

  
	
  6.2

  	
   

  	
  Conditions to the Funding Date

  	
   

  	
  67

  
	
  6.3

  	
   

  	
  Each Credit Event

  	
   

  	
  68

  
	
  6.4

  	
   

  	
  Certain Funds

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Financial Statements

  	
   

  	
  70

  
	
  7.2

  	
   

  	
  Certificates; Other Information

  	
   

  	
  71

  
	
  7.3

  	
   

  	
  Payment of Obligations

  	
   

  	
  73

  
	
  7.4

  	
   

  	
  Maintenance of Existence;
  Compliance

  	
   

  	
  73

  
	
  7.5

  	
   

  	
  Maintenance of Property; Insurance

  	
   

  	
  73

  
	
  7.6

  	
   

  	
  Inspection of Property; Books
  and Records; Discussions

  	
   

  	
  73

  
	
  7.7

  	
   

  	
  Notices

  	
   

  	
  74

  
	
  7.8

  	
   

  	
  Environmental Laws

  	
   

  	
  74

  
	
  7.9

  	
   

  	
  Interest Rate Protection;
  Hedging Requirements

  	
   

  	
  75

  
	
  7.10

  	
   

  	
  Additional Collateral, etc.

  	
   

  	
  75

  
	
  7.11

  	
   

  	
  Offer Conversion

  	
   

  	
  77

  
	
  7.12

  	
   

  	
  Conduct of the Scheme

  	
   

  	
  77

  
	
  7.13

  	
   

  	
  Conduct of the Offer

  	
   

  	
  78

  
	
  7.14

  	
   

  	
  Further Assurances

  	
   

  	
  80

  



 


ii

















 


	
  7.15

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  80

  
	
  7.16

  	
   

  	
  Syndication

  	
   

  	
  80

  
	
  7.17

  	
   

  	
  Blocked Accounts; Escrow
  Accounts

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
   

  	
  NEGATIVE COVENANTS

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Financial Condition Covenants

  	
   

  	
  81

  
	
  8.2

  	
   

  	
  Indebtedness

  	
   

  	
  82

  
	
  8.3

  	
   

  	
  Liens

  	
   

  	
  84

  
	
  8.4

  	
   

  	
  Fundamental Changes

  	
   

  	
  86

  
	
  8.5

  	
   

  	
  Disposition of Property

  	
   

  	
  87

  
	
  8.6

  	
   

  	
  Restricted Payments

  	
   

  	
  88

  
	
  8.7

  	
   

  	
  Capital Expenditures

  	
   

  	
  89

  
	
  8.8

  	
   

  	
  Investments

  	
   

  	
  89

  
	
  8.9

  	
   

  	
  Optional Payments and
  Modifications of Certain Debt Instruments and Agreements

  	
   

  	
  91

  
	
  8.10

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  92

  
	
  8.11

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  92

  
	
  8.12

  	
   

  	
  Hedge Agreements

  	
   

  	
  92

  
	
  8.13

  	
   

  	
  Changes in Fiscal Periods

  	
   

  	
  92

  
	
  8.14

  	
   

  	
  Negative Pledge Clauses

  	
   

  	
  92

  
	
  8.15

  	
   

  	
  Clauses Restricting Subsidiary
  Distributions

  	
   

  	
  93

  
	
  8.16

  	
   

  	
  Lines of Business

  	
   

  	
  93

  
	
  8.17

  	
   

  	
  Amendment to Scheme

  	
   

  	
  93

  
	
  8.18

  	
   

  	
  Amendments to Offer

  	
   

  	
  94

  
	
  8.19

  	
   

  	
  Blocked Accounts

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
   

  	
  EVENTS OF DEFAULT

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
   

  	
  THE AGENTS

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
   

  	
  Appointment

  	
   

  	
  98

  
	
  10.2

  	
   

  	
  Delegation of Duties

  	
   

  	
  99

  
	
  10.3

  	
   

  	
  Exculpatory Provisions

  	
   

  	
  99

  
	
  10.4

  	
   

  	
  Reliance by Agents

  	
   

  	
  100

  
	
  10.5

  	
   

  	
  Notice of Default

  	
   

  	
  100

  
	
  10.6

  	
   

  	
  Non Reliance on Agents and
  Other Lenders

  	
   

  	
  100

  
	
  10.7

  	
   

  	
  Indemnification

  	
   

  	
  101

  
	
  10.8

  	
   

  	
  Agent in Its Individual
  Capacity

  	
   

  	
  101

  
	
  10.9

  	
   

  	
  Successor Agents

  	
   

  	
  102

  
	
  10.10

  	
   

  	
  Agents Generally

  	
   

  	
  102

  
	
  10.11

  	
   

  	
  The Lead Arranger

  	
   

  	
  102

  
	
  10.12

  	
   

  	
  Additional Collateral Agents

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.1

  	
   

  	
  Amendments and Waivers

  	
   

  	
  104

  
	
  11.2

  	
   

  	
  Notices

  	
   

  	
  106

  
	
  11.3

  	
   

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  108

  
	
  11.4

  	
   

  	
  Survival of Representations and
  Warranties

  	
   

  	
  108

  



 


iii

















 


	
  11.5

  	
   

  	
  Payment of Expenses and Taxes

  	
   

  	
  108

  
	
  11.6

  	
   

  	
  Successors and Assigns;
  Participations and Assignments

  	
   

  	
  110

  
	
  11.7

  	
   

  	
  Adjustments; Set off

  	
   

  	
  114

  
	
  11.8

  	
   

  	
  Counterparts

  	
   

  	
  115

  
	
  11.9

  	
   

  	
  Severability

  	
   

  	
  115

  
	
  11.10

  	
   

  	
  Integration

  	
   

  	
  115

  
	
  11.11

  	
   

  	
  GOVERNING LAW

  	
   

  	
  115

  
	
  11.12

  	
   

  	
  Submission To Jurisdiction;
  Waivers

  	
   

  	
  115

  
	
  11.13

  	
   

  	
  Acknowledgments

  	
   

  	
  116

  
	
  11.14

  	
   

  	
  Releases of Guarantees and Liens;
  Termination

  	
   

  	
  116

  
	
  11.15

  	
   

  	
  Confidentiality

  	
   

  	
  117

  
	
  11.16

  	
   

  	
  WAIVERS OF
  JURY TRIAL

  	
   

  	
  118

  
	
  11.17

  	
   

  	
  Patriot Act Notice

  	
   

  	
  118

  
	
  11.18

  	
   

  	
  Delivery of Addenda

  	
   

  	
  118

  
	
  11.19

  	
   

  	
  Effect of Restatement

  	
   

  	
  118

  



 


iv

















 


	
  ANNEX:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Pricing Grid

  



 


	
  EXHIBITS:

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Form of Addendum

  
	
  B

  	
   

  	
  Form of Assignment and Assumption

  
	
  C

  	
   

  	
  Form of Compliance Certificate

  
	
  D

  	
   

  	
  Form of Guarantee and Collateral
  Agreement

  
	
  E

  	
   

  	
  [Intentionally Deleted]

  
	
  F

  	
   

  	
  [Intentionally Deleted]

  
	
  G

  	
   

  	
  Form of Exemption Certificate

  
	
  H-1

  	
   

  	
  Form of Term Note

  
	
  H-2

  	
   

  	
  Form of Revolving Note

  
	
  H-3

  	
   

  	
  Form of Swingline Note

  
	
  I

  	
   

  	
  Form of Closing Certificate

  
	
  J-1

  	
   

  	
  Form of Legal Opinion of Cooley
  Godward Kronish LLP

  
	
  J-2

  	
   

  	
  Form of Legal Opinion of Herbert Smith
  LLP

  
	
  J-3

  	
   

  	
  Form of Legal Opinion of Arthur Cox

  
	
  K-1

  	
   

  	
  Form of Control Agreement

  
	
  K-2

  	
   

  	
  Form of Blocked Account Control
  Agreement

  
	
  K-3

  	
   

  	
  Form of Blocked Account Control
  Agreement

  
	
  L

  	
   

  	
  Form of Intercompany Note

  
	
  M

  	
   

  	
  Form of Perfection Certificate

  



 


v

















 


SENIOR CREDIT
AGREEMENT, dated as of October 11, 2007, among WEBSENSE, INC., a
Delaware corporation (the “Borrower”),
the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”),
MORGAN STANLEY SENIOR FUNDING, INC., as sole lead arranger and sole
bookrunner (in such capacity, the “Lead Arranger”),
MORGAN STANLEY SENIOR FUNDING, INC., as senior administrative agent (in
such capacity, and together with its successors in such capacity, the “Senior Administrative
Agent”), BANK OF AMERICA, N.A., as
syndication agent (in such capacity, the “Syndication Agent”),
KEY BANK NATIONAL ASSOCIATION, JP MORGAN CHASE BANK, N.A. and CITIBANK, N.A.,
as co-documentation agents (in such capacity, the “Co-Documentation Agents”)
and MORGAN STANLEY & CO. INCORPORATED, as Senior Collateral Agent (in
such capacity, and together with its successors in such capacity, the “Senior Collateral Agent”).


 


WHEREAS, the
Borrower has requested that (a) the Lenders extend credit in the form of
Term Loans on the Funding Date in an aggregate principal amount not in excess
of $210,000,000 and (b) the Revolving Lenders extend credit in the form of
Revolving Loans, the Swingline Lender extend credit in the form of
Swingline Loans and the Issuing Bank issue Letters of Credit, in each case at
any time and from time to time during the Revolving Availability Period such
that the aggregate Revolving Exposures will not exceed $15,000,000 at any time.


 


The Lenders
are willing to extend such credit to the Borrower, and the Issuing Bank is
willing to issue Letters of Credit for the account of the Borrower, on the
terms and subject to the conditions set forth herein.


 


The parties
hereto hereby agree as follows:


 


SECTION 1. DEFINITIONS


 


1.1           Defined
Terms. As used in this Agreement, the terms listed in this Section 1.1
shall have the respective meanings set forth in this Section 1.1.


 


“Acceptable Bank”:  (a) a
bank or financial institution which has a rating for its long-term unsecured
and non credit-enhanced debt obligations of A2 or higher by S&P, F2 or
higher by Fitch Ratings Ltd or P2 or higher by Moody’s or a comparable rating
from an internationally recognized credit rating agency or (b) any other
bank or financial institution approved by the Senior Administrative Agent.


 


“Acquired Person”:  as defined
in Section 8.2(j).


 

















 


“Acquisition”:  one or
more transactions, whether pursuant to the Scheme or an Offer (including
without limitation arrangements under the Compulsory Purchase Procedure,
privately negotiated transactions or open market purchases), pursuant to which
the Borrower or one of its Subsidiaries acquires any or all Constellation
Shares or Capital Stock of Constellation or procures the cancellation of any or
all such Constellation Shares or Capital Stock of Constellation or acquires or
funds the exercise of any or all options over, or rights in respect of, such
Constellation Shares or Capital Stock of Constellation.


 


“Acquisition
Agreement”:  an agreement between the
Borrower, Bidco and Constellation in respect of the Scheme.


 


“Acquisition
Effective Date”: the date upon which the Court Order is filed with the
Registrar of Companies as required by Section 425 of the Companies Act
1985 (or, if applicable, Section 899 of the Companies Act 2006).


 


“Addendum”:  an
instrument, substantially in the form of Exhibit A, by which a Lender
becomes a party to this Agreement as of the Effective Date.


 


“Additional Collateral Agent”:  as defined
in Section 10.12.


 


“Adjustment Date”:  as defined
in the Pricing Grid.


 


“Affected Lender”:  as defined
in Section 4.13.


 


“Affiliate”:  as to any
Person, any other Person that, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For purposes of
this definition, “control” of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors (or persons performing similar functions)
of such Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.


 


“Agents”:  the
collective reference to the Syndication Agent, the Co-Documentation Agents, the
Lead Arranger, the Senior Administrative Agent and the Senior Collateral Agent.


 


“Aggregate
Exposure”:  with respect to any Lender at any time, an
amount equal to (a) until the Funding Date, the aggregate amount of such
Lender’s Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender’s Term Loans and (ii) the
amount of such Lender’s Revolving Commitment then in effect or, if the 


 


2

















 


Revolving
Commitments have been terminated, the amount of such Lender’s Revolving Extensions
of Credit then outstanding.


 


“Aggregate
Exposure Percentage”:  with respect to any Lender at any time, the
ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such
time to the Aggregate Exposure of all Lenders at such time.


 


“Agreement”:  this
Senior Credit Agreement.


 


“Anti-Terrorism
Laws”:  Executive Order No. 13224, the Patriot
Act, the laws comprising or implementing the Bank Secrecy Act and the law
administered by the United States Treasury Department’s Office of Foreign Asset
Control (each as from time to time in effect) and any similar laws relating to
terrorism.


 


“Applicable
Margin”:  for each Type of Loan, the rate per annum set
forth under the relevant column heading below.


 


	
   

  	
   

  	
  Eurodollar Loans

  	
   

  	
  Base Rate Loans

  	
   

  
	
  Revolving Loans and

  Swingline Loans

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  
	
  Term Loans

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  



 


; provided,
that, on and after the first Adjustment Date (as defined in the Pricing Grid)
occurring after the completion of two full fiscal quarters of the Borrower
after the Funding Date, the Applicable Margin with respect to Revolving Loans,
Swingline Loans and Term Loans will be determined pursuant to the Pricing Grid.


 


“Application”:  an
application, in such form as the Issuing Lender may specify from time
to time, requesting the Issuing Lender to open a Letter of Credit.


 


“Approved Fund”:  with
respect to any Lender, any Person (other than a natural person) that is engaged
in making, purchasing, holding or otherwise investing in commercial loans, or
similar extensions of credit in the ordinary course and is administered,
advised or managed by (a) such Lender, (b) an Affiliate of such
Lender, or (c) an entity or an Affiliate of an entity that administers,
advises or manages such Lender.


 


“Asset Sale”:  any
Disposition of Property or series of related Dispositions of Property
(excluding any such Disposition permitted by clause (a), (b), (c), (d), (e),
(f), (g) or (h) of Section 8.5) that yields gross proceeds to
any Group Member (valued at the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt securities and valued at
fair market value in the case of other non-cash proceeds) in excess of
$2,000,000.


 


3

















 


“Assignee”:  as defined
in Section 11.6(b).


 


“Assignment and
Assumption”:  an Assignment and Assumption, substantially
in the form of Exhibit B.


 


“Available
Revolving Commitment”:  as to any Revolving Lender at any time, an
amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment
then in effect over (b) such Lender’s Revolving Extensions of Credit then
outstanding; provided that, in calculating any Lender’s Revolving Extensions of
Credit for the purpose of determining such Lender’s Available Revolving
Commitment pursuant to Section 3.5, the aggregate principal amount of
Swingline Loans then outstanding shall be deemed to be zero.


 


“Base Rate”:  a
fluctuating interest rate per annum in effect from time to time, which rate per
annum shall at all times be equal to the higher of (a) the rate of
interest published by the Wall Street Journal, from time to time, as the prime
rate and (b) 1⁄2 of 1% per annum above the Federal Funds Effective Rate.


 


“Base Rate Loans”:  Loans the
rate of interest applicable to which is based upon the Base Rate.


 


“Benefitted
Lender”:  as defined in Section 11.7(a).


 


“Bidco”:  any Group
Member (provided it is the Borrower or a Wholly-Owned Subsidiary of the
Borrower) which makes the Offer.


 


“Blocked
Account Control Agreement”: the Blocked Account Control Agreement to be
executed substantially in the form of Exhibit K-2 or K-3, or
otherwise in a form reasonably acceptable to the Interim Administrative
Agent.


 


“Blocked
Accounts”: any deposit or securities account or accounts (including any
Escrow Account) established by the Borrower or any of its Subsidiaries at the
Interim Administrative Agent or an Affiliate of the Interim Administrative
Agent or the Documentation Agent for purposes of depositing cash and Cash
Equivalents as required by Section 7.17; provided that with respect
to any account owned by the Borrower or any Domestic Subsidiary of the
Borrower, the Borrower or such Subsidiary, the Interim Administrative Agent and
the bank maintaining such Blocked Account shall have entered into a Blocked
Account Control Agreement with respect to such account.


 


“Blocked Person”:  as defined
in Section 5.22(b).


 


4

















 


“Board”:  the Board
of Governors of the Federal Reserve System of the United States (or any
successor).


 


“Borrower”:  as defined
in the preamble to this Agreement.


 


“Borrower Credit
Agreement Obligations”:  as defined in the Guarantee and Collateral
Agreement.


 


“Borrower Hedge
Agreement Obligations”:  as defined in the Guarantee and Collateral
Agreement.


 


“Borrowing”:  Loans of
the same Type, made, converted or continued on the same date and, in the case
of Eurodollar Loans, as to which a single Interest Period is in effect.


 


“Borrowing Date”:  any
Business Day specified by the Borrower as a date on which the Borrower requests
the relevant Lenders to make Loans hereunder.


 


“Business”:  as defined
in Section 5.17(b).


 


“Business Day”:  a day
other than a Saturday, Sunday or other day on which commercial banks in New
York City or London are authorized or required by law to close, provided,
that with respect to notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, such day is also a day
for trading by and between banks in Dollar deposits in the interbank eurodollar
market.


 


“Capital
Expenditures”:  for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.


 


“Capital Lease
Obligations”:  as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP and, for the
purposes of this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.


 


5

















 


“Capital Stock”:  any and
all shares, interests, participations or other equivalents (however designated)
of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing.


 


“Cash
Equivalents”:  (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition; (b) certificates
of deposit, time deposits, eurodollar time deposits or overnight bank deposits
having maturities of six months or less from the date of acquisition issued by
any Lender or by any commercial bank organized under the laws of the United
States or any state thereof having combined capital and surplus of not less
than $500,000,000; (c) commercial paper of an issuer rated at least A-1 by
S&P or P-1 by Moody’s, or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days,
with respect to securities issued or fully guaranteed or insured by the United
States government; (e) securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed by any state, commonwealth
or territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be)
are rated at least A by S&P or A by Moody’s; (f) securities with
maturities of six months or less from the date of acquisition backed by standby
letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; (g) any investment in
marketable debt obligations issued or guaranteed by the government of the
United Kingdom, any member state of the European Economic Area or any
Participating Member State or by an instrumentality or agency of any of them
having an equivalent credit rating, maturing within one year after the relevant
date of calculation and not convertible or exchangeable to any other security; (h) any
investment in marketable debt obligations issued or guaranteed by the
government of the United Kingdom, any member state of the European Economic
Area or any Participating Member State or by an instrumentality or agency of
any of them or by a person whose indebtedness is rated not less than A by
S&P or A2 by Moody’s (or equivalent from an internationally recognized
credit rating agency) maturing within one year from the date of acquisition
thereof; (i) investments in commercial paper not convertible or
exchangeable to any other security (w) for which a recognized trading market
exists, (x) issued by an issuer incorporated in the United Kingdom, any member
state of the European Economic Area or any Participating Member State, (y)
which matures within one year after the relevant date of calculation and (z)
which has a credit rating of either A-1 or higher by S&P or Fitch Ratings
Ltd or P-1 or higher by Moody’s, or, if no rating is available in respect of
the commercial paper, the issuer of which has, in respect of its long-term
unsecured and non-credit enhanced debt obligations, an equivalent rating; (j)
sterling bills of exchange eligible for rediscount at the Bank of England and
accepted by an Acceptable Bank (or their dematerialised equivalent); (k) shares
of money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (j) of this definition
or money market funds that (i) comply with the criteria set forth in
Securities and Exchange 


 


6

















 


Commission Rule 2a-7
under the Investment Company Act of 1940, as amended, (ii) are rated AAA
by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000 or (l) such other marketable securities as are permitted
pursuant to the Borrower’s investment policy in effect on the Effective Date.


 


“Certain Funds
Loan”: any Loans utilized for


 


(a)                                  the
Acquisition; or


 


(b)                                 payment
of fees, costs and expenses in relation to the matters referred to in paragraph
(a) above including for the avoidance of doubt, fees, costs and expenses
payable pursuant to the Loan Documents and the other Transactions on the
Funding Date, each such utilization being a “Permitted
Purpose”.


 


“Certain Funds
Loan Parties”: the Borrower and
each Wholly Owned Subsidiary of the Borrower (excluding, for the avoidance of
doubt, any member of the Constellation Group) that, as of the date of the most
recently available consolidated balance sheet of the Borrower, has assets equal
to or greater than 5% of the total assets of the Borrower and its Subsidiaries
calculated (as of the date of the most recently available consolidated balance
sheet of the Borrower) on a consolidated basis, taken as a whole, but excluding
for such purposes the Constellation Group. The Certain Funds Loan Parties as of
the Effective Date are listed on Schedule 1.1 of the Disclosure Letter.


 


“Certain Funds
Period”: the period beginning on
the date of this Agreement and ending on (and including) the earlier of:


 


(a) if a
Scheme Press Release is issued and no Offer Conversion occurs: (i) fifteen
months from the date of the Scheme Press Release, (ii) the date on which
the Scheme proposal is rejected by either the shareholders of the Borrower or
the Courts of England and Wales or is withdrawn (other than a withdrawal in
accordance with Section 7.11) or (iii) the date which falls 15 days
after the Acquisition Effective Date;


 


(b) if an
Offer is made without any pre-conditions: (i) the date which falls 7
months after the date of the Offer Press Release, (ii) the date on which
the Offer lapses, terminates or is withdrawn or (iii) fifteen months from
the Effective Date; or


 


(c) if a
pre-conditional Offer is made: (i) the date which falls 7 months after the
date on which all the pre-conditions are deemed by the Borrower to have been
satisfied; (ii) the date on which the Offer lapses, terminates or is
withdrawn or (iii) fifteen months from the Effective Date.


 


7

















 


“City Code”: the City Code on Takeovers and Mergers.


 


“Co-Documentation
Agents”:  as defined in the preamble to this Agreement.


 


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


 


“Collateral”:  all
property of the Loan Parties, now owned or hereafter acquired, upon which a
Lien is purported to be created by any Security Document.


 


“Collateral and
Guarantee Requirement”:  at any time, the requirement that:


 


(a)                                  the
Senior Collateral Agent shall have received from each Loan Party (i) either
(x) a counterpart of the Guarantee and Collateral Agreement duly executed
and delivered on behalf of each such Loan Party or (y) in the case of any
Person that becomes a Loan Party after the Effective Date, a supplement to the
Guarantee and Collateral Agreement, in the form specified therein, duly
executed and delivered on behalf of such Loan Party and (ii) with respect
to any Loan Party that directly owns Capital Stock of a Foreign Subsidiary, a
counterpart of each Foreign Pledge Agreement that the Senior Collateral
Agent determines, based on the advice of counsel, to be necessary or advisable
in connection with the pledge of, or the granting of security interests in,
Capital Stock of (but no more than 65% of the voting power of such Capital
Stock of) such Foreign Subsidiary, in each case duly executed and delivered on
behalf of such Loan Party;


 


(b)                                 all
outstanding Capital Stock of each Subsidiary and all other Capital Stock, in
each case owned by or on behalf of any Loan Party, shall have been pledged
pursuant to the Guarantee and Collateral Agreement or a Foreign Pledge
Agreement (except that the Loan Parties shall not be required to pledge (i) more
than 65% of the outstanding voting Capital Stock of any Foreign Subsidiary or (ii) Capital
Stock of Subsidiaries that are not directly held by such Loan Parties) and the
Senior Collateral Agent shall have received certificates (or in the case of
entities with uncertificated Capital Stock, issuer acknowledgments) or other
instruments representing all such Capital Stock, together with un-dated stock
powers or other instruments of transfer with respect thereto endorsed in blank;


 


(c)                                  all
Indebtedness of the Borrower and each Subsidiary that is owing to any Loan
Party shall be evidenced by an Intercompany Note and shall have been pledged
pursuant to the Guarantee and Collateral Agreement and the Senior Collateral
Agent shall have received all such promissory notes, together with undated
instruments of transfer with respect thereto endorsed in blank;


 


(d)                                 all
documents and instruments, including Uniform Commercial Code financing
statements and filings with the Irish CRO, the Registrar of Companies or any
analogous filings in any other jurisdictions, required by law or reasonably
requested by the 


 


8

















 


Senior
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Guarantee and Collateral Agreement and the
Foreign Pledge Agreements and perfect such Liens to the extent required by, and
with the priority required by, the Guarantee and Collateral Agreement and the
Foreign Pledge Agreements, shall have been filed, registered or recorded or
delivered to the Senior Administrative Agent for filing, registration or
recording; and


 


(e)                                  each
Loan Party shall have obtained all consents and approvals required to be
obtained by it in connection with the execution and delivery of all Security
Documents to which it is a party, the performance of its obligations thereunder
and the granting by it of the Liens thereunder; provided, however, that
no Loan Party shall be required to obtain any consent, approval or
authorization of any Governmental Authority with respect to the pledge of, or
the grant of a security interest in, the Capital Stock of any Foreign
Subsidiary that is an Immaterial Subsidiary.


 


“Commitment”:  as to any
Lender, the sum of the Term Commitment and the Revolving Commitment of such
Lender.


 


“Commitment Fee
Rate”:  0.50% per annum; provided that, on and
after the first Adjustment Date occurring after the completion of two full
fiscal quarters of the Borrower after the Funding Date, the Commitment Fee Rate
will be determined pursuant to the Pricing Grid.


 


“Commonly Controlled
Entity”:  an entity, whether or not incorporated, that
is under common control with the Borrower within the meaning of Section 4001
of ERISA or is part of a group that includes the Borrower and that is
treated as a single employer under Section 414 of the Code.


 


“Compliance
Certificate”:  a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit C.


 


“Compulsory
Purchase Notice”:  a notice issued to a shareholder of
Constellation by the Borrower or its Subsidiaries pursuant to section 979
of the Companies Act 2006.


 


“Compulsory
Purchase Procedure”:  the procedure for buying out minority
shareholders of Constellation pursuant to section 979 of the Companies Act
2006.


 


“Conduit Lender”:  any
special purpose entity organized and administered by any Lender for the purpose
of making Loans otherwise required to be made by such Lender and designated by
such Lender in a written instrument, subject to the consent of the Senior
Administrative Agent and the Borrower (which consent shall not be unreasonably
withheld); provided, that the designation by any Lender of a Conduit
Lender shall not relieve the designating Lender of any of its obligations to
fund a Loan under this Agreement if, for any 


 


9

















 


reason, its
Conduit Lender fails to fund any such Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and responsibility to deliver all
consents and waivers required or requested under this Agreement with respect to
its Conduit Lender, and provided, further, that no Conduit Lender
shall (a) be entitled to receive any greater amount pursuant to Section 4.9,
4.10, 4.11 or 11.5 than the designating Lender would have been entitled to
receive in respect of the extensions of credit made by such Conduit Lender or (b) be
deemed to have any Commitment.


 


“Confidential
Information Memorandum”:  the Confidential Information Memorandum to be
dated not less than 30 days prior to the Funding Date and furnished to the
Lenders.


 


“Consolidated
Current Assets”:  at any date, all amounts (other than cash and
Cash Equivalents) that would, in conformity with GAAP, be set forth opposite
the caption “total current assets” (or any like caption) on a consolidated
balance sheet of the Borrower and its Subsidiaries at such date.


 


“Consolidated
Current Liabilities”:  at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption “total current
liabilities” (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Funded Debt of the Borrower and its Subsidiaries and (b) without
duplication of clause (a) above, all Indebtedness consisting of Revolving
Loans or Swingline Loans to the extent otherwise included therein.


 


“Consolidated
EBITDA”:  for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the
sum of (a) income tax expense, (b) interest expense, amortization or
writeoff of debt discount and debt issuance costs and commissions, discounts
and other fees and charges associated with Indebtedness (including the Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but
not limited to, goodwill) and organization costs, (e) any extraordinary
charges or losses determined in accordance with GAAP, (f) for the periods
ending on or before the date that is twelve months after the consummation of
the Acquisition, $30,000,000 in the aggregate of anticipated cost-savings to be
realized from the combination of the businesses of Constellation and the
Borrower, (g) any other non-cash charges, non-cash expenses or non-cash
losses of the Borrower or any of its Subsidiaries for such period (excluding
any such charge, expense or loss incurred in the ordinary course of business
that constitutes an accrual of or a reserve for cash charges for any future
period) and (h) for the periods ending on or before the date that is 24
months after the Funding Date, up to $15,000,000 of restructuring related costs
incurred in connection with the Acquisition and not included in purchase
accounting, provided, however, that cash payments made in such
period or in any future period in respect of such non-cash charges, expenses or
losses (excluding any such charge, expense or loss incurred in the ordinary
course of business that constitutes an accrual of or a reserve for cash charges
for any future period) shall be subtracted from Consolidated Net Income in
calculating Consolidated EBITDA in the period 


 


10

















 


when such
payments are made, and minus, to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (a) interest income, (b) any
extraordinary income or gains determined in accordance with GAAP and (c) any
other non-cash income (excluding any items that represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior period
that are described in the parenthetical to clause (g) above), all as
determined on a consolidated basis. For the purposes of calculating
Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a
“Reference Period”) pursuant to any determination of the Consolidated
Leverage Ratio, (i) if at any time during such Reference Period the
Borrower or any Subsidiary shall have made any Material Disposition, the
Consolidated EBITDA for such Reference Period shall be reduced by an amount
equal to the Consolidated EBITDA (if positive) attributable to the property
that is the subject of such Material Disposition for such Reference Period or
increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such Reference Period and (ii) if during such
Reference Period the Borrower or any Subsidiary shall have made a Material
Acquisition, Consolidated EBITDA for such Reference Period shall be calculated
after giving pro  forma effect thereto as if such Material
Acquisition occurred on the first day of such Reference Period. As used in this
definition, “Material
Acquisition” means the Acquisition
and any other acquisition of property or series of related acquisitions of
property that (a) constitutes assets comprising all or substantially all
of an operating unit of a business or constitutes all or substantially all of
the common stock of a Person and (b) involves the payment of consideration
by the Borrower and its Subsidiaries in excess of $1,000,000; and “Material Disposition” means any Disposition of property or series of
related Dispositions of property that yields gross proceeds to the Borrower or
any of its Subsidiaries in excess of $1,000,000 but shall not include a Rationalizing
Constellation Disposition permitted by Section 8.5.


