TABLE OF CONTENTS

 

Section				Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01		Defined Terms	1
1.02		Interpretative Provisions	40
1.03		Accounting Terms and Provisions	41
1.04		Rounding	42
1.05		Times of Day	42
1.06		Exchange Rates; Currency Equivalents	42
1.07		Additional Alternative Currencies	43
1.08		Additional Borrowers	43
1.09		Change of Currency	43
1.10		Letter of Credit Amounts	44
ARTICLE II
COMMITMENTS AND CREDIT EXTENSIONS
2.01		Commitments	44
2.02		Borrowings, Conversions and Continuations	49
2.03		Additional Provisions with Respect to Letters of Credit	51
2.04		Additional Provisions with Respect to Swingline Loans	58
2.05		Repayment of Loans	60
2.06		Prepayments	61
2.07		Termination or Reduction of Commitments	65
2.08		Interest	66
2.09		Fees	66
2.10		Computation of Interest and Fees	68
2.11		Payments Generally; Administrative Agent’s Clawback	68
2.12		Sharing of Payments by Lenders	70
2.13		Evidence of Debt	71
2.14		CAM Exchange	72
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01		Taxes	73
3.02		Illegality	76
3.03		Inability to Determine Rates	76
3.04		Increased Cost; Capital Adequacy	76

 

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Section				Page
3.05		Compensation for Losses	78
3.06		Mitigation Obligations; Replacement of Lenders	78
3.07		Survival Losses	79
3.08		Additional Reserve Costs	79
ARTICLE IV
GUARANTY
4.01		The Guaranty	80
4.02		Obligations Unconditional	80
4.03		Reinstatement	81
4.04		Certain Waivers	82
4.05		Remedies	82
4.06		Rights of Contribution	83
4.07		Guaranty of Payment; Continuing Guaranty	83
4.08		Joint and Several Liability of the Borrower	83
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01		Conditions to Closing Date	83
5.02		Conditions to the Funding Date	84
5.03		Conditions to All Credit Extensions	88
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01		Existence, Qualification and Power	88
6.02		Authorization; No Contravention	88
6.03		Governmental Authorization; Other Consents	89
6.04		Binding Effect	89
6.05		Financial Statements	89
6.06		No Material Adverse Effect	90
6.07		Litigation	90
6.08		No Default	90
6.09		Ownership of Property; Liens	90
6.10		Taxes	90
6.11		ERISA Compliance	91
6.12		Subsidiaries	91
6.13		Margin Regulations; Investment Company Act	92
6.14		Disclosure	92
6.15		Compliance with Laws	92

 

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Section				Page
6.16		Solvency	92
6.17		Intellectual Property; Licenses, Etc	93
6.18		Security Agreement	93
6.19		Pledge Agreement	93
ARTICLE VII
AFFIRMATIVE COVENANTS
7.01		Financial Statements	94
7.02		Certificates; Other Information	95
7.03		Notification	97
7.04		Preservation of Existence	97
7.05		Payment of Taxes and Other Obligations	97
7.06		Compliance with Law	98
7.07		Maintenance of Property	98
7.08		Insurance	98
7.09		Books and Records	98
7.10		Inspection Rights	99
7.11		Use of Proceeds	99
7.12		Joinder of Subsidiaries as Guarantors	99
7.13		Pledge of Capital Stock	100
7.14		Pledge of Other Property	100
7.15		Further Assurances Regarding Collateral	101
7.16		Post-Closing Matters	102
ARTICLE VIII
NEGATIVE COVENANTS
8.01		Liens	102
8.02		Investments	105
8.03		Indebtedness	107
8.04		Mergers and Dissolutions	110
8.05		Dispositions	111
8.06		Restricted Payments	111
8.07		Change in Nature of Business	112
8.08		Change in Accounting Practices or Fiscal Year	112
8.09		Transactions with Affiliates	112
8.10		Financial Covenants	113
8.11		Limitation on Subsidiary Distributions	113
8.12		Spin-Off	114
8.13		Transfers/Investments with respect to Certain Subsidiaries	114

 

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Section				Page
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01		Events of Default	115
9.02		Remedies upon Event of Default	117
9.03		Application of Funds	118
ARTICLE X
AGENTS
10.01		Appointment and Authorization of Administrative Agent and Collateral Agent	119
10.02		Rights as a Lender	120
10.03		Exculpatory Provisions	120
10.04		Reliance by Administrative Agent and Collateral Agent	121
10.05		Delegation of Duties	121
10.06		Resignation of the Administrative Agent or the Collateral Agent	122
10.07		Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders	123
10.08		No Other Duties	123
10.09		Administrative Agent or Collateral Agent May File Proofs of Claim	123
10.10		Collateral and Guaranty Matters	124
10.11		Withholding Tax	125
10.12		Treasury Management Agreements and Swap Contracts	125
ARTICLE XI
MISCELLANEOUS
11.01		Amendments, Etc.	126
11.02		Notices; Effectiveness; Electronic Communication	129
11.03		No Waiver; Cumulative Remedies; Enforcement	131
11.04		Expenses; Indemnity; Damage Waiver	132
11.05		Payments Set Aside	134
11.06		Successors and Assigns	134
11.07		Treatment of Certain Information; Confidentiality	139
11.08		Right of Setoff	141
11.09		Interest Rate Limitation	141
11.10		Counterparts; Integration; Effectiveness	141
11.11		Survival of Representations and Warranties	142
11.12		Severability	142
11.13		Replacement of Lenders	142
11.14		Governing Law; Jurisdiction; Etc.	144

 

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Section				Page
11.15		Waiver of Jury Trial	144
11.16		USA PATRIOT Act Notice	145
11.17		Designation as Senior Debt	145
11.18		No Advisory or Fiduciary Responsibility	145

 

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SCHEDULES
Schedule 1.01A	Existing Letters of Credit
Schedule 1.01B	Funding Date Guarantors
Schedule 2.01	Lenders and Commitments
Schedule 2.09(c)	Funding Fees
Schedule 3.08	Mandatory Cost Rate
Schedule 5.01(c)(ii)	Scheduled Matters
Schedule 6.12	Subsidiaries
Schedule 7.08	Insurance
Schedule 8.01	Existing Liens
Schedule 8.02	Existing Investments
Schedule 8.03	Existing Indebtedness
Schedule 11.02	Notice Addresses
EXHIBITS
Exhibit 1.01A	Form of Pledge Agreement
Exhibit 1.01B	Form of Security Agreement
Exhibit 2.02	Form of Loan Notice
Exhibit 2.13-1	Form of Dollar Revolving Note
Exhibit 2.13-2	Form of Approved Currency Revolving Note
Exhibit 2.13-3	Form of Swingline Note
Exhibit 2.13-4	Form of Term A Note
Exhibit 2.13-5	Form of Term B Note
Exhibit 3.01(e)	Form of Non-Bank Certificate
Exhibit 7.02(b)	Form of Compliance Certificate
Exhibit 7.12	Form of Joinder Agreement
Exhibit 11.06	Form of Assignment and Assumption

 

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CREDIT AGREEMENT

 

This CREDIT AGREEMENT (this “ Credit Agreement ”) is entered into as of July 25, 2008, among TICKETMASTER, a Delaware corporation (the “ Borrower ”), the Guarantors identified herein, the Lenders party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent.

 

W I T N E S S E T H

 

WHEREAS, the Borrower and the Guarantors have requested that the Lenders provide revolving credit and term loan facilities for the purposes set forth herein; and

 

WHEREAS, the Lenders have agreed to make the requested facilities available on the terms and conditions set forth herein;

 

NOW, THEREFORE, in consideration of these premises and the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:

 

I.

 

DEFINITIONS AND ACCOUNTING TERMS

 

A.                                    Defined Terms.

 

As used in this Credit Agreement, the following terms have the meanings provided below:

 

“ Acquisition ” means the purchase or acquisition (whether in one or a series of related transactions) by any Person of (a) more than fifty percent (50%) of the Capital Stock with ordinary voting power of another Person or (b) all or substantially all of the property (other than Capital Stock) of another Person or division or line of business or business unit of another Person, whether or not involving a merger or consolidation with such Person.

 

“ Adjusted Eurodollar Rate ” means, with respect to any Borrowing of Eurodollar Rate Loans for any Interest Period, (a) an interest rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) determined by the Administrative Agent to be equal to the Eurodollar Rate for such Borrowing of Eurodollar Rate Loans in effect for such Interest Period divided by (b) 1 minus the Statutory Reserves (if any) for such Borrowing of Eurodollar Rate Loans for such Interest Period.

 

“ Administrative Agent ” means JPMCB in its capacity as administrative agent for the Lenders under any of the Credit Documents, or any successor administrative agent.

 

 

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

 

“ Administrative Questionnaire ” means an administrative questionnaire for the Lenders in a form supplied by the Administrative Agent.

 

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

 

“ Agent ” means either of the Administrative Agent or the Collateral Agent.

 

“ Aggregate Approved Currency Revolving Commitments ” means the Approved Currency Revolving Commitments of all the Lenders.

 

“ Aggregate Approved Currency Revolving Committed Amount ” has the meaning provided in Section 2.01(a)(ii) .

 

“ Aggregate Commitment Percentage ” means, for each Lender, a fraction (expressed as a percentage carried to the ninth decimal place), the numerator of which is the amount of such Lender’s respective Revolving Commitment, Term A Loan Commitment and Term B Loan Commitment and the denominator of which is the Aggregate Commitments.

 

“ Aggregate Commitments ” means the aggregate principal amount of the Revolving Commitments, Term A Loan Commitments and Term B Loan Commitments.

 

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

 

“ Aggregate Dollar Revolving Committed Amount ” has the meaning provided in Section 2.01(a)(i) .

 

“ Aggregate Revolving Commitments ” means the collective reference to the Aggregate Dollar Revolving Commitments and the Aggregate Approved Currency Revolving Commitments.

 

“ Aggregate Revolving Committed Amount ” means the collective reference to the Aggregate Dollar Revolving Committed Amount and the Aggregate Approved Currency Revolving Committed Amount.

 

“ Aggregate Term A Loan Committed Amount ” means one hundred million Dollars ($100.0 million).

 

“ Aggregate Term B Loan Committed Amount ” means three hundred fifty million Dollars ($350.0 million).

 

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“ Alternative Currency ” means each of Euros, Canadian Dollars and Sterling and any other currency added as an “Alternative Currency” pursuant to Section 1.07 hereof.

 

“ Alternative Currency Equivalent ” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as reasonably determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

 

“ Applicable Percentage ” means (i) with respect to Term B Loans, (x) 3.25% in the case of Eurodollar Rate Loans and (y) 2.25% in the case of Base Rate Loans and (ii) with respect to Revolving Loans, Swingline Loans, Letter of Credit Fees and Term A Loans the following percentages per annum:

 

APPLICABLE PERCENTAGES FOR REVOLVING LOANS, SWINGLINE LOANS,
LETTER OF CREDIT FEES AND TERM A LOANS

 

Pricing Level		Consolidated Total Leverage Ratio		Eurodollar Rate Loans (other than for Revolving Loans)		Base Rate Loans (other than for Revolving Loans)		Eurodollar Rate Loans (for Revolving Loans) and Letter of Credit Fees		Base Rate Loans (for Revolving Loans)
I		< 1.50:1.00		2.25%		1.25%		1.75%		0.75%
II		>  1.50 but < 2.25:1.00		2.50%		1.50%		2.00%		1.00%
III		>  2.25 but < 3.00:1.00		2.75%		1.75%		2.25%		1.25%
IV		>  3.00:1.00		3.00%		2.00%		2.50%		1.50%

 

Applicable Percentages for Revolving Loans, Swingline Loans, Letter of Credit Fees and Term A Loans will be based on the Consolidated Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(b) . Any increase or decrease in such Applicable Percentage resulting from a change in the Consolidated Total Leverage Ratio shall become effective on the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(b) ; provided , however , that if (i) a Compliance Certificate is not delivered when due in accordance therewith or (ii) an Event of Default pursuant to Section 9.01(a) , (f)  or (h)  has occurred and is continuing, then, in the case of clause (i)  pricing level IV shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered until the first Business Day immediately following delivery thereof, and in the case of clause (ii)  pricing level IV shall apply as of the first Business Day after the occurrence of such Event of Default until the first Business Day immediately following the cure or waiver of such Event of Default.  The Applicable

 

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Percentage in effect from the Closing Date through the date for delivery of the Compliance Certificate for the first full fiscal quarter ending after the Closing Date shall be determined based upon pricing level III for Revolving Loans, Swingline Loans, Letter of Credit Fees and Term A Loans.

