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	42
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	50
2.04	Additional Provisions with Respect to Swingline Loans	58
2.05	Repayment of Loans	61
2.06	Prepayments	62
2.07	Termination or Reduction of Commitments	66
2.08	Interest	66
2.09	Fees	67
2.10	Computation of Interest and Fees	68
2.11	Payments Generally; Administrative Agent’s Clawback	69
2.12	Sharing of Payments by Lenders	71
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	77
3.05	Compensation for Losses	78

 

i

 

Section		Page
3.06	Mitigation Obligations; Replacement of Lenders	79
3.07	Survival Losses	79
3.08	Additional Reserve Costs	80
	ARTICLE IV
	GUARANTY
4.01	The Guaranty	80
4.02	Obligations Unconditional	81
4.03	Reinstatement	82
4.04	Certain Waivers	82
4.05	Remedies	83
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	84
5.02	Conditions to the Funding Date	85
5.03	Conditions to All Credit Extensions	89
	ARTICLE VI
	REPRESENTATIONS AND WARRANTIES
6.01	Existence, Qualification and Power	89
6.02	Authorization; No Contravention	90
6.03	Governmental Authorization; Other Consents	90
6.04	Binding Effect	90
6.05	Financial Statements	90
6.06	No Material Adverse Effect	91
6.07	Litigation	91
6.08	No Default	91
6.09	Ownership of Property; Liens	91
6.10	Taxes	91
6.11	ERISA Compliance	92
6.12	Subsidiaries	92
6.13	Margin Regulations; Investment Company Act	93
6.14	Disclosure	93
6.15	Compliance with Laws	93
6.16	Solvency	94
6.17	Intellectual Property; Licenses, Etc.	94

 

ii

 

Section		Page
6.18	Security Agreement	94
6.19	Pledge Agreement	94
6.20	Mortgages	95
	ARTICLE VII
	AFFIRMATIVE COVENANTS
7.01	Financial Statements	95
7.02	Certificates; Other Information	97
7.03	Notification	99
7.04	Preservation of Existence	99
7.05	Payment of Taxes and Other Obligations	99
7.06	Compliance with Law	100
7.07	Maintenance of Property	100
7.08	Insurance	100
7.09	Books and Records	101
7.10	Inspection Rights	101
7.11	Use of Proceeds	101
7.12	Joinder of Subsidiaries as Guarantors	101
7.13	Pledge of Capital Stock	102
7.14	Pledge of Other Property	102
7.15	Further Assurances Regarding Collateral	103
7.16	Holdings Guarantee	104
7.17	Post-Closing Matters	104
	ARTICLE VIII
	NEGATIVE COVENANTS
8.01	Liens	105
8.02	Investments	108
8.03	Indebtedness	110
8.04	Mergers and Dissolutions	113
8.05	Dispositions	114
8.06	Restricted Payments	114
8.07	Change in Nature of Business	116
8.08	Change in Accounting Practices or Fiscal Year	116
8.09	Transactions with Affiliates	116
8.10	Financial Covenants	116
8.11	Limitation on Subsidiary Distributions	117
8.12	Spin-Off	118
8.13	Transfers/Investments with respect to Certain Subsidiaries	118

 

iii

 

Section			Page
	ARTICLE IX
	EVENTS OF DEFAULT AND REMEDIES
9.01	Events of Default	119
9.02	Remedies upon Event of Default	121
9.03	Application of Funds	122
	ARTICLE X
	AGENTS
10.01	Appointment and Authorization of Administrative Agent and Collateral Agent	123
10.02	Rights as a Lender	124
10.03	Exculpatory Provisions	124
10.04	Reliance by Administrative Agent and Collateral Agent	125
10.05	Delegation of Duties	125
10.06	Resignation of the Administrative Agent or the Collateral Agent	126
10.07	Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders	127
10.08	No Other Duties	127
10.09	Administrative Agent or Collateral Agent May File Proofs of Claim	127
10.10	Collateral and Guaranty Matters	128
10.11	Withholding Tax	129
10.12	Treasury Management Agreements and Swap Contracts	129
	ARTICLE XI
	MISCELLANEOUS
11.01	Amendments, Etc.	130
11.02	Notices; Effectiveness; Electronic Communication	133
11.03	No Waiver; Cumulative Remedies; Enforcement	135
11.04	Expenses; Indemnity; Damage Waiver	135
11.05	Payments Set Aside	137
11.06	Successors and Assigns	138
11.07	Treatment of Certain Information; Confidentiality	143
11.08	Right of Setoff	144
11.09	Interest Rate Limitation	144
11.10	Counterparts; Integration; Effectiveness	145
11.11	Survival of Representations and Warranties	145
11.12	Severability	145
11.13	Replacement of Lenders	146
11.14	Governing Law; Jurisdiction; Etc.	147
11.15	Waiver of Jury Trial	148