 


“Consolidated
Interest Coverage Ratio”:  for any period, the ratio of (a) Consolidated
EBITDA for such period to (b) Consolidated Interest Expense for such
period.


 


“Consolidated
Interest Expense”:  for any period, total cash interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness
of the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under Hedge Agreements in respect of
interest rates to the extent such net costs are allocable to such period in
accordance with GAAP).


 


“Consolidated
Leverage Ratio”:  at any time, the ratio of (a) Consolidated
Total Debt as of the last day of then most recently completed fiscal quarter to
(b) Consolidated EBITDA for the period of four consecutive fiscal quarters
ended on such last day.


 


“Consolidated
Net Income”:  for any period, the consolidated net income
(or loss) of the Borrower and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP plus, without duplication, (i) non-cash
compensation expenses arising from the issuance of stock, options to purchase
stock and stock appreciation rights to the management of the Borrower and (ii) the
amount of deferred revenue of Constellation written off in connection with 


 


11

















 


the
Acquisition that would have been recognized within the 12 quarters following
the Acquisition if the Acquisition had not occurred; provided that, to
the extent otherwise included therein, there shall be excluded (a) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the Borrower
or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document), its Organizational Documents or Requirement of Law applicable to
such Subsidiary.


 


“Consolidated
Total Debt”:  at any date, the aggregate principal amount
of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.


 


“Consolidated
Working Capital”:  at any date, the excess of Consolidated
Current Assets on such date over Consolidated Current Liabilities on
such date.


 


“Constellation”:  means
SurfControl PLC.


 


“Constellation
Group”:  Constellation and its subsidiaries (provided
such subsidiaries were subsidiaries of Constellation at the time of the
Constellation Transaction).


 


“Constellation
Shares”:  any shares in the capital of Constellation
allotted or issued or to be allotted or issued or rights in or over those
shares (including share options).


 


“Constellation
Transaction”:  a transaction pursuant to which Constellation
will become a Subsidiary of the Borrower with effect from the Unconditional
Date.


 


“Continuing
Directors”:  the directors of the Borrower on the Funding
Date, after giving effect to the Acquisition and the other transactions
contemplated hereby, and each other director, if, in each case, such other
director’s nomination for election to the board of directors of the Borrower is
recommended by at least a majority of the then Continuing Directors.


 


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


 


12
















 


“Control Agreements”:  the Control Agreements to be executed and
delivered by the Borrower and each Guarantor, substantially in the form of
Exhibit K-1, or otherwise in a form reasonably acceptable to the Senior
Administrative Agent.


 


“Courts”:  the courts of England and Wales.


 


“Court Meetings”:  the meetings of the classes of shareholders
of Constellation required to be held for the purposes of sanctioning the Scheme
under Section 425 of the Companies Act 1985 (or, if applicable, Section 899 of
the Companies Act 2006).


 


“Court Order”:  the order of the High Court of Justice in
England and Wales sanctioning the Scheme as required by Section 425 of the
Companies Act 1985 (or, if applicable, Section 899 of the Companies Act 2006).


 


“Default”:  any of the events specified in Section 9,
whether or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.


 


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


 


“Disclosure Letter”:  the letter dated the Effective Date delivered to the Senior
Administrative Agent by the Borrower containing information with respect to the
Borrower and its Subsidiaries.


 


“Disposition”:  with respect to any Property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.


 


“Dollars” and “$”:  dollars in
lawful currency of the United States.


 


“Domestic Subsidiary”:  any Subsidiary of the Borrower organized
under the laws of any jurisdiction within the United States.


 


“Draft Acquisition Agreement”: the
document delivered pursuant to Section 6.1(l).


 


13

















 


“Earn-Out Obligations”: those certain
subordinated obligations of the Borrower or any Loan Party arising in
connection with any acquisition of assets or businesses permitted under Section
8.8 to the seller of such assets or businesses and the payment of which is
dependent on the future earnings or performance of such assets or businesses
and contained in the agreement relating to such acquisition or in an employment
agreement delivered in connection therewith; provided, that all Earn-Out Obligations will be in form
reasonably satisfactory to the Senior Administrative Agent as to (i) the
subordination provisions thereof (or be issued subject to a subordination
agreement satisfactory to Senior Administrative Agent) and (ii) the provisions
restricting any amendment or modification thereof without the prior written
consent of the Senior Administrative Agent.


 


“ECF Percentage”:  50%; provided that, with respect to
each fiscal year of the Borrower ending on or after December 31, 2008, the ECF
Percentage shall be reduced to 25% if the Consolidated Leverage Ratio as of the
last day of such fiscal year is not greater than 1.25 to 1.00.


 


“Effective Date”:
the date on which the conditions specified in Section 6.1 are satisfied (or
waived in accordance with the terms of this Agreement). The Effective Date
occurred on April 26, 2007.


 


“Eligible
Assignee” means (a) any Lender, any
Affiliate of any Lender and any Approved Fund of any Lender; and (b)(i) a
commercial bank organized under the laws of the United States or any state
thereof and having a combined capital and surplus of at least $100,000,000;
(ii) a savings and loan association or savings bank organized under the
laws of the United States or any state thereof and having a combined capital
and surplus of at least $100,000,000; (iii) a commercial bank organized
under the laws of any other country or a political subdivision thereof and
having a combined capital and surplus of at least $100,000,000; provided
that (x) such bank is acting through a branch or agency located in the
United States or (y) such bank is organized under the laws of a country
that is a member of the Organization for Economic Cooperation and Development
or a political subdivision of such country; and (iv) any other entity that
is a “qualified institutional buyer” (as defined in Regulation D under the
Securities Act) that extends credit or buys loans as one of its businesses
including insurance companies, mutual funds, lease financing companies and any
other financial institutions and which has a combined capital and surplus, a
net worth or total assets of at least $100,000,000; provided that
neither the Borrower nor any Affiliate of the Borrower shall be an Eligible
Assignee.


 


“Environmental Laws”:  any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.


 


14

















 


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


 


“Escrow Account”:  any blocked account established by the
Borrower or any of its Subsidiaries at the Senior Administrative Agent or an
Affiliate of the Senior Administrative Agent that is subject to the terms and
conditions of a Blocked Account Control Agreement in the form of Exhibit K-3.


 


“Eurocurrency Reserve Requirements”:  for any
day as applied to a Eurodollar Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed for Eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.


 


“Eurodollar Base Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the “Eurodollar Base Rate” shall be determined by reference to
such other comparable publicly available service for displaying eurodollar
rates as may be selected by the Senior Administrative Agent or, in the absence
of such availability, by reference to the rate at which the Senior Administrative
Agent is offered Dollar deposits at or about 11:00 A.M., New York City time,
two Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.


 


“Eurodollar Loans”:  Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.


 


“Eurodollar Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such
day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):


 


	
   

  	
  Eurodollar
  Base Rate

  	
   

  
	
  1.00 -
  Eurocurrency Reserve Requirements

  



 


“Eurodollar Tranche”:  the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same 


 


15

















 


date and end
on the same later date (whether or not such Loans shall originally have been
made on the same day).


 


“Event of Default”:  any of the events specified in Section 9, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.


 


“Excess Cash Flow”:  for any fiscal year of the Borrower, the
excess, if any, of (a) the sum, without duplication, of (i) Consolidated Net
Income for such fiscal year, (ii) the amount of all non-cash charges (including
depreciation and amortization) deducted in arriving at such Consolidated Net
Income, (iii) decreases in Consolidated Working Capital for such fiscal year,
and (iv) the aggregate net amount of non cash loss on the Disposition of
Property by the Borrower and its Subsidiaries during such fiscal year (other
than sales of inventory in the ordinary course of business), to the extent
deducted in arriving at such Consolidated Net Income over (b) the sum, without
duplication, of (i) the amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by the
Borrower and its Subsidiaries in cash during such fiscal year on account of
Capital Expenditures (excluding the principal amount of Indebtedness incurred
to finance such expenditures (but including repayments of any such Indebtedness
incurring during such period or any prior period to the extent that such repaid
amounts may not be reborrowed) and any such expenditures financed with the
proceeds of any Reinvestment Deferred Amount), (iii) the aggregate amount of
all prepayments of Revolving Loans and Swingline Loans during such fiscal year
to the extent accompanying permanent optional reductions of the Revolving
Commitments and all optional prepayments of the Term Loans and the Interim
Loans during such fiscal year, (iv) the aggregate amount of all regularly
scheduled principal payments of Funded Debt (including the Term Loans) of the
Borrower and its Subsidiaries made during such fiscal year (other than in
respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder), (v) increases in
Consolidated Working Capital for such fiscal year, and (vi) the aggregate net
amount of non-cash gain on the Disposition of Property by the Borrower and its
Subsidiaries during such fiscal year (other than sales of inventory in the
ordinary course of business), to the extent included in arriving at such
Consolidated Net Income.


 


“Excess Cash Flow Application Date”:  as defined
in Section 4.2.


 


“Excluded Foreign Subsidiary”:  any
Foreign Subsidiary in respect of which either (a) the pledge of all of the
Capital Stock of such Subsidiary as Collateral or (b) the guaranteeing by such
Subsidiary of the Borrower Credit Agreement Obligations, would, in the good
faith judgment of the Borrower, result in adverse tax consequences to the
Borrower.


 


“Excluded Indebtedness”:  all Indebtedness permitted by Section 8.2.


 


“Existing
Credit Agreement”:  as defined in
Section 11.19.


 


16

















 


“Facility”:  each of (a) the Term Facility and (d) the
Revolving Facility.


 


“Federal Funds Effective Rate”:  for any
day, 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 on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for the day of such transactions received by
the Reference Lender from three federal funds brokers of recognized standing
selected by it.


 


“Fee Letter”: that certain Fee Letter,
dated as of the date hereof, among the Borrower, Morgan Stanley Senior Funding,
Inc. and Banc of America Securities LLC.


 


“Foreign Pledge Agreement”: a pledge or charge agreement with respect to the
Collateral that constitutes Capital Stock of a Foreign Subsidiary, in form and
substance reasonably satisfactory to the Senior Administrative Agent, and each
document creating a trust or agency with respect thereto (including, without
limitation, the Security Trust Deed).


 


“Foreign Subsidiary”:  any Subsidiary of the Borrower that is not a
Domestic Subsidiary.


 


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


 


“Funded Debt”:  as to any Person, all Indebtedness of such
Person that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including
all current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.


 


“Funding Date”:  the first Business Day on which the
conditions specified in Section 6.2 are satisfied (or waived in accordance with
the terms of this Agreement) and Loans are made hereunder.


 


“Funding Office”:  the office of the Senior Administrative Agent
specified in Section 11.2 or such other office as may be specified from time to
time by the Senior Administrative Agent as its funding office by written notice
to the Borrower and the Lenders.


 


17

















 


“GAAP”:  generally accepted accounting principles in
the United States as in effect from time to time.


 


“Governmental Authority”:  any nation
or government, any state or other political subdivision thereof, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government.


 


“Governmental Authorization”:  all laws,
rules, regulations, authorizations, consents, decrees, permits, licenses,
waivers, privileges, approvals from and filings with all Governmental
Authorities necessary in connection with any Group Member’s business.


 


“Group Members”:  the collective reference to the Borrower and
its Subsidiaries.


 


“Guarantee and Collateral Agreement”:  the Senior
Guarantee and Collateral Agreement to be executed and delivered by the Borrower
and each Guarantor, substantially in the form of Exhibit C.


 


“Guarantee Obligation”:  as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or
(b) another Person (including any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, lease payments, dividends or other
obligations (the “primary
obligations”) of any other third
Person (the “primary
obligor”) in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the owner of any such primary obligation against loss in
respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person’s maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.


 


18

















 


“Guarantors”:  each Subsidiary of the Borrower other than
any Excluded Foreign Subsidiary.


 


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


 


“Immaterial
Subsidiary”:  each Subsidiary
of the Borrower now existing or hereafter acquired or formed, and each
successor thereto, (a) which accounts for not more than 2.5% of (i) the
consolidated gross revenues of the Borrower and its Subsidiaries or (ii) the
consolidated assets of the Borrower and its Subsidiaries, in each case, as of
the last day of the most recently completed fiscal quarter as reflected on the
financial statements for such quarter; and (b) if the Subsidiaries that
constitute Immaterial Subsidiaries pursuant to clause (a) above account for, in
the aggregate, more than 5% of such consolidated gross revenues and more than
5% of the consolidated assets, each as described in clause (a) above, then the
term “Immaterial Subsidiary” shall not include each such Subsidiary
(starting with the Subsidiary that accounts for the most consolidated gross
revenues or consolidated assets and then in descending order) necessary to
account for at least 95% of the consolidated gross revenues and ninety percent
of the consolidated assets, each as described in clause (a) above.


 


“Indebtedness”:  of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables incurred in the ordinary course of
such Person’s business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all Capital Lease
Obligations of such Person, (f) all obligations of such Person, contingent or
otherwise, as an account party or applicant under or in respect of acceptances,
letters of credit, surety bonds or similar arrangements, (g) the liquidation
value of all mandatorily redeemable preferred Capital Stock of such Person, (h)
all Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including accounts and contract rights) owned
by such Person, whether or not such Person has assumed or become liable for the
payment of such obligation, and (j) for the purposes of Sections 8.2 and 9(e)
only, all obligations of such Person in respect of Hedge Agreements. The
Indebtedness of any Person shall include the Indebtedness of any other entity (including
any partnership in which 


 


19

















 


such Person is
a general partner) to the extent such Person is liable therefor as a result of
such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness expressly provide that such
Person is not liable therefor. For purposes of clause (j) above, the principal
amount of Indebtedness in respect of Hedge Agreements shall equal the amount
that would be payable (giving effect to netting) at such time if such Hedge
Agreement were terminated.


 


“Indemnified Liabilities”:  as defined
in Section 11.5.


 


“Indemnitee”:  as defined in Section 11.5.


 


“Insolvency”:  with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.


 


“Insolvent”:  pertaining to a condition of Insolvency.


 


“Intellectual Property”:  the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to sue at law or
in equity for any infringement or other impairment thereof, including the right
to receive all proceeds and damages therefrom.


 


“Intercompany Note”:  the Subordinated Intercompany Note,
substantially in the form of Exhibit L.


 


“Interest Payment Date”:  (a) as to any Base Rate Loan (other than any
Swingline Loan), the last day of each March, June, September and December to
occur while such Loan is outstanding and the final maturity date of such Loan,
(b) as to any Eurodollar Loan having an Interest Period of three months or
less, the last day of such Interest Period, (c) as to any Eurodollar Loan
having an Interest Period longer than three months, each day that is three
months, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period, (d) as to any Loan (other than
any Revolving Loan that is a Base Rate Loan and any Swingline Loan), the date
of any repayment or prepayment made in respect thereof and (e) as to any
Swingline Loan, the day that such Loan is required to be paid.


 


“Interest Period”:  as to any Eurodollar Loan, (a) initially, the
period commencing on the Funding Date or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six or (if
available to all Lenders under the relevant Facility) twelve months thereafter,
as selected by the Borrower in its notice of borrowing or notice of conversion,
as the case may be, given with respect thereto; and (b) thereafter, each period



 


20

















 


commencing on
the last day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six or (if available to all
Lenders under the relevant Facility) twelve months thereafter, as selected by
the Borrower by irrevocable notice to the Senior Administrative Agent no later
than 11:00 A.M., New York City time, on the date that is three Business Days
prior to the last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:


 


(i)      if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;


 


(ii)     the Borrower may not select an Interest Period under a
particular Facility that would extend beyond the Revolving Termination Date or
beyond the date final payment is due on the Term Loans, as the case may be;


 


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


 


(iv)    the Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan during an Interest
Period for such Loan on any day other that the last day of an Interest Period.


 


“Interim Administrative Agent”:  Morgan
Stanley Senior Funding, Inc., in its capacity as administrative agent under the
Interim Credit Agreement.


 


“Interim Credit Agreement”:  the
Interim Credit Agreement dated as of the date hereof among the Borrower, the
Irish Borrower (as defined therein), the lenders party thereto from time to
time, the Interim Administrative Agent and the other agents named therein.


 


“Interim Facility”:  the “commitments” and “term loans” under and
as defined in the Interim Credit Agreement.


 


“Interim Loan Documents”:  the “loan
documents” under and as defined in the Interim Credit Agreement.


 


21

















 


“Interim Obligations”:  the “obligations” under and as defined in the
Interim Credit Agreement.


 


“Interim Loans”:  the “term loans” under and as defined in the
Interim Credit Agreement.


 


“Investments”:  as defined in Section 8.8.


 


“Issuing Lender”:  initially, Bank of America, N.A., in its
capacity as issuer of any Letter of Credit, and one or more replacement
financial institutions designated by the Senior Administrative Agent and
Borrower to issue Letters of Credit hereunder from time to time.


 


“L/C Commitment”:  $15,000,000.


 


“L/C Fee Payment Date”:  the last day of each March, June, September
and December and the last day of the Revolving Availability Period.


 


“L/C Obligations”:  at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.11.


 


“L/C Participants”:  the collective reference to all the Revolving
Lenders other than the Issuing Lender.


 


“Lead Arranger”:  as defined in the preamble to this Agreement.


 


“Lenders”:  as defined in the preamble to this Agreement;
provided that unless the context otherwise requires, each reference herein
to the Lenders shall be deemed to include any Conduit Lender.


 


“Letters of Credit”:  as defined in Section 3.7(a).


 


“Lien”:  any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge
or other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).


 


22

















 


“Liquidity”:  the sum of (a) cash and Cash Equivalents held
by the Borrower and its Subsidiaries, plus (b) so long as the Borrower is able
to satisfy the conditions to borrowing set forth in clauses (a) and (b) of
Section 6.3, the Available Revolving Commitments.


 


“Loan”:  any loan made by any Lender pursuant to this
Agreement.


 


“Loan Documents”:  this Agreement, the Notes, the Security
Documents and the Fee Letter.


 


“Loan Parties”:  each Group Member that is a party to a Loan
Document.


 


“Major Event of Default”:  any Event
of Default arising under any of the following provisions (but only insofar as
relates to the Certain Funds Loan Parties):


 


(i)      Section 9 (Events of Default) clause (a), provided
that there shall be no Event of Default resulting from non-payment by a Certain
Funds Loan Party where that payment has
been triggered solely by a demand under or acceleration of any Loan Document resulting otherwise
than from a Major Event of Default;


 


(ii)     Section 9 (Events of Default) clause (b) by virtue of
a breach of the representations set out in paragraph (a) of Section 5.3
(Corporate Existence; Compliance with Law), Section 5.4 (Power; Authorization;
Enforceable Obligations); Section 5.5
(No Legal Bar) (but only to the extent a breach of Section 5.5 could
reasonably be expected to have a Material Adverse Effect), Section 5.22 (Anti-terrorism) (to the extent such breach is material
and constitutes a willful failure by the Certain Funds Loan Parties to comply
with such requirements) or Section 5.14 (Investment Company Act; Other
Regulations) (but only to the extent such Event of Default arises under a
breach of the representation set out in the first sentence of such Section
5.14);


 


(iii)    Section 9 (Events of Default) clause (c) or clause (d)
by virtue of a breach of the covenants set out in Section 7.12(a) (Scheme Press
Release) or (b) (Scheme Documents), 7.13(a) (Offer Press Release) or (b) (Offer
Document), Section 7.17 (Blocked Accounts; Escrow Accounts), Section 8.2
(Indebtedness), Section 8.3 (Liens), Section 8.4 (Fundamental Changes), Section
8.5 (Disposition of Property), Section 8.8 (Investments), Section 8.17
(Amendments to Scheme), Section 8.18 (Amendments to Offer) or Section 8.19
(Blocked Accounts), provided that, in each case, there shall be no Major
Event of Default resulting from a breach by any Certain Funds Loan Party of its
obligations to procure or not to procure or not to permit its Subsidiaries
(which 


 


23



















 


are
not Certain Funds Loan Parties) to take the actions referred to in such
Sections; and


 


(iv)    Section 9 (Events of Default) clause (f).


 


“Majority Facility Lenders”:  with
respect to any Facility, the holders of more than 50% of the aggregate unpaid
principal amount of the Term Loans or the Total Revolving Extensions of Credit,
as the case may be, outstanding under such Facility (or, in the case of the
Revolving Facility, prior to any termination of the Revolving Commitments, the
holders of more than 50% of the Total Revolving Commitments).


 


“Material Adverse Effect”:  a material
adverse effect on (a) the business, assets, property, financial condition or
results of operations of the Borrower and its Subsidiaries taken as a whole,
(b) the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Agents or the Lenders hereunder or
thereunder or (c) the validity, perfection or priority of the Senior Collateral
Agent’s Liens upon a material portion of the Collateral.


 


“Materials of Environmental Concern”:  any
gasoline or petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law, including
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.


 


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


 


“Mortgages”:  any mortgage or deed of trust made by any
Loan Party in favor of, or for the benefit of, the Senior Collateral Agent for
the benefit of the Secured Parties, in a form reasonably satisfactory to the
Senior Administrative Agent and Senior Collateral Agent.


 


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


 


“Net Cash Proceeds”:  (a)  in
connection with any Asset Sale or any Recovery Event, the proceeds thereof in
the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or by the Disposition of any
non-cash consideration received in connection therewith or otherwise, but only
as and when received), net of attorneys’ fees, accountants’ fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset that is the
subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other customary fees and expenses actually incurred in
connection therewith and 


 


24

















 


net of taxes
paid or reasonably estimated to be payable as a result thereof (after taking
into account any available tax credits or deductions and any tax sharing
arrangements) and (b) in connection with any issuance or sale of Capital Stock,
any capital contribution or any incurrence of Indebtedness, the cash proceeds
received from such issuance, contribution or incurrence, net of attorneys’
fees, investment banking fees, accountants’ fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.


 


“New Shares”: the new ordinary shares
of nominal value ten pence each in the capital of Constellation which are
issued by Constellation to the Borrower pursuant to the Scheme.


 


“Non-Consenting Lenders”:  as defined
in Section 11.1.


 


“Non-Excluded Taxes”:  as defined in Section 4.10(a).


 


“Non-U.S. Lender”:  as defined in Section 4.10(d).


 


“Notes”:  the collective reference to any promissory
note evidencing Loans.


 


“Offer”: the
offer (if any), pre-conditional or otherwise, proposed to be made by Bidco
substantially on the terms set out in the Offer Press Release to acquire all of
the Capital Stock of Constellation not already owned by the Borrower or its
Subsidiaries.


 


“Offer Conversion”: as defined in
Section 7.11.


 


“Offer Conversion Notice”: as defined
in Section 7.11.


 


“Offer Document”:  the document to be sent to the shareholders
of Constellation in order to make the Offer.


 


“Offer Press Release”:  if an Offer Conversion occurs, the press
announcement substantially in the agreed terms to be released by or on behalf
of Bidco under Section 2.5 of the City Code to announce the terms of the Offer,
pre-conditional or otherwise; provided that such press announcement
shall have substantially the same terms as those set forth in the Scheme Press
Release (other than those changes necessary in connection with the conversion
of the Scheme to an Offer).


 


“OFT”:  the UK Office of Fair Trading.


 


25

















 


“Organizational Documents”:  as to any
Person, the Certificate of Incorporation, Certificate of Formation, By Laws,
Limited Liability Company Agreement, Partnership Agreement, memorandum and
articles of association or other organizational or governing documents of such
Person.


 


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


 


“Panel”:  the Panel on Takeovers and Mergers.


 


“Participant”:  as defined in Section 11.6(c).


 


“Participating Member State”: any member state of the European Communities that
adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary Union.


 


“Patriot Act”:  the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)).


 


“PBGC”:  the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any successor
thereto).


 


“Perfection Certificate”:  a
certificate substantially in the form of Exhibit M with such changes as are
reasonably required or agreed to by the Senior Administrative Agent or any
other form approved by the Senior Administrative Agent but excluding any
information in respect of the Constellation Group.


 


“Permitted Acquisition”:  any acquisition, whether by purchase, merger
or otherwise, of all or substantially all of the assets of, all of the Capital
Stock of, or a business line or unit or a division of, any Person; provided,
(i) immediately prior to, and after giving effect thereto, no Default or Event
of Default shall have occurred and be continuing or would result therefrom;
(ii) all transactions in connection therewith shall be consummated, in all
material respects, in accordance with all applicable laws and in conformity
with all applicable Governmental Authorizations; (iii) in the case of the
acquisition of Capital Stock, all of the Capital Stock (except for any such
Capital Stock in the nature of directors’ qualifying shares required pursuant
to applicable law) acquired or otherwise issued by such Person or any newly
formed Subsidiary of the Borrower in connection with such acquisition shall be
owned 100% by the Borrower or a Guarantor thereof, and the Borrower shall have
taken, or caused to be taken, as of the date such Person becomes a Subsidiary
of the Borrower, each of the actions set forth in 


 


26

















 


Sections 7.10;
(iv) the Borrower and its Subsidiaries shall be in compliance with the
financial covenants set forth in Section 8.1 on a pro forma basis after giving
effect to such acquisition as if such acquisition had occurred on the first day
of the most recent period of four consecutive fiscal quarters in respect of
which the Consolidated Leverage Ratio has been tested in accordance with
Section 8.1(a) but utilizing the financial covenant levels set forth in Section
8.1 corresponding to the period of four consecutive fiscal quarters ending at the
conclusion of the fiscal quarter in which such acquisition occurs, (v)
immediately prior to, and after giving effect thereto, the Borrower and its
Subsidiaries shall have minimum Liquidity of $20,000,000, (vi) the Borrower
shall have delivered to the Senior Administrative Agent at least ten (10)
Business Days prior to such proposed acquisition, a Compliance Certificate
evidencing compliance with Section 8.1 as required under clause (iv) above and
compliance with clause (viii) below, together with all relevant financial
information with respect to such acquired assets, including, without
limitation, the aggregate consideration for such acquisition, any other
information reasonably required to demonstrate compliance with Section 8.1 and,
in the case of any acquisition with aggregate consideration in excess of
$25,000,000, appropriate revisions to the projections included in the
Confidential Information Memorandum, or, if Projections have been provided
pursuant to Section 7.2(c), appropriate revisions to such Projections, in each
case after giving effect to such acquisition (such revised projections or
Projections to be accompanied by a certificate of a Responsible Officer stating
that such revised projections or Projections are based on estimates, information
and assumptions set forth therein and otherwise believed by such Responsible
Officer to be reasonable at such time (it being recognized that such revised
projections or Projections relate to future events and are not to be viewed as
fact and that actual results during the period covered thereby may differ from
such revised projections or Projections by a material amount)); (vii) any
Person or assets or division as acquired in accordance herewith shall be in
substantially related businesses or lines of business, or businesses ancillary
or complimentary thereto in which the Borrower and/or its Subsidiaries are
engaged, or are permitted to be engaged as provided herein, as of the time of
such acquisition and (viii) the total consideration paid in connection with all
Permitted Acquisitions (including any Earn-Out Obligations and any Indebtedness
of any acquired Person that is assumed by the Borrower or any of its
Subsidiaries following such acquisitions) shall not exceed (x) $75,000,000 in
the aggregate or (y) $100,000,000 in the aggregate if at least $25,000,000
thereof consists of Net Cash Proceeds from the issuance of Capital Stock.


 


“Permitted
Purpose”: 
as defined in the definition of Certain Funds Loan.


 


“Permitted
Subordinated Indebtedness”:  any Subordinated Debt of the Borrower
or any of its Subsidiaries incurred form time to time provided that the
proceeds of such Indebtedness shall be used only for purposes of financing any
Permitted Acquisition.


 


“Person”:  an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.


 


27

















 


“Plan”:  at a particular time, any employee benefit
plan that is covered by ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.


 


“Pledged
Company”: 
any Subsidiary of the Borrower the Capital Stock of which is pledged to
the Senior Collateral Agent pursuant to any Security Document.


 


“pound”, “pounds” or “pound sterling”
or “£” denotes the lawful currency of the United Kingdom.


 


“Pricing
Grid”: 
the pricing grid attached hereto as Annex A.


 


“Pro Forma Financial Statements”:  as defined
in Section 7.1(c).


 


“Projections”:  as defined in Section 7.2(c).


 


“Properties”:  as defined in Section 5.17(a).


 


“Property”:  any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.


 


“Qualified Counterparty”: with respect to any Specified Hedge Agreement,
any counterparty thereto that, at the time such Specified Hedge Agreement was
entered into, was a Lender, an Affiliate of a Lender, an Agent or an Affiliate
of an Agent; provided that, in the event a counterparty to a Specified
Hedge Agreement at the time such Specified Hedge Agreement was entered into was
a Qualified Counterparty, such counterparty shall constitute a Qualified
Counterparty hereunder and under the other Loan Documents.


 


“Rationalizing
Constellation Disposition”:  those Dispositions of the business units,
business lines or Subsidiaries of Constellation (i) that are required by any
Governmental Authority to the extent the same may be required but not permit a
termination of the Acquisition Agreement in effect as of the date hereof in
respect of such requirement or (ii) determined by the Borrower to be in the
best interests of the Borrower and its Subsidiaries.


 


“Recovery Event”:  any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding
relating to any asset of any Group Member that yields gross proceeds to any
Group Member in excess of $2,000,000.


 


28

















 


“Reference Lender”:  Morgan Stanley Senior Funding, Inc.


 


“Refunded Swingline Loans”:  as defined
in Section 3.4.


 


“Refunding Date”:  as defined in Section 3.4.


 


“Register”:  as defined in Section 11.6(b).


 


“Registrar of Companies”:  the
registrar of companies for England and Wales.


 


“Regulation U”:  Regulation U of the Board as in effect from
time to time.


 


“Reimbursement Obligation”:  the
obligation of the Borrower to reimburse the Issuing Lender pursuant to Section
3.11 for amounts drawn under Letters of Credit.


 


“Reinvestment Deferred Amount”:  with
respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by
any Group Member in connection therewith that are not applied to prepay the
Term Loans or reduce the Revolving Commitments pursuant to Section 4.2(b) as a
result of the delivery of a Reinvestment Notice.