 

Determinations by the Administrative Agent of the appropriate pricing level shall be conclusive absent manifest error.

 

In the event that any financial statement or Compliance Certificate delivered pursuant to Section 7.01 or 7.02 is shown to be inaccurate (regardless of whether this Credit Agreement or the Commitments are in effect or any Loans are outstanding when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Percentage for any period (an “ Applicable Period ”) than the Applicable Percentage applied for such Applicable Period, and only in such case, then the Borrower shall immediately (i) deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) determine the Applicable Percentage for such Applicable Period based upon the corrected Compliance Certificate, and (iii) immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Percentage for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with Section 2.11 .  The rights of the Administrative Agent and Lenders pursuant to this paragraph are in addition to rights of the Administrative Agent and Lenders with respect to Sections 2.08(b)  and 9.02 and other of their respective rights under the Credit Documents.

 

“ Applicable Period ” has the meaning assigned to such term in the definition of Applicable Percentage.

 

“ Applicable Time ” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as applicable, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

“ Approved Currency ” means each of Dollars and each Alternative Currency.

 

“ Approved Currency Revolving Commitment ” means, for each Lender, the commitment of such Lender to make Approved Currency Revolving Loans hereunder.

 

“ Approved Currency Revolving Commitment Percentage ” means, for each Approved Currency Revolving Lender, a fraction (expressed as a percentage carried to the ninth decimal place), the numerator of which is such Approved Currency Revolving Lender’s Approved Currency Revolving Committed Amount and the denominator of which is the Aggregate Approved Currency Revolving Committed Amount.  The initial Approved Currency Revolving Commitment Percentages are set forth in Schedule 2.01 .

 

“ Approved Currency Revolving Committed Amount ” means, for each Approved Currency Revolving Lender, the amount of such Lender’s Approved Currency Revolving Commitment.  The initial Approved Currency Revolving Committed Amounts are set forth in Schedule 2.01 .

 

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Dollar bankers’ acceptances (expressed for such purposes as a yearly rate per annum) which is shown on the “CDOR Page” (or any substitute) at 10:00 A.M. (Toronto time) on such day (or if not a Business Day, the preceding Business Day), plus 0.75% per annum.  The “prime rate” is a rate set by JPMCB or JPMorgan Chase Bank, N.A., Toronto Branch, as applicable based upon various factors including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by JPMCB or JPMorgan Chase Bank, N.A., Toronto Branch shall take effect at the opening of business on the day specified in the public announcement of such change.

 

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

 

“ BCV ” means Broadway China Ventures, LLC.

 

“ Borrower ” has the meaning provided in the recitals hereto, together with its successors and permitted assigns pursuant to Section 8.04 .

 

“ Borrowing ” means (a) a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period, or (b) a borrowing of Swingline Loans, as appropriate.

 

“ Business Day ” means any day (other than a day which is a Saturday, Sunday, or other day on which banks in New York are authorized or required by law to close); provided , however , that (a) when used in connection with a rate determination, borrowing, or payment in respect of a Eurodollar Rate Loan, the term “Business Day” shall also exclude any day on which banks in London, England are not open for dealings in deposits of Dollars or foreign currencies, as applicable, in the London Interbank Market, (b) if such day relates to any dealings in any currency other than Dollars to be carried out pursuant to this Credit Agreement, the term “Business Day” shall also exclude any day on which banks are not open for foreign exchange dealings between banks in the home country of such foreign currency.

 

“ Canadian Dollars ” and “ C$ ” means the lawful currency of Canada.

 

“ Capital Stock ” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

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

 

“ Cash Equivalents ” means (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve (12) months from the date of acquisition, (b) Dollar-denominated time deposits, money market deposits and certificates of deposit of (i) any Lender that accepts such deposits in the ordinary course of such Lender’s business, (ii) any domestic commercial bank of recognized standing

 

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having capital and surplus in excess of $500.0 million or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or from Moody’s is at least P-1, in each case with maturities of not more than two hundred seventy (270) days from the date of acquisition, (c) commercial paper issued by any issuer bearing at least an “A-2” rating for any short-term rating provided by S&P and/or Moody’s and maturing within two hundred seventy (270) days of the date of acquisition, (d) repurchase agreements entered into by the Borrower with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500.0 million for direct obligations issued by or fully guaranteed by the United States and having, on the date of purchase thereof, a fair market value of at least one hundred percent (100%) of the amount of the repurchase obligations, (e) Investments (classified in accordance with GAAP as current assets) in money market investment programs registered under the Investment Company Act of 1940, as amended, that are administered by reputable financial institutions having capital and surplus of at least $500.0 million and the portfolios of which are limited to Investments of the character described in the foregoing subclauses hereof, (f) shares of mutual funds if no less than 95% of such funds’ investments satisfy the provisions of clauses (a)  through (e)  above, and (g) in the case of any Foreign Subsidiary, short-term investments of comparable credit quality and tenor to those referred to in clauses (a)  through (f)  above which are customarily used for cash management purposes in any country in which such Foreign Subsidiary operates.

 

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

 

“ Change of Control ” means an event or series of events by which:

 

(a)           any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than a Permitted Holder becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of forty percent (40%) or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully diluted basis;

 

(b)           during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i)  above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by a Permitted Holder or by individuals referred to in clauses (i)  and (ii)  above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the

 

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case of both clauses (ii)  and (iii) , any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one (1) or more directors by or on behalf of the board of directors); or

 

(c)           a “change of control” or any comparable term under, and as defined in, any of the documentation relating to the Senior Notes shall have occurred.

 

“ Closing Date ” means the date hereof.

 

“ Collateral ” means the collateral identified in, and at any time covered by, the Collateral Documents.

 

“ Collateral Agent ” means JPMCB in its capacity as collateral agent for the Lenders under any of the Collateral Documents, or any successor collateral agent.

 

“ Collateral Documents ” means the Security Agreement, the Pledge Agreement, the Mortgages and any other documents executed and delivered in connection with the attachment and perfection of security interests granted to secure the Obligations.

 

“ Commitment Fees ” has the meaning provided in Section 2.09(a) .

 

“ Commitment Letter ” means the Commitment Letter dated as of June 19, 2008 among the Borrower, JPMCB, the Lead Arrangers and the other parties thereto, together with all schedules and annexes thereto, as amended to the date hereof.

 

“ Commitment Percentage ” means the Revolving Commitment Percentage, the Term A Loan Commitment Percentage or the Term B Loan Commitment Percentage, as appropriate.

 

“ Commitment Period ” means the period from and including the Closing Date to the earlier of (a)(i) in the case of Revolving Loans and Swingline Loans, the Revolving Termination Date, (ii) in the case of the Letters of Credit, the L/C Expiration Date or (iii) in the case of the Term Loans, the Funding Date, or (b) in the case of the Revolving Loans, Swingline Loans and the Letters of Credit, the date on which the applicable Revolving Commitments shall have been terminated as provided herein.

 

“ Commitments ” means the Revolving Commitments, the L/C Commitments, the Swingline Commitment, the Term A Loan Commitments and the Term B Loan Commitments.

 

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

 

“ Consolidated Capital Expenditures ” means, for any period for the Consolidated Group, without duplication, all expenditures with respect to property, plant and equipment during such period which should be capitalized in accordance with GAAP (including the Attributable Principal Amount of capital leases).

 

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“ Consolidated EBITDA ” means, for any period for the Consolidated Group, Consolidated Net Income in such period plus , without duplication, (A) in each case solely to the extent decreasing Consolidated Net Income in such period: (a) Consolidated Interest Expense (without giving effect to the second proviso of the definition of Consolidated Interest Expense), (b) provision for taxes, to the extent based on income or profits, (c) amortization and depreciation, (d) the amount of all expenses incurred in connection with the closing and funding of this Credit Agreement, the Senior Notes or the Transactions, (e) the amount of all non-cash deferred compensation expense, (f) the amount of all expenses associated with the early extinguishment of Indebtedness permitted hereunder incurred, (g) any losses from sales of Property, other than from sales in the ordinary course of business, (h) any non-cash impairment loss of goodwill or other intangibles required to be taken pursuant to GAAP, (i) any non-cash expense recorded with respect to stock options or other equity-based compensation, (j) any extraordinary loss in accordance with GAAP, (k) any restructuring, non-recurring or other unusual item of loss or expense (including write-offs and write-downs of assets), other than any write-off or write-down of inventory or accounts receivable; provided that the aggregate amount of any such losses or expenses in cash shall not exceed $25.0 million in any four quarter period ending on or prior to September 30, 2009 and $6.0 million in any four quarter period ending thereafter, (l) any non-cash loss related to discontinued operations and (m) any other non-cash charges (other than write-offs or write-downs of inventory or accounts receivable); provided that, in the case of any non-cash charge referred to in this definition of Consolidated EBITDA that relates to accruals or reserves for a future cash disbursement, such future cash disbursement shall be deducted from Consolidated EBITDA in the period when such cash is so disbursed; minus (B) in each case solely to the extent increasing Consolidated Net Income in such period:  (a) any extraordinary gain in accordance with GAAP, (b) any nonrecurring item of gain or income (including write-ups of assets), other than any write-up of inventory or accounts receivable, (c) any gains from sales of Property, other than from sales in the ordinary course of business, (d) any non-cash gain related to discontinued operations, and (e) the aggregate amount of all other non-cash items increasing Consolidated Net Income during such period; provided that in the case of any non-cash item referred to in clause (B)  of this definition of Consolidated EBITDA that relates to a future cash payment to the Borrower or a Subsidiary, such future cash payment shall be added to Consolidated EBITDA in the period when such payment is so received by the Borrower or such Subsidiary.

 

Subject to the following sentence, Consolidated EBITDA for the fiscal quarters ended September 30, 2007, December 31, 2007, and March 31, 2008 shall be deemed to be $66.8 million, $80.2 million and $70.2 million, respectively.  Without duplication of any pro forma adjustments reflected in the amounts set forth in the immediately preceding sentence, Consolidated EBITDA for any period shall be calculated on a Pro Forma Basis pursuant to Section 1.03(b) .

 

“ Consolidated Excess Cash Flow ” means, for any period for the Consolidated Group, (a) net cash provided by operating activities for such period as reported on the audited GAAP cash flow statement delivered under Section 7.01(a)   minus (b) the sum of, in each case to the extent not otherwise reducing net cash provided by operating activities in such period, without duplication, (i) scheduled principal payments and payments of interest in each case made in cash on Consolidated Total Funded Debt during such period (including for purposes hereof, sinking fund payments, payments in respect of the principal components under capital leases and the like relating thereto), in each case other than in connection with a refinancing thereof, (ii) Consolidated

 

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Capital Expenditures made in cash during such period that are not financed with the proceeds of Indebtedness, an issuance of Capital Stock or from a reinvestment of Net Cash Proceeds referred to in Section 2.06(b)(ii) , (iii) optional prepayments of Funded Debt during such period (other than prepayments of Revolving Loans owing under this Credit Agreement (unless, in the case of a prepayment of Revolving Loans, there is a simultaneous reduction in the Aggregate Revolving Commitments in the amount of such prepayment pursuant to Section 2.07 ) and other such optional prepayments made with the proceeds of other Indebtedness), (iv) to the extent not financed with the incurrence or assumption of Indebtedness or proceeds from an issuance of Capital Stock, Subject Dispositions, Specified Dispositions or Involuntary Dispositions, cash sums expended for Investments pursuant to Sections 8.02(c) , (i) , (j) , (k) (other than with respect to any amount expended on such Investments through the use of the Cumulative Credit) or (v)  during such period, (v) without duplication of amounts deducted from Consolidated Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any Subsidiary pursuant to binding contracts (the “ Contract Consideration ”) entered into prior to or during such period relating to Consolidated Capital Expenditures to be consummated or made during the three months following the end of such period, provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such Consolidated Capital Expenditures during such three months is less than the Contract Consideration, the amount of such shortfall shall be added to Consolidated Excess Cash Flow for the period following such period and (vi) to the extent such amounts increased net cash provided by operating activities in such period, funds collected by the Borrower or any of its Subsidiaries on behalf of clients of the Borrower or any of its Subsidiaries representing the face amount of tickets sold plus (c) to the extent such amounts decreased net cash provided by operating activities in such period, funds remitted by the Borrower or any of its Subsidiaries to clients of the Borrower or any of its Subsidiaries representing the face amount of tickets sold.