 

iv

 

Section		Page
11.16	USA PATRIOT Act Notice	148
11.17	Designation as Senior Debt.	148
11.18	No Advisory or Fiduciary Responsibility	149

 

v

 

	SCHEDULES
Schedule 1.01A	Existing Letters of Credit
Schedule 1.01B	Funding Date Subsidiary Guarantors
Schedule 2.01	Lenders and Commitments
Schedule 3.08	Mandatory Cost Rate
Schedule 5.02	Mortgaged Properties
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 1.01C	Form of Mortgage
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 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

 

vi

 

“ 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 and Term Loan Commitment and the denominator of which is the Aggregate Commitments.

 

“ Aggregate Commitments ” means the aggregate principal amount of the Revolving Commitments and Term 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 Loan Committed Amount ” means one hundred fifty million Dollars ($150.0 million).

 

“ 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.

 

2

 

“ Applicable Percentage ” means the following percentages per annum:

 

APPLICABLE PERCENTAGES FOR REVOLVING LOANS,
SWINGLINE LOANS, LETTER OF CREDIT FEES AND TERM 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		< 2.00:1.00		2.25	%	1.25	%	1.75	%	0.75	%
II		>  2.00 but < 2.75:1.00		2.50	%	1.50	%	2.00	%	1.00	%
III		>  2.75 but < 3.50:1.00		2.75	%	1.75	%	2.25	%	1.25	%
IV		>  3.50:1.00		3.00	%	2.00	%	2.50	%	1.50	%

 

Applicable Percentages for Revolving Loans, Swingline Loans, Letter of Credit Fees and Term 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 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 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

 

3

 

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 .

 

“ Approved Currency Revolving Facility ” means the Aggregate Approved Currency Revolving Commitments and the provisions herein related to the Approved Currency Revolving Loans.

 

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

 

“ Approved Currency Revolving Lenders ” means those Lenders with Approved Currency Revolving Commitments, together with their successors and permitted assigns.  The initial Approved Currency Revolving Lenders are identified in Schedule 2.01 .

 

4

 

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

 

 “ Approved Currency Revolving Notes ” means the promissory notes, if any, given to evidence the Approved Currency Revolving Loans, as amended, restated, modified, supplemented, extended, renewed or replaced.  A form of Approved Currency Revolving Note is attached as Exhibit 2.13-2 .

 

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

 

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06 ) and accepted by the Administrative Agent and, if required by Section 11.06 , the Borrower, in substantially the form of Exhibit 11.06 or any other form approved by the Administrative Agent.

 

“ Attributable Principal Amount ” means (a) in the case of capital leases, the amount of capital lease obligations determined in accordance with GAAP, (b) in the case of Synthetic Leases, an amount determined by capitalization of the remaining lease payments thereunder as if it were a capital lease determined in accordance with GAAP, and (c) in the case of Sale and Leaseback Transactions, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.

 

“ Auto-Extension Letter of Credit ” has the meaning provided in Section 2.03(b)(iii) .

 

“ Barclays Bank ” means Barclays Bank PLC, together with its successors.

 

“ Barclays Capital ” means Barclays Capital, the investment banking division of Barclays Bank PLC, together with its successors.

 

“ Base Rate ” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Wachovia as its “prime rate”.  The “prime rate” is a rate set by Wachovia based upon various factors including Wachovia’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Wachovia 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.

 

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

 

5

 

“ 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 U.S. Dollars or foreign currencies, as applicable, in the London Interbank Market, (b) if such day relates to any dealings in Euros to be carried out pursuant to this Credit Agreement, the term “Business Day” means any such day which is a TARGET Day and (c) if such day relates to any dealings in any currency other than Euros or 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 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

 

6

 

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 Holdings entitled to vote for members of the board of directors or equivalent governing body of Holdings 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 Holdings or 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 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);

 

(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; or

 

(d)           upon and following the Spin-Off Date, Holdings shall cease to control and directly own 100% of each class of outstanding Capital Stock of the Borrower.