 


“Reinvestment Event”:  any Asset Sale or Recovery Event in respect
of which the Borrower has delivered a Reinvestment Notice.


 


“Reinvestment Notice”:  a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing and
that the Borrower (directly or indirectly through a Subsidiary) intends and
expects to use all or a specified portion of the Net Cash Proceeds of an Asset
Sale or Recovery Event to acquire or repair fixed or capital assets useful in
its business.


 


“Reinvestment Prepayment Amount”:  with
respect to any Reinvestment Event, the Reinvestment Deferred Amount relating
thereto less any amount expended prior to the relevant Reinvestment Prepayment
Date to acquire or repair fixed or capital assets useful in the Borrower’s business.


 


“Reinvestment Prepayment Date”:  with
respect to any Reinvestment Event, the date occurring (a) six months after such
Reinvestment Event or (b) in the case of a Rationalizing Constellation
Disposition, twelve months after such Reinvestment Event.


 


29

















 


“Reorganization”:  with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.


 


“Reportable Event”:  any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. § 4043.


 


“Required Lenders”:  at any time, the holders of more than 50% of
(a) until the Funding Date, the Commitments then in effect and (b) thereafter,
the sum of (i) the aggregate unpaid principal amount of the Term Loans then
outstanding and (ii) the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding; provided,
that the aggregate unpaid principal amount of the Term Loans then outstanding,
unused Revolving Commitments of and the portion of the Total Revolving
Extensions of Credit, in each case, held or deemed held by any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Lenders.


 


“Requirement of Law”:  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.


 


“Responsible Officer”:  the chief executive officer, president or
chief financial officer of the Borrower, but in any event, with respect to
financial matters, the chief financial officer of the Borrower.


 


“Restatement
Date”: as defined in Section 11.19.


 


“Restricted Payments”:  as defined in Section 8.6.


 


“Revolving Commitment”:  as to any Lender, the obligation of such
Lender, if any, to make Revolving Loans and participate in Swingline Loans and
Letters of Credit in an aggregate principal and/or face amount not to exceed
the amount set forth under the heading “Revolving Commitment” under such Lender’s
name on such Lender’s Addendum or in the Assignment and Assumption pursuant to
which such Lender became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof. The original amount of the Total Revolving
Commitments is $15,000,000.


 


"Revolving Availability Period":  the period from and including the Funding
Date to the Revolving Termination Date.


 


30
















 


“Revolving Extensions of
Credit”:  as to any Revolving Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount
of all Revolving Loans held by such Lender then outstanding, (b) such Lender’s
Revolving Percentage of the L/C Obligations then outstanding and (c) such
Lender’s Revolving Percentage of the aggregate principal amount of Swingline
Loans then outstanding.


 


“Revolving Facility”:  the Revolving Commitments and the extensions
of credit made thereunder.


 


“Revolving Lender”:  each Lender that has a Revolving Commitment or
that holds Revolving Loans.


 


“Revolving Loans”:  as defined in Section 3.1(a).


 


“Revolving Percentage”:  as to any Revolving Lender at any time, the
percentage which such Lender’s Revolving Commitment then constitutes of the
Total Revolving Commitments (or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Lender’s Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding).


 


“Revolving Termination
Date”:  the date that is five years
after the Funding Date.


 


“S&P”:  Standard & Poor’s Ratings Group, Inc.


 


“Scheme”: the scheme
of arrangement conducted in accordance with Section 425 of the Companies Act
1985 (or, if applicable, Part 26 of the Companies Act 2006) to be proposed by
Constellation to its shareholders pursuant to which the Borrower will become
the only shareholder of Constellation by virtue of having been allotted and
issued New Shares which are paid up out of the reserve created by the
cancellation of the Constellation Shares, details of which are set out in the
Scheme Circular.


 


“Scheme Circular”:
the circular to the shareholders of Constellation, issued, or to be issued, by
Constellation setting forth the proposals for the Scheme.


 


“Scheme Press Release”:
a press announcement released by the Borrower and Constellation under Section
2.5 of the City Code to announce the terms of the pre-conditional Scheme.


 


31

















 


“Scheme Resolution”
the resolution referred to and in the form set out in the Scheme Circular.


 


“SEC”:  the Securities and Exchange Commission, any
successor thereto and any analogous Governmental Authority.


 


“Secured Parties”:  the collective reference to the Senior
Administrative Agent, the Senior Collateral Agent, the Term Lenders, the
Revolving Lenders, the Issuing Lender, the Swingline Lender and any Qualified
Counterparties.


 


“Security Documents”:  the collective reference to the Guarantee and
Collateral Agreement, the Mortgages, the Control Agreements and all other
security documents hereafter delivered to the Senior Collateral Agent granting
a Lien on any property of any Person to secure the Senior Obligations of any
Loan Party under any Loan Document or Specified Hedge Agreement.


 


“Security Trust Deed”:
the security trust deed to be executed by the Senior Collateral Agent, the
Senior Administrative Agent and the Borrower, as the same may be amended,
restated, supplemented or otherwise modified from time to time.


 


“Seller”:  the shareholders of Constellation.


 


“Senior Administrative
Agent”:  as defined in the preamble
to this Agreement.


 


“Senior Collateral Agent”:  as defined in the preamble to this Agreement.


 


“Senior Obligations”:  as defined in the Guarantee and Collateral
Agreement.


 


“Single Employer Plan”:  any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan.


 


“Solvent”:  when used with respect to any Person, means
that, as of any date of determination, (a) the amount of the “present fair
saleable value” of the assets of such Person will, as of such date, exceed the
amount of all “liabilities of such Person, contingent or otherwise”, as of such
date, as such quoted terms are determined in accordance with applicable federal
and state laws governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of such date,
be greater than the amount that will be required to pay the liability of such
Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to


 


32

















 


conduct its business, and
(d) such Person will be able to pay its debts as they mature. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.


 


“Specified Hedge
Agreement”:  any Hedge Agreement (a)
entered into by (i) the Borrower and (ii) any Qualified Counterparty, as
counterparty and (b) that has been designated by such Qualified Counterparty
and the Borrower, by notice to the Senior Administrative Agent, as a Specified
Hedge Agreement. The designation of any Hedge Agreement as a Specified Hedge
Agreement shall not create in favor of any Qualified Counterparty that is a
party thereto any rights in connection with the management or release of any
Collateral or of the obligations of any Guarantor under either Guarantee and
Collateral Agreement, except as contemplated in Section 11.14.


 


“Sterling”:  denotes the lawful currency of the United
Kingdom.


 


“Subordinated Debt”:  any Indebtedness of the Borrower or any of
its Subsidiaries incurred from time to time provided that (a) such Indebtedness
shall not provide for any scheduled or mandatory payments, prepayments, sinking
fund or other repurchase or redemption payments prior to the date which is six
months after the maturity date of the Term Loans, (b) the subordination
provisions thereof shall be reasonably satisfactory to the Senior
Administrative Agent, and (c) both before and after giving effect to the
issuance of such Indebtedness, no Event of Default or Default has occurred and
is continuing.


 


“Subsidiary”:  as to any Person, a corporation, partnership,
limited liability company, company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person (for the
avoidance of doubt, excluding any member of the Constellation Group prior to
the consummation of the Acquisition). Unless otherwise qualified, all
references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.


 


“Successful Syndication”:  as defined in the Fee Letter.


 


“Swingline Commitment”:  the obligation of the Swingline Lender to
make Swingline Loans pursuant to Section 3.3 in an aggregate principal amount
at any one time outstanding not to exceed $5,000,000.


 


33

















 


“Swingline Lender”:  Bank of America, N.A., in its capacity as the
lender of Swingline Loans.


 


“Swingline Loans”:  as defined in Section 3.3.


 


“Swingline Participation Amount”:  as defined in Section 3.4.


 


“Syndication Agent”:  as defined in the preamble to this Agreement.


 


“Term Commitments”:  as to any Lender, the obligation of such
Lender, if any, to make Term Loans in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading “Term Commitment” under
such Lender’s name on such Lender’s Addendum or in the Assignment and
Assumption pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Term Commitments is $210,000,000.


 


“Term Facility”:  the Term Commitments and the Term Loans made
thereunder.


 


“Term Lenders”:  each Lender that has a Term Commitment or
that holds a Term Loan.


 


“Term Loans”:  as defined in Section 2.1.


 


“Term Percentage”:  as to any Term Lender at any time, the
percentage which such Lender’s Term Commitment then constitutes of the
aggregate Term Commitments (or, at any time after the Funding Date, the
percentage which the aggregate principal amount of such Lender’s Term Loans
then outstanding constitutes of the aggregate principal amount of the Term
Loans then outstanding).


 


“Total Revolving
Commitments”:  at any time, the
aggregate amount of the Revolving Commitments then in effect.


 


“Total Revolving
Extensions of Credit”:  at any time,
the aggregate amount of the Revolving Extensions of Credit of the Revolving
Lenders outstanding at such time.


 


“Transaction”:  collectively, (a) the Acquisition, (b) the
borrowing of the Loans, (c) the borrowing of the Interim Loans under the
Interim Credit Agreement, (d) the immediate


 


34

















 


lending of the proceeds of
such Loans to UK AcquiSub Holdings and from UK AcquiSub Holdings to UK AcquiSub
to fund the Acquisition and (e) the payment of the Transaction Costs.


 


“Transaction Costs”:  all fees, costs and expense incurred or
payable by the Borrower or any Subsidiary in connection with the Transactions.


 


“Transferee”:  any Assignee or Participant.


 


“Type”:  as to any Loan, its nature as a Base Rate
Loan or a Eurodollar Loan.


 


“Unasserted Contingent
Obligations”:  as defined in the
Guarantee and Collateral Agreement.


 


“UK”:  the United Kingdom.


 


“UK AcquiSub”:  Websense SC Operations Limited.


 


“UK AcquiSub Holdings”:  Websense SC Holdings Limited.


 


“Unconditional Date”:  the date on which the Offer becomes or is
declared unconditional in all respects.


 


“United States”:  the United States of America.


 


“Wholly Owned Subsidiary”:  as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.


 


“Wholly Owned Subsidiary
Guarantor”:  any Guarantor that is a
Wholly Owned Subsidiary of the Borrower.


 


1.2           Other Definitional Provisions. 
(a)  Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.


 


(b)           As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, (i) accounting
terms relating to any Group Member not defined in Section 1.1 and accounting
terms partly defined in Section 1.1,


 


35

















 


to the extent not defined,
shall have the respective meanings given to them under GAAP, (ii) the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, (iii) the word “incur” shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words “incurred”
and “incurrence” shall have correlative meanings), (iv) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, Capital
Stock, securities, revenues, accounts, leasehold interests and contract rights,
and (v) references to agreements or other Contractual Obligations shall, unless
otherwise specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time
to time (subject to any applicable restrictions hereunder).


 


(c)           The words “hereof”, “herein” and “hereunder” and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.


 


(d)           The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.


 


(e)           Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP; provided
that, if either the Borrower notifies the Senior Administrative Agent that such
Borrower requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Senior Administrative
Agent notifies the Borrowers that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.


 


(f)            When the payment of any obligation or the
performance of any covenant, duty or obligation is stated to be due or
performance required on a day which is not a Business Day, the date of such
payment or performance shall extend to the immediately succeeding Business Day
and such extension of time shall be reflected in computing interest or fees, as
the case may be; provided that, with respect to any payment of interest
on or principal of Eurodollar Loans, if such extension would cause any such
payment to be made in the next succeeding calendar month, such payment shall be
made on the immediately preceding Business Day.


 


36

















 


SECTION 2.               AMOUNT AND TERMS OF TERM COMMITMENTS


 


2.1           Term Commitments.  
Subject to the terms and conditions hereof, during the Certain Funds
Period, each Term Lender severally agrees to make a term loan (a “Term Loan”)
for the Permitted Purpose to the Borrower on the Funding Date in an amount not
to exceed the amount of the Term Commitment of such Lender. The Term Loans may
from time to time be Eurodollar Loans or Base Rate Loans, as determined by the
Borrower and notified to the Senior Administrative Agent in accordance with
Sections 2.2 and 4.3.


 


2.2           Procedure for Term Loan Borrowing.  The
Borrower shall give the Senior Administrative Agent irrevocable notice (which
notice must be received by the Senior Administrative Agent prior to 12 Noon,
New York City time, one Business Day prior to the anticipated Funding Date)
requesting that the Term Lenders make the Term Loans on the Funding Date and
specifying the amount to be borrowed. The Term Loans that are Eurodollar Loans
made on the Funding Date shall have an Interest Period of one month. Upon
receipt of such notice the Senior Administrative Agent shall promptly notify
each Term Lender thereof. Not later than 2:00 P.M., New York City time, on the
Funding Date each Term Lender shall make available to the Senior Administrative
Agent at the Funding Office an amount in immediately available funds equal to
the Term Loan or Term Loans to be made by such Lender. The Senior
Administrative Agent shall credit the account of the Borrower on the books of
such office of the Senior Administrative Agent with the aggregate of the
amounts made available to the Senior Administrative Agent by the Term Lenders
in immediately available funds.


 


2.3           Repayment of Term Loans.  Subject to adjustment pursuant to the terms of
this Agreement, the Borrower shall repay the Term Loans on March 31, June 30,
September 30 and December 31 of each year, commencing with the first such date
to occur after the first full fiscal quarter after the Funding Date, each such
payment to be in an amount equal to the percentage set forth below of the
aggregate principal amount of the then outstanding Term Loans, with the balance
payable on the fifth anniversary of the Funding Date (the “Term Loan
Maturity Date”):


 


	
  Payment Date

  	
   

  	
  Percentage

  	
   

  
	
  March 31, 2008

  	
   

  	
  0.625

  	
  %

  
	
  June 30, 2008

  	
   

  	
  0.625

  	
  %

  
	
  September 30, 2008

  	
   

  	
  0.625

  	
  %

  
	
  December 31, 2008

  	
   

  	
  0.625

  	
  %

  
	
  March 31, 2009

  	
   

  	
  2.50

  	
  %

  
	
  June 30, 2009

  	
   

  	
  2.50

  	
  %

  
	
  September 30, 2009

  	
   

  	
  2.50

  	
  %

  
	
  December 31, 2009

  	
   

  	
  2.50

  	
  %

  
	
  March 31, 2010

  	
   

  	
  3.125

  	
  %

  
	
  June 30, 2010

  	
   

  	
  3.125

  	
  %

  
	
  September 30, 2010

  	
   

  	
  3.125

  	
  %

  
	
  December 31, 2010

  	
   

  	
  3.125

  	
  %

  
	
  March 31, 2011

  	
   

  	
  3.75

  	
  %

  
	
  June 30, 2011

  	
   

  	
  3.75

  	
  %

  
	
  September 30, 2011

  	
   

  	
  3.75

  	
  %

  



 


37

















 


	
  December 31, 2011

  	
   

  	
  3.75

  	
  %

  
	
  March 31, 2012

  	
   

  	
  15.0

  	
  %

  
	
  June 30, 2012

  	
   

  	
  15.0

  	
  %

  
	
  September 30, 2012

  	
   

  	
  15.0

  	
  %

  
	
  Term Loan Maturity Date

  	
   

  	
  15.0% or the amount

  otherwise outstanding

  	
   

  



 


SECTION 3.               AMOUNT AND TERMS OF REVOLVING COMMITMENTS


 


3.1           Revolving Commitments.  


 


(a)           Subject to the terms and conditions hereof, each Revolving Lender
severally agrees to make revolving credit loans (“Revolving Loans”) to
the Borrower from time to time during the Revolving Availability Period in an
aggregate principal amount at any one time outstanding which, when added to
such Lender’s Revolving Percentage of the sum of (i) the L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swingline Loans then
outstanding, does not exceed the amount of such Lender’s Revolving Commitment.
During the Revolving Availability Period the Borrower may use the Revolving
Commitments by borrowing, prepaying and reborrowing the Revolving Loans in
whole or in part, all in accordance with the terms and conditions hereof. The
Revolving Loans may from time to time be Eurodollar Loans or Base Rate Loans,
as determined by the Borrower and notified to the Senior Administrative Agent
in accordance with Sections 3.2 and 4.3.


 


(b)           The Borrower shall repay all outstanding Revolving Loans on the
Revolving Termination Date.


 


3.2           Procedure for Revolving Loan Borrowing.   The
Borrower may borrow under the Revolving Commitments during the Revolving
Availability Period on any Business Day, provided that the Borrower shall give
the Senior Administrative Agent irrevocable notice (which notice must be
received by the Senior Administrative Agent prior to 12:00 Noon, New York City
time, (a) three Business Days prior to the requested Borrowing Date, in the
case of Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans) (provided that any such notice of a
borrowing of Base Rate Loans to finance payments required to be made pursuant
to Section 3.5 may be given not later than 12:00 Noon, New York City time, on
the date of the proposed borrowing), specifying (i) the amount and Type of
Revolving Loans to be borrowed, (ii) the requested Borrowing Date, (iii) in the
case of Eurodollar Loans, the respective amounts of each such Type of Loan and
the respective lengths of the initial Interest Period therefore and (iv) other
than in respect of Certain Funds Loans, that as of such date Sections 6.3(a)
and (b) are satisfied, and in the case of Certain Funds Loans, that as of the
Funding Date in respect of Certain Funds Loans, Section 6.4 is satisfied. No
Revolving Loans will be made on the Funding Date. Each borrowing under the
Revolving Commitments shall be in an amount equal to (x) in the case of Base
Rate Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof (or,
if the then aggregate Available Revolving Commitments are less than $1,000,000,
such lesser amount) and (y) in the case of Eurodollar Loans, $1,000,000 or


 


38

















 


a whole multiple of $100,000
in excess thereof; provided, that (x) the Swingline Lender may request,
on behalf of the Borrower, borrowings under the Revolving Commitments that are
Base Rate Loans in other amounts pursuant to Section 3.4 and (y) borrowings of
Base Rate Loans pursuant to Section 3.11 shall not be subject to the foregoing
minimum amounts. Upon receipt of any such notice from the Borrower, the Senior
Administrative Agent shall promptly notify each Revolving Lender thereof. Each
Revolving Lender will make the amount of its pro rata share of each borrowing
available to the Senior Administrative Agent for the account of the Borrower at
the Funding Office prior to 2:00 P.M., New York City time, on the Borrowing
Date requested by the Borrower in funds immediately available to the Senior
Administrative Agent. Such borrowing will then be made available to the
Borrower by the Senior Administrative Agent crediting the account of the
Borrower on the books of such office with the aggregate of the amounts made
available to the Senior Administrative Agent by the Revolving Lenders and in
like funds as received by the Senior Administrative Agent.


 


3.3           Swingline Commitment.


 


(a)           Subject to the terms and conditions hereof, the Swingline Lender agrees
to make a portion of the credit otherwise available to the Borrower under the
Revolving Commitments from time to time during the Revolving Availability
Period by making swing line loans (“Swingline Loans”) to the Borrower;
provided that (i) the aggregate principal amount of Swingline Loans outstanding
at any time shall not exceed the Swingline Commitment then in effect
(notwithstanding that the Swingline Loans outstanding at any time, when
aggregated with the Swingline Lender’s other outstanding Revolving Loans
hereunder, may exceed the Swingline Commitment then in effect) and (ii) the
Borrower shall not request, and the Swingline Lender shall not make, any
Swingline Loan if, after giving effect to the making of such Swingline Loan,
the aggregate amount of the Available Revolving Commitments would be less than
zero. During the Revolving Availability Period, the Borrower may use the
Swingline Commitment by borrowing, repaying and reborrowing, all in accordance
with the terms and conditions hereof. Swingline Loans shall be Base Rate Loans
only.


 


(b)           The Borrower shall repay all outstanding Swingline Loans on the
Revolving Termination Date.


 


3.4           Procedure for Swingline Borrowing; Refunding
of Swingline Loans.


 


(a)           Whenever the Borrower desires that the Swingline Lender make Swingline
Loans it shall give the Swingline Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Availability
Period). Each borrowing under the Swingline Commitment shall be in an amount
equal to $500,000 or a whole multiple of $100,000 in excess thereof. Not later
than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice
in respect of Swingline Loans, the Swingline Lender shall make available to the
Senior Administrative Agent at the Funding Office an amount in immediately
available funds equal to the amount of


 


39

















 


the Swingline Loan to be
made by the Swingline Lender. The Senior Administrative Agent shall make the
proceeds of such Swingline Loan available to the Borrower on such Borrowing
Date by wire transfer of immediately available funds to a bank account
designated in writing by the Borrower to the Senior Administrative Agent.


 


(b)           The Swingline Lender, at any time and from time to time in its sole and
absolute discretion may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), on one Business Day’s
notice given by the Swingline Lender no later than 12:00 Noon, New York City
time, request each Revolving Lender to make, and each Revolving Lender hereby
agrees to make, a Revolving Loan, in an amount equal to such Revolving Lender’s
Revolving Percentage of the aggregate amount of the Swingline Loans (the “Refunded
Swingline Loans”) outstanding on the date of such notice, to repay the
Swingline Lender. Each Revolving Lender shall make the amount of such Revolving
Loan available to the Senior Administrative Agent at the Funding Office in
immediately available funds, not later than 10:00 A.M., New York City time, one
Business Day after the date of such notice. The proceeds of such Revolving
Loans shall be immediately made available by the Senior Administrative Agent to
the Swingline Lender for application by the Swingline Lender to the repayment
of the Refunded Swingline Loans. The Borrower irrevocably authorizes the
Swingline Lender to charge the Borrower’s accounts with the Senior
Administrative Agent (up to the amount available in each such account) in order
to immediately pay the amount of such Refunded Swingline Loans to the extent
amounts received from the Revolving Lenders are not sufficient to repay in full
such Refunded Swingline Loans.


 


(c)           If prior to the time a Revolving Loan would have otherwise been made
pursuant to Section 3.4(b), one of the events described in Section 9(f) shall
have occurred and be continuing with respect to the Borrower or if for any
other reason, as determined by the Swingline Lender in its sole discretion,
Revolving Loans may not be made as contemplated by Section 3.4(b), each
Revolving Lender shall, on the date such Revolving Loan was to have been made
pursuant to the notice referred to in Section 3.4(b) (the “Refunding Date”),
purchase for cash an undivided participating interest in the then outstanding
Swingline Loans by paying to the Swingline Lender an amount (the “Swingline
Participation Amount”) equal to (i) such Revolving Lender’s Revolving
Percentage times (ii) the sum of the aggregate principal amount of
Swingline Loans then outstanding that were to have been repaid with such
Revolving Loans.


 


(d)           Whenever, at any time after the Swingline Lender has received from any
Revolving Lender such Lender’s Swingline Participation Amount, the Swingline
Lender receives any payment on account of the Swingline Loans, the Swingline
Lender will distribute to such Lender its Swingline Participation Amount
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participating interest was
outstanding and funded and, in the case of principal and interest payments, to
reflect such Lender’s pro  rata portion of such payment if such
payment is not sufficient to pay the principal of and interest on all Swingline
Loans then due); provided, however, that in the event that such
payment received by the Swingline Lender is required to be returned, such
Revolving


 


40

















 


Lender will return to the
Swingline Lender any portion thereof previously distributed to it by the
Swingline Lender.


 


(e)           Each Revolving Lender’s obligation to make the Loans referred to in
Section 3.4(b) and to purchase participating interests pursuant to Section
3.4(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such Revolving Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 6; (iii)
any adverse change in the condition (financial or otherwise) of the Borrower;
(iv) any breach of this Agreement or any other Loan Document by the Borrower,
any other Loan Party or any other Revolving Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.


 


3.5           Commitment Fees, etc.


 


(a)           The Borrower agrees to pay to the Senior Administrative Agent for the
account of each Revolving Lender a commitment fee for the period from and
including the first Funding Date to the last day of the Revolving Availability
Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Revolving Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Revolving Termination Date, commencing
on the first of such dates to occur after the first Funding Date.


 


(b)           The Borrower agrees to pay to the Senior Administrative Agent the fees
in the amounts and on the dates previously agreed to in writing by the Borrower
and the Senior Administrative Agent.


 


3.6           Termination or Reduction of Revolving
Commitments. The Borrower
shall have the right, upon not less than three Business Days’ notice to the
Senior Administrative Agent, to terminate the Revolving Commitments or, from
time to time, to reduce the amount of the Revolving Commitments; provided
that no such termination or reduction of Revolving Commitments shall be permitted
(a) during the Certain Funds Period or (b) if, after giving effect thereto and
to any prepayments of the Revolving Loans and Swingline Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Commitments. Any such reduction shall be in an amount equal
to $1,000,000, or a multiple of $500,000 in excess thereof, and shall reduce
permanently the Revolving Commitments then in effect.


 


3.7           L/C Commitment.


 


(a)           Subject to the terms and conditions hereof, the Issuing Lender, in
reliance on the agreements of the other Revolving Lenders set forth in Section
3.10(a), agrees to


 


41

















 


issue letters of credit (“Letters
of Credit”) for the account of the Borrower on any Business Day during the
Revolving Availability Period in such form as may be approved from time to time
by the Issuing Lender; provided that the Issuing Lender shall have no
obligation to issue any Letter of Credit (i) if, after giving effect to such
issuance, (x) the L/C Obligations would exceed the L/C Commitment or (y) the
aggregate amount of the Available Revolving Commitments would be less than zero
or (ii) until the date that is 30 days after the Certain Funds Period. Each
Letter of Credit shall (i) be denominated in Dollars, (ii) have a face amount
of at least $50,000 (unless otherwise agreed by the Issuing Lender) and (iii)
expire no later than the earlier of (x) the first anniversary of its date of
issuance and (y) the date that is five Business Days prior to the Revolving
Termination Date, provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).


 


(b)           The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.


 


3.8           Procedure for Issuance of Letter of Credit.


 


The Borrower may from time
to time request that the Issuing Lender issue a Letter of Credit by delivering
to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will notify the Senior Administrative Agent of the amount, the beneficiary and
the requested expiration of the requested Letter of Credit, and upon receipt of
confirmation from the Senior Administrative Agent that after giving effect to
the requested issuance, the Available Revolving Commitments would not be less
than zero, the Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
the Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower (with a
copy to the Senior Administrative Agent) promptly following the issuance
thereof. The Issuing Lender shall promptly furnish to the Senior Administrative
Agent, which shall in turn promptly furnish to the Lenders, notice of the
issuance of each Letter of Credit (including the amount thereof).


 


3.9           Fees and Other Charges.


 


(a)           The Borrower will pay a fee on all outstanding Letters of Credit at a
per annum rate equal to the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Facility times the daily amount available
to be drawn under such Letter of Credit, shared ratably among the Revolving
Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the
issuance date. In addition, the Borrower shall pay to the Issuing


 


42

















 


Lender for its own account a
fronting fee on the undrawn and unexpired amount of each Letter of Credit in
the amount of 0.125% of such undrawn and unexpired amount, payable quarterly in
arrears on each L/C Fee Payment Date after the Issuance Date.


 


(b)           In addition to the foregoing fees, the Borrower shall pay or reimburse
the Issuing Lender for such normal and customary costs and expenses as are
incurred or charged by the Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.


 


3.10         L/C Participations.


 


(a)           The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Lender, on the terms
and conditions set forth below, for such L/C Participant’s own account and risk
an undivided interest equal to such L/C Participant’s Revolving Percentage in
the Issuing Lender’s obligations and rights under and in respect of each Letter
of Credit issued hereunder and the amount of each draft paid by the Issuing
Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees
with the Issuing Lender that, if a draft is paid under any Letter of Credit for
which the Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Senior Administrative Agent upon demand of the Issuing Lender an amount
equal to such L/C Participant’s Revolving Percentage of the amount of such
draft, or any part thereof, that is not so reimbursed. The Senior Administrative
Agent shall promptly forward such amounts to the Issuing Lender.


 


(b)           If any amount required to be paid by any L/C Participant to the Senior
Administrative Agent for the account of the Issuing Lender pursuant to Section
3.10(a) in respect of any unreimbursed portion of any payment made by the
Issuing Lender under any Letter of Credit is paid to the Senior Administrative
Agent for the account of the Issuing Lender within three Business Days after
the date such payment is due, such L/C Participant shall pay to the Senior
Administrative Agent for the account of the Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to the
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
3.10(a) is not made available to the Senior Administrative Agent for the
account of the Issuing Lender by such L/C Participant within three Business
Days after the date such payment is due, the Issuing Lender shall be entitled
to recover from such L/C Participant, on demand, such amount with interest
thereon calculated from such due date at the rate per annum applicable to Base
Rate Loans under the Revolving Facility. A certificate of the Issuing Lender
submitted to any L/C Participant with respect to any amounts owing under this
Section shall be conclusive in the absence of manifest error.


 


43

















 


(c)           Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its pro  rata
share of such payment in accordance with Section 3.10(a), the Senior
Administrative Agent or the Issuing Lender receives any payment related to such
Letter of Credit (whether directly from the Borrower or otherwise, including
proceeds of collateral applied thereto by the Issuing Lender), or any payment
of interest on account thereof, the Senior Administrative Agent or the Issuing
Lender, as the case may be, will distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event
that any such payment received by Administrative Agent or the Issuing Lender,
as the case may be, shall be required to be returned by the Senior
Administrative Agent or the Issuing Lender, such L/C Participant shall return
to the Senior Administrative Agent for the account of the Issuing Lender the
portion thereof previously distributed by the Senior Administrative Agent or
the Issuing Lender, as the case may be, to it.