 

“ Consolidated Group ” means the Borrower and its consolidated Subsidiaries, as determined in accordance with GAAP.

 

“ Consolidated Interest Coverage Ratio ” means, as of the last day of each fiscal quarter for the period of four (4) consecutive fiscal quarters then ending, the ratio of (i) Consolidated EBITDA of the Consolidated Group to (ii) Consolidated Interest Expense of the Consolidated Group.

 

“ Consolidated Interest Expense ” means, for any period, the sum of the total interest expense of the Consolidated Group (calculated without regard to any limitations on the payment thereof) plus, without duplication, the interest component under capital leases determined on a consolidated basis minus interest income determined on a consolidated basis (except to the extent included in the Borrower’s consolidated revenues in accordance with GAAP); provided that the amortization of deferred financing, legal and accounting costs with respect to this Credit Agreement and the Senior Notes shall be excluded from Consolidated Interest Expense to the extent the same would otherwise have been included therein; provided further that subject to adjustment for events occurring after the Funding Date pursuant to Section 1.03(b) , Consolidated Interest Expense for any period ending prior to the first anniversary of the Funding Date shall be determined by multiplying (x) Consolidated Interest Expense from and including the Funding Date to and including the last day of such period by (y) a fraction, the numerator of which is 365 and the denominator of which is the number of days in such period.

 

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Without duplication of any of the adjustments reflected in the calculations set forth in the second proviso of the immediately preceding sentence, Consolidated Interest Expense shall be calculated on a Pro Forma Basis pursuant to Section 1.03(b) .

 

“ Consolidated Net Income ” means, for any period for the Consolidated Group, the net income (or loss), determined on a consolidated basis (after any deduction for minority interests) of the Consolidated Group in accordance with GAAP, provided that (i) in determining Consolidated Net Income, the net income of any other Person which is not a Subsidiary of the Borrower or is accounted for by the Borrower by the equity method of accounting shall be included only to the extent of the payment of cash dividends or cash distributions by such other Person to a member of the Consolidated Group during such period, (ii) the net income of any Subsidiary of the Borrower (other than a Guarantor) that is not distributed to the Borrower or a Guarantor shall be excluded to the extent that the declaration or payment of cash dividends or similar cash distributions by that Subsidiary of that net income is not at the date of determination permitted by operation of its Organization Documents or any agreement, instrument or law applicable to such Subsidiary and (iii) the cumulative effect of any change in accounting principles shall be excluded.  Consolidated Net Income shall be calculated on a Pro Forma Basis pursuant to Section 1.03(b) .

 

“ Consolidated Total Assets ” means the total assets of the Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP, as shown on the most recent balance sheet of the Borrower required to have been delivered pursuant to Section 7.01(a)  or (b)  or, for the period prior to the time any such statements are required to be so delivered pursuant to Section 7.01(a)  or (b) , as shown on the financial statements referred to in the first sentence of Section 6.05 .

 

“ Consolidated Total Funded Debt ” means, at any time, the principal amount of all Funded Debt of the Consolidated Group at such time determined on a consolidated basis (it being understood and agreed that outstanding letters of credit shall not constitute Funded Debt unless such letters of credit have been drawn on by the beneficiary thereof and the resulting obligations have not been paid by the Borrower).

 

“ Consolidated Total Leverage Ratio ” means, as of the last day of each fiscal quarter, the ratio of (i) Consolidated Total Funded Debt on such day to (ii) Consolidated EBITDA of the Consolidated Group for the period of four (4) consecutive fiscal quarters ending as of such day.

 

“ Contract Consideration ” has the meaning assigned to such term in the definition of Consolidated Excess Cash Flow.

 

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

 

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise

 

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voting power, by contract or otherwise.  “ Controlling ” and “ Controlled ” have meanings correlative thereto.

 

“ Credit Agreement ” has the meaning provided in the recitals hereto, as the same may be amended and modified from time to time.

 

“ Credit Documents ” means this Credit Agreement, the Notes, the Collateral Documents, the Fee Letter, the Issuer Documents, the Joinder Agreements, and the Revolving Lender Joinder Agreements and the Incremental Term Loan Joinder Agreement.

 

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

 

“ Credit Parties ” means the Borrower and each Subsidiary of the Borrower that is a party to a Credit Document (including any Foreign Subsidiary that becomes a borrower under Section 1.08 ).

 

“ Credit Party Materials ” has the meaning provided in Section 7.02 .

 

“ Cumulative Credit ” means, with respect to any proposed use of the Cumulative Credit at any time, an amount equal to (a)(i) the amount of the Consolidated Excess Cash Flow for each full fiscal quarter of the Borrower completed after the Funding Date, to the extent the financial statements required to be delivered for the period ending on the last day of such fiscal quarter pursuant to Section 7.01(a)  or (b)  have been delivered and, to the extent the end of such fiscal quarter coincides with the end of a fiscal year of the Borrower, all prepayments that may be required pursuant to Section 2.06(b)(iv)  with respect to the Consolidated Excess Cash Flow generated in such fiscal year have been made ( provided that, to the extent the end of any fiscal quarter of the Borrower does not coincide with the end of a fiscal year of the Borrower, 25% of the Consolidated Excess Cash Flow generated in such fiscal quarter shall not be counted toward calculating the amount referred to in this clause (a)  until the financial statements for the fiscal year in which fiscal quarter falls have been delivered pursuant to Section 7.01(a)  and all prepayments that may be required pursuant to Section 2.06(b)(iv)  with respect to the Consolidated Excess Cash Flow generated in such fiscal year have been made), plus (b) without duplication of any amounts referred to in clause (d) , the aggregate amount of Net Cash Proceeds of any issuance of Qualified Capital Stock of the Borrower (but not including any issuance or purchase referred to in Sections 8.02(c) , 8.02(r)  or 8.06(h) ) after the Funding Date and at or prior to such time plus (c) in the case of a use of the Cumulative Credit to make an Investment pursuant to Section 8.02(k)  only, the amount of Domestic Cash and Foreign Cash plus (d) to the extent not otherwise reflected in Consolidated Excess Cash Flow, the amount of cash returns on any Investment made pursuant to Section 8.02(k)  (other than any Investment subsequently deemed to be made pursuant to Section 8.02(e) ) in a Person other than the Borrower or a Subsidiary (to the extent such Investment was made through the use of the Cumulative Credit) resulting from interest payments, dividends, repayments of loans or advances or profits from Dispositions of Property, in each case to the extent actually received by the Borrower or a Guarantor at or prior to such time minus (e) the aggregate amount of Investments and Restricted Payments made since the Funding Date pursuant to Sections 8.02(k)  (excluding Investments subsequently deemed to have been made pursuant to Section 8.02(e) ) and 8.06(f) , respectively, through utilization of the

 

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Cumulative Credit (excluding such proposed use of the Cumulative Credit, but including any other simultaneous proposed use of the Cumulative Credit) minus (f) the ECF Application Amount for each fiscal year of the Borrower, to the extent the financial statements for such fiscal year have been delivered pursuant to Section 7.01(a) .

 

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

 

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

 

“ Default Rate ” means an interest rate equal to (a) with respect to Obligations other than (i) Eurodollar Rate Loans and (ii) Letter of Credit Fees, the Base Rate plus the Applicable Percentage, if any, applicable to such Loans plus two percent (2%) per annum; (b) with respect to Eurodollar Rate Loans, the Adjusted Eurodollar Rate plus the Applicable Percentage, if any, applicable to such Loans plus two percent (2%) per annum; and (c) with respect to Letter of Credit Fees, a rate equal to the Applicable Percentage plus two percent (2%) per annum.

 

“ Defaulting Lender ” means any Lender as of any date of determination that (a) has failed to fund any portion of the Loans, participations in L/C Obligations or participations in Swingline Loans required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder and has not cured such failure prior to the date of determination, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, unless the subject of a good faith dispute, and has not cured such failure prior to the date of determination, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

 

“ Designated Revolving Obligations ” means all obligations of the Borrower with respect to (a) principal and interest under the Revolving Loans and Swingline Loans, (b) L/C Borrowings and interest thereon and (c) accrued and unpaid fees thereon.

 

“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any Property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith (but excluding the making of any Investment pursuant to Section 8.02 ).

 

“ Disqualified Capital Stock ” means Capital Stock that (a) requires the payment of any dividends or distributions (other than dividends or distributions payable solely in shares of Capital Stock other than Disqualified Capital Stock) prior to the date that is the first anniversary of the Final Maturity Date or (b) matures or is mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof, in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation, on a fixed

 

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date or otherwise, in each case prior to the date that is the first anniversary of the Final Maturity Date (other than upon payment in full of the Obligations (other than contingent indemnification obligations for which no claim has been made) and termination of the Commitments).

 

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

 

“ Dollar Equivalent ” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.

 

“ Dollar Revolving Commitment ” means, for each Dollar Revolving Lender, the commitment of such Lender to make Dollar Revolving Loans (and to share in Dollar Revolving Obligations) hereunder.

 

“ Dollar Revolving Commitment Percentage ” means, for each Dollar Revolving Lender, a fraction (expressed as a percentage carried to the ninth decimal place), the numerator of which is such Dollar Revolving Lender’s Dollar Revolving Committed Amount and the denominator of which is the Aggregate Dollar Revolving Committed Amount.  The initial Dollar Revolving Commitment Percentages are set forth in Schedule 2.01 .

 

“ Dollar Revolving Committed Amount ” means, for each Dollar Revolving Lender, the amount of such Lender’s Dollar Revolving Commitment.  The initial Dollar Revolving Committed Amounts are set forth in Schedule 2.01 .

 

“ Dollar Revolving Facility ” means the Aggregate Dollar Revolving Commitments and the provisions herein related to the Dollar Revolving Loans, the Swingline Loans and the Letters of Credit.

 

“ Dollar Revolving Facility Fee ” has the meaning provided in Section 2.09(a) .

 

“ Dollar Revolving Lenders ” means those Lenders with Dollar Revolving Commitments, together with their successors and permitted assigns.  The initial Dollar Revolving Lenders are identified on the signature pages hereto and are set forth in Schedule 2.01 .

 

“ Dollar Revolving Loan ” has the meaning provided in Section 2.01(a)(i) .

 

“ Dollar Revolving Notes ” means the promissory notes, if any, given to evidence the Dollar Revolving Loans, as amended, restated, modified, supplemented, extended, renewed or replaced.  A form of Dollar Revolving Note is attached as Exhibit 2.13-1 .

 

“ Dollar Revolving Obligations ” means the Dollar Revolving Loans, the L/C Obligations and the Swingline Loans.

 

“ Domestic Cash ” means the amount of cash and Cash Equivalents (other than any proceeds of any Revolving Loans or Swingline Loans) reflected in the bank statements of the

 

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Borrower and the Borrower’s Domestic Subsidiaries immediately after giving effect to the Transactions, to the extent such amount is unrestricted as of the Spin-Off Date after giving effect to the Transactions, it being understood that cash required to be remitted to customers representing the face amount of tickets sold shall be deemed to be restricted (including without limitation all payments pursuant to Section 4.04 of the Separation Agreement).

 

“ Domestic Credit Party ” means any Credit Party that is organized under the laws of any State of the United States or the District of Columbia.

 

“ Domestic Subsidiary ” means any Subsidiary that is not a Foreign Subsidiary, other than any Subsidiary the Capital Stock of which is to be transferred to IAC or one or more of IAC’s Subsidiaries (other than the Borrower and its Subsidiaries) in connection with the Spin Off.

 

“ ECF Application Amount ” means, with respect to any fiscal year of the Borrower, the product of the ECF Percentage applicable to such fiscal year times the Consolidated Excess Cash Flow for such fiscal year.

 

“ ECF Percentage ” means, with respect to any fiscal year of the Borrower (x) ending on December 31, 2008, zero percent (0%) and (y) ending after December 31, 2008, if the Consolidated Total Leverage Ratio as of the last day of such fiscal year is (i) greater than or equal to 2.50:1.00, fifty percent (50%) and (ii) less than 2.50:1.00, zero percent (0%).

 

“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by the party or parties whose approval is required under Section 11.06(b) ; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.

 

“ EMU Legislation ” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

 

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

 

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

 

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

 

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

 

“ Excluded Sale and Leaseback Transaction ” means any Sale and Leaseback Transaction with respect to Property owned by the Borrower or any Subsidiary to the extent such Property is acquired after the Funding Date, so long as such Sale and Leaseback Transaction is consummated within 180 days of the acquisition of such Property.