 

“ Closing Date ” means the date hereof.

 

7

 

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

 

“ Collateral Agent ” means Wachovia 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 Fee ” has the meaning provided in Section 2.09(a) .

 

“ Commitment Letter ” means the Commitment Letter dated as of June 19, 2008 among the Borrower, Wachovia, 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 and the Term 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 and the Term 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).

 

“ 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

 

8

 

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 $3.0 million in such period, (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 Borrower or a Subsidiary, such future cash payment shall be added to Consolidated EBITDA in the period when such payment is so received by 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 $34.552 million, $31.784 million and $47.486 million, respectively. Without duplication of any pro forma adjustments reflected in the amounts set forth in the previous 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 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 Section 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 and (v) without duplication of amounts deducted from Consolidated Excess Cash

 

9

 

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.

 

“ 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; 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.

 

Without duplication of any 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 Subsidiary Guarantor) that is not distributed to the Borrower or a Subsidiary 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, (iii) the cumulative effect of any change in accounting principles shall be excluded and (iv) gains and losses to the extent due to fluctuations in currency values

 

10

 

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 or Holdings, as the case may be, 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 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, 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 ) and, upon and following the Spin-Off Date, Holdings.

 

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

 

11

 

“ 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 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.

 

13

 

“ 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 (not to exceed $50.0 million in the aggregate) reflected in the bank statements of the Borrower and the Borrower’s Domestic Subsidiaries immediately after giving effect to the Transactions (but not including any proceeds of Revolving Loans or Swingline Loans), to the extent such amount is unrestricted as of the Spin-Off Date after giving effect to the Transactions (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.

 

14

 

 “ 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 3.50:1.00, fifty percent (50%), (ii) less than 3.50:1.00 but greater than or equal to 2.85:1.00, twenty-five percent (25%) and (iii) less than 2.85:1.00, 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.

 

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

 

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

 

“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization;

 

15

 

(d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition that would reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

 

“ Euro ” and “ € ” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

 

“ Eurodollar Rate ” means, with respect to any Borrowing of Eurodollar Rate Loans for any Interest Period, the rate per annum determined by the Administrative Agent to be the arithmetic mean of the offered rates for deposits in the relevant Approved Currency with a term comparable to such Interest Period that appears on the Telerate British Bankers Assoc. Interest Settlement Rates Page (as defined below) at approximately 11:00 a.m. (London time) on the second full Business Day preceding the first day of such Interest Period; provided , however , that (i) if no comparable term for an Interest Period is available, the Eurodollar Rate shall be determined using the weighted average of the offered rates for the two terms most nearly corresponding to such Interest Period and (ii) if there shall at any time no longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page, “Eurodollar Rate” shall mean, with respect to each day during each Interest Period pertaining to a Borrowing of Eurodollar Rate Loans comprising part of the same Borrowing, the rate per annum equal to the rate at which the Administrative Agent is offered deposits in the relevant Approved Currency at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to its portion of the amount of such Borrowing to be outstanding during such Interest Period.  “ Telerate British Bankers Assoc. Interest Settlement Rates Page ” shall mean the display designated as Reuters Screen LIBOR01 Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which the relevant Approved Currency deposits are offered by leading banks in the London interbank deposit market).

 

 “ 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

 

16

 

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 the Borrower or, in the case of any Person which is a Subsidiary, Capital Stock in such Person 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, the 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 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) .

 

17

 

“ 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 the L/C Issuer from and after the date hereof until the Funding Date.

 

 “ Facility Fees ” 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 Wachovia 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, Wachovia, 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 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.

 

“ Flood Insurance Laws ” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto.

 

“ Foreign Cash ” means, at any time, any portion of the amount of the cash and Cash Equivalents (not to exceed $70.0 million in the aggregate) 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 (other than the proceeds of Revolving Loans or Swingline Loans), after giving effect to any payments required to be made pursuant to Section 4.04 of the Separation Agreement,  and, to the extent such cash is repatriated to the Borrower or a Domestic Subsidiary, net of applicable taxes in connection with such repatriation.