 


3.11         Reimbursement Obligation of the Borrower.


 


The Borrower agrees to
reimburse the Issuing Lender on the Business Day next succeeding the Business
Day on which the Issuing Lender notifies the Borrower of the date and amount of
a draft presented under any Letter of Credit and paid by the Issuing Lender for
the amount of (a) such draft so paid and (b) any taxes, fees, charges or other
costs or expenses incurred by the Issuing Lender in connection with such
payment. Each such payment shall be made to the Issuing Lender at its address
for notices referred to herein in Dollars and in immediately available funds.
Interest shall be payable on any such amounts from the date on which the
relevant draft is paid until payment in full at the rate set forth in (i) until
the Business Day next succeeding the date of the relevant notice, Section
4.5(b) and (ii) thereafter, Section 4.5(c). Each drawing under any Letter of
Credit shall (unless an event of the type described in clause (i) or (ii) of
Section 9(f) shall have occurred and be continuing with respect to the
Borrower, in which case the procedures specified in Section 3.10 for funding by
L/C Participants shall apply) constitute a request by the Borrower to the
Senior Administrative Agent for a borrowing pursuant to Section 3.2 of Base
Rate Loans (or, at the option of the Senior Administrative Agent and the
Swingline Lender in their sole discretion, a borrowing pursuant to Section 3.4
of Swingline Loans) in the amount of such drawing. The Borrowing Date with respect
to such borrowing shall be the first date on which a borrowing of Revolving
Loans (or, if applicable, Swingline Loans) could be made, pursuant to Section
3.2 or, if applicable, Section 3.4), if the Senior Administrative Agent had
received a notice of such borrowing at the time the Senior Administrative Agent
receives notice from the Issuing Lender of such drawing under such Letter of
Credit.


 


3.12         Obligations Absolute. The Borrower’s obligations under Section
3.11 shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrower’s
Reimbursement Obligations under Section 3.11 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any


 


44

















 


message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the breach of contractual obligation to
Borrower, gross negligence or willful misconduct of the Issuing Lender . The
Borrower agrees that any action taken or omitted by the Issuing Lender under or
in connection with any Letter of Credit or the related drafts or documents, if
done in the absence of breach of contractual obligation, gross negligence or
willful misconduct and in accordance with the standards of care specified in
the Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender to the
Borrower.


 


3.13         Letter of Credit Payments. If any draft shall be presented for payment
under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.


 


3.14         Applications.


 


To the extent that any
provision of any Application related to any Letter of Credit is inconsistent
with the provisions of this Section 3, the provisions of this Section 3 shall
apply.


 


SECTION
4.     GENERAL PROVISIONS APPLICABLE

TO LOANS AND LETTERS OF CREDIT


 


4.1           Optional Prepayments. The Borrower may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Senior Administrative Agent no later than
12:00 Noon, New York City time, three Business Days prior thereto, in the case
of Eurodollar Loans, and no later than 12:00 Noon, New York City time, one
Business Day prior thereto, in the case of Base Rate Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or Base Rate Loans; provided, that if a Eurodollar Loan
is prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to Section
4.11; provided further that no Loans shall be prepaid hereunder until
all Interim Loans have been paid in full and all commitments with respect
thereto have been terminated. Upon receipt of any such notice the Senior
Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Loans that are Base Rate Loans and Swingline Loans) accrued interest
to such date on the amount prepaid. Partial prepayments of Term Loans and
Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a
whole multiple thereof. Partial prepayments of Swingline Loans shall be in an
aggregate principal amount of $100,000 or integral multiples of $50,000 in
excess thereof.


 


45

















 


4.2           Mandatory Prepayments and Commitment
Reductions.


 


(a)           If any Capital Stock or Indebtedness shall be issued or incurred by any
Group Member (other than (i) Excluded Indebtedness, (ii) any Capital Stock
issued to any Group Member, (iii) any Capital Stock issued to any member of
management or directors, officers or employees of any Group Member or (iv) any
Capital Stock issued in contemplation of a Permitted Acquisition) or any capital
contribution is made to any Group Member (other than a capital contribution by
any Group Member), an amount equal to 100% of the Net Cash Proceeds thereof
shall be applied on the date of such issuance, incurrence or contribution
toward the prepayment of the Term Loans and the reduction of the Revolving
Commitments as set forth in Section 4.2(d); provided, however, that the
amount of Net Cash Proceeds payable pursuant to this clause (a) from the
issuance of Capital Stock by any Group Member shall be reduced to 50% if the
Borrower’s Consolidated Leverage Ratio is less than 1.50:1.00.


 


(b)           If on any date any Group Member shall receive Net Cash Proceeds from
any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be
delivered in respect thereof, such Net Cash Proceeds shall be applied on such
date toward the prepayment of the Term Loans and the reduction of the Revolving
Commitments as set forth in Section 4.2(d); provided, that,
notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset
Sales and Recovery Events that may be excluded from the foregoing requirement
pursuant to a Reinvestment Notice shall not exceed $15,000,000 in any fiscal
year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount
equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Term Loans and
the reduction of the Revolving Commitments as set forth in Section 4.2(d).


 


(c)           If, for any fiscal year of the Borrower commencing with the fiscal year
ending December 31, 2007, there shall be Excess Cash Flow, the Borrower shall,
on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of
such Excess Cash Flow toward the prepayment of the Term Loans and the reduction
of the Revolving Commitments as set forth in Section 4.2(d). Each such
prepayment and commitment reduction shall be made on a date (an “Excess Cash
Flow Application Date”) no later than five days after the earlier of (i)
the date on which the financial statements of the Borrower referred to in
Section 7.1(a), for the fiscal year with respect to which such prepayment is
made, are required to be delivered to the Lenders and (ii) the date such
financial statements are actually delivered to the Lenders.


 


(d)           Amounts to be applied in connection with prepayments and Commitment
reductions made pursuant to this Section 4.2 shall be applied, first, to
the prepayment of the Term Loans and, second, to reduce permanently the
Revolving Commitments. Any such reduction of the Revolving Commitments shall be
accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the
extent, if any, that the Total Revolving Extensions of Credit exceed the amount
of the Total Revolving Commitments as so reduced, provided that if the
aggregate principal amount of Revolving Loans and Swingline Loans then
outstanding is less than the amount of such excess (because L/C Obligations
constitute a portion thereof), the Borrower shall, to the extent of the balance
of such excess, replace outstanding Letters of Credit and/or deposit an amount
in cash in a cash collateral account established with


 


46

















 


the Senior Administrative
Agent for the benefit of the Lenders on terms and conditions satisfactory to
the Senior Administrative Agent. The application of any prepayment pursuant to
Section 4.2 shall be made, first, to Base Rate Loans and, second,
to Eurodollar Loans. Each prepayment of Loans under Section 4.2 shall be accompanied
by accrued interest to the date of such prepayment on the amount prepaid.
Notwithstanding anything herein to the contrary, no Loans shall be prepaid
hereunder until all Interim Loans have been paid in full and all commitments
with respect thereto have been terminated.


 


4.3           Conversion and Continuation Options. (a) 
The Borrower may elect from time to time to convert Eurodollar Loans to
Base Rate Loans by giving the Senior Administrative Agent prior irrevocable
notice of such election no later than 12:00 Noon, New York City time, on the
Business Day preceding the proposed conversion date, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time
to convert Base Rate Loans to Eurodollar Loans by giving the Senior
Administrative Agent prior irrevocable notice of such election no later than
12:00 Noon, New York City time, on the third Business Day preceding the
proposed conversion date (which notice shall specify the length of the initial
Interest Period therefor), provided that no Base Rate Loan under a
particular Facility may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Senior Administrative Agent has
or the Majority Facility Lenders in respect of such Facility have determined in
its or their sole discretion not to permit such conversions. Upon receipt of
any such notice the Senior Administrative Agent shall promptly notify each relevant
Lender thereof.


 


(b)           Any Eurodollar Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Senior Administrative Agent, in accordance with the
applicable provisions of the term “Interest Period” set forth in Section 1.1,
of the length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan under a particular Facility may be continued as such
when any Event of Default has occurred and is continuing and the Senior
Administrative Agent has or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations, and provided, further, that if the Borrower shall
fail to give any required notice as described above in this paragraph or if
such continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to Base Rate Loans on the last day of such
then expiring Interest Period. Upon receipt of any such notice the Senior
Administrative Agent shall promptly notify each relevant Lender thereof.


 


4.4           Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings, conversions and continuations of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $1,000,000 or a whole
multiple of $100,000 in excess thereof and (b) no more than ten Eurodollar
Tranches shall be outstanding at any one time.


 


47

















 


4.5           Interest Rates and Payment Dates. (a) 
Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.


 


(b)           Each Base Rate Loan shall bear interest at a rate per annum equal to
the Base Rate plus the Applicable Margin.


 


(c)           (i)  If all or a portion of the
principal amount of any Loan or Reimbursement Obligation shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), all
outstanding Loans and Reimbursement Obligations (whether or not overdue) shall,
upon the receipt of notice from Senior Administrative Agent at the direction of
Required Lenders, bear interest at a rate per annum equal to (x) in the case of
the Loans, the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this Section plus 2% or (y) in the case of
Reimbursement Obligations, the rate applicable to Base Rate Loans under the
Revolving Facility plus 2%, and (ii) if all or a portion of any interest
payable on any Loan or Reimbursement Obligation or any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to Base Rate
Loans under the relevant Facility plus 2% (or, in the case of any such
other amounts that do not relate to a particular Facility, the rate then applicable
to Base Rate Loans under the Revolving Facility plus 2%), in each case,
with respect to clauses (i) and (ii) above, from the date of such non payment
until such amount is paid in full (after as well as before judgment).


 


(d)           Interest shall be payable in arrears on each Interest Payment Date, provided
that interest accruing pursuant to paragraph (c) of this Section shall be
payable from time to time on demand.


 


4.6           Computation of Interest and Fees. (a) 
Interest and fees payable pursuant hereto shall be calculated on the
basis of a 360-day year for the actual days elapsed, except that, with respect
to Base Rate Loans the rate of interest on which is calculated on the basis of
the Prime Rate, the interest thereon shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed. The Senior
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Senior
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate.


 


(b)           Each determination of an interest rate by the Senior Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Senior Administrative Agent shall, at the request of the Borrower, deliver to
the Borrower a statement showing the quotations


 


48
















 


used by the
Senior Administrative Agent in determining any interest rate pursuant to
Section 4.5(a).


 


4.7         Inability to
Determine Interest Rate.   If prior to the first day of any Interest
Period:


 


(A)       the
Senior Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or


 


(B)       the
Senior Administrative Agent shall have received notice from the Majority
Facility Lenders in respect of the relevant Facility that the Eurodollar Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest
Period,


 


the Senior
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then-current Interest
Period, to Base Rate Loans. Until such notice has been withdrawn by the Senior
Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to
convert Loans under the relevant Facility to Eurodollar Loans.


 


4.8         Pro Rata Treatment
and Payments.   (a) 
Each borrowing by the Borrower from the Lenders hereunder, each payment
by the Borrower on account of any commitment fee and any reduction of the
Commitments of the Lenders shall be made pro
rata according to the respective Term Percentages or Revolving Percentages,
as the case may be, of the relevant Lenders.


 


(b)      Each payment (including
each prepayment) by the Borrower on account of principal of and interest on the
Term Loans shall be made pro rata according
to the respective outstanding principal amounts of the Term Loans then held by
the Term Lenders. The amount of each principal prepayment of the Term Loans
shall be applied to reduce the then remaining installments of the Term Loans, pro rata based upon the then remaining
principal amount thereof. Amounts repaid or prepaid on account of the Term
Loans may not be reborrowed.


 


49

















 


(c)       Each payment (including
each prepayment) by the Borrower on account of principal of and interest on the
Revolving Loans shall be made pro rata
according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders.


 


(d)      All payments (including prepayments)
to be made by the Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof
to the Senior Administrative Agent, for the account of the Lenders, at the
Funding Office, in Dollars and in immediately available funds. The Senior
Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan becomes due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.


 


(e)       Unless the Senior
Administrative Agent shall have been notified in writing by any Lender prior to
a Borrowing that such Lender will not make the amount that would constitute its
share of such Borrowing available to the Senior Administrative Agent, the
Senior Administrative Agent may assume that such Lender is making such amount
available to the Senior Administrative Agent, and the Senior Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Senior
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Senior Administrative Agent, on demand, such amount
with interest thereon at a rate equal to the greater of (i) the Federal Funds
Effective Rate and (ii) a rate determined by the Senior Administrative Agent in
accordance with banking industry rules on interbank compensation for the period
until such Lender makes such amount immediately available to the Senior
Administrative Agent. A certificate of the Senior Administrative Agent
submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Lender's share of
such Borrowing is not made available to the Senior Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Senior
Administrative Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to Base Rate Loans under the
relevant Facility, on demand, from the Borrower.


 


(f)       Unless the Senior
Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the
Borrower will not make such payment to the Senior Administrative Agent, the
Senior Administrative Agent may assume that the Borrower is making such
payment, and the Senior Administrative Agent may, but shall not be required to,
in reliance upon such assumption,


 


50

















 


make available
to the Lenders their respective pro rata
shares of a corresponding amount. If such payment is not made to the Senior
Administrative Agent by the Borrower within three Business Days after such due
date, the Senior Administrative Agent shall be entitled to recover, on demand,
from each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing herein shall
be deemed to limit the rights of the Senior Administrative Agent or any Lender
against the Borrower.


 


4.9         Requirements of Law.   (a)  If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:


 


(i)        shall
subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 4.10 and changes in
the rate of tax on the overall net income of such Lender);


 


(ii)       shall
impose, modify or hold applicable any reserve, special deposit, compulsory loan
or similar requirement against assets held by, deposits or other liabilities in
or for the account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender that is not otherwise
included in the determination of the Eurodollar Rate hereunder; or


 


(iii)      shall
impose on such Lender any other condition;


 


and the result
of any of the foregoing is to increase the cost to such Lender, by an amount
that such Lender deems to be material, of making, converting into, continuing
or maintaining Eurodollar Loans or issuing or participating in Letters of
Credit, or to reduce any amount receivable hereunder in respect thereof, then,
in any such case, the Borrower shall promptly pay such Lender, upon its demand,
any additional amounts necessary to compensate such Lender for such increased
cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the
Borrower (with a copy to the Senior Administrative Agent) of the event by
reason of which it has become so entitled.


 


(b)      If any Lender shall have
determined that the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by such Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such Lender's or
such corporation's capital as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that which


 


51

















 


such Lender or
such corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, after submission by such Lender to the Borrower (with a
copy to the Senior Administrative Agent) of a written request therefor, the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such corporation for such reduction.


 


(c)       A certificate as to any
additional amounts payable pursuant to this Section submitted by any Lender to
the Borrower (with a copy to the Senior Administrative Agent) shall be
conclusive in the absence of manifest error. Notwithstanding anything to the
contrary in this Section, the Borrower shall not be required to compensate a
Lender pursuant to this Section for any amounts incurred more than six months
prior to the date that such Lender notifies the Borrower of such Lender's
intention to claim compensation therefor; provided that, if the
circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect. The obligations of the Borrower pursuant to this Section shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.


 


4.10       Taxes.   (a)  All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present
or former connection between such Agent or such Lender and the jurisdiction of
the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from such Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes")
or Other Taxes are required to be withheld from any amounts payable to any
Agent or any Lender hereunder, the amounts so payable to such Agent or such Lender
shall be increased to the extent necessary to yield to such Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, provided, however, that the Borrower shall
not be required to increase any such amounts payable to any Lender with respect
to any Non-Excluded Taxes (i) that are attributable to such Lender's failure to
comply with the requirements of paragraph (d) or (e) of this Section or (ii)
that are United States withholding taxes imposed on amounts payable to such
Lender at the time such Lender becomes a party to this Agreement (or, in the
case of a Participant, on the date such Participant becomes a Participant hereunder),
except to the extent that such Lender's assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from the Borrower with
respect to such Non-Excluded Taxes pursuant to this paragraph.


 


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


 


52

















 


(c)       Whenever any
Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Senior Administrative Agent
for its own account or for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Senior Administrative Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agents and the
Lenders for any incremental taxes, interest or penalties that may become
payable by any Agent or any Lender as a result of any such failure.


 


(d)      Each Lender (or
Transferee) that is not a "U.S. Person" as defined in Section
7701(a)(30) of the Code (a "Non U.S. Lender") shall deliver to
the Borrower and the Senior Administrative Agent (or, (x) in the case of a
Participant, solely to the Lender from which the related participation shall
have been purchased and (y) in the case of an Assignee under an assignment to
an affiliate of a Lender or an Approved Fund of a Lender that is made pursuant
to Section 11.6(b)(iii), the assigning Lender) two completed originals of
either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case
of a Non U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a statement substantially in the form of
Exhibit G and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). 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. 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). Notwithstanding any
other provision of this paragraph, a Non U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non U.S. Lender is not
legally able to deliver.


 


(e)       A Lender that is
entitled to an exemption from or reduction of non-U.S. withholding tax under
the law of the jurisdiction in which the Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the Senior
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested in writing by the Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided
that such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender's judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.


 


53

















 


(f)       If any Agent or any
Lender determines, in its sole discretion, that it has received a refund of any
Non-Excluded Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 4.10, it shall pay over such refund to the Borrower
(but only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section 4.10 with respect to the Non-Excluded Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of such 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 such Agent or such Lender, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to such Agent or
such Lender in the event such Agent or such Lender is required to repay such
refund to such Governmental Authority. This paragraph shall not be construed to
require any 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.


 


(g)      The agreements in this
Section shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder or under any other Loan Document.


 


4.11       Indemnity.   The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss, cost or expense that such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrower has given a notice requesting the same in accordance with
the provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given
a notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day that is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any
Lender shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.


 


4.12       Change of Lending
Office.   Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 4.9 or 4.10(a) with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans affected by such event with the object of
avoiding the consequences of such event; provided, that such


 


54

















 


designation is
made on terms that, in the sole judgment of such Lender, cause such Lender and
its lending office(s) to suffer no economic, legal or regulatory disadvantage,
and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 4.9 or 4.10(a).


 


4.13       Replacement of
Lenders.   If (a) any Lender requests compensation under
Section 4.9 or 4.10 (such Lender, an "Affected Lender"), (b)
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 4.10,
(c) any Lender is a Defaulting Lender or (d) any Lender shall refuse to consent
to an amendment or waiver to or departure from the provisions of, this
Agreement or any other Loan Document which requires the consent of all Lenders
or of all Lenders directly affected thereby and has been consented to by the
Required Lenders, the Borrower shall be permitted to replace any such Lender
with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement
except where the replaced Lender is a Non-Consenting Lender, (iii) the
replacement financial institution shall purchase, at par, all Loans and other
amounts owing to such replaced Lender on or prior to the date of replacement,
(iv) the Borrower shall be liable to such replaced Lender under Section 4.11 if
any Eurodollar Loan owing to such replaced Lender shall be purchased other than
on the last day of the Interest Period relating thereto, (v) the replacement
financial institution, if not already a Lender or an Approved Fund or Affiliate
of a Lender, shall be reasonably satisfactory to the Senior Administrative
Agent, (vi) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 11.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (vii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 4.9 or 4.10(a), as the case may be, (viii) any such replacement shall
not be deemed to be a waiver of any rights that the Borrower, the Senior
Administrative Agent or any other Lender shall have against the replaced
Lender, and (ix) in the case of a Non-Consenting Lender, the replacement
financial institution shall consent at the time of such assignment to each
matter in respect of which the replaced Lender was a Non-Consenting Lender.


 


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


 


(b)      The Senior Administrative
Agent, on behalf of the Borrower (or, in the case of an assignment not required
to be recorded in the Register in accordance with the provisions of Section
11.6(b)(v), the assigning Lender, acting solely for this purpose as a
non-fiduciary agent of the Borrower), shall maintain the Register (or, in the
case of an assignment not required to be recorded in the Register in accordance
with the provisions of Section 11.6(b)(v), a Related Party Register), in each
case pursuant to Section 11.6(b), and a subaccount therein for each Lender, in
which shall be recorded (i) the amount of each Loan made hereunder and any Note
evidencing such Loan, the Type of such Loan and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii)
both the amount of any sum received by the


 


55

















 


Senior
Administrative Agent (or, in the case of an assignment not required to be
recorded in the Register in accordance with the provisions of Section
11.6(b)(v), the assigning Lender) hereunder from the Borrower and each Lender's
share thereof.


 


(c)       The entries made in the
Register and the accounts of each Lender maintained pursuant to Section 4.14(a)
shall, to the extent permitted by applicable law, be prima  facie
evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any
Lender or the Senior Administrative Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect the obligation of
the Borrower to repay (with applicable interest) the Loans made to the Borrower
by such Lender in accordance with the terms of this Agreement.


 


(d)      The Borrower agrees that,
upon the request to the Senior Administrative Agent by any Lender, the Borrower
will execute and deliver to such Lender a promissory note of the Borrower
evidencing any Term Loans, Revolving Loans or Swingline Loans, as the case may
be, of such Lender, substantially in the form of Exhibit H-1, H-2 or H-3,
respectively, with appropriate insertions as to date and principal amount.


 


4.15       Illegality.   Notwithstanding
any other provision herein, if the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof shall make it unlawful
for any Lender to make or maintain Eurodollar Loans as contemplated by this
Agreement, (a) the commitment of such Lender hereunder to make Eurodollar
Loans, continue Eurodollar Loans as such and convert Base Rate Loans to
Eurodollar Loans shall forthwith be canceled and (b) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
Base Rate Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a Eurodollar Loan occurs on a day which is not
the last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to Section 4.11.


 


SECTION 5.       REPRESENTATIONS
AND WARRANTIES


 


To induce the
Agents and the Lenders to enter into this Agreement and to make the Loans and
issue or participate in the Letters of Credit, the Borrower hereby represents
and warrants to each Agent and each Lender that:


 


5.1         Financial Condition.   (a)  The Pro Forma Financial Statements furnished
to each Lender pursuant to Section 7.1(c) have been or will be prepared giving
effect (as if such events had occurred on such date) to the consummation of the
Transaction. The Pro Forma Financial Statements have been or will be prepared
based on the best information available to the Borrower as of the date of
delivery thereof, and present fairly or will present fairly on a pro forma
basis the estimated financial position of Borrower and its consolidated
Subsidiaries as at and for each of the dates and periods set forth therein; provided
that insofar as this representation


 


56

















 


relates to the
financial information of Constellation, this representation is made solely to
the Borrower's knowledge.


 


(b)      (i) The audited
consolidated balance sheets of the Borrower and its Subsidiaries as at December
31, 2004, December 31, 2005 and December 31, 2006, and the related consolidated
statements of income and of cash flows for the fiscal years ended on such
dates, reported on by and accompanied by an unqualified report from Ernst &
Young LLP, present fairly in all material respects the consolidated financial
condition of the Borrower and its Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. (ii) To the Borrower’s knowledge based only
on publicly available information, the audited consolidated balance sheets of
Constellation and its Subsidiaries as at June 30, 2006, and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such date, present fairly the consolidated financial condition of
Constellation and its Subsidiaries as at such date, and the consolidated
results of its operations and its consolidated cash flows for the respective
fiscal years then ended. (iii) The unaudited consolidated balance sheet of the
Borrower and its Subsidiaries for each fiscal quarter ended after December 31,
2006 and at least 45 days prior to the Effective Date, and the related
unaudited consolidated statements of income and cash flows for the period ended
on such date, will present fairly in all material respects the consolidated
financial condition of the Borrower and its Subsidiaries as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the period then ended (subject to normal year end audit adjustments). (iv) To
the Borrower's knowledge based on publicly available information, the unaudited
consolidated balance sheet of Constellation and its Subsidiaries for each
fiscal quarter ended after June 30, 2006 and at least 45 days prior to the
Effective Date, and the related unaudited consolidated statements of income and
cash flows for the period ended on such date, will present fairly in all material
respects the consolidated financial condition of Constellation and its
Subsidiaries as at such date, and the consolidated results of its operations
and its consolidated cash flows for the period then ended (subject to normal
year end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
or International Financial Reporting Standards, as applicable, applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein); provided that
insofar as this representation relates to the financial information of
Constellation, this representation is made solely to the Borrower's knowledge. No
Group Member has any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any long term leases or unusual forward or long term
commitments, including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this paragraph.
During the period from December 31, 2006 to and including the date hereof there
has been no Disposition by any Group Member of any material part of its
business or property that, if this Agreement had been in effect at such time,
would have been prohibited hereunder.


 


5.2         No Change.   With
respect to any credit event after the Effective Date, there has been no
development or event since December 31, 2006 that has had or would reasonably
be expected to have a Material Adverse Effect.


 


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5.3         Corporate
Existence; Compliance with Law.   Each Group Member (a) is duly organized,
validly existing and in good standing (to the extent applicable) under the laws
of the jurisdiction of its organization, (b) has the power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently
engaged, (c) is duly qualified as a foreign entity and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification and (d) is in
compliance with the terms of its Organizational Documents and all Requirements
of Law except to the extent that the failure to comply with clause (b) or (d)
of this Section 5.3 would not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.


 


5.4         Power;
Authorization; Enforceable Obligations. 
 Each Loan Party has the power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and, in the case of the Borrower, to obtain extensions
of credit hereunder. Each Loan Party has taken all necessary organizational and
other action to authorize the execution, delivery and performance of the Loan
Documents to which it is a party and, in the case of the Borrower, to authorize
the extensions of credit on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any relevant Governmental Authority or any other relevant Person is
required in connection with the Transaction and the extensions of credit
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except (i)
consents, authorizations, filings and notices described in Schedule 5.4 of the
Disclosure Letter, which consents, authorizations, filings and notices shall
have been obtained or made and shall be in full force and effect on or before
the Funding Date and all applicable waiting periods shall have expired on or
before the Funding Date without any action being taken by any Governmental
Authority which would restrain, prevent or otherwise impose adverse conditions
on the Transaction, which conditions would reasonably be expected to have a
Material Adverse Effect and (ii) the filings referred to in Section 5.19. This
Agreement has been duly executed and delivered on behalf of each Loan Party
party thereto and each other Loan Document shall have been duly executed and
delivered on behalf of each Loan Party party thereto on or before the Effective
Date or the Funding Date, as applicable. This Agreement constitutes, and each
other Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law) and except to the extent qualified by any reservations or
qualifications given in connection with the Loan Documents.


 


5.5         No Legal Bar.   The
execution, delivery and performance of this Agreement and the other Loan
Documents, the issuance of Letters of Credit, the borrowings hereunder and the
use of the proceeds thereof will not violate its Organizational Document, any
Requirement of Law, Governmental Authorization or any Contractual Obligation of
any Group Member and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to its
Organizational Documents, any Requirement of Law or any such Contractual
Obligation (other than the Liens created by the Security


 


58

















 


Documents). No
Requirement of Law or Contractual Obligation applicable to the Borrower or any
of its Subsidiaries would reasonably be expected to have a Material Adverse
Effect.


 


5.6         Litigation.   Except
as set forth on Schedule 5.6 of the Disclosure Letter, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of a Responsible Officer of the
Borrower, threatened by or against any Group Member or against any of their
respective properties or revenues (a) that purports to effect the execution,
delivery or performance of the Transaction or any of the Loan Documents, or (b)
that would reasonably be expected to have a Material Adverse Effect.


 


5.7         No Default.   No
Group Member is in default under or with respect to any of its Contractual
Obligations in any respect that would reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.


 


5.8         Ownership of
Property; Liens.   Each Group Member has title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or
a valid leasehold interest in, all its other property except as would not
reasonably be likely to have a Material Adverse Effect, and none of such
property is subject to any Lien except as permitted by Section 8.3. As of the
Effective Date and the Funding Date, no Group Member owns any real property.


 


5.9         Intellectual
Property.   Each Group Member owns, or is licensed to use,
all Intellectual Property reasonably necessary for the conduct of its business
as currently conducted. Except for such claims and infringements that would not
reasonably be expected to have a Material Adverse Effect, (a) no claim has, to
the knowledge of a Responsible Officer of the Borrower, been asserted and is
pending by any Person naming a Group Member challenging or questioning the use
of any Intellectual Property or the validity or effectiveness of any
Intellectual Property, nor does a Responsible Officer of the Borrower know of
any valid basis for any such claim and (b) no Responsible Officer of the
Borrower knows that the use of Intellectual Property by any Group Member
infringes on the rights of any Person in any material respect.


 


5.10       Taxes.   Each
Group Member has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Borrower or its Subsidiaries, as the case may
be); no tax Lien has been filed, and, to the knowledge of a Responsible Officer
of the Borrower, no claim is being asserted, with respect to any such tax, fee
or other charge which would reasonably be expected to have a Material Adverse
Effect.


 


5.11         Federal Regulations.   No
part of the proceeds of any Loans, and no other extensions of credit hereunder,
will be used for "buying" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the Regulations of the Board. If
requested by any Lender or the Senior Administrative Agent, the Borrower will
furnish to the Senior Administrative Agent and each Lender a statement to the
foregoing effect in


 


59

















 


conformity
with the requirements of FR Form G-3 or FR Form U 1, as applicable, referred to
in Regulation U.


 


5.12       Labor Matters.   As of
the Effective Date, except as, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect: 
(a) there are no strikes or other labor disputes against any Group
Member pending or, to the knowledge of the Borrower, threatened; (b) hours
worked by and payment made to employees of each Group Member have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters; and (c) all payments due from any Group
Member on account of employee health and welfare insurance have been paid or
accrued as a liability on the books of the relevant Group Member.


 


5.13       ERISA.   Neither
a Reportable Event nor an "accumulated funding deficiency" (within
the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred
during the five year period prior to the date on which this representation is
made or deemed made with respect to any Plan. Each Plan has complied in all
respects with the applicable provisions of ERISA and the Code except where the
same would not reasonably be expected to have a Material Adverse Effect. No
termination of a Single Employer Plan has occurred, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period. The present value of
all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan that has
resulted or could reasonably be expected to result in a material liability
under ERISA, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any material liability under ERISA if the Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. No such Multiemployer Plan is
in Reorganization or Insolvent.


 


5.14       Investment Company
Act; Other Regulations.   No Loan Party is an "investment
company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.


 


5.15       Subsidiaries.   Except
as disclosed to the Senior Administrative Agent by the Borrower in writing from
time to time after the Effective Date, (a) Schedule 5.15 of the Disclosure
Letter sets forth the name and jurisdiction of incorporation of each Subsidiary
and, as to each such Subsidiary, the percentage of each class of Capital Stock
owned by any Loan Party and (b) there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
stock options granted to employees or directors and directors' qualifying
shares) of any nature relating to any Capital Stock of any Subsidiary, except
as created by the Loan Documents.