 

“ Excluded Property ” means (a) vehicles, (b) fee interests in real property with a fair market value of less than $2.5 million, (c) leasehold real property, (d) those assets as to which the Administrative Agent shall reasonably determine in writing that the costs of obtaining such security interest are excessive in relation to the value of the security to be afforded thereby, (e) assets if the granting or perfecting of a security interest in such assets in favor of the Collateral Agent would violate any applicable Law, (f) any right, title or interest in any license, contract or agreement to the extent, but only to the extent that a grant of a security interest therein to secure the Obligations would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, such license, contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity), (g) any Capital Stock acquired after the Closing Date (other than Capital Stock in a Subsidiary issued or acquired after such Person became a Subsidiary) in accordance with this Credit Agreement if, and to the extent that, and for so long as (i) such Capital Stock constitutes less than 100% of all applicable Capital Stock of such person, and the Person or Persons holding the remainder of such Capital Stock are not Affiliates of the Borrower, (ii) doing so would violate applicable law or a contractual obligation binding on such Capital Stock and (iii) with respect to such contractual obligations (other than contractual obligations in connection with a joint venture agreement), such obligation existed at the time of the acquisition of such Capital Stock and was not created or made binding on such Capital Stock in contemplation of or in connection with the acquisition of such Subsidiary, (h) any Property purchased with the proceeds of purchase money Indebtedness or that is subject to a capital lease, in each case, existing or incurred pursuant to Sections 8.03(b)  or (c)  if the contract or other agreement in which the Indebtedness and/or Liens related thereto is granted (or the documentation providing for such capital lease obligation) prohibits or requires the consent of any Person other than a member of the Consolidated Group as a condition to the creation of any other security interest on such Property and (i) any Property that is to be transferred to IAC or one or more of its Subsidiaries (other than the Borrower or any of its Subsidiaries) pursuant to the Separation Agreement in connection with the Spin-Off.

 

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, (a) Taxes imposed on or measured by its overall net income (however denominated) and franchise Taxes imposed on it (in lieu of net income Taxes) by any jurisdiction (or any political subdivision thereof) as a result of such recipient being organized in or having its principal office or applicable Lending Office in

 

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such jurisdiction or as a result of any other present or former connection with such jurisdiction (other than any such connections arising solely from such recipient having executed, delivered, or become a party to, performed its obligations or received payments under, received or perfected a security interest under, engaged in any other transaction specifically contemplated by, or enforced, any Credit Documents), (b) any branch profits taxes imposed under Section 884(a) of the Internal Revenue Code or any similar tax imposed by any other jurisdiction described in clause (a) and (c) in the case of a recipient (other than an assignee pursuant to a request by the Borrower under Section 11.13 ), any U.S. federal withholding Tax that (i) is imposed on amounts payable to such recipient pursuant to Laws in effect at the time such recipient becomes a party hereto (or designates a new Lending Office), except to the extent that such recipient (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01(a) , or (ii) is attributable to a recipient’s failure to comply with Section 3.01(e) .

 

“ Existing Letters of Credit ” means the letters of credit listed on Schedule 1.01A and any other letter of credit issued for the benefit of any Credit Party by either L/C Issuer from and after the date hereof until the Funding Date.

 

“ Facility Fee ” has the meaning provided in Section 2.09(a) .

 

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

 

“ Fee Letter ” means the letter agreement, dated June 19, 2008, among the Borrower, JPMCB, the Lead Arrangers and the other parties thereto, as amended to the date hereof.

 

“ Final Maturity Date ” means, at any time, the latest of the Revolving Termination Date, the Term A Loan Termination Date, the Term B Loan Termination Date and any final maturity date applicable to any outstanding Incremental Term Loans at such time.

 

“ First-Tier Foreign Subsidiary ” means any Foreign Subsidiary that is owned directly by a Domestic Credit Party.

 

“ Foreign Cash ” means, at any time, any portion of the amount of the cash and Cash Equivalents (other than any proceeds of any Revolving Loans or Swingline Loans), after giving effect to any payments required to be made pursuant to Section 4.04 of the Separation Agreement, reflected in the bank statements of the Borrower’s Foreign Subsidiaries immediately after giving effect to the Transactions that is unrestricted on the Spin-Off Date and after giving effect to the Transactions and, to the extent such cash is repatriated to the Borrower or a

 

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Domestic Subsidiary, net of applicable taxes in connection with such repatriation, it being understood that cash required to be remitted to customers representing the face amount of tickets sold shall be deemed to be restricted.

 

“ Foreign Lender ” means any Lender or L/C Issuer that is not a United States person under Section 7701(a)(30) of the Internal Revenue Code.

 

“ Foreign Subsidiary ” means (i) any Subsidiary that is not incorporated, formed or organized under the laws of the United States of America, any State thereof, or the District of Columbia and (ii) any Subsidiary of a Subsidiary described in the foregoing clause (i).

 

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

 

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

 

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

 

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

 

(b)      all purchase money indebtedness (including indebtedness and obligations in respect of conditional sales and title retention arrangements, except for customary conditional sales and title retention arrangements with suppliers that are entered into in the ordinary course of business) and all indebtedness and obligations in respect of the deferred purchase price of property or services (other than trade accounts payable incurred in the ordinary course of business);

 

(c)      all direct obligations under letters of credit (including standby and commercial), bankers’ acceptances and similar instruments;

 

(d)      the Attributable Principal Amount of capital leases;

 

(e)      the amount of all obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Capital Stock (excluding accrued dividends that have not increased the liquidation preference of such Disqualified Capital Stock);

 

(f)       Support Obligations in respect of Funded Debt of another Person; and

 

(g)      Funded Debt of any partnership or joint venture or other similar entity in which such Person is a general partner or joint venturer, and has personal liability for

 

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such obligations, but only to the extent there is recourse to such Person for payment thereof.

 

For purposes hereof, the amount of Funded Debt shall be determined (i) based on the outstanding principal amount in the case of borrowed money indebtedness under clause (a)  and purchase money indebtedness and the deferred purchase obligations under clause (b) , (ii) based on the maximum face amount in the case of letter of credit obligations and the other obligations under clause (c) , and (iii) based on the amount of Funded Debt that is the subject of the Support Obligations in the case of Support Obligations under clause (f) .  Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the L/C Application therefor, whether or not such maximum face amount is in effect at such time.

 

“ Funding Date ” means the date when the conditions specified under Section 5.02 and 5.03 hereof are satisfied or waived and the initial Credit Extension hereunder is made.

 

“ GAAP ” has the meaning provided in Section 1.03(a) .

 

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

 

“ Granting Lender ” has the meaning provided in Section 11.06(h) .

 

“ Guaranteed Obligations ” has the meaning provided in Section 4.01(a) .

 

“ Guarantors ” means (a) as of the Funding Date, each Subsidiary of the Borrower listed on Schedule 1.01B and (b) each other Person that becomes a Guarantor pursuant to the terms hereof, in each case together with its successors; provided , that, for the avoidance of doubt, no Foreign Subsidiary shall be a Guarantor.

 

“ Hazardous Materials ” means all materials, substances or wastes characterized, classified or regulated as hazardous, toxic, pollutant, contaminant or radioactive under Environmental Laws, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes.

 

“ Hedge Bank ” has the meaning provided in the definition of Obligations.

 

“ Honor Date ” has the meaning provided in Section 2.03(c)(i) .

 

“ IAC ” means IAC/InterActiveCorp, a Delaware corporation.

 

“ IAC Dividend ” means one or more cash dividends to be paid by the Borrower, directly or indirectly, to IAC in an approximate aggregate amount of $750.0 million.

 

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“ Immaterial Subsidiary ” means, at any date of determination, any Subsidiary of the Borrower designated as such in writing by the Borrower that had assets representing 1.0% or less of the Borrower’s Consolidated Total Assets on, and generated less than 1.0% of the Borrower’s and its Subsidiaries’ total revenues for the four quarters ending on, the last day of the most recent period at the end of which financial statements were required to be delivered pursuant to Section 7.01(a)  or (b)  or, if such date of determination is prior to the first delivery date under such Sections, on (or, in the case of revenues, for the four quarters ending on) the last day of the period of the most recent financial statements referred to in the first sentence of Section 6.05 ; provided that if all Subsidiaries that are individually “Immaterial Subsidiaries” have aggregate Consolidated Total Assets that would represent 2.5% or more of the Borrower’s Consolidated Total Assets on such last day or generated 2.5% or more of the Borrower’s and its Subsidiaries’ total revenues for such four fiscal quarters, then such number of Subsidiaries of the Borrower as are necessary shall become Material Subsidiaries so that less than 2.5% of the Borrower’s Consolidated Total Assets and less than 2.5% of the Borrower’s and its Subsidiaries’ total revenues are represented by Immaterial Subsidiaries as of such last day or for such four quarters, as the case may be (it being understood that any such determination with respect to revenues and assets shall be made on a Pro Forma Basis).

 

“ Incremental Loan Facilities ” has the meaning provided in Section 2.01(f) .

 

“ Incremental Revolving Commitments ” has the meaning provided in Section 2.01(f) .

 

“ Incremental Term Loan ” has the meaning provided in Section 2.01(f) .

 

“ Incremental Term Loan Joinder Agreement ” means a lender joinder agreement, in a form reasonably satisfactory to the Administrative Agent, the Borrower and each Lender extending Incremental Term Loans, executed and delivered in accordance with the provisions of Section 2.01(h) .

 

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

 

(a)      all Funded Debt;

 

(b)      net obligations under Swap Contracts;

 

(c)      Support Obligations in respect of Indebtedness of another Person; and

 

(d)      Indebtedness of any partnership or joint venture or other similar entity in which such Person is a general partner or joint venturer, and has personal liability for such obligations, but only to the extent there is recourse to such Person for payment thereof.

 

For purposes hereof, the amount of Indebtedness shall be determined (i) based on Swap Termination Value in the case of net obligations under Swap Contracts under clause (b)  and (ii) based

 

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on the outstanding principal amount of the Indebtedness that is the subject of the Support Obligations in the case of Support Obligations under clause (c) .

 

“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

 

“ Indemnitee ” has the meaning provided in Section 11.04(b) .

 

“ Information ” has the meaning provided in Section 11.07 .

 

“ Interest Payment Date ” means, (a) as to any Base Rate Loan (including Swingline Loans), the last Business Day of each March, June, September and December, the Revolving Termination Date and the date of the final principal amortization payment on the Term A Loans or Term B Loans, as applicable, and, in the case of any Swingline Loan, any other dates as may be mutually agreed upon by the Borrower and the Swingline Lender, and (b) as to any Eurodollar Rate Loan, the last Business Day of each Interest Period for such Loan, the date of repayment of principal of such Loan, the Revolving Termination Date and the date of the final principal amortization payment on the Term A Loans or Term B Loans, as applicable, and in addition, where the applicable Interest Period exceeds three (3) months, the date every three (3) months after the beginning of such Interest Period.  If an Interest Payment Date falls on a date that is not a Business Day, such Interest Payment Date shall be deemed to be the immediately succeeding Business Day.

 

“ Interest Period ” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one (1), two (2), three (3) or six (6) and, with prior written consent of all applicable Lenders, nine (9) or twelve (12) months thereafter, as selected by the Borrower in its Loan Notice or such other period that is twelve months or less requested by the Borrower and consented to by all the directly affected Lenders; provided that:

 

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

 

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

 

(c)      no Interest Period with respect to any Revolving Loan shall extend beyond the Revolving Termination Date; and

 

(d)      no Interest Period with respect to the Term A Loans or Term B Loans shall extend beyond any principal amortization payment date for such Loans, except to the extent that the portion of such Loan comprised of Eurodollar Rate Loans that is expiring prior to the applicable principal amortization payment date plus the portion comprised of Base Rate Loans equals or exceeds the principal amortization payment then due.

 

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

 

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

 

“ Involuntary Disposition ” means the receipt by any member of the Consolidated Group of any cash insurance proceeds or condemnation awards payable by reason of theft, loss, physical destruction or damage, loss of use, taking or similar event with respect to any of its Property.

 

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

 

“ IRS ” means the United States Internal Revenue Service.

 

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

 

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

 

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

 

“ JPMCB ” means JPMorgan Chase Bank, N.A.

 

“ JPMorgan ” means J.P. Morgan Securities Inc.

 

“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority, including, without limitation, Environmental Laws.