 

 “ 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.

 

18

 

“ 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 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

 

19

 

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 ” 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 Section 1.03 .

 

“ 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 the Subsidiary Guarantors and, upon and following the Spin-Off Date, Holdings, collectively.

 

“ 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.

 

“ Holdings ” means Interval Leisure Group, Inc., a Delaware corporation.

 

“ 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 dividends, comprised of a combination of cash and Senior Notes, to be paid by the Borrower, directly or indirectly, to IAC in an approximate aggregate amount of $400.0 million.

 

“ 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

 

20

 

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(e) .

 

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

 

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

 

“ 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(g) .

 

“ 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 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.

 

21

 

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 .

 

“ 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.

 

“ 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 or refinanced as a Borrowing of Dollar Revolving Loans.

 

23

 

“ 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 Wachovia 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 WCM and Barclays Capital.

 

“ 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.

 

“ Letter of Credit ” means each standby letter of credit issued under the Dollar Revolving Facility and shall include the Existing Letters of Credit.

 

“ Letter of Credit Fee ” has the meaning provided in Section 2.09(b) .

 

 “ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or

 

24

 

other title retention agreement, any easement, right of way or other encumbrance on title to real property and any financing lease having substantially the same economic effect as any of the foregoing).

 

“ Loan ” means any Revolving Loan, Swingline Loan, Term Loan or Incremental Term Loan, and the Base Rate Loans and Eurodollar Rate Loans comprising such Loans.

 

“ Loan Notice ” means a notice of (a) a Borrowing of Loans (including Swingline Loans), (b) a conversion of Loans from one (1) Type to the other, or (c) a continuation of Eurodollar Rate Loans, which, if in writing, shall be substantially in the form of Exhibit 2.02 .

 

“ Loan Obligations ” means the Revolving Obligations, the Term Loans and the Incremental Term Loans.

 

“ Major Disposition ” means any Subject Disposition (or any series of related Subject Dispositions) or any Involuntary Disposition (or any series of related Involuntary Dispositions), in each case resulting in the receipt by a member of the Consolidated Group of Net Cash Proceeds in excess of $15.0 million.

 

“ Mandatory Cost Rate ” has the meaning provided in Schedule 3.08 .

 

“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of the Borrower and its Subsidiaries, taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent, Collateral Agent or any Lender under any material Credit Document; or (c) a material adverse effect upon the legality, validity, binding effect or the enforceability against any Credit Party of any material Credit Document to which it is a party.

 

“ Material Subsidiary ” means each Subsidiary of the Borrower other than an Immaterial Subsidiary.

 

“ Moody’s ” means Moody’s Investors Service, Inc.  and any successor thereto.

 

“ Mortgaged Property ” means (a) each real property identified as a Mortgaged Property on Schedule 5.02 and (b) each real property, if any, which shall be subject to a Mortgage delivered after the Closing Date pursuant to Section 7.16 .

 

“ Mortgages ” means those mortgages, deeds of trust, security deeds or like instruments given by the Credit Parties, as grantors, to the Collateral Agent to secure the Obligations which shall be substantially in the form of Exhibit 1.01C , or otherwise reasonably satisfactory to the Collateral Agent, 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

 

25

 

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) .

 

“ Non-Reinstatement Deadline ” has the meaning provided in Section 2.03(b)(iv) .

 

“ Notes ” means the Revolving Notes, the Swingline Note and the Term 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 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

 

26

 

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(g) .

 

“ 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 Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any prepayments or repayments of the Term 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 rate is being determined, would be offered for such day by a branch or Affiliate of Wachovia 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) .

 

27

 

“ 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 $10.0 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 $5.0 million (or if the total of all consideration for all Acquisitions since the Closing Date exceeds $15.0 million), all assets acquired in such Acquisition shall be held by the Borrower or a Subsidiary Guarantor and all Persons acquired in such Acquisition shall become Subsidiary 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 Subsidiary Guarantors or Acquisitions of Subsidiaries that are not Subsidiary 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 $5.0 million and $15.0 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.

 

“ 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 .

 

28

 

“ 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 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,

 

29

 

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 effected 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 $10.0 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 Loans (or, prior to the Funding Date, Term Loan Commitments) or Revolving Commitments, as applicable, of such Lender at such time and the denominator of which is the aggregate amount of Term Loans (or, prior to the Funding Date, Term 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 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.