 


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5.16       Use of Proceeds.   The
proceeds of the Term Loans shall be used by Borrower or its Subsidiaries to
finance a portion of the Transaction. The proceeds of the Revolving Loans may
be used to finance a portion of the Transaction and may also be used by
Borrower and its Subsidiaries for general corporate purposes.


 


5.17       Environmental
Matters.   Except as, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect:


 


(A)       the
facilities and properties owned, leased or operated by any Group Member (during
the period so owned, leased or operated, the "Properties") do
not contain, and to the knowledge of a Responsible Officer of the Borrower,
have not previously contained, any Materials of Environmental Concern in
amounts or concentrations or under circumstances that constitute or constituted
a violation of, or would be reasonably likely to give rise to liability under,
any Environmental Law;


 


(B)       no
Responsible Officer of any Group Member has received or is aware of any notice
of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the business operated by any Group
Member (during the period so operated, the "Business"), nor
does any such Responsible Officer have knowledge that any such notice will be
received or is being threatened;


 


(C)       Materials
of Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location that could give
rise to liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on or
under any of the Properties in violation of, or in a manner that could give
rise to liability under, any applicable Environmental Law;


 


(D)       no
judicial proceeding or governmental or administrative action is pending or, to
the knowledge of a Responsible Officer of the Borrower, threatened, under any
Environmental Law to which any Group Member is or will be named as a party with
respect to the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the Business;


 


61

















 


(E)        there
has been no release or threat of release of Materials of Environmental Concern
at or from the Properties, or arising from or related to the operations of any
Group Member in connection with the Properties or otherwise in connection with
the Business, in violation of or in amounts or in a manner that could give rise
to liability under Environmental Laws; 


 


(F)        the
Properties and all operations at the Properties are in compliance, and have in
the last five years been in compliance, with all applicable Environmental Laws,
and there is no contamination at, under or about the Properties or violation of
any Environmental Law with respect to the Properties or the Business; and


 


(G)       no
Group Member has entered into any agreement pursuant to which it has expressly
assumed any liability of any other Person under Environmental Laws.


 


5.18       Accuracy of
Information, etc.   The statements
and information contained in this Agreement, the Disclosure Letter, the other
Loan Documents, the Confidential Information Memorandum and any other document,
certificate or statement furnished by or on behalf of any Loan Party in respect
of the Borrower and its Subsidiaries to the Senior Administrative Agent or the
Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, when taken as a
whole, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the Funding Date), no untrue statement of a material fact or
omitted to state a material fact necessary to make the statements contained
herein or therein not misleading, provided, however, that with respect to the
projections and pro forma financial information contained in the materials
referenced above the Borrower represents only that the same were prepared in
good faith and are based upon estimates and assumptions believed by management
of the Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is
subject to inherent uncertainties and contingencies, is not to be viewed as
fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein
by a material amount. The Scheme Press Release (or the Offer Press Release if
an Offer Conversion has occurred) contains (or will contain) all the material
terms of the Scheme or the Offer , as applicable.


 


5.19       Security Documents.   (a)  The Guarantee and Collateral Agreement and
each Foreign Pledge Agreement is effective to create in favor of the Senior
Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof. Each Blocked Account Control Agreement is effective to create in favor
of the Interim Administrative Agent, for the benefit of the "secured
parties" as defined in the Interim Credit Agreement, a legal, valid and
enforceable security interest in the Collateral described therein and the
proceeds thereof. In the case of the Pledged Stock described in the Guarantee
and Collateral Agreement and each Foreign Pledge Agreement, when stock


 


62

















 


certificates
representing such Pledged Stock are delivered to the Senior Collateral Agent or
such other actions specified in each Foreign Pledge Agreement in respect of
Borrower’s UK and Irish first-tier Subsidiaries are taken, and in the case of
the other Collateral described in the Guarantee and Collateral Agreement (other
than deposit accounts) when financing statements and other filings specified on
Schedule 5.19(a) of the Disclosure Letter in appropriate form are filed in the
offices specified on Schedule 5.19(a) of the Disclosure Letter, the Guarantee
and Collateral Agreement and each such Foreign Pledge Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and the proceeds thereof,
as security for the Senior Obligations, in each case prior and superior in
right to any other Person (except, (x) in the case of the Blocked Accounts,
Liens in favor of the Interim Administrative Agent and (y) in the case of
Collateral other than Pledged Stock and the Blocked Accounts, Liens permitted
by Section 8.3). In the case of Collateral described in the Blocked Account
Control Agreements, when each Blocked Account Control Agreement is executed and
delivered by all parties thereto, the Interim Administrative Agent, for the
benefit of the "secured parties" as defined in the Interim Credit
Agreement, shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Borrower in such Collateral and the proceeds
thereof, as security for the Interim Obligations (as defined in the Interim
Credit Agreement), prior and superior in right to any other Person except as
provided under the applicable Blocked Account Control Agreement with respect to
the securities intermediary a party thereto. In the case of Collateral that
consists of deposit accounts, when a Control Agreement is executed and
delivered by all parties thereto with respect to such accounts, the Senior
Collateral Agent, for the benefit of the Secured Parties, shall have a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds, prior and superior in
right to any other Person except as provided under the applicable Control
Agreement with respect to the securities intermediary a party thereto.


 


(b)      Each of the Mortgages (if
any) is effective to create in favor of the Senior Collateral Agent, for the
benefit of the Secured Parties, a legal, valid and enforceable Lien on the real
properties described therein and proceeds thereof, and when the Mortgages are
filed in the offices specified therein, each such Mortgage shall constitute a
fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in the real properties described therein and the
proceeds thereof, as security for the Obligations (as defined in the relevant
Mortgage), in each case prior and superior in right to any other Person (except
Liens permitted by Section 8.3).


 


5.20       Solvency.   Immediately
after the Transactions to occur on the Funding Date, each Loan Party is, and
after giving effect to the Acquisition and the incurrence of all Indebtedness
and obligations being incurred in connection herewith and therewith will be and
will continue to be, Solvent.


 


5.21       Indebtedness.   Immediately
after the consummation of the Transactions to occur on the Funding Date,
neither Constellation nor any of its Subsidiaries has (or will have) any
Indebtedness outstanding other than Indebtedness permitted by the final
paragraph of Section 8.2. 


 


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5.22       Anti-Terrorism Laws.   (a)  No Loan Party is in violation of any
Anti-Terrorism Law or engages in or conspires to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law.


 


(b)      None of the Loan Parties
or their agents acting or benefiting in any capacity in connection with the
Loans, Letter of Credit or other transactions hereunder, is any of the
following (each a "Blocked Person"):


 


(i)        a
person that is listed in the annex to, or is otherwise subject to the
provisions of, Executive Order No. 13224;


 


(ii)       a
person owned or controlled by, or acting for or on behalf of, any person that
is listed in the annex to, or is otherwise subject to the provisions of,
Executive Order No. 13224;


 


(iii)      a
person with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law; 


 


(iv)    
a person that commits, threatens or conspires to commit or supports
"terrorism" as defined in Executive Order No. 13224;


 


(v)     
a person that is named as a "specially designated national" on the
most current list published by the United States Treasury Department's Office
of Foreign Asset Control at its official website or any replacement website or
other replacement official publication of such list; or


 


(vi)    
a person who is affiliated or associated with a person listed above.


 


(c)       No Loan Party, or to the
knowledge of any Loan Party, any of its agents acting in any capacity in
connection with the Loans, Letter of Credit or other transactions hereunder (i)
conducts any business or engages in making or receiving any contribution of
funds, goods or services to or for the benefit of any Blocked Person or (ii)
deals in, or otherwise engages in any transaction relating to, any property or
interests in property blocked pursuant to Executive Order No. 13224.


 


64

















 


SECTION 6.    CONDITIONS PRECEDENT


 


6.1         Effective Date.   The
obligations of the Loan Parties and the rights of the Lenders, the Issuing Bank
and the Senior Administrative Agent under this Agreement and the Loan Documents
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with the terms of this
Agreement), which conditions shall be deemed to have been unconditionally
satisfied or waived by the execution by all parties of this Agreement on the
date hereof:


 


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


 


(b)      The Senior Administrative
Agent shall have received a favorable written opinion (addressed to the Senior
Administrative Agent and the Lenders and dated the Effective Date) of Cooley
Godward Kronish LLP, counsel for the Borrower and Port Authority Technologies,
Inc. (other than the opinions relating to the security interests, which
opinions shall be in the form agreed between the parties prior to the execution
of this Agreement and delivered on and dated as of the Funding Date), in form
and substance reasonably satisfactory to the Senior Administrative Agent, and,
in the case of each such opinion required by this paragraph, covering such
other matters relating to the Loan Parties, the Loan Documents or the
Transactions as the Senior Administrative Agent shall reasonably request (other
than matters relating to the security interests, which opinions shall be in the
form agreed between the parties prior to the execution of this Agreement and
delivered on and dated as of the Funding Date). The Borrower hereby requests
such counsel to deliver such opinions.


 


(c)       The Senior
Administrative Agent shall have received such documents and certificates
relating to the organization, existence and good standing (or its equivalent,
if any) of each Loan Party, the authorization of the Transactions (to which it
is a party) and any other legal matters relating to the Loan Parties, the Loan
Documents or the Transactions (to which it is a party), in the form reasonably
required by or acceptable to the Senior Administrative Agent.


 


(d)      The Senior Administrative
Agent shall have received (i) the Fee Letter executed by the Borrower and (ii)
all fees and other amounts due and payable under the Loan Documents on or prior
to the Effective Date, to the extent invoiced prior to the Effective Date,
including all out-of-pocket expenses (including fees, charges and disbursements
of counsel) required to be reimbursed or paid by any Loan Party under any Loan
Document.


 


(e)       The Borrower, the Senior
Collateral Agent and the Senior Administrative Agent shall have agreed on the
form of documents required to satisfy the


 


65

















 


Collateral and
Guarantee Requirement and the Senior Administrative Agent shall have received a
completed Perfection Certificate dated the Effective Date and signed by a
Responsible Officer or legal officer of the Borrower, together with all
attachments contemplated thereby, including the results of a search of the
Uniform Commercial Code (or equivalent) filings made with respect to the Loan
Parties in the jurisdictions contemplated by the Perfection Certificate and
copies of the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Senior Administrative Agent
and the Senior Collateral Agent that the Liens indicated by such financing
statements (or similar documents) are permitted by Section 8.3 or have been or
will contemporaneously with the initial funding of Term Loans on the Funding
Date be released. The Senior Administrative Agent shall have received certified
copies of UCC, United States Patent and Trademark Office and United States
Copyright Office, tax and judgment lien searches or equivalent reports or
searches, each of a recent date listing all effective financing statements,
lien notices or comparable documents that name any Loan Party as debtor and
that are filed in those state and county jurisdictions in which any property of
any Loan Party is located and the state and county jurisdictions in which any
Loan Party is organized or maintains its principal place of business, none of
which encumber the Collateral covered or intended to be covered by the Security
Documents (other than Liens permitted under Section 8.3 or as otherwise
acceptable to the Senior Administrative Agent).


 


(f)       The Lenders shall have
received the financial statements referred to in Section 5.1(b) (other than any
such financial statements of Constellation and its Subsidiaries).


 


(g)      The Lenders shall have
received a business plan of the Borrower and its Subsidiaries for the fiscal
years 2007 through 2014 (including quarterly projections for the first four
fiscal quarters ending after the Effective Date), with respect to the Group
Members together with a certificate of a Responsible Officer of the Borrower
certifying that such business plan is based on reasonable estimates,
information and assumptions and that such Responsible Officer has no reason to
believe that such business plan is incorrect or misleading in any material respect
(it being understood that such business plan is subject to significant
uncertainties and there can be no assurance the results therein will be
achieved).


 


(h)      The Senior Administrative
Agent 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 the Patriot Act, as
reasonably requested by the Senior Administrative Agent.


 


(i)        The Borrower shall have
entered into an option to purchase a designated number of Sterling, reasonably
acceptable to Morgan Stanley & Co. Incorporated (or its Affiliates) in its
capacity as financial advisor to the Borrower in connection with the
Acquisition, during the Certain Funds Period, which option shall have terms and
conditions reasonably satisfactory to Morgan Stanley & Co. Incorporated (or
its Affiliates) in its capacity as financial advisor to the Borrower in
connection with the Acquisition.


 


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(j)        The Borrower and its
Subsidiaries shall have at least $217,000,000 of cash and Cash Equivalents
(which Cash Equivalents shall be as described in the information previously
delivered to the Senior Administrative Agent) and shall have delivered
satisfactory evidence to the Senior Administrative Agent confirming such
amount.


 


(k)       The Senior
Administrative Agent shall have received a certified copy of the latest draft
of the Acquisition Agreement, in form and substance satisfactory to the Senior
Administrative Agent.


 


6.2         Conditions to the
Funding Date. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective
unless, on or prior to the date of the Funding Date, each of the following
conditions is satisfied (or waived in accordance with the terms of this
Agreement) which conditions shall be deemed to have been unconditionally
satisfied or waived on the first funding of a Loan hereunder:


 


(a)       If an Offer Conversion
has not occurred, the Senior Administrative Agent shall have received certified
copies of the Scheme Press Release, the Scheme Circular, the Court Order, the
prints of the resolutions passed at each of the Court Meetings and the
extraordinary general meeting, the certificate of the Registrar of Companies
confirming registration of the Court Order, the executed Acquisition Agreement
and, if a receiving agent has been appointed, an instruction letter from the
Borrower to the receiving agent to hold the shares acquired by the Borrower or
its nominees pursuant to the Scheme to the order of the Senior Collateral
Agent.


 


(b)      If an Offer Conversion
has occurred, the Senior Administrative Agent shall have received a copy of the
announcement that the Offer has become or been declared unconditional in all
respects, including confirmation that acceptances have been received pursuant
to the Offer in respect of the Capital Stock of Constellation which, when
aggregated with (i) any Capital Stock of Constellation owned by the Borrower
and its Subsidiaries and (ii) any other Capital Stock of Constellation which
are otherwise capable of being counted towards fulfilling the acceptance
condition in accordance with Note 5 on Rule 10 of the City Code, represent more
than 75% of the Capital Stock of Constellation.


 


(c)       The Borrower shall have
entered into the Interim Credit Agreement, which shall have become
unconditional in accordance with its terms, subject only to this Facility
becoming unconditional in all respects, without any waiver or modification
thereof (other than any waiver or modification which is not material and
adverse to the interests of the Lenders).


 


(d)      The Senior Administrative
Agent and the Syndication Agent, as applicable, shall have received all fees
and other amounts due and payable under the Loan Documents on or prior to the
Funding Date, to the extent invoiced prior to the Funding Date, including all
out-of-pocket expenses (including fees, charges and disbursements of counsel)
required to be reimbursed or paid by any Loan Party under any Loan Document or
evidence


 


67

















 


satisfactory
to the Senior Administrative Agent and the Syndication Agent, as applicable
(acting reasonably), that any such fees and other amounts will be paid out of
the proceeds of the Borrowing on the Funding Date.


 


(e)       The Senior
Administrative Agent shall have received a favorable written opinion (addressed
to the Senior Administrative Agent and the Lenders and dated the Funding Date)
of each of (i) Cooley Godward Kronish LLP, counsel for the Borrower and its
Subsidiaries, (ii) Herbert Smith LLP, local UK counsel to Borrower and UK
AcquiSub Holdings as to the pledge of its Capital Stock, and (iii) Arthur Cox,
local Irish counsel to Borrower and Websense International Limited as to the
pledge of its Capital Stock, each in form and substance reasonably satisfactory
to the Senior Administrative Agent, and, in the case of each such opinion
required by this paragraph, covering such other matters relating to the Loan
Parties, the Loan Documents or the Transactions as the Senior Administrative
Agent shall reasonably request. The Borrower hereby requests such counsel to
deliver such opinions.


 


(f)       The Borrower, the Senior
Collateral Agent and the Senior Administrative Agent shall have, as applicable,
entered into and/or delivered the documents required to satisfy the Collateral
and Guarantee Requirement (as agreed pursuant to Section 6.1(e) above) and all
filing or recordings necessary in connection with the liens granted thereby
shall have been made.


 


(g)      The Senior Administrative
Agent shall be satisfied that all amounts in the Escrow Accounts shall have
been applied (or will, on the same date as the proceeds of the Term Loans are
applied hereunder, be) to satisfy the terms of the Offer or Scheme and to fund
the Acquisition.


 


(h)      The Senior Administrative
Agent shall have received evidence that the insurance required by Section
5.3(b) of the Guarantee and Collateral Agreement is in effect.


 


(i)        The Lenders shall have received
the Pro Forma Financial Statements referred to in Section 5.1(a).


 


6.3         Each Credit Event.   Subject
to Section 6.4, the obligation of the Lenders to make Loans on the occasion of
any Borrowing and of the Issuing Bank to issue, amend, renew or extend any
Letter of Credit is subject to receipt of the request therefor in accordance
herewith and to the satisfaction of the following conditions:


 


(a)       The representations and
warranties of each Loan Party set forth in the Loan Documents (other than, on
the Effective Date, the representation and warranty set forth in Section 5.2))
shall be true and correct in all material respects on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as the case may be (except to the extent that any
representation and warranty expressly relates to an


 


68

















 


earlier date,
in which case such representation and warranty shall have been true and correct
in all material respects as of such earlier date and except that after the
Effective Date the representation and warranty set forth in Section 5.2 shall
be deemed to refer to the date of the most recent financial statements
presented pursuant to Section 7.1(a)).


 


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


 


Each Borrowing
(provided that a conversion or a continuation of a Borrowing shall not
constitute a "Borrowing" for purposes of this Section), other than a
Certain Funds Loan, and each issuance, amendment, renewal or extension of a
Letter of Credit, shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in this
Section.


 


6.4         Certain Funds.


 


(a)       Notwithstanding anything
to the contrary in this Section 6 or any other provision in a Loan Document
during the Certain Funds Period, the obligation of each Lender to make a Loan
on the occasion of any Borrowing which is a Certain Funds Loan is subject only
to the satisfaction or waiver of the conditions set forth in Sections 6.1 and
6.2 and receipt of the request therefor in accordance herewith and to the
satisfaction or waiver of the following conditions (and for the avoidance of
doubt Section 6.3 shall not apply to a Certain Funds Loan):


 


(i)        no
Major Event of Default is outstanding or would result from the making of any
such Borrowing;


 


(ii)       it
is not unlawful for the Borrower to exercise any of its Borrowing rights or a
Lender to perform any of its lending obligations under this Agreement, in each
case in respect of such Certain Funds Loan; provided that, if it is
unlawful for a Lender to perform its lending obligations in respect of such
Certain Funds Loans, this in itself will not preclude each other Lender from
performing its lending obligations in respect of such Certain Funds Loans; and


 


(iii)      the
Borrower shall not have cancelled or rescinded this Agreement.


 


(b)      Unless any of the
conditions set out in Sections 6.4(a)(i) to (iii) (inclusive) is not satisfied
or waived at the relevant time, during the Certain Funds Period none of the
Lenders or the Agents shall be entitled to:


 


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(i)        cancel
any of its Commitments to the extent that to do so would prevent or limit the
making of a Certain Funds Loan under and as defined in this Agreement;


 


(ii)       rescind,
terminate or cancel this Agreement or exercise any similar right or remedy or
make or enforce any claim under the Loan Documents it may have to the extent
that to do so would prevent or limit the making of a Certain Funds Loan or the
utilization thereof for a Permitted Purpose under and as defined in this
Agreement;


 


(iii)      refuse
to participate in the making of a Certain Funds Loan or the utilization thereof
for a Permitted Purpose under and as defined in this Agreement;


 


(iv)     exercise
any right of setoff or counterclaim to the extent that so doing would prevent
or limit the making of a Certain Funds Loan or the utilization thereof for a
Permitted Purpose under and as defined in this Agreement; or


 


(v)      cancel,
accelerate or cause repayment or prepayment of any amounts owing hereunder or
under any other Loan Document to the extent that so doing would prevent or
limit the making of a Certain Funds Loan or the utilization thereof for a
Permitted Purpose under and as defined in this Agreement.


 


Nothing in
this Section 6.4 will affect the rights of any of the Lenders, the Senior
Administrative Agent or the Senior Collateral Agent in respect of any Event of
Default not cured or waived at the expiry of the Certain Funds Period,
irrespective of whether any Event of Default occurred during the Certain Funds
Period or not.


 


SECTION 7.    AFFIRMATIVE
COVENANTS


 


The Borrower
hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender
or Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries
to:


 


7.1         Financial
Statements.   Furnish to the Senior Administrative Agent and
each Lender:


 


(a)           as soon as available, but in any
event on the earlier of the date 90 days (or, solely with respect to the fiscal
year in which the Acquisition occurred, 120 days) after the end of each fiscal
year of the Borrower and the date that such information is filed with the


 


70

















 


SEC, a copy of
the audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited consolidated
statements of income and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on without
a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Ernst & Young LLP
or other independent certified public accountants of nationally recognized
standing;


 


(b)      as soon as available, but
in any event on the earlier of the date that is 45 days after the end of each
of the first three quarterly periods of each fiscal year of the Borrower and
the date that such information is filed with the SEC, the unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at the end of such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year end audit
adjustments and the absence of footnotes); and


 


(c)           as soon as available, but in any
event not later than the date that is 30 days prior to the Funding Date, the
unaudited pro forma consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of the last fiscal quarter for which
financial statements have been delivered pursuant to Section 7.1(b) (including
the notes thereto) and the unaudited pro forma consolidated income statements
for the twelve-month period ending as at the end of such fiscal quarter (such
financial statements, the "Pro Forma Financial Statements").


 


All such
financial statements shall be complete and correct in all material respects and
shall be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein); provided that the financial information of
Constellation and its Subsidiaries included in the Pro Forma Financial
Statements shall not be prepared in accordance with GAAP but shall be prepared
with good faith adjustments applied consistently throughout the period
reflected therein.


 


7.2         Certificates; Other
Information.   Furnish to the Senior Administrative Agent and
each Lender (or, in the case of clause (i), to the relevant Lender):


 


(a)       concurrently with the
delivery of the financial statements referred to in Section 7.1(a), a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate, it being understood that such certificate shall
be limited to the items that independent certified accountants are permitted to
cover in such certificates pursuant to their professional standards and customs
of the profession;


 


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(b)      concurrently with the
delivery of any financial statements pursuant to Section 7.1 (or, in the case
of (ii)(y) below, concurrently with the delivery of any financial statements
pursuant to 7.1(a)), (i) a certificate of a Responsible Officer stating that,
to the best of each such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate and
(ii) in the case of quarterly or annual financial statements, (x) a Compliance
Certificate containing all information and calculations necessary for
determining compliance by each Group Member with the provisions of Section 8.1
as of the last day of the fiscal quarter or fiscal year of the Borrower, as the
case may be, and, if applicable, for determining the Applicable Margins, and
(y) to the extent not previously disclosed to the Senior Administrative Agent,
a listing of any Intellectual Property acquired by any Loan Party since the
date of the most recent list delivered pursuant to this clause (y) (or, in the
case of the first such list so delivered, since the Effective Date);


 


(c)       as soon as available,
and in any event no later than 45 days after the end of each fiscal year of the
Borrower, a consolidated budget for the following fiscal year (including a
projected consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of the following fiscal year, the related consolidated statements of
projected cash flow, projected changes in financial position and projected
income and a description of the underlying assumptions applicable thereto for
such fiscal year), and, promptly after such have been presented to the Board of
Directors of the Borrower, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the "Projections"),
which Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on reasonable
estimates, information and assumptions (it being understood Projections are
subject to significant uncertainties and there can be no assurance the results
therein will be achieved);


 


(d)      if the Borrower is not
then a reporting company under the Securities Exchange Act of 1934, as amended,
within 45 days after the end of each fiscal quarter of the Borrower (or 90
days, in the case of the last fiscal quarter of any fiscal year), a narrative
discussion and analysis of the financial condition and results of operations of
the Borrower and its Subsidiaries for such fiscal quarter and for the period
from the beginning of the then current fiscal year to the end of such fiscal
quarter, as compared to the portion of the Projections covering such periods
and to the comparable periods of the previous year;


 


(e)       within five days after
the same are sent, copies of all financial statements and reports that the
Borrower sends to the holders of any class of its debt securities or public
equity securities and, within five days after the same are filed, copies of all
financial statements and reports that the Borrower may make to, or file with,
the SEC; 


 


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(f)       promptly, after any request by the
Senior Administrative Agent, any final “management” letter submitted by such
accountants to management in connection with their annual audit;


 


(g)      to the extent not otherwise
delivered to the Senior Administrative Agent, within five days after the same
are sent, copies of any notices or information that the Borrower sends to the
holders of the Interim Loans;


 


(h)      no later than five Business Days
prior to the effectiveness thereof, copies of substantially final drafts of any
proposed amendment, supplement, waiver or other modification with respect to
the Interim Loan Documents; and


 


(i)        promptly, such additional financial
and other information as any Lender may from time to time reasonably request,
including with respect to the Patriot Act.


 


7.3           Payment of
Obligations. Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its material obligations
of whatever nature, except where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books of
the relevant Group Member.


 


7.4           Maintenance of
Existence; Compliance. (a)  (i)  Preserve, renew and keep in full force and
effect its organizational existence and (ii) take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise permitted by
Section 8.4 and except, in the case of clause (ii) above, to the extent that
failure to do so would not reasonably be expected to have a Material Adverse
Effect; and (b) comply with all Contractual Obligations, Organizational
Documents and Requirements of Law (including, without limitation, ERISA and the
Code) except to the extent that failure to comply therewith would not
reasonably be expected to have a Material Adverse Effect.


 


7.5           Maintenance of
Property; Insurance. (a)  Keep all
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all its property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or a
similar business.


 


7.6           Inspection of
Property; Books and Records; Discussions. (a)  Keep proper books of records and account in
which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation
to its business and activities and (b) permit representatives of the Senior
Administrative Agent or any Lender, at their own expense, to visit and inspect
any of its properties and examine and make abstracts from any of its books and
records at any reasonable time, on prior reasonable notice and as often as may
reasonably be desired and to discuss the business, operations, properties and


 


73

















 


financial and other condition
of the Group Members with officers and employees of the Group Members and with
their independent certified public accountants.


 


7.7           Notices. Promptly
give notice to the Senior Administrative Agent and each Lender of:


 


(a)       the occurrence of any Default or
Event of Default;


 


(b)      any litigation, investigation or
proceeding that may exist at any time between any Group Member and any
Governmental Authority, that if adversely determined, as the case may be, would
reasonably be expected to have a Material Adverse Effect;


 


(c)       any litigation or proceeding
affecting any Group Member (i) in which the aggregate amount claimed against
the Group Member and not covered by insurance exceeds $2,500,000, (ii) in which
injunctive or similar relief is sought and which would reasonably be expected
to have a Material Adverse Effect or (iii) which relates to any Loan Document;


 


(d)      the following events, as soon as
possible and in any event within 30 days after the Borrower knows or has reason
to know thereof:  (i) the occurrence of
any Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Borrower or any Commonly Controlled Entity
or any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and


 


(e)       any development or event that has
had or could reasonably be expected to have a Material Adverse Effect or, in
lieu thereof, at any time the Borrower is a reporting company under the
Securities Exchange Act of 1934, as amended, delivery of each 8-K filed by the
Borrower with the SEC.


 


Each notice pursuant to this Section 7.7
shall be accompanied by a statement of a Responsible Officer setting forth
details of the occurrence referred to therein and stating what action the
Borrower or the relevant Subsidiary proposes to take with respect thereto.


 


7.8           Environmental Laws.
(a)  Comply with, and ensure compliance
in all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply with and maintain, and
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,


 


74

















 


registrations or permits
required by applicable Environmental Laws, except, in each case, to the failure
to do so would not reasonably be expected to have a Material Adverse Effect.


 


(b)      Conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws and promptly comply with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws, except to the extent the failure to do so would not
reasonably be expected to have a Material Adverse Effect.


 


7.9           Interest Rate
Protection; Hedging Requirements. In the case of the Borrower, prior to the
initial Funding Date, enter into, and thereafter maintain, Hedge Agreements to
the extent necessary to provide that at least 50% of the aggregate principal
amount of Term Loans that the Borrower reasonably anticipates will be outstanding
60 days after the Funding Date (such amount, the “Anticipated Amount”)
is subject to either a fixed interest rate or interest rate protection for a
period of not less than 2-1/2 years (calculated based on the weighted average
of the maturities of all such Hedge Agreements), which Hedge Agreements shall
have other terms and conditions reasonably satisfactory to the Senior
Administrative Agent; provided that if the aggregate principal amount of
Term Loans outstanding 60 days after the Funding Date is higher than the
Anticipated Amount (such amount, the “Excess Amount”), then the Borrower
shall promptly enter into Hedge Agreements meeting the requirements of this
Section 7.9 with respect to the Excess Amount.


 


7.10         Additional Collateral,
etc. (a)  With respect to any
property acquired after the Effective Date by any Group Member (other than (x)
any property described in paragraph (b), (c) or (d) below, (y) any property
subject to a Lien expressly permitted by Section 8.3(g) and (z) property
acquired by any Excluded Foreign Subsidiary) as to which the Senior Collateral
Agent, for the benefit of the Secured Parties, does not have a perfected Lien,
promptly (i) execute and deliver to the Senior Collateral Agent such amendments
to the Guarantee and Collateral Agreement or such other documents as the Senior
Collateral Agent deems necessary or advisable to grant to the Senior Collateral
Agent, for the benefit of the Secured Parties, a security interest in such
property and (ii) take all actions necessary or advisable to grant to the
Senior Collateral Agent, for the benefit of the Secured Parties, a perfected
first priority security interest in the Collateral, including the filing of
Uniform Commercial Code financing statements in such jurisdictions as may be required
by the Guarantee and Collateral Agreement or by law or as may be requested by
the Senior Collateral Agent.