 

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

 

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

 

“ L/C Borrowing ” means any extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed.

 

“ L/C Commitment ” means, with respect to the L/C Issuer, the commitment of the L/C Issuer to issue and to honor payment obligations under Letters of Credit, and, with respect to each Lender, the commitment of such Lender to purchase participation interests in L/C Obligations up to such Lender’s Dollar Revolving Commitment Percentage thereof.

 

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

 

“ L/C Expiration Date ” means the day that is seven (7) days prior to the Revolving Termination Date then in effect (or, if such day is not a Business Day, the immediately preceding Business Day).

 

“ L/C Issuer ” means each of JPMCB and Wachovia Bank, National Association, in each case in its capacity as issuer of Letters of Credit hereunder, together with its successors in such capacity and any other Dollar Revolving Lender approved by the Administrative Agent and the Borrower; provided that no other Lender shall be obligated to become an L/C Issuer hereunder.  References herein and in the other Credit Documents to the L/C Issuer shall be deemed to refer to the L/C Issuer in respect of the applicable Letter of Credit or to all L/C Issuers, as the context requires.

 

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

 

“ L/C Sublimit ” has the meaning provided in Section 2.01(b) .

 

“ Lead Arrangers ” means JPMorgan and MLPF&S.

 

“ Lender ” means each of the Persons identified as a “Lender” on the signature pages hereto (and, as appropriate, includes the Swingline Lender) and each Person who joins as a Lender pursuant to the terms hereof, together with its successors and permitted assigns.

 

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

 

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and any other such instruments that may be given by any Person pursuant to the terms hereof, as such instruments may be amended and modified from time to time.

 

“ Multiemployer Plan ” means any employee pension benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

 

“ Net Cash Proceeds ” means the aggregate proceeds paid in cash or Cash Equivalents received by any member of the Consolidated Group in connection with any Subject Disposition, Involuntary Disposition or incurrence of Indebtedness or issuance of Capital Stock, net of (a) attorneys’ fees, accountants’ fees, investment banking fees, sales commissions, underwriting discounts, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the applicable asset to the extent such debt or obligations are secured by a Lien permitted hereunder (other than a Lien granted pursuant to a Credit Document) on such asset, other customary expenses and brokerage, consultant and other customary fees, in each case, actually incurred in connection therewith and directly attributable thereto, (b) Taxes paid or payable as a result thereof (estimated reasonably and in good faith by the Borrower and after taking into account any available tax credits or deductions and any tax sharing arrangements) and (c) solely with respect to a Subject Disposition, the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (b) above) (i) related to any of the Property Disposed of in such Subject Disposition and (ii) retained by the Borrower or any of the Subsidiaries including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations ( provided , however , the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds from and after the date of such reduction).  For purposes hereof, “Net Cash Proceeds” includes any cash or Cash Equivalents received upon the Disposition of any non-cash consideration received by any member of the Consolidated Group in any Subject Disposition or Involuntary Disposition.

 

“ New York UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York.

 

“ Non-Bank Certificate ”  has the meaning provided in Section 3.01(e) .

 

“ Non-Extension Notice Date ” has the meaning provided in Section 2.03(b)(iii) .

 

“ Notes ” means the Revolving Notes, the Swingline Note, the Term A Notes and the Term B Notes.

 

“ Obligations ” means, without duplication, (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party (including any Foreign Subsidiary which becomes a borrower hereunder pursuant to Section 1.08 ) arising under any Credit Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or

 

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hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, (b) all obligations under any Swap Contract between any Credit Party and any Lender or Affiliate of a Lender or any Person that was a Lender or Affiliate of a Lender at the time it entered into such Swap Contract, to the extent such Swap Contract is otherwise permitted hereunder (each, in such capacity, a “ Hedge Bank ”) and (c) all obligations under any Treasury Management Agreement between any Credit Party and any Lender or Affiliate of a Lender or any Person that was a Lender or Affiliate of a Lender at the time it entered into such Treasury Management Agreement (each, in such capacity, a “ Treasury Management Bank ”).

 

“ OID ” has the meaning provided in Section 2.01(h) .

 

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

 

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

 

“ Outstanding Amount ” means (a) with respect to Revolving Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Revolving Loans occurring on such date; (b) with respect to Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Swingline Loans occurring on such date; (c) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts and (d) with respect to the Term A Loans or Term B Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any prepayments or repayments of the Term A Loans or Term B Loans on such date.

 

“ Overnight Rate ” means, for any day, (a) with respect to any amount denominated in Dollars, the Federal Funds Rate, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such

 

27

 

rate is being determined, would be offered for such day by a branch or Affiliate of JPMCB in the applicable offshore interbank market for such currency to major banks in such interbank market.

 

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

 

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

 

“ Participating Member State ” means each state so described in any EMU Legislation.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation.

 

“ Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years.

 

“ Permitted Acquisition ” means any Acquisition; provided that (i) no Default or Event of Default shall have occurred and be continuing or exist immediately after giving effect to such Acquisition, (ii) after giving effect on a Pro Forma Basis to the Investment to be made, as of the last day of the most recently ended fiscal quarter at the end of which financial statements were required to have been delivered pursuant to Section 7.01(a)  or (b)  (or, prior to such first required delivery date for such financial statements, as of the last day of the most recent period referred to in the first sentence of Section 6.05 ), the Borrower would be in compliance with Section 8.10 (and if such Acquisition involves consideration greater than $15.0 million, then the Borrower shall deliver a certificate of a Responsible Officer as to the satisfaction of the requirements in this clause (ii)) and (iii) if such Acquisition involves consideration in excess of $10.0 million (or if the total of all consideration for all Acquisitions since the Closing Date exceeds $30.0 million), all assets acquired in such Acquisition shall be held by the Borrower or a Guarantor and all Persons acquired in such Acquisition shall become Guarantors; provided further that the Borrower may elect to allocate consideration expended in such Acquisition for Property to be held by members of the Consolidated Group that are not the Borrower or Guarantors or Acquisitions of Subsidiaries that are not Guarantors to Investments made pursuant to Sections 8.02(f) , (k)  or, to the extent the consideration comes from a Foreign Subsidiary, Section 8.02(g) , so long as capacity to make such Investments pursuant to the applicable Section is available at the time of such allocation (and any consideration so allocated shall reduce capacity for Investments pursuant to such Sections to the extent that capacity for such Investments are limited by such Sections), and to the extent such consideration is in fact so allocated to one of such Sections in accordance with the foregoing requirements, such consideration shall not count toward the $10.0 million and $30.0 million limitations set forth in this clause (iii) .

 

“ Permitted Business ” means the businesses of the Borrower and its Subsidiaries conducted on the Closing Date and any business reasonably related, ancillary or complementary thereto and any reasonable extension thereof.

 

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“ Permitted Holders ” means each of (a) Barry Diller and (b) Liberty Media Corporation, and, in each case, such Person’s Affiliates and any group with respect to which any such Persons (including Affiliates) collectively exercise a majority of the voting power.  Prior to the Spin-Off, IAC and its Subsidiaries will also be deemed to be Permitted Holders.

 

“ Permitted Liens ” means Liens permitted pursuant to Section 8.01 .

 

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

 

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

 

“ Platform ” has the meaning provided in Section 7.02 .

 

“ Pledge Agreement ” means the pledge agreement substantially in the form of Exhibit 1.01A (it being understood that the pledgors party thereto and schedules thereto shall be reasonably satisfactory to the Administrative Agent), given by the Credit Parties, as pledgors, to the Collateral Agent to secure the Obligations, and any other pledge agreements that may be given by any Person pursuant to the terms hereof, in each case as the same may be amended and modified from time to time.

 

“ Pro Forma Basis ” means, with respect to any Subject Disposition, Specified Disposition, Acquisition, Incremental Loan Facilities or the Transactions, for purposes of determining the applicable pricing level under the definition of “Applicable Percentage” and determining compliance with the financial covenants and conditions and the requirements of the definition of “Immaterial Subsidiary” hereunder, that such Subject Disposition, Specified Disposition, Acquisition, Incremental Loan Facilities or the Transactions shall be deemed to have occurred as of the first day of the period of four (4) consecutive fiscal quarters ending as of the end of the most recent fiscal quarter for which annual or quarterly financial statements shall have been delivered in accordance with the provisions hereof, after giving effect to any Pro Forma Cost Savings.  Further, for purposes of making calculations on a “Pro Forma Basis” hereunder, (a) in the case of any Subject Disposition or Specified Disposition, (i) income statement items (whether positive or negative) attributable to the property, entities or business units that are the subject of such Subject Disposition or Specified Disposition shall be excluded to the extent relating to any period prior to the date thereof and (ii) Indebtedness paid or retired in connection with such Subject Disposition or Specified Disposition shall be deemed to have been paid and retired as of the first day of the applicable period; and (b) in the case of any Acquisition, (i) income statement items (whether positive or negative) attributable to the property, entities or business units that are the subject thereof shall be included to the extent relating to any period prior to the date thereof and (ii) Indebtedness incurred in connection with such Acquisition shall be deemed to have been incurred as of the first day of the applicable period (and interest expense shall be imputed for the applicable period assuming prevailing interest rates hereunder).

 

“ Pro Forma Cost Savings ” means, with respect to any period, the reduction in net costs and related adjustments that (i) were directly attributable to an Acquisition, Subject Disposition

 

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or Specified Disposition that occurred during the four-quarter reference period or subsequent to the four-quarter reference period and on or prior to the date of determination and calculated on a basis that is consistent with Regulation S-X under the Securities Laws, as amended and in effect and applied as of the date hereof, (ii) were actually implemented by the business that was the subject of any such Acquisition, Subject Disposition or Specified Disposition or actually implemented by the Borrower and its Subsidiaries in connection with such Acquisition, Subject Disposition or Specified Disposition, in each case, within 12 months after the date of the Acquisition, Subject Disposition or Specified Disposition and prior to the date of determination that are supportable and quantifiable by the underlying accounting records of such business or (iii) relate to (A) the business that is the subject of or (B) the business of the Borrower and its Subsidiaries arising from any such Acquisition, Subject Disposition or Specified Disposition and that the Borrower reasonably determines are probable based upon specifically identifiable actions to be taken within 12 months of the date of the Acquisition, Subject Disposition or Specified Disposition and, in each case, are described, as provided below, in a certificate from a Responsible Officer of the Borrower, as if all such reductions in costs had been affected as of the beginning of such period.  Pro Forma Cost Savings described above shall be accompanied by a certificate from a Responsible Officer of the Borrower delivered to the Administrative Agent that outlines the specific actions taken or to be taken, the net cost savings achieved or to be achieved from each such action and that, in the case of clause (iii)  above, such savings have been determined to be probable; provided that such net costs and related adjustments referred to in clauses (ii)  and (iii)  shall not exceed $15.0 million in any period for which Consolidated EBITDA is calculated.

 

“ Pro Rata Share ” means, with respect to each Lender at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of outstanding Term A Loans or Term B Loans (or, prior to the Funding Date, Term A Loan Commitments or Term B Loan Commitments) or Revolving Commitments, as applicable, of such Lender at such time and the denominator of which is the aggregate amount of Term A Loans, Term B Loans (or, prior to the Funding Date, Term A Loan Commitments or Term B Loan Commitments) or Revolving Commitments, as applicable, at such time; provided that if such Revolving Commitments have been terminated, then the Pro Rata Share of each applicable Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.

 

“ Property ” means an interest of any kind in any property or asset, whether real, personal or mixed, and whether tangible or intangible.

 

“ Qualified Capital Stock ” means any Capital Stock of the Borrower other than Disqualified Capital Stock.

 

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

 

“ Registered Public Accounting Firm ” has the meaning provided in the Securities Laws and shall be independent of the Borrower as prescribed by the Securities Laws.

 

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“ Regulation D ” means Regulation D of the Board of Governors of the Federal Reserve System of the United States as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

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

 

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

 

“ Request for Credit Extension ” means (a) with respect to a Borrowing of Loans (including Swingline Loans) a Loan Notice and (b) with respect to an L/C Credit Extension, an L/C Application.

 

“ Required Approved Currency Revolving Lenders ” means, as of any date of determination, Lenders having more than fifty percent (50%) of the Aggregate Approved Currency Revolving Commitments or, if the Approved Currency Revolving Commitments shall have expired or been terminated, Lenders holding more than fifty percent (50%) of the aggregate principal amount of Approved Currency Revolving Loans; provided that the Approved Currency Revolving Commitment of, and the portion of Approved Currency Revolving Loans held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Approved Currency Revolving Lenders

 

“ Required Dollar Revolving Lenders ” means, as of any date of determination, Lenders having more than fifty percent (50%) of the Aggregate Dollar Revolving Commitments or, if the Dollar Revolving Commitments shall have expired or been terminated, Lenders holding more than fifty percent (50%) of the aggregate principal amount of Dollar Revolving Obligations (including, in each case, the aggregate principal amount of each Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans); provided that the Dollar Revolving Commitment of, and the portion of Dollar Revolving Obligations held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Dollar Revolving Lenders.

 

“ Required Lenders ” means, as of any date of determination, Lenders having more than fifty percent (50%) of the sum of (i) the Term Loan Commitments (or, from and after the initial borrowings hereunder, the Term Loans) and (ii) the Aggregate Revolving Commitments (or, if the Revolving Commitments shall have expired or been terminated, the Revolving Obligations (including, in each case, the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans)); provided that the Commitments of, and the portion of the Loan Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

“ Required Revolving Lenders ” means, as of any date of determination, Lenders having more than fifty percent (50%) of the Aggregate Revolving Commitments or, if the Revolving Commitments shall have expired or been terminated, Lenders holding more than fifty percent (50%) of the aggregate principal amount of Revolving Obligations (including, in each

 

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case, the aggregate principal amount of each Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans); provided that the Revolving Commitment of, and the portion of Revolving Obligations held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.

 

“ Required Term A Lenders ” means, as of any date of determination, Lenders holding more than fifty percent (50%) of the aggregate principal amount of Term A Loan Commitments (or, from and after the initial borrowings hereunder, the Term A Loans); provided that the Term A Loan Commitments held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Lenders.

 

“ Required Term B Lenders ” means, as of any date of determination, Lenders holding more than fifty percent (50%) of the aggregate principal amount of Term B Loan Commitments (or, from and after the initial borrowings hereunder, the Term B Loans); provided that the Term B Loan Commitments held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term Lenders.

 

“ Responsible Officer ” means the chief executive officer, chief operating officer, the president, any executive vice president, the chief financial officer, the chief accounting officer, the treasurer, any assistant treasurer, any vice president, any senior vice president, the secretary or the general counsel of a Credit Party, any manager of a Credit Party that is a limited liability company or the general partner of a Credit Party that is a limited partnership.  Any document delivered hereunder that is signed by a Responsible Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Credit Party, and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Credit Party.

 

“ Restricted Payment ” means (i) any dividend or other distribution (whether in cash, securities or other property) with respect to any Capital Stock of any member of the Consolidated Group, (ii) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Capital Stock or of any option, warrant or other right to acquire any such Capital Stock or (iii) any payment or prepayment of principal on or redemption, repurchase or acquisition for value of, any (x) Indebtedness of any member of the Consolidated Group that is not secured by a Lien or (y) Subordinated Debt of any member of the Consolidated Group, except in each case, any scheduled payment of principal.

 

“ Revaluation Date ” means, with respect to (x) any Letter of Credit, each of the following:  (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall require and (y) any Revolving Loan, each of the following: (i) each date of Borrowing of a Revolving Loan denominated in an Alternative Currency, (ii) each date of any payment by any Revolving Lender under any Revolving Loan denominated in an Alternative

 

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Currency, and (iv) such additional dates as the Administrative Agent or the Required Revolving Lenders shall require.

 

“ Revolving CAM Exchange ” means the exchange of the Revolving Lenders’ interests in the Designated Revolving Obligations provided for in Section 2.14 .

 

“ Revolving CAM Exchange Date ” means the first date after the Closing Date on which there shall occur (a) any event described in Section 9.01(f)  or (h)  with respect to the Borrower or (b) an acceleration of Revolving Loans or termination of the Revolving Commitments pursuant to Section 9.02 .

 

“ Revolving CAM Percentage ” means, as to each Revolving Lender, a fraction, expressed as a decimal, of which (a) the numerator shall be the Revolving Commitments of such Revolving Lender immediately prior to the Revolving CAM Exchange Date and any termination of Revolving Commitments and (b) the denominator shall be the Aggregate Revolving Commitments of all Revolving Lenders immediately prior to the Revolving CAM Exchange Date and any termination of Revolving Commitments.

 

“ Revolving Commitment ” means a Dollar Revolving Commitment or an Approved Currency Revolving Commitment and “ Revolving Commitments ” means, collectively, the Dollar Revolving Commitments and Approved Currency Revolving Commitments.

 

“ Revolving Commitment Percentage ” means the collective reference to the Dollar Revolving Commitment Percentage and the Approved Currency Revolving Commitment Percentage.

 

“ Revolving Committed Amount ” means the collective reference to the Dollar Revolving Committed Amount and the Approved Currency Revolving Committed Amount.

 

“ Revolving Facility ” means the Dollar Revolving Facility or the Approved Currency Revolving Facility and “ Revolving Facilities ” means, collectively, the Dollar Revolving Facility and the Approved Currency Revolving Facility.

 

“ Revolving Lender ” means a Dollar Revolving Lender or an Approved Currency Revolving Lender and “ Revolving Lenders ” means the collective reference to Dollar Revolving Lenders and Approved Currency Revolving Lenders.

 

“ Revolving Lender Joinder Agreement ” means a joinder agreement, in a form to be agreed among the Administrative Agent, the Borrower and each Lender with an Incremental Revolving Commitment, executed and delivered in accordance with the provisions of Section 2.01(f) .

 

“ Revolving Loan ” means a Dollar Revolving Loan or an Approved Currency Revolving Loan and “ Revolving Loans ” means, collectively, Dollar Revolving Loans and Approved Currency Revolving Loans.

 

“ Revolving Notes ” means the collective reference to the Dollar Revolving Notes and the Approved Currency Revolving Notes.

 

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“ Revolving Obligations ” means the collective reference to the Dollar Revolving Obligations and the Approved Currency Revolving Loans.

 

“ Revolving Termination Date ” means the fifth anniversary of the Closing Date.

 

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

 

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

 

“ Same Day Funds ” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Administrative Agent or the L/C Issuer, as applicable, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.

 

“ Sarbanes-Oxley ” means the Sarbanes-Oxley Act of 2002.

 

“ Scheduled Matter ” has the meaning provided in Section 5.01(c)(ii) .

 

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

 

“ Securities Laws ” means the Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder.

 

“ Security Agreement ” means the security agreement substantially in the form of Exhibit 1.01B , (it being understood that the grantors party thereto and schedules thereto shall be reasonably satisfactory to the Administrative Agent), given by Credit Parties, as grantors, to the Collateral Agent to secure the Obligations, and any other security agreements that may be given by any Person pursuant to the terms hereof, in each case as the same may be amended and modified from time to time.

 

“ Senior Notes ” means the Borrower’s 10.75% Senior Notes due 2016 in an aggregate principal amount of $300.0 million to be issued on or prior to the Funding Date and any exchange notes issued in exchange therefor pursuant to the registration rights agreement executed in connection with the issuance thereof.

 

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“ Separation Agreement ” means the Separation Agreement to be dated on or prior to the Spin-Off Date among Interval Leisure Group, Inc., HSN, Inc., Tree.com, the Borrower and IAC, together with all schedules, annexes, exhibits and other attachments thereto.

 

“ Significant Subsidiary ” means (1) any Subsidiary that satisfies the criteria for a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X under the Securities Laws, as such Regulation is in effect on the Closing Date (with the references to 10% in such Rule being deemed to be 5.0% for the purposes of this definition), and (2) any Subsidiary that, when aggregated with all other Subsidiaries that are not otherwise Significant Subsidiaries and as to which any event described in Section 9.01(f)  or (h)  has occurred and is continuing, would constitute a Significant Subsidiary under clause (1) of this definition.

 

“ Solvent ” means, with respect to any Person, as of any date of determination, (a) the Fair Value and Present Fair Saleable Value of the aggregate assets of such Person exceeds the value of its Liabilities; (b) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business; (c) such Person will be able to pay its Liabilities as they mature or become absolute; and (d) the Fair Value and Present Fair Saleable Value of the aggregate assets of such Person exceeds the value of its Liabilities by an amount that is not less than the capital of such Subject Entity (as determined pursuant to Section 154 of the Delaware General Corporate Law). The term “Solvency” shall have an equivalent meaning. For the purposes of this definition, “ Fair Value ”  means the aggregate amount at which the assets of the applicable entity (including goodwill) would change hands between a willing buyer and a willing seller, within a commercially reasonable amount of time, each having reasonable knowledge of the relevant facts, neither being under any compulsion to act and with equity to both; “ Present Fair Saleable Value ” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale or taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises; and “ Liabilities ”  means all debts and other liabilities of the applicable entity, whether secured, unsecured, fixed, contingent, accrued or not yet accrued.

 

“ SPC ” has the meaning provided in Section 11.06(h) .

 

“ Specified Disposition ” means any Disposition referred to in clause (a)  of the definition of Subject Disposition, to the extent a material amount of Property is disposed of in such Disposition.

 

“ Specified Intercompany Transfers ” means a Disposition of Property by a Credit Party to a member of the Consolidated Group that is not a Credit Party.

 

“ Spin-Off ” means the spin-off of the Borrower from IAC pursuant to the Separation Agreement, such that from and after such spin-off, the Borrower will exist as a separate publicly traded entity.

 

“ Spin-Off Date ” means the date upon which the Spin-Off is consummated.

 

“ Spot Rate ” for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity

 

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as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. (x) New York time, in the case of Canadian Dollars, or (y) London time, in the case of any other currency, in each case on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided   further that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.

 

“ Statutory Reserves ” means for any Interest Period for any Borrowing of Eurodollar Rate Loans in Dollars, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D by member banks of the United States Federal Reserve System in New York City with deposits exceeding one billion Dollars against “Eurocurrency liabilities” (as such term is used in Regulation D).  Borrowings of Eurodollar Rate Loans shall be deemed to constitute Eurodollar liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under Regulation D.

 

“ Sterling ” and “ £ ” mean the lawful currency of the United Kingdom.

 

“ Subject Disposition ” means any Disposition other than (a) Dispositions of damaged, worn-out or obsolete Property that, in the Borrower’s reasonable judgment, is no longer used or useful in the business of the Borrower or its Subsidiaries; (b) Dispositions of inventory, services or other property in the ordinary course of business; (c) Dispositions of Property to the extent that (i) such Property is exchanged for credit against the purchase price of similar replacement Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment or property; (d) licenses, sublicenses, leases and subleases not interfering in any material respect with the business of any member of the Consolidated Group; (e) sales or discounts of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business; (f) any Disposition at any time by (i) a Credit Party to any other Credit Party, (ii) a Subsidiary that is not a Credit Party to a Credit Party or (iii) a Subsidiary that is not a Credit Party to another Subsidiary that is not a Credit Party; (g) Specified Intercompany Transfers; (h) the sale of Cash Equivalents; (i) an Excluded Sale and Leaseback Transaction; (j) Dispositions pursuant to a transaction contemplated by Section 8.12 ; (k) Restricted Payments permitted by Section 8.06 ; (l) mergers and consolidations permitted by Section 8.04 and (m) the granting of Liens permitted pursuant to Section 8.01 .

 

“ Subordinated Debt ” means (x) as to the Borrower, any Funded Debt of the Borrower that is expressly subordinated in right of payment to the prior payment of any of the Loan Obligations of the Borrower and (y) as to any Guarantor, any Funded Debt of such Guarantor that is expressly subordinated in right of payment to the prior payment of any of the Loan Obligations of such Guarantor.

 

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“ Swingline Borrowing ” means a borrowing of a Swingline Loan pursuant to Section 2.01(c ).

 

“ Swingline Commitment ” means, with respect to the Swingline Lender, the commitment of the Swingline Lender to make Swingline Loans, and with respect to each Lender, the commitment of such Lender to purchase participation interests in Swingline Loans.

 

“ Swingline Lender ” means JPMCB in its capacity as such, together with any successor in such capacity.

 

“ Swingline Loan ” has the meaning provided in Section 2.01(c) .

 

“ Swingline Note ” means the promissory note given to evidence the Swingline Loans, as amended, restated, modified, supplemented, extended, renewed or replaced.  A form of Swingline Note is attached as Exhibit 2.13-3

 

“ Swingline Sublimit ” has the meaning provided in Section 2.01(c) .

 

“ Synthetic Lease ” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing arrangement that is considered borrowed money indebtedness for tax purposes but is classified as an operating lease under GAAP.