 


(b)      With respect to any fee interest in
any real property having a value (together with improvements thereof) of at
least $1,000,000 acquired after the Effective Date by any Group Member (other
than (x) any such real property subject to a Lien expressly permitted by
Section 8.3(g) and (y) real property acquired by any Excluded Foreign
Subsidiary), promptly (i) execute and deliver a Mortgage, in favor of the
Senior Collateral Agent, for the benefit of the Secured Parties, covering such
real property, (ii) if requested by the Senior Collateral Agent, provide the
Secured Parties with (x) title and extended coverage insurance covering such
real property in an amount at least equal to the purchase price of such real
property (or such other amount as shall be reasonably specified by the Senior
Collateral Agent ) as well as a current


 


75



















 


ALTA survey thereof, together with a surveyor’s
certificate and (y) any consents or estoppels reasonably deemed necessary or
advisable by the Senior Collateral Agent in connection with such Mortgage, each
of the foregoing in form and substance reasonably satisfactory to the Senior
Collateral Agent and (iii) if reasonably requested by the Senior Collateral
Agent, deliver to the Senior Collateral Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Senior Collateral Agent.


 


(c)       With respect to any new Subsidiary
(other than an Excluded Foreign Subsidiary) created or acquired after the
Effective Date by any Group Member (which, for the purposes of this paragraph
(c), shall include any existing Subsidiary that ceases to be an Excluded
Foreign Subsidiary), promptly (i) execute and deliver to the Senior Collateral
Agent such amendments to the Guarantee and Collateral Agreement as the Senior
Collateral Agent deems necessary or advisable to grant to the Senior Collateral
Agent, for the benefit of the Secured Parties, a perfected first priority
security interest in the Capital Stock of such new Subsidiary that is owned by
any Group Member, (ii) deliver to the Senior Collateral Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the relevant Group
Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee
and Collateral Agreement, (B) to take such actions necessary or advisable to
grant to the Senior Collateral Agent for the benefit of the Secured Parties a
perfected first priority security interest in the Collateral with respect to
such new Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be requested by the Senior Collateral
Agent and (C) to deliver to the Senior Collateral Agent a certificate of such
Subsidiary, substantially in the form of Exhibit C, with appropriate insertions
and attachments, and (iv) if reasonably requested by the Senior Collateral
Agent, deliver to the Senior Collateral Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Senior Collateral Agent.


 


(d)      With respect to any new Excluded
Foreign Subsidiary that is not an Immaterial Subsidiary created or acquired
after the Effective Date by any Group Member (other than by any Group Member
that is an Excluded Foreign Subsidiary), promptly (i) execute and deliver to
the Senior Collateral Agent such amendments to the Guarantee and Collateral
Agreement as the Senior Collateral Agent deems necessary or advisable to grant
to the Senior Collateral Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in the Capital Stock of such new
Subsidiary that is owned by any such Group Member (provided that in no
event shall more than 65% of the total outstanding Capital Stock of any such
new Subsidiary be required to be so pledged), (ii) deliver to the Senior
Collateral Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the relevant Group Member, as the case may be, and take
such other action as may be necessary or, in the opinion of the Senior
Collateral Agent, desirable to perfect the Senior Collateral Agent’s security
interest therein, and (iii) if reasonably requested by the Senior Collateral
Agent, deliver to the Senior Collateral Agent legal


 


76



















 


opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Senior Collateral Agent.


 


7.11         Offer Conversion. If
the Borrower intends to withdraw (or cause the withdrawal of) the Scheme and to
make an Offer (such actions, the “Offer Conversion”), (a) notify the
Senior Administrative Agent by written notice (the “Offer Conversion Notice”)
as soon as reasonably practicable of its intent to do so and (b) cause the
Scheme to be withdrawn and an Offer Press Release to be issued in accordance
with Section 7.13(a).


 


7.12         Conduct of the Scheme.
Unless an Offer Conversion takes place, the Borrower shall:


 


(a)       Scheme Press Release. Issue the Scheme Press Release
promptly after the date of this Agreement and in any event within five Business
Days of the date of this Agreement.


 


(b)      Scheme Documents. (i)  Dispatch the Scheme Circular as soon as
practicable after satisfaction or waiver in accordance with Section 8.17(c) of
the pre-conditions set forth in the Scheme Press Release, and in any event
within 28 days after satisfaction or waiver in accordance with Section 8.17(c)
of the pre-conditions set forth in the Scheme Press Release or within such
longer period as the Panel may permit.


 


(ii) Ensure that the terms and conditions of
the Scheme Circular are consistent in all material respects with the
transaction described in the Draft Acquisition Agreement and Scheme Press
Release (other than any inconsistency which would not be material and adverse
to the interest of the Lenders) and comply with applicable law.


 


(iii) 
Ensure that the terms and conditions of the Acquisition Agreement are
consistent in all material respects with the terms of the Draft Acquisition
Agreement (other than any inconsistency which would not be material and adverse
to the interests of the Lenders) except that the cash consideration payable
pursuant to the Scheme and the other terms and conditions may be different to
that specified in the Draft Acquisition Agreement to the extent agreed in
writing with the Senior Administrative Agent.


 


(c)       Progress of the Scheme. Subject to any confidentiality
restrictions entered into in good faith and binding on them and consistent with
the preservation of all privileged communication as such:  (i) keep the Senior Administrative Agent
informed as to any material developments in relation to the Scheme; and (ii)
promptly (following receipt from the Senior Administrative Agent of a written
request itemizing the same in sufficient detail to enable the Borrower or Bidco
to identify the same specifically) provide on a non-reliance basis the Senior
Administrative Agent with information as to the progress of the Scheme and with
all material written information and material written formal advice on a
specific circumstance (and not for the avoidance of doubt of a generic or
general nature) received by it in relation to the


 


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Scheme (excluding for the avoidance of doubt
any preliminary advice which is later superseded). Notify the Senior
Administrative Agent promptly following the issuance of the Court Order.


 


(d)      Announcements. (i) Promptly deliver to the Senior
Administrative Agent:  (x) copies of all
press and other public announcements made by itself in connection with or in
relation to the Scheme; and (y) subject to any confidentiality restrictions
entered into in good faith and binding on them, any material, written, formal
documents or material written, formal statements issued to and received by them
and binding on them from the Panel, the OFT, the Competition Commission or any
other regulatory authority (including the Courts) in relation to the Scheme;
and (ii) where any announcement, press release or publicity material to be
issued by it or on its behalf refers to the Senior Administrative Agent, the
Syndication Agent or any other Lender, the Lead Arranger, or any Agent or the
Facilities, not release or permit such announcement, press release or publicity
material to be released by any Group Member until the Senior Administrative Agent
has given its consent to such references to the Senior Administrative Agent,
the Syndication Agent or any other Lender, the Lead Arranger or any other Agent
or the Facilities (such approval not to be unreasonably withheld or rendered
subject to unreasonable conditions and to be given or refused within 24 hours
of receipt by the Senior Administrative Agent of the relevant material and, if
no response is received within such 24 hour period, consent is deemed to be
given); provided that no such consent or approval will be required to
make an announcement, press release, or publicity material required to be made
to comply with the City Code and any other relevant laws or regulation (but the
Borrower and Bidco shall use all reasonable endeavors to consult with the
Senior Administrative Agent prior to making the announcement and to avoid
references therein to the Senior Administrative Agent, the Syndication Agent or
any other Lender, the Lead Arranger or any Agent or the Facilities).


 


(e)       Conduct of the Scheme. Ensure that each Scheme Document,
all other documents issued by it or on its behalf in connection with the Scheme
and the conduct of the Scheme comply in all material respects with all
applicable laws and regulations (including the requirements of the City Code)
and with the terms of the Acquisition Agreement, use commercially reasonable
efforts to obtain, maintain and renew, as and when necessary, all material
consents from all governmental and other regulatory authorities required in
connection with the Scheme and ensure that all of its material obligations in
connection with the Scheme are performed in all material respects, it being
understood that the Borrower shall not be obligated to consummate the
Acquisition.


 


(f)       Certificate of Registration of Sanctioning
of the Scheme.
Ensure that a copy of the Court Order is delivered to the Registrar of
Companies and obtain a certificate of registration relating to the same within
two Business Days of receipt thereof.


 


7.13         Conduct of the Offer.
If an Offer Conversion has occurred:


 


(a)       Offer Press Release. Issue the Offer Press Release
promptly after the date the Offer Conversion Notice is delivered and in any
event within five Business Days of the date the Offer Conversion Notice is
delivered.


 


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(b)      Offer Document. Dispatch the Offer Document as
soon as practicable, and in any event within 28 days after satisfaction of the
pre-conditions set forth in the Offer Press Release or within such longer
period as the Panel may permit, and ensure that the terms and conditions of the
Offer Document are (i) consistent in all material respects with the terms of
the Offer Press Release and (ii) are consistent as regards all terms in any way
material to the interests of the Lenders with those terms recorded in the
Scheme Circular (other than any inconsistency which would not be material and
adverse to the interests of the Lenders, including an acceptance set at 90% of
the Shares in Constellation to which the Offer relates (or such lower
percentage as the Borrower may, subject to the City Code, decide; provided that
such percentage shall not be lower than 75%)) except that the cash
consideration payable pursuant to the Offer Document may not be higher than
that specified in the Offer Press Release and the other terms and conditions
may be different to that specified in the Offer Press Release to the extent
agreed in writing with the Senior Administrative Agent.


 


(c)       Progress of the Offer. Subject to any confidentiality
restrictions entered into in good faith and binding on them:  (i) keep the Senior Administrative Agent
informed as to any material developments in relation to the Offer; and (ii)
promptly (following receipt from the Senior Administrative Agent of a written
request itemizing the same in sufficient detail to enable the Borrower or Bidco
to identify the same specifically) provide on a non-reliance basis the Senior
Administrative Agent with information as to the progress of the Offer and with
all material written information and material, written formal advice on a
specific circumstance (and not for the avoidance of doubt of a generic or
general nature) received by it in relation to the Offer (excluding for the
avoidance of doubt any preliminary advice which is later superseded).


 


(d)      Announcements. (i) Promptly deliver to the Senior
Administrative Agent:  (x) copies of all
press and other public announcements made by itself in connection with or in
relation to the Offer; and (y) subject to any confidentiality restrictions
entered into in good faith and binding on them, any material, written, formal
documents or material written, formal statements issued to and received by them
and binding on them from the Panel, the OFT, the Competition Commission or any
other regulatory authority (including the Courts) in relation to the Offer; and
(ii) where any announcement, press release or publicity material to be issued
by it or on its behalf refers to the Senior Administrative Agent, the
Syndication Agent or any other Lender, the Lead Arranger, or any Agent or the
Facilities, not release or permit such announcement, press release or publicity
material to be released by any Group Member until the Senior Administrative
Agent has given its consent to such references to the Senior Administrative
Agent, the Syndication Agent or any other Lender, the Lead Arranger or any
other Agent or the Facilities (such approval not to be un-reasonably withheld
or rendered subject to unreasonable conditions and to be given or refused
within 24 hours of receipt by the Senior Administrative Agent of the relevant
material and, if no response is received within such 24 hour period, consent is
deemed to be given); provided that no such consent or approval will be
required to make an announcement, press release, or publicity material required
to be made to comply with the City Code and any other relevant laws or
regulation (but the Borrower and Bidco shall use all reasonable endeavors to
consult with the Senior Administrative Agent prior to


 


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making the announcement and to avoid
references therein to the Senior Administrative Agent, the Syndication Agent or
any other Lender, the Lead Arranger or any Agent or the Facilities).


 


(e)       Conduct of the Offer. Ensure that the Offer Press
Release, the Offer Document, all other documents issued by it or on its behalf
in connection with the Offer and the conduct of the Offer comply in all
material respects with all applicable laws and regulations (including the
requirements of the City Code), use commercially reasonable efforts to obtain,
maintain and renew, as and when necessary, all material consents from all
governmental and other regulatory authorities required in connection with the
Offer and ensure that all of its material obligations in connection with the
Offer are performed in all material respects, it being understood that the
Borrower shall not be obligated to consummate the Acquisition.


 


(f)       Purchase of Remaining Constellation
Shares. Ensure
that Compulsory Purchase Notices are dispatched within 10 Business Days of the
Borrower, or Bidco, being entitled to dispatch such notices.


 


7.14         Further Assurances.
From time to time execute and deliver, or cause to be executed and delivered,
such additional instruments, certificates or documents, and take all such
actions, as the Senior Administrative Agent or the Senior Collateral Agent may
reasonably request for the purposes of implementing or effectuating the
provisions of this Agreement and the other Loan Documents, or of more fully
perfecting the rights of the Senior Administrative Agent, the Senior Collateral
Agent and the Secured Parties with respect to the Collateral (or with respect
to any additions thereto or replacements or proceeds thereof or with respect to
any other property or assets hereafter acquired by the borrower or any
Subsidiary which may be deemed to be part of the Collateral) pursuant hereto or
thereto. Upon the proper exercise by the Senior Administrative Agent, the
Senior Collateral Agent or any Secured Party of any power, right, privilege or
remedy pursuant to this Agreement or the other Loan Documents which requires
any consent, approval, recording qualification or authorization of any
Governmental Authority, the Borrower will execute and deliver, or will cause
the execution and delivery of, all applications, certifications, instruments
and other documents and papers that the Senior Administrative Agent, the Senior
Collateral Agent or such Lenders may be required to obtain from the Borrower or
any of its Subsidiaries for such governmental consent, approval, recording,
qualification or authorization.


 


7.15         [Intentionally Omitted].


 


7.16         Syndication. Following
the Effective Date, actively assist the Lead Arranger in achieving a Successful
Syndication of the Facilities. Such assistance shall include (a) the Borrower
providing and causing its advisors to provide to the Lead Arranger promptly
upon request all information reasonably deemed necessary by the Lead Arranger
to complete such syndication, including, but not limited to, information and
evaluations prepared by the Borrower and its advisors relating to the
Transactions, (b) the Borrower’s assistance in the preparation of the
Confidential Information Memorandum to be used in connection with the
syndication of the Facilities, which shall be substantially complete at least
30 calendar days prior to the Funding Date, (c) the Borrower using its
commercially reasonable efforts to ensure that the syndication


 


80

















 


efforts of the Lead Arranger
benefit materially from the Borrower’s existing lending relationships and (d)
the Borrower otherwise assisting the Lead Arranger in its syndication efforts,
including by making the Borrower’s officers and advisors available from time to
time to attend and make presentations regarding the business and prospects of
the Borrower, as appropriate, at one or more meetings of prospective Lenders at
least 30 calendar days prior to the Funding Date.


 


7.17         Blocked Accounts;
Escrow Accounts.


 


(a)       Within fifteen days after the
Effective Date (or such longer period as may be agreed by the Interim
Administrative Agent in its sole discretion), deposit cash and Cash Equivalents
of the Borrower and its Subsidiaries in one or more Blocked Accounts in an
aggregate amount no less than $217,000,000.


 


(b)      Subject to clause (c) below,
maintain such Blocked Accounts with an aggregate minimum balance of
$217,000,000 until any commitments with respect to the Interim Loans have been
terminated and the Interim Loans have been indefeasibly paid in full.


 


(c)       No later than one day prior to the
Funding Date, liquidate Cash Equivalents of $215,300,000 of the Borrower and
its Subsidiaries held in the Blocked Accounts and deposit the proceeds of such
Cash Equivalents together with the cash of the Borrower and its Subsidiaries
wired directly by the Borrower or its Subsidiaries to such Escrow Account in an
aggregate amount of not less than $240,000,000 to be used to satisfy the Offer
or Scheme and to fund, in part, the Acquisition. For clarity, $1,700,000 of the
Cash Equivalents in the Blocked Account will not be liquidated or transferred
out of the Blocked Account into the Escrow Account.


 


(d)      Upon expiration or termination of
the Blocked Account Control Agreements entered into in connection with the
Blocked Accounts, promptly enter into account control agreements with respect
to such funds.


 


SECTION 8.           NEGATIVE
COVENANTS


 


The Borrower hereby agrees that, so long as
the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender or Agent hereunder, the
Borrower shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly:


 


8.1           Financial Condition
Covenants. (a)  Consolidated
Leverage Ratio. Commencing with the first full fiscal quarter after the
quarter in which the Funding Date occurs, permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal quarters of
the Borrower ending with any fiscal quarter set forth below to exceed the ratio
set forth below opposite such fiscal quarter:


 


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  Fiscal Quarter

  	
   

  	
  Consolidated

  Leverage Ratio

  
	
  March 31, 2008

  	
   

  	
  2.625 to 1.00

  
	
  June 30, 2008

  	
   

  	
  2.625 to 1.00

  
	
  September 30, 2008

  	
   

  	
  2.625 to 1.00

  
	
  December 31, 2008

  	
   

  	
  2.625 to 1.00

  
	
  March 31, 2009

  	
   

  	
  2.125 to 1.00

  
	
  June 30, 2009

  	
   

  	
  2.125 to 1.00

  
	
  September 30, 2009

  	
   

  	
  2.125 to 1.00

  
	
  December 31, 2009

  	
   

  	
  2.125 to 1.00

  
	
  March 31, 2010

  	
   

  	
  1.812 to 1.00

  
	
  June 30, 2010

  	
   

  	
  1.812 to 1.00

  
	
  September 30, 2010

  	
   

  	
  1.812 to 1.00

  
	
  December 31, 2010

  	
   

  	
  1.812 to 1.00

  
	
  March 31, 2011

  	
   

  	
  1.687 to 1.00

  
	
  June 30, 2011

  	
   

  	
  1.687 to 1.00

  
	
  September 30, 2011

  	
   

  	
  1.687 to 1.00

  
	
  December 31, 2011 and each quarter thereafter

  	
   

  	
  1.687 to 1.00

  



 


(b)      Consolidated Interest Coverage Ratio. Commencing with the first full
fiscal quarter after the quarter in which the Funding Date occurs, permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower to be less than 3.375 to 1.00 at the end of each
fiscal quarter.


 


8.2           Indebtedness. Create,
issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness, except:


 


(a)       Indebtedness of any Loan Party
pursuant to any Loan Document;


 


(b)      Indebtedness (i) of the Borrower to
any Subsidiary, (ii) of any Wholly Owned Subsidiary Guarantor to the Borrower
or any other Subsidiary, (iii) of any Foreign Subsidiary to any other Foreign
Subsidiary and (iv) subject to Section 8.8(h), of any Foreign Subsidiary to the
Borrower or any Wholly Owned Subsidiary Guarantor; provided that any
such Indebtedness is evidenced by, and subject to the provisions (including the
subordination provisions) of the Intercompany Note;


 


(c)       Guarantee Obligations incurred in
the ordinary course of business by the Borrower or any of its Subsidiaries of
obligations of the Borrower, any Wholly Owned Subsidiary Guarantor and, subject
to Section 8.8(h), of any Foreign Subsidiary;


 


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(d)      Indebtedness outstanding on the date
hereof and listed on Schedule 8.2 of the Disclosure Letter and any
refinancings, refundings, renewals or extensions thereof (without increasing,
or shortening the maturity of, the principal amount thereof);


 


(e)       Indebtedness (including, without
limitation, Capital Lease Obligations) secured by Liens permitted by Section
8.3(g) in an aggregate principal amount not to exceed $15,000,000 at any one
time outstanding;


 


(f)       Indebtedness and Guarantee
Obligations in respect of the Interim Credit Agreement;


 


(g)      Hedge Agreements permitted under
Section 8.12;


 


(h)   Indebtedness in respect of
performance, bid, surety, indemnity, appeal bonds, completion guarantees and
other obligations of like nature and guarantees and/or obligations as an
account party in respect of the face amount of letters of credit in respect
thereof, in each case securing obligations not constituting Indebtedness for
borrowed money (including worker’s compensation claims, environmental
remediation and other environmental matters and obligations in connection with
self-insurance or similar requirements) provided in the ordinary course of
business;


 


(i)        Indebtedness arising from the
endorsement of instruments in the ordinary course of business;


 


(j)        Indebtedness of a Person existing at
the time such Person became a Subsidiary of any Loan Party (such Person, an (“Acquired
Person”), together with all Indebtedness assumed by such Loan Party or any
of its Subsidiaries in connection with any acquisition permitted under Section
8.8 (other than the Acquisition), but only to the extent that (i) such
Indebtedness was not created or incurred in contemplation of such Person
becoming a Subsidiary or such acquisition, (ii) any Liens securing such
Indebtedness attach only to the assets of the Acquired Person and (iii) the
aggregate principal amount of such Indebtedness does not exceed $15,000,000 at
any one time outstanding;


 


(k)       Earn-Out Obligations;


 


(l)        unsecured Permitted Subordinated
Indebtedness incurred to finance a Permitted Acquisition, in each case incurred
simultaneously with the consummation of such Permitted Acquisition, in an
aggregate principal amount not to exceed (i) $50,000,000 at any one time
outstanding or (ii) $75,000,000 at any one time outstanding if the pro forma
Consolidated Leverage Ratio giving effect to the incurrence of such
Indebtedness (calculated using the most recent financial statements delivered
pursuant to Section 7.1), does not exceed 2.0 to 1.0;


 


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(m)      Indebtedness relating to tenant
improvement loans incurred in the ordinary course of business;


 


(n)      Indebtedness of Constellation or its
Subsidiaries existing on the date the Acquisition is consummated, but only to
the extent that (i) such Indebtedness was not created or incurred in contemplation
of the Acquisition, (ii) any Liens securing such Indebtedness attach only to
the assets of Constellation or its Subsidiaries and (iii) the aggregate
principal amount of such Indebtedness does not exceed $5,000,000 at any one
time outstanding; provided that such Indebtedness shall only be
permitted to exist for 60 days following the date the Acquisition is
consummated;


 


(o)      Indebtedness of the Borrower or any
Subsidiary as an account party or applicant in respect of letters of credit
(other than Letters of Credit issued hereunder) incurred in the ordinary course
of business; provided that the aggregate face amount of such letters of credit
does not exceed $7,500,000; and


 


(p)      additional Indebtedness of the
Borrower or any of its Subsidiaries in an aggregate principal amount (for the
Borrower and all Subsidiaries) not to exceed $15,000,000 at any one time
outstanding.


 


Notwithstanding anything to the contrary set
forth herein, immediately after the consummation of the Transactions to occur
on the Funding Date, there shall be no Indebtedness outstanding at
Constellation or any of its Subsidiaries, other than Indebtedness permitted by
Section 8.2(a), (b), (c), (d), (e), (f), (g), (h), (i), (m) and (n).


 


8.3           Liens. Create,
incur, assume or suffer to exist any Lien upon any of its property, whether now
owned or hereafter acquired, except for:


 


(a)       Liens for taxes or other
governmental charges or levies not delinquent beyond any grace period or that
are being contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;


 


(b)      landlord’s, carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s or other like Liens arising in the
ordinary course of business that are not overdue for a period of more than 30
days or that are being contested in good faith by appropriate proceedings;


 


(c)       banker’s Liens, rights of setoff, or
similar rights and remedies as to deposit accounts or pledges or deposits in
connection with workers’ compensation, unemployment insurance and other social
security legislation;


 


84



















 


(d)      deposits to secure the performance
of bids, tenders, trade contracts (other than for borrowed money), government
contracts, leases, statutory or regulatory obligations, surety and appeal
bonds, performance bonds, return of money bonds and other obligations of a like
nature incurred in the ordinary course of business;


 


(e)       easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business that do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;


 


(f)       Liens in existence on the date
hereof listed on Schedule 8.3 of the Disclosure Letter, securing Indebtedness
permitted by Section 8.2(d), provided that no such Lien is expanded to
cover any additional property after the Effective Date and that the amount of
Indebtedness secured thereby is not increased;


 


(g)      Liens securing Indebtedness of the
Borrower or any other Subsidiary incurred pursuant to Section 8.2(e) to finance
the acquisition of fixed or capital assets, provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of such
fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (iii) the
amount of Indebtedness secured thereby is not increased;


 


(h)      Liens created pursuant to the
Security Documents;


 


(i)        any (i) interest or title of a
lessor or sublessor under any lease not prohibited by this Agreement and
covering only the assets so leased, (ii) Lien or restriction that the interest
or title of such lessor or sublessor may be subject to, or (iii) subordination
of the interest of the lessees or sublessee under such lease to any Lien or
restriction referred to in the preceding clause (ii);


 


(j)        licenses (with respect to
intellectual and other property), leases or subleases granted to third parties
in accordance with any applicable terms of the Security Documents and in the
ordinary course of business;


 


(k)       Liens securing judgments not
constituting an Event of Default under Section 9(h);


 


(l)        the filing of UCC financing
statements solely as a precautionary measure in connection with operating
leases and consignment arrangements;


 


85



















 


(m)      Liens arising as a result of
progress payments under government contracts to which the Borrower or one of
its Subsidiaries is a party in the ordinary course of business;


 


(n)      Liens existing on property acquired
by the Borrower or any Subsidiary at the time such property is so acquired
(whether or not the Indebtedness secured thereby shall have been assumed),
provided that (i) such Lien is not created in contemplation of such
acquisition, (ii) such Lien does not extend to any other property of any Group
Member following such acquisition and (iii) the aggregate fair market value of
the property subject to such Lien (determined as of the date of such
acquisition) does not exceed $15,000,000;


 


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


 


(p)      Liens securing Indebtedness
permitted by Section 8.2(n) or (o);


 


(q)      Liens on the Blocked Accounts in
favor of the Interim Administrative Agent;


 


(r)       refinancings, renewals and
replacements of Liens permitted under this Section 8.3, provided that
(i) the amount of the Indebtedness secured thereby is not increased and (ii)
such Liens do not extend to or cover any property or assets of the Borrower and
its Subsidiaries which immediately prior to such refinancing, renewal or
replacement were not subject to a Lien permitted hereunder; and


 


(s)       Liens not otherwise permitted by
this Section so long as neither (i) the aggregate outstanding principal amount
of the obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject thereto
exceeds (as to the Borrower and all Subsidiaries) $7,500,000 at any one time.


 


8.4           Fundamental Changes.
Enter into any merger, consolidation or amalgamation, 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, except that:


 


(a)       any Subsidiary may merge with (i)
the Borrower; provided, that the Borrower shall be the
continuing or surviving Person, (ii) any one or more other Subsidiaries; provided, that when any Loan Party is merging with
another Subsidiary, such Loan Party shall be the continuing or surviving
Person, or (iii) subject to Section 8.8(h), with or into any Foreign
Subsidiary;


 


86



















 


(b)      any Subsidiary of the Borrower may
Dispose of any or all of its assets (upon voluntary liquidation or otherwise)
to the Borrower or any Wholly Owned Subsidiary Guarantor or, subject to Section
8.8(h), any Foreign Subsidiary;


 


(c)       any Subsidiary that is not a Loan
Party may dispose of all or substantially all its assets (including any
Disposition that is in the nature of a liquidation) to (i) another Subsidiary
that is not a Loan Party or (ii) to a Loan Party;


 


(d)      any Subsidiary may merge with
another Person to effect a transaction permitted under Section 8.8; and


 


(e)       transactions permitted under Section
8.5 shall be permitted.


 


8.5           Disposition of
Property. Dispose of any of its property, whether now owned or hereafter
acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary’s Capital Stock to any Person, except:


 


(a)       the Disposition of obsolete, surplus
or worn out property in the ordinary course of business;


 


(b)      the sale or licensing of inventory,
subscriptions to databases or software as a service, all in the ordinary course
of business;


 


(c)       Dispositions permitted by Section
8.4(a), (b), (c) and (d);


 


(d)      the sale or issuance of any
Subsidiary’s Capital Stock to the Borrower or any Wholly Owned Subsidiary
Guarantor;


 


(e)       Dispositions of cash or Cash
Equivalents in the ordinary course of business in transactions not otherwise
prohibited by this Agreement; provided that until (i) the Certain Funds
Period has expired and (ii) the Interim Loans have been indefeasibly paid in
full and all commitments with respect thereto have terminated, cash or Cash
Equivalents on deposit in the Blocked Accounts may not be disposed of except to
be transferred to an Escrow Account or to the satisfy the terms of the Offer or
Scheme and fund a portion of the Acquisition consideration;


 


(f)       discount or otherwise compromise for
less than face value thereof, notes or accounts receivable in the ordinary
course of business in or to resolve disputes;


 


87



















 


(g)      licenses, sublicenses, leases or
subleases and similar arrangements for the use of the property in the ordinary
course of business;


 


(h)      Port Authority Technologies, Inc.
may Dispose of the Capital Stock of Port Authority Technologies Israel Ltd. to
another Subsidiary of the Borrower;


 


(i)        Rationalizing Constellation
Dispositions; provided that (i) at least 80% of the consideration
received in connection therewith consists of cash or Cash Equivalents, (ii) the
assets are sold for no less than fair market value and (iii) the aggregate fair
market value of the Rationalizing Constellation Dispositions identified in
clause (ii) of the definition thereof and sold pursuant to this clause (i) does
not exceed $50,000,000; and


 


(j)        the Disposition of other property
having a fair market value not to exceed $10,000,000 in the aggregate for any
fiscal year of the Borrower; provided that at lest 90% of the
consideration received in connection therewith consists of cash or Cash
Equivalents.


 


8.6           Restricted Payments.
Declare or pay any dividend (other than dividends payable solely in common
stock of the Person making such dividend) on, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of any Group Member, or make or offer to make any optional or
voluntary payment, prepayment, repurchase or redemption of or otherwise
optionally or voluntarily defease or segregate funds with respect to any
principal of Subordinated Debt, in each case, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary (collectively, “Restricted Payments”),
except that:


 


(a)       any Subsidiary may make Restricted
Payments to the Borrower or any Wholly Owned Subsidiary;


 


(b)      so long as no Default or Event of
Default shall have occurred and be continuing or would result therefrom, the
Borrower may purchase its common stock or common stock options from present or
former officers or employees of any Group Member upon the death, disability or
termination of employment of such officer or employee, provided, that
the aggregate amount of payments under this clause (b) after the date hereof
(net of any proceeds received by the Borrower after the date hereof in
connection with resales of any common stock or common stock options so
purchased) shall not exceed $2,500,000;


 


(c)       so long as no Default or Event of
Default shall have occurred and be continuing or would result therefrom, the
Borrower may purchase its outstanding Capital Stock in an aggregate amount not
to exceed the sum of (i) $25,000,000 plus (ii) 50% of the aggregate amount of
Consolidated Net Income accrued during the period (treated as one accounting
period)


 


88



















 


from the beginning of the fiscal quarter
during which the Effective Date occurs to the end of the most recently ended
fiscal quarter for which financial statements were delivered to the Senior
Administrative Agent pursuant to Section 7.1 (or if the aggregate amount of
Consolidated Net Income for such period shall be a deficit, minus 100% of such
deficit);


 


(d)      the Borrower and each Subsidiary may
pay, prepay or redeem any Permitted Subordinated Indebtedness to the extent
such amounts reflect the net proceeds of the sales of Capital Stock of the
Borrower; and


 


(e)       the Borrower and its Subsidiaries
may purchase, redeem or otherwise acquire any Capital Stock from its employees,
officers and directors by net exercise or otherwise, pursuant to the terms of
any employee stock option, incentive stock or restricted stock plan; provided
that cash payments made pursuant to this clause (e) shall not exceed $7,500,000
during the term of this Agreement.