 

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

 

“ Term A Commitment Fee ” has the meaning provided in Section 2.09 .

 

“ Term A Lenders ” means, prior to the funding of the initial Term A Loans on the Funding Date, those Lenders with Term A Loan Commitments, and after funding of the Term A Loans, those Lenders holding a portion of the Term A Loans, together with their successors and permitted assigns.  The initial Term A Lenders are set forth on Schedule 2.01 .

 

“ Term A Loan Commitment ” means, for each Term A Lender, the commitment of such Lender to make a portion of the Term A Loan hereunder; provided that, at any time after funding of the Term A Loans, determinations of “Required Lenders” and “Required Term A Lenders” shall be based on the outstanding principal amount of the Term A Loan.

 

“ Term A Loan Commitment Percentage ” means, for each Term A Lender, a fraction (expressed as a percentage carried to the ninth decimal place), the numerator of which is the principal amount of such Lender’s Term A Loan, and the denominator of which is the Outstanding Amount of the Term A Loans.  The initial Term A Loan Commitment Percentages are set forth on Schedule 2.01 .

 

“ Term A Loan Committed Amount ” means, for each Term A Lender, the amount of such Lender’s Term A Loan Commitment.  The initial Term A Loan Committed Amounts are set forth on Schedule 2.01 .

 

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“ Term A Loan Termination Date ” means the fifth anniversary of the Closing Date.

 

“ Term A Loans ” has the meaning provided in Section 2.01(d) .

 

“ Term A Note ” means the promissory notes substantially in the form of Exhibit 2.13-4 , if any, given to evidence the Term A Loans, as amended, restated, modified, supplemented, extended, renewed or replaced.

 

“ Term B Commitment Fee ” has the meaning provided in Section 2.09 .

 

“ Term B Lenders ” means, prior to the funding of the initial Term B Loans on the Funding Date, those Lenders with Term B Loan Commitments, and after funding of the Term B Loans, those Lenders holding a portion of the Term B Loans (including any Incremental Term Loans that are Term B Loans), together with their successors and permitted assigns.  The initial Term B Lenders are set forth on Schedule 2.01 .

 

“ Term B Loan Commitment ” means, for each Term B Lender, the commitment of such Lender to make a portion of the Term B Loan hereunder; provided that, at any time after funding of the Term B Loans, determinations of “Required Lenders” and “Required Term B Lenders” shall be based on the outstanding principal amount of the Term B Loan.

 

“ Term B Loan Commitment Percentage ” means, for each Term B Lender, a fraction (expressed as a percentage carried to the ninth decimal place), the numerator of which is the principal amount of such Lender’s Term B Loan (including any Incremental Term Loans that are Term B Loans), and the denominator of which is the Outstanding Amount of the Term B Loans (including any Incremental Term Loans that are Term B Loans).  The initial Term B Loan Commitment Percentages are set forth on Schedule 2.01 .

 

“ Term B Loan Committed Amount ” means, for each Term B Lender, the amount of such Lender’s Term B Loan Commitment.  The initial Term B Loan Committed Amounts are set forth on Schedule 2.01 .

 

“ Term B Loan Termination Date ” means the sixth anniversary of the Closing Date.

 

“ Term B Loans ” has the meaning provided in Section 2.01(e) .

 

“ Term B Note ” means the promissory notes substantially in the form of Exhibit 2.13-5 , if any, given to evidence the Term B Loans, as amended, restated, modified, supplemented, extended, renewed or replaced.

 

“ Term Loan Commitments ” means the Term A Loan Commitment and the Term B Loan Commitment.

 

“ Term Loan Lenders ” means the Term A Lenders and the Term B Lenders.

 

“ Term Loans ” means the Term A Loans and the Term B Loans.

 

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“ Transactions ” means the borrowing of the Term A Loans and the Term B Loans on the Funding Date, the consummation of the Spin-Off, the issuance of the Senior Notes, the payment of the IAC Dividend, the distribution by the Borrower of intercompany receivables, directly or indirectly, to IAC or any of its subsidiaries, the other transactions contemplated by Section 8.12 , and the payment of fees and expenses in connection with the foregoing.

 

“ Treasury Management Bank ” has the meaning provided in the definition of Obligations.

 

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

 

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

 

“ UCC ” means the Uniform Commercial Code in effect in any applicable jurisdiction from time to time.

 

“ United States ” or “ U.S .” means the United States of America.

 

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

 

“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:  (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then outstanding principal amount of such Indebtedness.

 

“ Wholly Owned Subsidiary ” means, with respect to any direct or indirect Subsidiary of any Person, that one hundred percent (100%) of the Capital Stock with ordinary voting power issued by such Subsidiary (other than directors’ qualifying shares and investments by foreign nationals mandated by applicable Law) is beneficially owned, directly or indirectly, by such Person.

 

B.                                      Interpretative Provisions.

 

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

 

1.        The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “ without limitation .”  The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .”  Unless the context requires otherwise, (i) any definition of or reference to

 

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any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Credit Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “ herein ,” “ hereof ” and “ hereunder ,” and words of similar import when used in any Credit Document, shall be construed to refer to such Credit Document in its entirety and not to any particular provision thereof, (iv) all references in a Credit Document to “ Articles ,” “ Sections ,” “ Exhibits ” and “ Schedules ” shall be construed to refer to articles and sections of, and exhibits and schedules to, the Credit Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

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

 

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

 

C.                                      Accounting Terms and Provisions.

 

1.          As used herein, “ GAAP ” means generally accepted accounting principles in effect in the United States as set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board from time to time applied on a consistent basis, subject to the provisions of this Section 1.03 .  For the avoidance of doubt, for any period prior to the consummation of the Spin-Off, any financial definitions for the Borrower and its Subsidiaries shall be calculated on a combined basis consistent with the financial statements set forth in Section 6.05 .  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis in a manner consistent with that used in preparing the audited financial statements referenced in Section 6.05 , except as otherwise specifically prescribed herein.

 

2.          Notwithstanding any provision herein to the contrary, determinations of (i) the Consolidated Total Leverage Ratio for purposes of determining the applicable pricing level under the definition of “Applicable Percentage”, (ii) compliance with covenants and conditions and (iii) revenues for determining Material Subsidiaries and Immaterial Subsidiaries shall be made on a Pro Forma Basis.  To the extent compliance with the covenants in Section 8.10 is being

 

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calculated as of a date that is prior to the first test date under Section 8.10 in order to determine the permissibility of a transaction, the levels for the covenants as of the first test date under Section 8.10 shall apply for such purpose.

 

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

 

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

 

D.                                     Rounding.

 

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

 

E.                                       Times of Day .

 

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

 

F.                                       Exchange Rates; Currency Equivalents.

 

1.          The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of L/C Credit Extensions and Outstanding Amounts denominated in Alternative Currencies.  Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur.  Except for purposes of financial statements delivered hereunder or calculating

 

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covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Credit Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as applicable.

 

2.          Wherever in this Credit Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.

 

G.                                      Additional Alternative Currencies.

 

The Borrower may from time to time request that an additional currency be added as “Alternative Currency;” provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars.  Such request shall be subject to the approval of the Administrative Agent and each Approved Currency Revolving Lender; provided that if such “Alternative Currency” is to be used for Letters of Credit only, such request shall be subject only to the approval of the Administrative Agent and the L/C Issuer.

 

H.                                     Additional Borrowers.

 

Notwithstanding anything in Section 11.01 to the contrary, following the Funding Date, with the consent of the Borrower, each Approved Currency Revolving Lender and the Administrative Agent (but without the consent of any other Lender), this Credit Agreement and the other Credit Documents may be amended to add one or more Foreign Subsidiaries of the Borrower as additional borrowers under the Approved Currency Revolving Facility.  Any obligations in respect of borrowings by any Foreign Subsidiary under the Credit Agreement will constitute “Obligations” and “Secured Obligations” for all purposes of the Credit Documents and any such amendment may require such Foreign Subsidiary to provide additional collateral (but solely for the obligations of such Foreign Subsidiary hereunder).  Any such amendment may also affect any other amendments to this Credit Agreement (including, without limitation, amendments to Section 3.01 of this Credit Agreement and the definition of “Excluded Taxes”) and the other Credit Documents as are consented to by the Administrative Agent, the Borrower and each Approved Currency Revolving Lender as may be reasonably necessary or appropriate to appropriately include such Foreign Subsidiary as a Borrower hereunder ( provided that no such amendment shall adversely affect the rights of any Lender that has not consented to such amendment in any material respect).

 

I.                                          Change of Currency.

 

1.          Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation).  If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Credit Agreement in respect of that currency

 

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shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.

 

2.          Each provision of this Credit Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

 

3.          Each provision of this Credit Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.

 

J.                                         Letter of Credit Amounts.

 

Unless otherwise provided, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the Dollar Equivalent of the maximum face amount available to be drawn of such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the Issuer Documents related thereto, whether or not such maximum face amount is in effect at such time.

 

II.

 

COMMITMENTS AND CREDIT EXTENSIONS

 

A.                                    Commitments.

 

Subject to the terms and conditions set forth herein:

 

1.              Revolving Loans .

 

(i)       Dollar Revolving Loans .  Following the Funding Date, each Dollar Revolving Lender severally agrees to make revolving credit loans (the “ Dollar Revolving Loans ”) in Dollars to the Borrower from time to time on any Business Day prior to the Revolving Termination Date; provided that after giving effect to any such Dollar Revolving Loan, (x) with respect to the Dollar Revolving Lenders collectively, the Outstanding Amount of Dollar Revolving Obligations shall not exceed ONE HUNDRED MILLION DOLLARS ($100,000,000) (as such amount may be increased pursuant to Section 2.01(g) or decreased pursuant to Sections 2.07 or 9.02(a) , the “ Aggregate Dollar Revolving Committed Amount ”) and (y) with respect to each Dollar Revolving Lender individually, such Lender’s Dollar Revolving Commitment Percentage of Dollar Revolving Obligations shall not exceed its respective Dollar Revolving Committed Amount.  Dollar Revolving Loans may consist of Base Rate Loans, Eurodollar Rate Loans or a combination thereof, as the Borrower may request.  Dollar Revolving Loans may be repaid and reborrowed

 

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in accordance with the provisions hereof.  Notwithstanding anything contained herein, no Dollar Revolving Loans in excess of $25.0 million in the aggregate may be borrowed prior to completion of the Spin-Off.

 

(ii)      Approved Currency Revolving Loans .  Following the Funding Date, each Approved Currency Revolving Lender severally agrees to make revolving credit loans (the “ Approved Currency Revolving Loans ”) in one or more Approved Currencies to the Borrower from time to time on any Business Day prior to the Revolving Termination Date; provided that after giving effect to any such Approved Currency Revolving Loan, (x) with respect to the Approved Currency Revolving Lenders collectively, the Outstanding Amount of Approved Currency Revolving Loans shall not exceed ONE HUNDRED MILLION DOLLARS ($100,000,000) (as such amount may be increased pursuant to Section 2.01(g)  or decreased in accordance with the Sections 2.07 or 9.02(a) , the “ Aggregate Approved Currency Revolving Committed Amount ”) and (y) with respect to each Approved Currency Revolving Lender individually, such Lender’s Approved Currency Revolving Commitment Percentage of Approved Currency Revolving Loans shall not exceed its respective Approved Currency Revolving Committed Amount.  Approved Currency Revolving Loans denominated in Dollars or Canadian Dollars may consist of Base Rate Loans, Eurodollar Rate Loans or a combination thereof, as the Borrower may request.  Approved Currency Revolving Loans denominated in an Alternative Currency (other than Canadian Dollars) must consist of Eurodollar Rate Loans.  Approved Currency Revolving Loans may be repaid and reborrowed in accordance with the provisions hereof.  Notwithstanding anything contained herein, no Revolving Loans in excess of $25.0 million in the aggregate may be borrowed prior to completion of the Spin-Off.

 

2.          Letters of Credit .  On and after the Funding Date, (x) each L/C Issuer, in reliance upon the commitments of the Dollar Revolving Lenders set forth herein, agrees (A) to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies, for the account of the Borrower (or for the account of any member of the Consolidated Group or BCV, but in such case the Borrower will remain obligated to reimburse the L/C Issuer for any and all drawings under such Letter of Credit, and the Borrower acknowledges that the issuance of Letters of Credit for the account of members of the Consolidated Group or BCV inures to the benefit of the Borrower, and the Borrower acknowledges that the Borrower’s business derives substantial benefits from the business of such members of the Consolidated Group and BCV) on any Business Day, (B) to amend or extend Letters of Credit previously issued hereunder, and (C) to honor drawings under Letters of Credit; and (y) the Dollar Revolving Lenders severally agree to purchase from the L/C Issuer a participation interest in Letters of Credit issued hereunder in an amount equal to such Dollar Revolving Lender’s Dollar Revolving Commitment Percentage thereof; provided that (A) the Outstanding Amount of L/C Obligations shall not exceed TWENTY MILLION DOLLARS ($20,000,000) (as such amount may be decreased in accordance with the provisions hereof, the “ L/C Sublimit ”), (B) with regard to the Dollar Revolving Lenders collectively, the Outstanding Amount of Dollar Revolving Obligations shall not exceed the Aggregate Dollar Revolving Committed Amount, (C) with regard to each Dollar Revolving Lender individually, such Dollar Revolving Lender’s Dollar Revolving Commitment Percentage of Dollar Revolving Obligations shall not exceed its respective Dollar Revolving Committed Amount and (D) the Outstanding Amount of L/C Obligations for the account of BCV shall not exceed $3,500,000.  Subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may obtain

 

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Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.  Notwithstanding anything contained herein, no Letters of Credit may be used to support the IAC Dividend, the Spin-Off, any transaction contemplated by the Spin-Off or contemplated by Section 8.12 .    All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Funding Date shall be subject to and governed by the terms and conditions hereof.

 

3.          Swingline Loans .  During the Commitment Period, the Swingline Lender agrees, in reliance upon the commitments of the other Dollar Revolving Lenders set forth herein, to make revolving credit loans (the “ Swingline Loans ”) to the Borrower in Dollars on any Business Day; provided that (i) the Outstanding Amount of Swingline Loans shall not exceed FIFTEEN MILLION DOLLARS ($15,000,000) (as such amount may be decreased in accordance with the provisions hereof, the “ Swingline Sublimit ”) and (ii) with respect to the Dollar Revolving Lenders collectively, the Outstanding Amount of Dollar Revolving Obligations shall not exceed the Aggregate Dollar Revolving Committed Amount.  Swingline Loans shall be comprised solely of Base Rate Loans, and may be repaid and reborrowed in accordance with the provisions hereof.  Immediately upon the making of a Swingline Loan, each Dollar Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a participation interest in such Swingline Loan in an amount equal to such Lender’s Dollar Revolving Commitment Percentage thereof.  Notwithstanding anything contained herein, no Swingline Loans may be used to fund the IAC Dividend, the Spin-Off, any transaction related to the Spin-Off or contemplated by Section 8.12 .

 

4.          Term A Loan .  Each of the Term A Lenders severally agrees to make its portion of the term A loans (in the amount of its respective Term A Loan Committed Amount) to the Borrower on the Funding Date in a single advance in Dollars in an aggregate principal amount for all Term A Lenders of ONE HUNDRED MILLION DOLLARS ($100,000,000) (the “ Term A Loans ”).  The Term A Loans may consist of Base Rate Loans, Eurodollar Rate Loans or a combination thereto, as the Borrower may request.  Amounts repaid on the Term A Loans may not be reborrowed.

 

5.          Term B Loan .  Each of the Term B Lenders severally agrees to make its portion of the term B loans (in the amount of its respective Term B Loan Committed Amount) to the Borrower on the Funding Date in a single advance in Dollars in an aggregate principal amount for all Term B Lenders of THREE HUNDRED FIFTY MILLION DOLLARS ($350,000,000) (the “ Term B Loans ”).  The Term B Loans may consist of Base Rate Loans, Eurodollar Rate Loans or a combination thereto, as the Borrower may request.  Amounts repaid on the Term B Loans may not be reborrowed.

 

6.          Incremental Loan Facilities .  Any time after the Funding Date, the Borrower may, upon written notice to the Administrative Agent, establish additional credit facilities of the Borrower (collectively, the “ Incremental Loan Facilities ”) by increasing the Aggregate Revolving Commitments hereunder as provided in Section 2.01(g)  (the “ Incremental Revolving Commitments ”), or establishing new term loans hereunder as provided in Section 2.01(h)  (the “ Incremental Term Loans ”); provided that:

 

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such Revolving Loans on the date of effectiveness of the Incremental Revolving Commitments (including payment of any break-funding amounts owing under Section 3.05 ) or (y) each Lender with an Incremental Revolving Commitment shall purchase at par interests in each Borrowing of Revolving Loans then outstanding under the applicable Revolving Facility such that immediately after giving effect to such purchases, each Borrowing thereunder shall be held by each Lender in accordance with its Pro Rata Share of such Revolving Facility (and, in connection therewith, the Borrower shall pay all amounts that would have been payable pursuant to Section 3.05 had the Revolving Loans so purchased been prepaid on such date).

 

Any Incremental Revolving Commitment established hereunder shall have terms identical to the Dollar Revolving Commitments or Approved Currency Revolving Commitments, as the case may be, existing on the Closing Date, it being understood that the Borrower and the Administrative Agent may make (without the consent of or notice to any other party) any amendment to reflect such increase in the Revolving Commitments.

 

8.                                        Establishment of Incremental Term Loans .  Subject to Section 2.01(f) , the Borrower may, at any time, establish additional term loan commitments (including additional commitments for Term B Loans), provided that:

 

(i)                   any Person that is not a Lender or Eligible Assignee that is proposed to be a Lender shall be reasonably acceptable to the Administrative Agent;

 

(ii)                Persons providing commitments for the Incremental Term Loan pursuant to this Section 2.01(h)  will provide an Incremental Term Loan Joinder Agreement;

 

(iii)             additional commitments established for the Incremental Term Loan will be in a minimum aggregate principal amount of $15.0 million and integral multiples of $5.0 million in excess thereof; provided that Incremental Term Loan Commitments shall not be established on more than three (3) separate occasions; and

 

(iv)            the final maturity date of any Incremental Term Loan shall be no earlier than the Term B Loan Termination Date;

 

(v)               the Applicable Percentage (which for the purposes of this Section 2.01(h)  being deemed to include any similar interest margin measure) for any proposed Incremental Term Loans shall be determined by the Borrower and the applicable Lenders; provided that in the event that the Applicable Percentage for any proposed Incremental Term Loans is greater than the Applicable Percentage for the Term B Loans (other than such Incremental Term Loans), then the Applicable Percentage for all Term B Loans (other than such Incremental Term Loans) shall be increased to the extent necessary so that the Applicable Percentage for the Term B Loans (other than such Incremental Term Loans) is equal to the Applicable Percentage for the proposed Incremental Term Loans; provided , further , that

 

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in determining the Applicable Percentage applicable to the Term B Loans (other than such Incremental Term Loans) and the proposed Incremental Term Loans, original issue discount (“ OID ”) or upfront fees (other than underwriting fees paid only to Lenders under the Incremental Term Loans in their capacity as such) (which upfront fees, exclusive of the underwriting fees referred to above, shall be deemed to constitute like amounts of OID) payable to the applicable Lenders of the Term B Loans (other than such Incremental Term Loans) or the proposed Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity);

 

(vi)            the Weighted Average Life to Maturity of any Incremental Term Loan shall not be shorter than the Term B Loans (without giving effect to such Incremental Term Loans).

 

Any Incremental Term Loan established hereunder shall be on terms to be determined by the Borrower and the Lenders thereunder (and the Borrower and the Administrative Agent may, without the consent of any other Lender, enter into an amendment to this Credit Agreement to appropriately include the Incremental Term Loans hereunder including, without limitation, to provide that such Incremental Term Loans shall share in mandatory prepayments on the same basis as the Term A Loans and Term B Loans); provided that, to the extent that such terms and documentation are not consistent with the Term B Loans (except to the extent permitted by clause (iv), (v)  or (vi)  above), they shall be reasonably satisfactory to the Administrative Agent; provided   further that if any covenant, term (except to the extent permitted by clause (iv), (v)  or (vi)  above), event of default or remedy in any Incremental Term Loans is more favorable to the lenders thereunder than the corresponding covenant, term, event of default or remedy in the existing Term B Loans, or such Incremental Term Loans contain any covenant, term (except to the extent permitted by clause (iv), (v)  or (vi)  above), event of default or remedy that is not in the existing Credit Documents, the Credit Parties and the Administrative Agent and/or the Collateral Agent shall, without the consent of or notice to any other party, amend the documentation for such existing Credit Documents so that such covenant, term, event of default and/or remedy is applicable to all Loans and Commitments (or Term Loans and Term Loan Commitments, as applicable) hereunder and/or to incorporate any such covenant, event of default and/or remedy that is not in the existing Credit Documents.

 

B.                                      Borrowings, Conversions and Continuations.

 

1.                                        Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent by delivery to the Administrative Agent of a written Loan Notice appropriately completed and signed by a Responsible Officer of the Borrower.  Each such notice must be received by the Administrative Agent not later than 12:00 noon (New York time) (i) with respect to Eurodollar Rate Loans, three (3) Business Days (or, in the case of Approved Currency Revolving Loans denominated in Alternative Currency, four (4) Business Days) prior to the requested date of, (ii) with respect to Base Rate Loans denominated in Dollars, on the requested date of or (iii) in the case of Base Rate Loans denominated in Canadian Dollars, one Business Day prior to the requested date of, any Borrowing, conversion or continuation.  Except in the case of any Revolving Loan that is borrowed to refinance a Swingline Loan or L/C Borrowing

 

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(which may be in an amount sufficient to refinance such Swingline Loan or L/C Borrowing), each Borrowing, conversion or continuation shall be in a principal amount of (i) with respect to Eurodollar Rate Loans (A) denominated in Dollars, $1.0 million or a whole multiple of $1.0 million in excess thereof, (B) denominated in Euros, €1.0 million or a whole multiple of €1.0 million in excess thereof, (C) denominated in Sterling, £1.0 million or a whole multiple of £1.0 million in excess thereof and (D) denominated in Canadian Dollars, C$1.0 million or a whole multiple of C$1.0 million, (ii) with respect to Base Rate Loans denominated in Dollars, $1,000,000 or a whole multiple of $100,000 in excess thereof or (iii) in the case of Base Rate Loans denominated in Canadian Dollars, C$1,000,000 or an integral multiple of C$100,000 in excess thereof.  Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower’s request is with respect to Revolving Loans, Term A Loans or Term B Loans, (ii) whether such request is for a Borrowing, conversion, or continuation, (iii) the requested date of such Borrowing, conversion or continuation (which shall be a Business Day), (iv) the principal amount of Loans to be borrowed, converted or continued, (v) the Type of Loans to be borrowed, converted or continued, (vi) if such Loans are Approved Currency Revolving Loans, the currency of such Loans (which shall be an Approved Currency) and (vii) if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation (other than with respect to Approved Currency Revolving Loans denominated in an Alternative Currency other than Canadian Dollars), then the applicable Loans shall be made as, or converted to, Base Rate Loans.  Any automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any Loan Notice, but fails to specify an Interest Period, the Interest Period will be deemed to be one (1) month.

 

2.                                        Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection.  In the case of a Borrowing denominated in Dollars, each Lender shall make the amount of its Loan available to the Administrative Agent in Dollars in immediately available funds at the Administrative Agent’s Office not later than 2:00 p.m. (New York time) on the Business Day specified in the applicable Loan Notice.  In the case of a Borrowing denominated in an Alternative Currency, each Lender shall make the amount of its Loan available to the Administrative Agent in the applicable Alternative Currency in immediately available funds at the Administrative Agent’s Office not later than 2:00 p.m. (London time) on the Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 5.03 (and, if such Borrowing is the initial Credit Extension, Section 5.02 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of JPMCB with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Administrative Agent by the Borrower.

 

3.                                        Except as otherwise provided herein, without the consent of the Required Lenders, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default or Event of Default, at

 

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the request of the Required Lenders or the Administrative Agent, (i) no Loan denominated in Dollars or Canadian Dollars may be requested as, converted to or continued as a Eurodollar Rate Loan and (ii) any outstanding Eurodollar Rate Loan denominated in Dollars or Canadian Dollars shall be converted to a Base Rate Loan on the last day of the Interest Period with respect thereto.

 

4.                                        The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.  The determination of the Adjusted Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in JPMCB’s or JPMorgan Chase Bank, N.A., Toronto Branch’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

 

5.                                        After giving effect to all Borrowings, all conversions of Revolving Loans from one Type to the other, and all continuations of Revolving Loans as the same Type, there shall