 


8.7           Capital Expenditures.
Make or commit to make any Capital Expenditure, except (a) Capital Expenditures
of the Borrower and its Subsidiaries in the ordinary course of business not
exceeding $20,000,000 per fiscal year; provided, that (i) up to
$10,000,000 of any such amount referred to above, if not so expended in the
fiscal year for which it is permitted, may be carried over for expenditure in
the next succeeding fiscal year and (ii) Capital Expenditures made pursuant to
this clause (a) during any fiscal year shall be deemed made, first, in respect
of amounts permitted for such fiscal year as provided above and, second, in
respect of amounts carried over from the prior fiscal year pursuant to
subclause (i) above and (b) Capital Expenditures made with the proceeds of any
Reinvestment Deferred Amount.


 


8.8           Investments. Make
any advance, loan, extension of credit (by way of guaranty or otherwise) or
capital contribution to, or purchase any Capital Stock, bonds, notes,
debentures or other debt securities of, or any assets constituting a business
unit of, or make any other investment in, any Person (all of the foregoing, “Investments”), except:


 


(a)       Investments consisting of extensions
of credit in the nature of accounts receivable or notes receivable arising from
the grant of trade credit in the ordinary course of business;


 


(b)      Investments in Cash Equivalents and
deposits of cash with banks or other depository institutions in the ordinary
course of business;


 


(c)       Guarantee Obligations permitted by
Section 8.2;


 


(d)      loans and advances to employees of
any Group Member of the Borrower in the ordinary course of business (including
for travel, entertainment and relocation


 


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expenses) in an aggregate amount for all
Group Members not to exceed $5,000,000 at any one time outstanding;


 


(e)       the Acquisition;


 


(f)       Investments in assets useful in the
business of the Borrower and its Subsidiaries made by the Borrower or any of
its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;


 


(g)      intercompany Investments by the
Borrower or any of its Subsidiaries that is not a Foreign Subsidiary in any of
the Borrower or any of its Subsidiaries that is not a Foreign Subsidiary; provided
that all such intercompany Investments that consist of loans from a Loan Party
are evidenced by the Intercompany Note or another promissory note that has been
pledged to the Senior Collateral Agent pursuant to the Security Document;


 


(h)      intercompany Investments by the
Borrower or any of its Subsidiaries in any Person, that, prior to such
Investment, is a Foreign Subsidiary (including, without limitation, Guarantee
Obligations with respect to obligations of any such Foreign Subsidiary, loans
made to any such Foreign Subsidiary and Investments resulting from mergers with
or sales of assets to any such Foreign Subsidiary) in an aggregate amount
(valued at cost) not to exceed, together with any Investment pursuant to
paragraphs (k) and (l) of this Section that results in the creation or
acquisition of a Foreign Subsidiary or the acquisition of assets by a Foreign
Subsidiary or any Investment in the Capital Stock of any Person which is
incorporated outside the United States of America, $5,000,000 in any fiscal
year or $20,000,000 in the aggregate during the term of this Agreement;


 


(i)        Investments in the ordinary course
of business consisting of endorsements for collection or deposit;


 


(j)        deposits for utilities, security
deposits, leases and similar prepaid expenses incurred in the ordinary course
of business;


 


(k)           Investments by the Company or any of its
Subsidiaries in an aggregate amount (valued at cost) not to exceed $10,000,000
in any fiscal year; provided that (i) up to $5,000,000 of any such
amount referred to above, if not so expended in the fiscal year for which it is
permitted, may be carried over for expenditure in the next succeeding fiscal
year so long as the aggregate basket taking into account amounts permitted for
such year and all amounts so carried over shall in no event exceed $50,000,000
and (ii) Investments made during any fiscal year shall be deemed made, first,
in respect of amounts carried over from the prior fiscal year and, second, in
respect of amounts permitted for such fiscal year as provided above;


 


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(l)                                     in addition to Investments otherwise
expressly permitted by this Section, Investments by the Borrower or any of its
Subsidiaries in an aggregate amount (valued at cost) not to exceed $5,000,000
in any fiscal year;


 


(m)                               Permitted Acquisitions and Investments
made prior to the consummation of any Permitted Acquisition consisting of
reasonable earnest money deposits, working fees or other similar prepaid
consideration or similar amounts that will be applied toward the consideration
paid upon the consummation of such Permitted Acquisition (in each cash whether
or not refundable under any circumstances);


 


(n)                                 Investments existing as of the
Funding Date and set forth in Schedule 8.8 of the Disclosure Letter and
any extension or renewal thereof; provided that the amount of any such
Investment is not increased at the time of such extension or renewal;


 


(o)                                 Investments received in connection
with the bankruptcy or reorganization of suppliers or customers and in
settlement of delinquent obligations of, and other disputes with, suppliers or
customers arising in the ordinary course of business;


 


(p)                                 Investments received as
consideration in connection with Dispositions permitted under Section 8.5;


 


(q)                                 Investments in Foreign Subsidiaries
to the extent required by Governmental Authorities as a requirement for such
Foreign Subsidiaries to do business in such foreign jurisdiction not exceeding
the minimum amount required and in no event exceeding $5,000,000 for each such
Investment; and


 


(r)                                    Investments consisting of Hedge
Agreements permitted by Section 8.12.


 


8.9           Optional Payments and
Modifications of Certain Debt Instruments and Agreements. (a)  (i) Make
or offer to make any optional or voluntary payment, prepayment, repurchase or
redemption of or otherwise optionally or voluntarily defease or segregate funds
with respect to the Interim Credit Agreement (other than amounts on deposit in
any Escrow Account or any Blocked Account); provided that mandatory
prepayments of outstanding Interim Loans may be made in accordance with
the terms of Section 3.2 of the Interim Credit Agreement or (ii) amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the material terms of the
Interim Loan Documents or any Subordinated Debt in a manner adverse to the
Lenders.


 


(b)                                 Amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of any Organization 


 


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Document of any Loan Party or any Pledged Company if such amendment,
modification, waiver or change could reasonably be expected to have a Material
Adverse Effect.


 


8.10                           Transactions
with Affiliates. Enter into any transaction, including any purchase, sale,
lease or exchange of property, the rendering of any service or the payment of
any management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Wholly Owned Subsidiary Guarantor) unless such transaction is (a) otherwise
permitted under this Agreement, (b) in the ordinary course of business of
the relevant Group Member and (c) upon fair and reasonable terms no less
favorable to the relevant Group Member, than it would obtain in a comparable
arm’s length transaction with a Person that is not an Affiliate. The foregoing
sentence shall not prohibit, to the extent otherwise permitted under this
Agreement, (i) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and other benefit plans, (ii) loans
or advances to employees, officers or other directors of the Borrower or any
Subsidiary permitted under this Agreement, (iii) the payment of fees and
indemnities to directors, officers, employees and consultants of the Borrower
and the Subsidiaries in the ordinary course of business, (iv) any
agreements with employees and directors entered into by the Borrower or any of
its Subsidiaries in the ordinary course of business, (v) existing related
party transactions described in the Borrower’s SEC filings made prior to the
Effective Date, (vi) any Restricted Payment permitted hereunder, (vii) any
transfer pricing or tax sharing arrangements by or among Group Members that are
compliant with relevant tax requirements or (viii) transactions for which
the Borrower or any Subsidiary shall deliver to the Senior Administrative Agent
a written opinion of a nationally recognized investment banking, accounting,
valuation or appraisal firm stating that the transaction is fair to the
Borrower or such Subsidiary from a financial point of view.


 


8.11         [Intentionally Omitted].


 


8.12         Hedge Agreements. Enter into any
Hedge Agreement, except (a) Hedge Agreements entered into in good faith to
hedge or mitigate risks to which the Borrower or any Subsidiary may have
exposure (other than those in respect of Capital Stock or those entered into
for speculative purposes), (b) Hedge Agreements entered into in order to
effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with
respect to any interest-bearing liability or investment of the Borrower or any
Subsidiary and (c) any Hedge Agreements required to be entered into
pursuant to the terms and conditions of this Agreement.


 


8.13         Changes in Fiscal Periods. Permit
the fiscal year of the Borrower to end on a day other than December 31 or
change the Borrower’s method of determining fiscal quarters.


 


8.14         Negative Pledge Clauses. Enter
into or suffer to exist or become effective any agreement that prohibits,
limits or imposes any condition upon the ability of any Group Member to create,
incur, assume or suffer to exist any Lien upon any of its property or revenues,
whether now owned or hereafter acquired, other than (a) this Agreement and
the other Loan Documents, (b) the Interim Loan Documents as in effect on
the date hereof, (c) any agreements governing any purchase money Liens or
Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed 


 


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thereby) and (d) as may be required by a Governmental
Authority in connection with the Transaction.


 


8.15                           Clauses
Restricting Subsidiary Distributions. Enter into or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of
any Subsidiary of the Borrower to (a) make Restricted Payments in respect
of any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed
to, the Borrower or any other Subsidiary of the Borrower, (b) make loans
or advances to, or other Investments in, the Borrower or any other Subsidiary
of the Borrower or (c) transfer any of its assets to the Borrower or any
other Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the
Loan Documents, (ii) any restrictions or encumbrances existing under the
Interim Loan Documents as in effect on the date hereof, and (iii) any
restrictions with respect to a Subsidiary imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary.


 


8.16         Lines of Business. Enter into
any business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the date
of this Agreement (or in the case of Constellation and its Subsidiaries, after
giving effect to the Acquisition) or that are reasonably related, ancillary or
complementary thereto.


 


8.17         Amendment to Scheme. If the
Offer Conversion has not occurred:


 


(a)                                  Take
any action (and shall procure that no person acting in concert with it takes
any action) which will result in it becoming obliged to make an offer for
Constellation Shares under Rule 9 of the City Code, unless consented to in
writing by the Senior Administrative Agent;


 


(b)                                 Except
as otherwise permitted in this Section 8.17, as contemplated by Section 7.11
and as otherwise agreed to in writing by the Senior Administrative Agent, amend
(and shall use reasonable endeavors to ensure that there is no amendment to)
the Scheme where any such amendment would be material and adverse to the
interests of the Lenders (including any increase to the cash consideration
payable pursuant to the Scheme above the amount specified in the Scheme Press
Release (including as a result of any open market purchase or privately
negotiated purchase at a higher price resulting in a mandatory increase in the
cash consideration payable pursuant to the Scheme Document)) unless either:


 


(i)                   the Senior Administrative Agent has
given its consent; or


 


(ii)                (other than any increase to the cash consideration
payable pursuant to the Scheme above the amount specified in the Scheme Press
Release) to the extent required by the City Code, the Panel, the OFT, the
Competition Commission, the Court or any other court having relevant
jurisdiction or any other regulatory authority with whose direction the
Borrower or Bidco is required 


 


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by
law or in accordance with customary practice should comply in respect of the
Scheme.


 


(c)                                  Waive
(and shall use reasonable efforts to ensure that there is no waiver of) or
declare or treat as satisfied any condition of the Scheme unless:


 


(i)                                     such waiver, declaration or consent
would not be material and adverse to the interests of the Lenders; or


 


(ii)                                  the Senior Administrative Agent has
given its consent; or


 


(iii)                               to the extent required by the City
Code, the Panel, the OFT, the Competition Commission, the Court or any other
court of relevant jurisdiction or any other regulatory authority with whose direction
the Borrower or Bidco is required by law or in accordance with customary
practice should comply in respect of the Scheme.


 


8.18                            Amendments to Offer.
If the Offer Conversion has occurred:


 


(a)                                  Take
any action (and shall procure that no person acting in concert with it takes
any action) which will result in it becoming obliged to make an offer for
Constellation Shares under Rule 9 of the City Code, unless consented to in
writing by the Senior Administrative Agent;


 


(b)                                 Except
as otherwise permitted in this Section 8.18 and as otherwise agreed to in
writing by the Senior Administrative Agent, amend (and shall use reasonable
endeavors to ensure that there is no amendment to) the Offer (other than the
acceptance condition (as provided in Section 6.2(b)) where any such
amendment would be material and adverse to the interests of the Lenders
(including any increase to the cash consideration payable pursuant to the Offer
Document above the amount specified in the Offer Press Release (including as a
result of any open market purchase or privately negotiated purchase at a higher
price resulting in a mandatory increase in the cash consideration payable
pursuant to the Offer Document)) unless either:


 


(i)                                     the Senior Administrative Agent has
given its consent; or


 


(ii)                                  (other than any increase to the cash
consideration payable pursuant to the Offer Document above the amount specified
in the Offer Press Release) to the extent required by the City Code, the Panel,
the OFT, the Competition Commission, the Court or any other court having
relevant jurisdiction or any other regulatory authority with whose direction
the Borrower 


 


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or
Bidco is required by law or in accordance with customary practice should comply
in respect of such bid.


 


(c)                                  Waive
(and shall use reasonable efforts to ensure that there is no waiver of) or
declare or treat as satisfied (or publish any intention to declare or treat as
satisfied) any condition of the Offer (other than the acceptance condition (as
provided in Section 6.2(b)) if the Panel would allow the Offer to lapse as
a result of the failure to satisfy that condition unless:


 


(i)                                     such waiver, declaration or consent
would not be material and adverse to the interests of the Lenders; or


 


(ii)                                  the Senior Administrative Agent has
given its consent; or


 


(iii)                               to the extent required by the City
Code, the Panel, the OFT, the Competition Commission, the Court or any other
court of relevant jurisdiction or any other regulatory authority with whose
direction the Borrower or Bidco is required by law or in accordance with
customary practice should comply in respect of such bid.


 


8.19                            Blocked Accounts. At
any time prior to two Business Days following the Funding Date, withdraw any
amounts on deposit in any Blocked Account except to (a) satisfy the terms
of the Offer or Scheme and fund a portion of the Acquisition consideration, (b) repay
the Interim Loans or (c) deposit such amounts in an Escrow Account.


 


SECTION 9.                       EVENTS
OF DEFAULT


 


If any of the
following events shall occur and be continuing:


 


(a)                                  the
Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or the Borrower shall
fail to pay any interest on any Loan or Reimbursement Obligation, or any other
amount payable hereunder or under any other Loan Document, within five days
after any such interest or other amount becomes due in accordance with the
terms hereof; or


 


(b)                                 any
representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection
with this Agreement or any such other Loan Document shall prove to have been
inaccurate in any material respect on or as of the date made or deemed made; or


 


95

















 


(c)                                  any
Loan Party shall default in the observance or performance of any agreement
contained in clause (i) or (ii) of Section 7.4(a) (with
respect to the Borrower only), Section 7.7(a), Section 7.17 or Section 8
of this Agreement or Sections 5.5 and 5.7(b) of the Guarantee and
Collateral Agreement; or


 


(d)                                 any
Loan Party shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided
in paragraphs (a) through (c) of this Section), and such default
shall continue unremedied for a period of 30 days after notice to the Borrower
from the Senior Administrative Agent or the Required Lenders; or


 


(e)                                  any
Group Member (i) defaults in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation or Hedge Agreement, but
excluding the Loans) on the scheduled or original due date with respect
thereto; or (ii) defaults in making any payment of any interest on any
such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (iii) defaults
in the observance or performance of any other agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its stated
maturity or to become subject to a mandatory offer to purchase by the obligor
thereunder or (in the case of any such Indebtedness constituting a Guarantee
Obligation) to become payable; provided, that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (e) shall
not at any time constitute an Event of Default unless, at such time, one or
more defaults, events or conditions of the type described in clauses (i), (ii) and
(iii) of this paragraph (e) shall have occurred and be continuing
with respect to Indebtedness the outstanding principal amount of which exceeds
in the aggregate $5,000,000; or


 


(f)                                    (i) any
Group Member other than an Immaterial Subsidiary shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
administration, examination, receivership, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a liquidator,
administrator, administrative receiver, examiner, receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part of
its assets, or any Group Member other than an Immaterial Subsidiary shall make
a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against any Group Member other than an Immaterial Subsidiary any
case, proceeding or other action of a nature referred to in clause (i) above
that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against any 


 


96

















 


Group Member other than an Immaterial Subsidiary any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets that results in the entry of an order for any such relief that shall not
have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) any Group Member other than an
Immaterial Subsidiary shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) any Group Member other than
an Immaterial Subsidiary shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due and, in the
case of any subsidiary of the Borrower incorporated in any jurisdiction in the
United Kingdom or Ireland, ignoring the deeming provisions of Section 123(1)(a) of
the Insolvency Act 1986 and Section 214 of the Companies Act, 1963 of
Ireland; or


 


(g)                                 (i) 
any Person shall engage in any “prohibited transaction” (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated
funding deficiency” (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of the PBGC
or a Plan shall arise on the assets of any Group Member other than an
Immaterial Subsidiary or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee would be reasonably likely to result in
the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any
Group Member other than an Immaterial Subsidiary or any Commonly Controlled
Entity shall, or is reasonably likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or conditions, if
any, could reasonably be expected to have a Material Adverse Effect; or


 


(h)                                 one
or more judgments or decrees shall be entered against any Group Member
involving in the aggregate a liability (not paid or fully covered by insurance
as to which the relevant insurance company has acknowledged coverage) of
$5,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or


 


(i)                                     any
of the Security Documents shall cease, for any reason, to be in full force and
effect, or any Loan Party or any Affiliate of any Loan Party shall so assert,
or any Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or any Loan Party shall so assert; or


 


(j)                                     the
guarantee contained in Section 2 of the Guarantee and Collateral Agreement
shall cease, for any reason, to be in full force and effect or any Loan Party
or any Affiliate of any Loan Party shall so assert; or


 


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(k)                                  (i) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”))
shall become, or obtain rights (whether by means or warrants, options or
otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3
and 13(d) 5 under the Exchange Act), directly or indirectly, of more than
35% of the outstanding common stock of the Borrower; or (ii) the board of
directors of the Borrower shall cease to consist of a majority of Continuing
Directors;


 


then, and in
any such event, subject to the provisions of Section 6.4 (Certain Funds), (A) if
such event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the
other Loan Documents (including all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or
both of the following actions may be taken: (i) with the consent of
the Required Lenders, the Senior Administrative Agent may, or upon the request
of the Required Lenders, the Senior Administrative Agent shall, by notice to
the Borrower declare the Revolving Commitments to be terminated forthwith,
whereupon the Revolving Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Senior Administrative Agent may, or
upon the request of the Required Lenders, the Senior Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the
other Loan Documents (including all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) to be due and payable forthwith,
whereupon the same shall immediately become due and payable. With respect to
all Letters of Credit with respect to which presentment for honor shall not
have occurred at the time of an acceleration pursuant to this paragraph, the
Borrower shall at such time deposit in a cash collateral account opened by the
Senior Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Senior Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Borrower hereunder
and under the other Loan Documents and any Specified Hedge Agreements. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations
of the Borrower hereunder and under the other Loan Documents and any Specified
Hedge Agreements shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower (or such other Person
as may be lawfully entitled thereto). Except as expressly provided above
in this Section, presentment, demand, protest and all other notices of any kind
are hereby expressly waived by the Borrower.


 


SECTION 10.                 THE AGENTS


 


10.1                            Appointment. (a) 
Each Lender (and, if applicable, each other Secured Party) hereby irrevocably
designates and appoints each Agent as the agent of such Lender (and, 


 


 


98

















 


if applicable,
each other Secured Party) under this Agreement and the other Loan Documents,
and each such Lender (and, if applicable, each other Secured Party) irrevocably
authorizes such Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to
such Agent by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental thereto. Each
Agent hereby accepts such appointment. Notwithstanding any provision to the
contrary elsewhere in this Agreement, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender or other Secured Party, 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 any
Agent.


 


(b)                                 Each
of the Secured Parties hereby irrevocable designates and appoints Morgan
Stanley & Co. Incorporated as Senior Collateral Agent and security
trustee of such Secured Party under this Agreement and the other Loan Documents
(in such capacity, the “Senior Collateral Agent”), and each such Secured Party irrevocably
authorizes the Senior Collateral Agent, in such capacity, to take such action
on its behalf as are necessary or advisable with respect to the Collateral
under this Agreement or any of the other Loan Documents, together with such
powers as are reasonably incidental thereto. The Senior Collateral Agent hereby
accepts such appointment.


 


(c)                                  Each
Lender acknowledges the terms of the Security Trust Deed and, in particular,
the terms, basis and limitation on which the Senior Collateral Agent holds the
Transaction Security (as defined therein) and specifically agrees and accepts (i) such
terms, basis and limitation; (ii) that the Senior Collateral Agent shall,
as trustee, have only those duties, obligations and responsibilities expressly
specified in the Security Trust Deed; (iii) the limitation and exclusion
of the Senior Collateral Agent’s liability as set out therein; and (iv) all
other provisions of the Security Trust Deed as if it were a party thereto.


 


10.2                            Delegation of Duties.
Each Agent may execute any of its duties under this Agreement and the
other Loan Documents by or through agents or attorneys in fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
No Agent shall be responsible for the negligence or misconduct of any agents or
attorneys in fact selected by it with reasonable care.


 


10.3                            Exculpatory Provisions.
Neither any Agent nor any of their respective officers, directors, employees,
agents, attorneys in fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from its or such Person’s own
gross negligence or willful misconduct) or (ii) responsible in any manner
to any of the Lenders or any other Secured Party for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or any Specified Hedge
Agreement or in any certificate, report, statement or other document referred
to or provided for in, or received by the Agents 


 


 


99

















 


under or in connection with, this Agreement or any other Loan Document
or any Specified Hedge Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or any Specified Hedge Agreement or for any failure of any Loan Party
a party thereto to perform its obligations hereunder or thereunder. The
Agents shall not be under any obligation to any Lender 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 any
Specified Hedge Agreement, or to inspect the properties, books or records of
any Loan Party.


 


10.4                            Reliance by Agents. Each
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order 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 the Borrower), independent
accountants and other experts selected by such Agent. The Senior Administrative
Agent may deem and treat the payee of any Note as the owner thereof for
all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Senior Administrative Agent. Each Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders (or, if so specified by this Agreement,
all Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action. The
Agents shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Required Lenders (or, if so specified by this Agreement, all
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans and all other Secured Parties.


 


10.5                            Notice of Default. No
Agent shall be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless such Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a “notice of
default”. In the event that the Senior Administrative Agent receives such a
notice, the Senior Administrative Agent shall give notice thereof to the
Lenders. The Senior Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Lenders (or, if so specified by this Agreement, all Lenders or any
other instructing group of Lenders specified by this Agreement); provided
that unless and until the Senior Administrative Agent shall have received such
directions, the Senior Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Secured Parties.


 


10.6                            Non Reliance on Agents
and Other Lenders. Each Lender (and, if applicable, each other Secured
Party) expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys in fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender or any other Secured
Party. 


 


 


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Each Lender (and, if applicable, each other Secured Party) represents
to the Agents that it has, independently and without reliance upon any Agent or
any other Lender or any other Secured Party, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates and
made its own decision to make its Loans hereunder and enter into this Agreement
or any Specified Hedge Agreement. Each Lender (and, if applicable, each other
Secured Party) also represents that it will, independently and without reliance
upon any Agent or any other Lender or any other Secured Party, 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 or any
Specified Hedge Agreement, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their affiliates. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Senior Administrative Agent hereunder, the Senior
Administrative Agent shall not have any duty or responsibility to provide any
Lender or any other Secured Party with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Senior
Administrative Agent or any of its officers, directors, employees, agents,
attorneys in fact or affiliates.


 


10.7                            Indemnification. The
Lenders agree to indemnify each Agent in its capacity as such (to the extent
not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Aggregate Exposure
Percentages in effect on the date on which indemnification is sought under this
Section (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with such Aggregate Exposure Percentages immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (whether before
or after the payment of the Loans) be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Loan Documents, any Specified Hedge Agreement
or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
such Agent under or in connection with any of the foregoing; provided that
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent’s gross
negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.


 


10.8                            Agent in Its Individual
Capacity. Each Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with any Loan Party
as though such Agent were not an Agent. With respect to its Loans made or
renewed by it and with respect to any Letter of Credit issued or participated
in by it, each Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and 


 


 


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may exercise the same as though it were not an Agent, and the
terms “Lender”, “Lenders”, “Secured Party” and “Secured Parties” shall include
each Agent in its individual capacity.


 


10.9                            Successor Agents. (a) 
The Senior Administrative Agent and the Senior Collateral Agent may resign
as Senior Administrative Agent and Senior Collateral Agent, respectively, upon
30 days’ notice to the Lenders and the Borrower. If the Senior Administrative
Agent or Senior Collateral Agent, as applicable, shall resign as Senior
Administrative Agent or Senior Collateral Agent, as applicable, under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Section 9(a) or Section 9(f) with
respect to the Borrower shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers
and duties of the Senior Administrative Agent or Senior Collateral Agent, as
applicable, and the term “Senior Administrative Agent” or “Senior Collateral
Agent,” as applicable, shall mean such successor agent effective upon such
appointment and approval, and the former Senior Administrative Agent’s, or
Senior Collateral Agent’s, as applicable, rights, powers and duties as Senior
Administrative Agent or Senior Collateral Agent, as applicable, shall be
terminated, without any other or further act or deed on the part of such
former Senior Administrative Agent or Senior Collateral Agent, as applicable,
or any of the parties to this Agreement or any holders of the Loans. If no
successor agent has accepted appointment as Senior Administrative Agent or
Senior Collateral Agent, as applicable, by the date that is 30 days following a
retiring Senior Administrative Agent’s or Senior Collateral Agent’s, as
applicable, notice of resignation, the retiring Senior Administrative Agent’s
or Senior Collateral Agent’s, as applicable, resignation shall nevertheless
thereupon become effective and the Lenders shall assume and perform all of
the duties of the Senior Administrative Agent or Senior Collateral Agent, as
applicable, hereunder until such time, if any, as the Required Lenders appoint
a successor agent as provided for above. After any retiring Senior
Administrative Agent’s or Senior Collateral Agent’s, as applicable, resignation
as Senior Administrative Agent or Senior Collateral Agent, as applicable, the
provisions of this Section 10 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Senior Administrative Agent or
Senior Collateral Agent, as applicable, under this Agreement and the other Loan
Documents.


 


(b)                                 The
Syndication Agent may, at any time, by notice to the Lenders and the Senior
Administrative Agent, resign as Syndication Agent hereunder, whereupon the
duties, rights, obligations and responsibilities of the Syndication Agent
hereunder shall automatically be assumed by, and inure to the benefit of, the
Senior Administrative Agent, without any further act by the Syndication Agent,
the Senior Administrative Agent or any Lender.


 


10.10                      Agents Generally. Except
as expressly set forth herein, no Agent shall have any duties or
responsibilities hereunder in its capacity as such.


 


10.11                      The Lead Arranger. The
Lead Arranger, in its capacity as such, shall have no duties or
responsibilities, and shall incur no liability, under this Agreement and other
Loan Documents.


 


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10.12                      Additional Collateral Agents.
(a)  Whenever the Senior Collateral Agent shall deem it necessary or
prudent, the Senior Collateral Agent shall take such action (including, to the
extent required, the execution and delivery of an agreement supplemental hereto
and such other instruments and agreements) as may be necessary or proper
to constitute one or more Persons approved by the Senior Collateral Agent and,
unless a Default or Event of Default has occurred and is continuing, (x) if
such Additional Collateral Agent is an Affiliate of the Senior Collateral
Agent, reasonably acceptable to the Borrower or (y) if such Additional
Collateral Agent is not an Affiliate of the Senior Collateral Agent, acceptable
to the Borrower in its sole and absolute discretion, either to act as an
additional collateral agent of all or any part of the Collateral, jointly
with the Senior Collateral Agent, or to act as a separate collateral agent or
trustee of all or any part of the Collateral (any such additional or separate
agent or trustee being herein called an “Additional Collateral Agent”),
in any such case with such powers as may be granted pursuant to such
action, and to vest in such Person as an Additional Collateral Agent any
property, title, right or power of the Senior Collateral Agent deemed necessary
or advisable by the Senior Collateral Agent, subject to the remaining
provisions of this Section 10.12. The Senior Collateral Agent may execute,
deliver and perform any deed, conveyance, assignment or other instrument
in writing as may be required by any Additional Collateral Agent for more
fully and certainly vesting in and confirming to it, him or her any property,
title, right or power which by the terms of such agreement supplemental hereto
is expressed to be conveyed or conferred to or upon such Additional Collateral
Agent.


 


(b)                                 Each
Additional Collateral Agent shall, to the extent permitted by law, be appointed
and act, and the Senior Collateral Agent shall act, subject to the following
provisions and conditions:


 


(i)                                     all powers, duties, obligations and
rights conferred upon the Senior Collateral Agent in respect of the receipt,
custody, investment and payment of moneys, shall be exercised solely by the
Senior Collateral Agent;


 


(ii)                                  all other rights, powers, duties and
obligations conferred or imposed upon the Senior Collateral Agent shall be
conferred or imposed upon and exercised or performed by such Additional
Collateral Agent jointly with the Senior Collateral Agent, except to the extent
the Senior Collateral Agent shall be unable for any reason to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to any part of the Collateral) shall be
exercised and performed by such Additional Collateral Agent;


 


(iii)                               no power hereby given to, or with
respect to which it is hereby provided may be exercised by, such
Additional Collateral Agent shall be exercised hereunder by such Additional
Collateral Agent except jointly with, or with the consent of, the Senior
Collateral Agent;


 


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(iv)                              such Additional Collateral Agent
shall act only upon and to the extent of written instructions from the Senior
Collateral Agent and no other party, and such Additional Collateral Agent shall
not be required to take and shall not be responsible for taking any action as
Additional Collateral Agent under any Security Document or this Agreement
unless it has received such written instructions from the Senior Collateral
Agent; and


 


(v)                                 the Senior Collateral Agent shall
not be personally liable by reason of any act or omission of such Additional
Collateral Agent hereunder, nor shall such Additional Collateral Agent be
personally liable by reason of any act or omission of the Senior Collateral
Agent or any other Additional Collateral Agent hereunder.


 


If at any time the Senior Collateral Agent shall deem it no longer
necessary or prudent, the Senior Collateral Agent shall execute and deliver an
agreement supplemental hereto and all other instruments and agreements
necessary or proper to remove any Additional Collateral Agent.


 


(c)                                  Any
Additional Collateral Agent may at any time by an instrument in writing
constitute the Senior Collateral Agent its agent or attorney-in-fact, with full
power and authority, to the extent which may be authorized by law, to do
all acts and things and exercise all discretion which it is authorized or
permitted to do or exercise, for and in its behalf and in its name. In case any
Additional Collateral Agent shall become incapable of acting, resign or be
removed, all the assets, property, rights, powers, trusts, duties and
obligations of such Additional Collateral Agent, so far as permitted by law,
shall vest in and be exercised by the Senior Collateral Agent, without the
appointment of a new successor to such Additional Collateral Agent unless and
until a successor is appointed in the manner hereinbefore provided.


 


(d)                                 Any
request, approval or consent in writing by the Senior Collateral Agent to any
Additional Collateral Agent shall be sufficient warrant to such Additional
Collateral Agent to take such action as may be so requested, approved or
consented.


 


(e)                                  Each
Additional Collateral Agent appointed pursuant to this Section 10.12 shall
be subject to, and shall have the benefits of, the provisions of this Agreement
and each of the other Loan Documents insofar as they apply to the Senior
Collateral Agent.


 


SECTION 11.                 MISCELLANEOUS


 


11.1                            Amendments and Waivers.
Neither this Agreement, any other Loan Document, nor any terms hereof or
thereof may be amended, supplemented or modified except in accordance with
the provisions of this Section 11.1. The Required Lenders and each Loan
Party party to the relevant Loan Document may, or, with the written consent of
the Required Lenders, the Senior Administrative Agent and each Loan Party party
to the relevant Loan 


 


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Document may, from time to time, (a) enter into written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the Senior Administrative Agent, as the case may be,
may specify in such instrument, any of the requirements of this Agreement
or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) forgive the principal
amount or extend the final scheduled date of maturity of any Loan, extend the
scheduled date of any amortization payment in respect of any Term Loan, reduce
the stated rate of any interest or fee payable hereunder (except (x) in
connection with the waiver of applicability of any post-default increase in
interest rates, which waiver shall be effective with the consent of the
Majority Facility Lenders of each adversely affected Facility and (y) that any
amendment or modification of the financial covenants or defined terms used in
the financial covenants in this Agreement shall not constitute a reduction in
the rate of interest or fees for purposes of this clause (i)) or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender’s Revolving Commitment or amend, modify or waive
any provision of Section 4.8, in each case without the written consent of
each Lender directly affected thereby; (ii) eliminate or reduce the voting
rights of any Lender under this Section 11.1 without the written consent
of such Lender; (iii) reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement and the other Loan
Documents, release all or substantially all of the Collateral, release all or
substantially all of the Guarantors from their obligations under the Guarantee
and Collateral Agreement or amend clause (a)(i), (b)(iii) or (c)(iii) of
the definition of Certain Funds Period, in each case without the written
consent of all Lenders; (iv) amend, modify or waive any condition
precedent to any extension of credit under the Revolving Facility set forth in Section 6.3
(including in connection with any waiver of an existing Default or Event of
Default) without the written consent of the Majority Facility Lenders with
respect to the Revolving Facility; (v) reduce the percentage specified in
the definition of Majority Facility Lenders with respect to any Facility
without the written consent of all Lenders under such Facility; (vi) amend,
modify or waive any provision of Section 10 without the written consent of
each Agent adversely affected thereby; (vii) amend, modify or waive any
provision of Section 11.6 to further restrict any Lender’s ability to
assign or otherwise transfer its obligations hereunder without the written
consent of all Lenders; (viii) amend, modify or waive any provision of Section 3.3
or 3.4 without the written consent of the Swingline Lender; (ix) amend,
modify or waive any provision of Sections 3.7 to 3.14 without the written
consent of the Issuing Lender and (x) amend, modify or waive (A) any provision
of any Loan Document so as to alter the ratable treatment of the Borrower Hedge
Agreement Obligations and Borrower Credit Agreement Obligations or (B) the
definition of “Qualified Counterparty,” “Specified Hedge Agreement,” “Senior
Obligations,” or “Borrower Hedge Agreement Obligations,” in each case in a
manner adverse to any Qualified Counterparty with Senior Obligations then
outstanding without the written consent of any such Qualified Counterparty. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Agents and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Agents shall be restored to their
former position and rights hereunder and under the other Loan Documents, and
any Default or 


 


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Event of Default waived shall be deemed to be cured and not continuing;
but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.


 


Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated)
with the written consent of the Required Lenders, the Senior Administrative
Agent and the Borrower (a) to add one or more additional credit facilities
to this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof
(collectively, the “Additional
Extensions of Credit”) to share
ratably in the benefits of this Agreement and the other Loan Documents with the
Term Loans and Revolving Extensions of Credit and the accrued interest and fees
in respect thereof and (b) to include appropriately the Lenders holding
such credit facilities in any determination of the Required Lenders and
Majority Facility Lenders.


 


In addition,
notwithstanding the foregoing, this Agreement may be amended with the
written consent of the Senior Administrative Agent, the Borrower and the
Lenders providing the relevant Replacement Term Loans (as defined below) to
permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder (“Replacement Term Loans”), provided that (a) the aggregate
principal amount of such Replacement Term Loans shall not exceed the aggregate
principal amount of such Refinanced Term Loans, (b) the Applicable Margin
for such Replacement Term Loans shall not be higher than the Applicable Margin
for such Refinanced Term Loans, (c) the weighted average life to maturity
of such Replacement Term Loans shall not be shorter than the weighted average
life to maturity of such Refinanced Term Loans at the time of such refinancing
and (d) all other terms applicable to such Replacement Term Loans shall be
substantially identical to, or less favorable to the Lenders providing such
Replacement Term Loans than, those applicable to such Refinanced Term Loans,
except to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the Term Loans in
effect immediately prior to such refinancing.


 


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.


 


11.2                            Notices. (a) 
All notices and other communications provided for hereunder shall be either (i) in
writing (including telecopy or e-mail communication) and mailed, telecopied or
delivered or (ii) as and to the extent set forth in Section 11.2(b) and
in the proviso to this Section 11.2(a), in an electronic medium and as
delivered as set forth in Section 11.2(b) if to the Borrower, at its
address at 10240 Sorrento Valley Road, San Diego, CA 92121, Attention: Chief
Financial Officer; if to the Senior Collateral Agent, at its address at One
Pierrepont Plaza, 7th Floor, 300 Cadman Plaza West, Brooklyn, NY 11201,
Attention: Erma Dell’Aquila , E-mail Address: Erma.Dell’Aquila@morganstanley.com,
with a copy to Morgan Stanley Senior Funding, Inc., One Pierrepont Plaza,
7th Floor, 300 Cadman Plaza West, Brooklyn, NY 11201,


 


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Attention:
Edward Henley, E-mail Address: Edward.Henley@morganstanley.com; and if to the
Senior Administrative Agent, at its address at One Pierrepont Plaza, 7th Floor,
300 Cadman Plaza West, Brooklyn, NY 11201, Attention: Erma Dell’Aquila, E-mail
Address: Erma.Dell’Aquila@morganstanley.com, with a copy to Morgan Stanley
Senior Funding, Inc., One Pierrepont Plaza, 7th Floor, 300 Cadman Plaza West,
Brooklyn, NY 11201, Attention: Edward Henley, E-mail Address:
Edward.Henley@morganstanley.com; or, as to any party, at such other
address as shall be designated by such party in a written notice to the other
parties; provided, however, that materials and information
described in Section 11.2(b) shall be delivered to the Senior Administrative
Agent in accordance with the provisions thereof or as otherwise specified to
the Borrower by the Senior Administrative Agent. All such notices and other
communications shall, when mailed, be effective four days after having been
mailed, and when telecopied or E-mailed, be effective when properly
transmitted, except that notices and communications to any Agent pursuant to
Sections 2, 3, 4, 6 and 10 shall not be effective until received by such Agent.
Delivery by telecopier of an executed counterpart of a signature page to any amendment
or waiver of any provision of this Agreement or the Notes or of any Exhibit
hereto to be executed and delivered hereunder shall be effective as delivery of
an original executed counterpart thereof.


 


(b)                                 The Borrower hereby agrees that it
will provide to the Senior Administrative Agent all information, documents and
other materials that it is obligated to furnish to the Senior 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 any borrowing
or other extension of credit hereunder (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 Senior Administrative Agent to an electronic address
specified by the Senior Administrative Agent to the Borrower. In addition, the
Borrower agrees to continue to provide the Communications to the Agents in the
manner specified in the Loan Documents but only to the extent requested by the
Senior Administrative Agent. The Borrower further agrees that the Senior
Administrative Agent may make the Communications available to the Lenders by
posting the Communications on Intralinks or a substantially similar secure
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-


 


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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 SENIOR
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 PARTY 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 SENIOR 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.


 


The Senior Administrative Agent agrees that
the receipt of the Communications by the Senior Administrative Agent at its
e-mail address set forth above shall constitute effective delivery of the
Communications to the Senior 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 Senior
Administrative Agent in writing (including by electronic communication) from
time to time of such Lender’s e-mail address to which 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
Senior 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.


 


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


 


11.4         Survival of
Representations and Warranties. All representations and warranties made
hereunder, in the other Loan Documents and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans and other
extensions of credit hereunder.


 


11.5         Payment of Expenses
and Taxes. The Borrower agrees (a) to pay or reimburse each Agent for all
its reasonable out of pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement


 


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or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including the reasonable fees
and disbursements of counsel to such Agent and filing and recording fees and
expenses, with statements with respect to the foregoing to be submitted to the
Borrower (i) prior to the Effective Date (in the case of amounts to be paid on
the Effective Date), (ii) prior to the Funding Date (in the case of amounts to
be paid on the Funding Date) and (iii) from time to time thereafter on a
quarterly basis or such other periodic basis as such Agent shall deem
appropriate, (b) to pay or reimburse each Lender and Agent for all its costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including the fees, charges and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to such Agent, (c) to pay, indemnify, and hold each Lender and Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and
hold each Lender and Agent and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an “Indemnitee”)
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents (regardless of whether any Loan Party is or is not a party to any
such actions or suits) and any such other documents, including any of the
foregoing relating to the use of proceeds of the Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of any Group Member or any of the Properties and the reasonable fees
and expenses of legal counsel in connection with claims, actions or proceedings
by any Indemnitee against any Loan Party under any Loan Document (all the
foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no
obligation hereunder to any Indemnitee with respect to Indemnified Liabilities
to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee. All
amounts due under this Section 11.5 shall be payable not later than 10 days
after written demand therefor. Statements payable by the Borrower pursuant to
this Section 11.5 shall be submitted to the Chief Financial Officer (Telephone
No. (858) 320-8081) (Telecopy No. (858) 784-4081), at the address of the
Borrower set forth in Section 11.2, or to such other Person or address as may
be hereafter designated by the Borrower in a written notice to the Senior
Administrative Agent. The agreements in this Section 11.5 shall survive
repayment of the Term Loans and all other amounts payable hereunder.


 


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11.6         Successors and
Assigns; Participations and Assignments. (a)  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any affiliate of
the Issuing Lender that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.


 


(b)           (i)  Subject to
the conditions set forth in paragraph (b)(ii) below, any Lender may assign to
one or more assignees (each, an “Assignee”) all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments and the Term Loans at the time owing to it)
with the prior written consent (such consent not to be unreasonably withheld,
delayed or conditioned of):


 


(A)       the Borrower, provided that no consent of the
Borrower shall be required for an (x) assignment to a Lender, an affiliate of a
Lender, an Approved Fund of a Lender or, if an Event of Default has occurred
and is continuing, any other Person and (y) any assignment by the Senior
Administrative Agent (or its affiliates) to an Eligible Assignee prior to a
Successful Syndication; and


 


(B)        the Senior Administrative Agent, provided that
no consent of the Senior Administrative Agent shall be required for (x) an
assignment to an Assignee that is a Lender immediately prior to giving effect
to such assignment, except in the case of an assignment of a Revolving
Commitment to an Assignee that does not already have a Revolving Commitment,
(y) any assignment by the Senior Administrative Agent (or its affiliates) or
(z) any assignment of Term Loans; and


 


(C)        in the case of any assignment of a Revolving
Commitment, the Issuing Lender and the Swingline Lender.


 


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


 


(A)       except in the case of an assignment to a Lender, an
affiliate of a Lender or an Approved Fund of a Lender, an assignment effected
by the Senior Administrative Agent in connection with the initial syndication
of the Commitments or an assignment of the entire remaining amount of the
assigning Lender’s Commitments or Loans under any Facility, the amount of the
Commitments or Loans of the assigning Lender 


 


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subject
to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Senior
Administrative Agent) shall not be less than $1,000,000 (in the case of the
Term Commitments or Term Loans) or $5,000,000 (in the case of the Revolving
Commitments or Revolving Loans) unless each of the Borrower and the Senior
Administrative Agent otherwise consent, provided that (1) no such
consent of the Borrower shall be required if an Event of Default has occurred
and is continuing and (2) such amounts shall be aggregated in respect of each
Lender and its affiliates or Approved Funds, if any;


 


(B)        except in the case of assignments pursuant to clause
(iii) below, the parties to each assignment shall execute and deliver to the
Senior Administrative Agent an Assignment and Assumption;


 


(C)        except in the case of assignments pursuant to clause
(iii) below, the Assignee, if it shall not be a Lender, shall deliver to the
Senior Administrative Agent an administrative questionnaire; and


 


(iii)          Notwithstanding anything in this Section 11.6 to the
contrary, a Lender may assign any or all of its rights hereunder to an
Affiliate of such Lender or an Approved Fund of such Lender without (a)
providing any notice (including, without limitation, any administrative
questionnaire) to the Senior Administrative Agent or any other Person or (b)
delivering an executed Assignment and Assumption to the Senior Administrative
Agent, provided that (A) such assigning Lender shall remain solely
responsible to the other parties hereto for the performance of its obligations
under this Agreement, (B) the Borrower, the Senior Administrative Agent, the
Issuing Lender and the other Lenders shall continue to deal solely and directly
with such assigning Lender in connection with such assigning Lender’s rights
and obligations under this Agreement until an Assignment and Assumption and an
administrative questionnaire have been delivered to the Senior Administrative
Agent, (C) the failure of such assigning Lender to deliver an Assignment and
Assumption or administrative questionnaire to the Senior Administrative Agent
or any other Person shall not affect the legality, validity or binding effect
of such assignment and (D) an Assignment and Assumption between an assigning
Lender and its Affiliate or Approved Fund shall be effective as of the date
specified in such Assignment and Assumption.


 


(iv)          Except as otherwise provided in clause (iii) above,
subject to acceptance and recording thereof pursuant to paragraph (b)(v) below,
from and after the effective date specified in each Assignment and Assumption
the Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the


 


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extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 4.9, 4.10, 4.11 and 11.5). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 11.6 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.


 


(v)           The Senior Administrative Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its offices a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). Subject
to the penultimate sentence of this Section 11.6(b)(v), the entries in the
Register shall be conclusive, and the Borrower, the Senior Administrative
Agent, the Issuing Lender and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. In the
case of an assignment to an Affiliate or an Approved Fund of a Lender pursuant
to Section 11.6(b)(iii), as to which an Assignment and Assumption and an
administrative questionnaire are not delivered to the Senior Administrative
Agent, the assigning Lender shall, acting solely for this purpose as a
non-fiduciary agent of the Borrower, maintain a register (a “Related Party Register”) comparable to the Register on behalf of the
Borrower. The Register or Related Party Register shall be available for
inspection by the Borrower, the Issuing Lender and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


(vi)          Except as otherwise provided in clause (iii) above,
upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Senior Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. Except
as otherwise provided in clause (iii) above, no assignment shall be effective
for purposes of this Agreement unless and until it has been recorded in the
Register (or, in the case of an assignment pursuant to clause (iii) above, the
applicable Related Party Register) as provided in this Section 11.6(b).


 


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(c)           (i) 
Any Lender may, without the consent of the Borrower or the Senior
Administrative Agent, sell participations to one or more banks or other
entities (a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it); provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (C) the Borrower, the Senior Administrative Agent, the Issuing
Lender and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement may provide that such
Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver that (1) requires the consent of each Lender
directly affected thereby pursuant to the proviso to the second sentence of
Section 11.1 and (2) directly affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 4.9, 4.10 and 4.11 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 11.7(b) as though it were a
Lender, provided such Participant shall be subject to Section 11.7(a) as though
it were a Lender.


 


(ii)           A Participant shall not be entitled to receive any
greater payment under Section 4.9 or 4.10 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. Any Participant that is a Non-U.S.
Lender shall not be entitled to the benefits of Section 4.10 unless such
Participant complies with Section 4.10(d).


 


(d)           Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank or any other Person
and may sell or securitize such obligations, and this Section shall not apply
to any such pledge or assignment of a security interest or to any such sale or
securitization; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto. In
addition, notwithstanding anything to the contrary contained herein, any Lender
that is a Fund may (without the consent of or notice to the Senior
Administrative Agent or the Borrower) grant a security interest in all or any
portion of the Loans owing to it and the Notes (if any) held by it to the
trustee or other representative of holders of obligations owed, or securities
issued, by such Fund as security for such obligations or securities, provided
that unless and until such trustee or other representative actually becomes a
Lender in compliance with the other provisions of this Section, (i) no such
pledge shall release the pledging Lender from any of its obligations under this
Agreement and (ii) such trustee or other representative shall not be entitled
to exercise any of the rights of a Lender under this Agreement and the Notes
(if any) even though such trustee may


 


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have acquired ownership rights with respect
to the pledged interest through foreclosure or otherwise.


 


(e)           The Borrower, upon receipt of written
notice from the relevant Lender, agrees to issue Notes to any Lender requiring
Notes to facilitate transactions of the type described in paragraph (d) above.


 


(f)            Notwithstanding the foregoing, any
Conduit Lender may assign any or all of the Loans it may have funded hereunder
to its designating Lender without the consent of the Borrower or the Senior
Administrative Agent and without regard to the limitations set forth in Section
11.6(b). Each of the Borrower, each Lender and the Senior Administrative Agent
hereby confirms that it will not institute against a Conduit Lender or join any
other Person in instituting against a Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
state bankruptcy or similar law, for one year and one day after the payment in
full of the latest maturing commercial paper note issued by such Conduit
Lender; provided, however, that each Lender designating any
Conduit Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its inability
to institute such a proceeding against such Conduit Lender during such period
of forbearance.


 


(g)           Notwithstanding the foregoing, any
assignments by the Senior Administrative Agent and the Documentation Agent of
their Loans and Commitments hereunder prior to a Successful Syndication shall
be made on a pro rata basis between the Senior Administrative Agent (or its
Affiliates) and the Documentation Agent (or its Affiliates).


 


11.7         Adjustments; Set off.
(a)  Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular
Lender or to the Lenders under a particular Facility, if any Lender (a “Benefitted Lender”) shall, at any time after the Loans and other
amounts payable hereunder shall immediately become due and payable pursuant to
Section 9, receive any payment of all or part of the Senior Obligations owing
to it, or receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set off, pursuant to events or proceedings of the nature referred to in
Section 9(f), or otherwise), in a greater proportion than any such payment to
or collateral received by any other Lender, if any, in respect of the Senior
Obligations owing to such other Lender, such Benefitted Lender shall purchase
for cash from the other Lenders a participating interest in such portion of the
Senior Obligations owing to each such other Lender, or shall provide such other
Lenders with the benefits of any such collateral, as shall be necessary to
cause such Benefitted Lender to share the excess payment or benefits of such
collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and
the purchase price and benefits returned, to the extent of such recovery, but
without interest.


 


(b)           In addition to any rights and
remedies of the Lenders provided by law, but subject to Section 6.4(b), each
Lender shall have the right, without prior notice to the


 


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Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise), to set off and appropriate and
apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or
the account of the Borrower, as the case may be. Each Lender agrees promptly to
notify the Borrower and the Senior Administrative Agent after any such setoff
and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such setoff and application.


 


11.8         Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement on
any number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. Delivery of
an executed signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Senior Administrative Agent.


 


11.9         Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


11.10       Integration. This
Agreement and the other Loan Documents represent the entire agreement of the
Borrower, the Agents and the Lenders with respect to the subject matter hereof
and thereof, and there are no promises, undertakings, representations or
warranties by any Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.


 


11.11      GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


11.12       Submission To
Jurisdiction; Waivers. The Borrower hereby irrevocably and unconditionally:


 


(a)           submits for itself and its property
in any legal action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non exclusive general jurisdiction of the
courts of the State of New York sitting in the borough of Manhattan, the courts
of the United States for the Southern District of New York, and appellate
courts from any thereof;


 


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(b)           consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;


 


(c)           agrees that service of process in
any such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Borrower at its address set forth in Section 11.2 or at
such other address of which the Senior Administrative Agent shall have been
notified pursuant thereto;


 


(d)           agrees that nothing herein shall
affect the right to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction; and


 


(e)           waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.


 


11.13       Acknowledgments. The
Borrower hereby acknowledges that:


 


(a)           it has been advised by counsel in
the negotiation, execution and delivery of this Agreement and the other Loan
Documents;


 


(b)           no Agent or Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Agents and Lenders, on one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and


 


(c)           no joint venture is created hereby
or by the other Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among the Borrower and
the Lenders.


 


11.14       Releases of Guarantees
and Liens; Termination. (a) 
Notwithstanding anything to the contrary contained herein or in any
other Loan Document, each of the Senior Administrative Agent and the Senior
Collateral Agent is hereby irrevocably authorized by each Secured Party
(without requirement of notice to or consent of any Secured Party except as
expressly required by Section 11.1) to take any action requested by the
Borrower having the effect of releasing any Collateral or guarantee obligations
(i) to the extent necessary to permit consummation of any transaction not
prohibited by any Loan Document (including, without limitation, the release of
any Guarantor from its obligations if such Person ceases to be a Subsidiary as
a result of a transaction permitted hereunder) or that has been consented to in


 


116

















 


accordance with Section 11.1 or
(ii) under the circumstances described in paragraph (b) below. The Lenders
irrevocably authorize the Senior Administrative Agent and Senior Collateral Agent,
at their option and in their discretion, to subordinate any Lien on any
property granted to or held by either of them under any Loan Document to the
holder of any Lien on such property that is permitted by Section 8.3(g).


 


(b)           At such time as (i) the Loans, the
Reimbursement Obligations and the other Senior Obligations (other than
Unasserted Contingent Obligations and obligations (other than Unasserted
Contingent Obligations) under or in respect of Hedge Agreements) shall have
been paid in full (or cash collateralized in a manner satisfactory to the
Senior Administrative Agent), (ii) the Commitments have been terminated and no
Letters of Credit shall be outstanding and (iii) the net termination liability
under or in respect of, and other amounts due and payable under, Specified
Hedge Agreements at such time shall have been paid or secured in the manner
provided in such Specified Hedge Agreements or by a collateral arrangement
satisfactory to the relevant Qualified Counterparties in their sole discretion,
the Collateral shall be released from the Liens created by the Security
Documents, and the Security Documents and all obligations (other than those
expressly stated to survive such termination) of the Senior Administrative
Agent, the Senior Collateral Agent and each Loan Party under the Security
Documents shall terminate, all without delivery of any instrument or
performance of any act by any Person.


 


(c)           If the Acquisition shall not have
been consummated upon the expiration of the Certain Funds Period, this
Agreement and all other Loan Documents shall terminate without delivery of any
instrument or performance of any act by any Person.


 


11.15       Confidentiality. Each
Agent and each Lender agrees to keep confidential all non-public information
provided to it by any Loan Party pursuant to this Agreement that is designated
by such Loan Party as confidential; provided that nothing herein shall
prevent any Agent or any Lender from disclosing any such information (a) to any
Agent, any other Lender or any Affiliate of a Lender or any Approved Fund of a
Lender, (b) subject to an agreement to comply with the provisions of this
Section, to any actual or prospective Transferee or any direct or indirect
counterparty to any Hedge Agreement (or any professional advisor to such
counterparty), (c) to its employees, directors, agents, attorneys, accountants
and other professional advisors or those of any of its affiliates, (d) upon the
request or demand of any Governmental Authority, (e) in response to any order
of any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (f) if requested or required to do so in
connection with any litigation or similar proceeding, (g) that has been
publicly disclosed, (h) to the National Association of Insurance Commissioners
or any similar organization or any nationally recognized rating agency that
requires access to information about a Lender’s investment portfolio in
connection with ratings issued with respect to such Lender, or (i) in connection
with the exercise of any remedy hereunder or under any other Loan Document, provided
that, unless specifically prohibited by applicable law or court order, each
Lender shall notify the Borrower of any request by any Governmental Authority
or representative thereof (other than any such request in connection with any
examination of the financial condition or


 


117

















 


other routine examination of
such Lender by such Governmental Authority) for disclosure of any such
non-public information prior to disclosure of such information.


 


11.16      WAIVERS
OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.


 


11.17       Patriot Act Notice. Each
Lender and the Senior Administrative 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 may be required to obtain, verify and record information
that identifies each Loan Party, which information includes the name and
address of such Loan Party and other information that will allow such Lender or
the Senior Administrative 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, to the extent commercially reasonable, such
information and take such actions as are reasonably requested by the Senior
Administrative Agent or any Lenders in order to assist the Senior
Administrative Agent and the Lenders in maintaining compliance with the Patriot
Act.


 


11.18       Delivery of Addenda.
Each initial Lender may become a party to this Agreement by delivering to the
Senior Administrative Agent an Addendum duly executed by such Lender.


 


11.19       Effect of Restatement.
This Agreement shall, except as otherwise expressly set forth herein, supersede
the Senior Credit Agreement, dated as of April 26, 2007 (the “Existing
Credit Agreement”), among the Borrower, the Lead Arranger, the agents
identified therein and the lenders party thereto from and after the date hereof
(the “Restatement Date”). The parties hereto acknowledge and agree,
however, that (a) this Agreement and all other Loan Documents executed and
delivered herewith do not constitute a novation, payment and reborrowing or
termination of the Senior Obligations (under and as defined in the Existing
Credit Agreement) and the other Loan Documents as in effect prior to the
Restatement Date and (b) such Senior Obligations are in all respects continuing
with only the terms being modified as provided in this Agreement and the other
Loan Documents. The parties hereto further agree that all references in the
other Loan Documents to the Credit Agreement or the Senior Credit Agreement
shall be deemed to refer without further amendment to this Agreement.


 


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


 


 


	
   

  	
  WEBSENSE,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN
  STANLEY SENIOR FUNDING, INC.,

  as Sole Lead Arranger and Sole Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN
  STANLEY SENIOR FUNDING, INC.,

  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


119

















 


	
   

  	
  MORGAN
  STANLEY SENIOR FUNDING, INC.,

  as Senior Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN
  STANLEY & CO. INCORPORATED,

  as Senior Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,

  as Syndication Agent and as a Lender

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KEY BANK NATIONAL
  ASSOCIATION,

  as Co-Documentation Agent and as a Lender

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JP MORGAN CHASE BANK, N.A.,

  as Co-Documentation Agent and as a Lender

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  CITIBANK, N.A,

  as Co-Documentation Agent and as a Lender

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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Annex A


 


PRICING GRID
FOR REVOLVING LOANS, SWINGLINE LOANS

TERM LOANS AND COMMITMENT FEES


 


	
  Pricing Level

  	
   

  	
  Applicable Margin

  for Eurodollar

  Loans

  	
   

  	
  Applicable Margin for

  Base Rate Loans

  	
   

  	
  Commitment Fee Rate

  	
   

  
	
  I

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  
	
  II

  	
   

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  	
  0.25

  	
  %

  



 


The Applicable
Margin for Revolving Loans. Swingline Loans and Term Loans and the Commitment
Fee Rate shall be adjusted, on and after the first Adjustment Date (as defined
below) occurring after the completion of two full fiscal quarters of the
Borrower after the Funding Date, based on changes in the Consolidated Leverage
Ratio, with such adjustments to become effective on the date (the “Adjustment Date”)
that is three Business Days after the date on which the relevant financial
statements are delivered to the Senior Administrative Agent and the Lender
pursuant to Section 7.1 and to remain in effect until the next adjustment
to be effected pursuant to this paragraph. If any financial statements referred
to above are not delivered within the time periods specified in
Section 7.1, then, until the date that is three Business Days after the
date on which such financial statements are delivered, the highest rate set
forth in each column of the Pricing Grid shall apply. At any time when an Event
of Default has occurred and is continuing, the highest rate set forth in each
column of the Pricing Grid shall apply. On each Adjustment Date, the Applicable
Margin for Revolving Loans, Swingline Loans and Term Loans and the Commitment
Fee Rate shall be adjusted to be equal to the Applicable Margins and Commitment
Fee Rate opposite the Pricing Level determined to exist on such Adjustment Date
from the financial statements relating to such Adjustment Date.


 


As used herein, the following rules shall
govern the determination of Pricing Levels on each Adjustment Date:


 


“Pricing
Level I” 
shall exist on an Adjustment Date if the Consolidated Leverage Ratio for
the relevant period is greater than 1.50 to 1.00.


 


“Pricing
Level II” 
shall exist on an Adjustment Date if the Consolidated Leverage Ratio for
the relevant period is less than or equal to 1.50 to 1.00.