 

“ 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.

 

30

 

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

 

31

 

“ 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.

 

“ 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.

 

33

 

“ 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.

 

“ 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 $300.0 million in aggregate principal amount of 9.5% Senior Notes due 2016 to be issued by the Borrower on the terms previously disclosed to the Administrative Agent, and any exchange notes issued in exchange therefor pursuant to the registration rights agreement executed in connection with the issuance thereof.

 

“ Separation Agreement ” means the Separation Agreement to be dated on or prior to the Spin-Off Date, among Holdings, HSN, Inc., Tree.com, Ticketmaster 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 Act of 1933, 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

 

34

 

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 (other than Holdings) to a member of the Consolidated Group that is not a Credit Party.

 

“ Spin-Off ” means the spin-off of Holdings from IAC pursuant to the Separation Agreement, such that from and after such spin-off, Holdings 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 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 City time, in the case of Canadian Dollars and (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

 

35

 

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 (other than Holdings) to any other Credit Party (other than Holdings), (ii) a Subsidiary that is not a Credit Party to a Credit Party (other than Holdings) 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.

 

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

 

“ Subsidiary 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 Subsidiary Guarantor.

 

“ Support Obligations ” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or

 

36

 

advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness of the payment or performance of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Support Obligations shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Support Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

 

“ Survey ” means a survey of any Mortgaged Property (and all improvements thereon) which is (a) a recent ALTA survey by registered engineers or land surveyors and sufficient for the Title Company to remove all standard survey exceptions from the title insurance policy (or commitment) relating to such Mortgaged Property and issue the endorsements of the type required by Section 5.02(d)(iii)  or (b) otherwise reasonably acceptable to the Collateral Agent.

 

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

 

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

 

“ 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.

 

37

 

“ Swingline Lender ” means Wachovia 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.

 

“ TARGET Day ” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euros.

 

“ Tax Distributions ” means, with respect to any fiscal year or portion thereof that the Borrower is treated as a partnership or “disregarded entity” for federal income tax purposes or is part of a consolidated, combined or similar group for Tax purposes of which Holdings or another direct or indirect parent of the Borrower is the common parent (a “Tax Group”), cash distributions paid by the Borrower to Holdings (or to another direct or indirect parent of the Borrower that is the common parent) in respect of (a) where the Borrower is treated as a partnership for federal income tax purposes, the income Tax liabilities of Holdings or the Tax Group (as applicable) attributable to the taxable income of the Borrower or (b) where the Borrower is part of a Tax Group (or is treated as a “disregarded entity” owned by a member of a Tax Group), the income Tax liabilities of the Tax Group attributable to the taxable income of the Borrower and its Subsidiaries included in the Tax Group, as the case may be (in each case, including, any estimates thereof and any Tax deficiencies or other subsequent adjustments to such Tax liabilities); provided that such distributions in respect of any fiscal year of the Borrower or portion thereof (i) shall be permitted to be of an amount equal to, but shall not materially exceed, the income Taxes that the Borrower and/or its Subsidiaries (as applicable) would have paid on a stand alone basis (or as a stand alone tax group), assuming for this purpose that the Borrower is treated as a domestic corporation for federal income tax purposes, and (ii) shall be reduced by any such income Taxes paid or payable directly by the Borrower and/or its Subsidiaries (including, any estimates thereof and any tax deficiencies or other subsequent adjustments to such liabilities).

 

“ Tax Group ” has the meaning assigned to such term in the definition of Tax Distributions.

 

“ 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.

 

38

 

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

 

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

 

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

 

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

 

“ Term Loan Commitment Percentage ” means, for each Term 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 Loan, and the denominator of which is the Outstanding Amount of the Term Loans.  The initial Term Loan Commitment Percentages are set forth on Schedule 2.01 .

 

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

 

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

 

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

 

“ Title Company ” means any title insurance company as shall be retained by the Borrower and reasonably acceptable to the Administrative Agent.

 

“ Title Policy ” shall have the meaning assigned to such term in Section 5.02(d)(iii) .

 

“ Transactions ” means the borrowing of the Term 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.

 

39

 

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.

 

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

 

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

 

1.03        Accounting Terms and Provisions .

 

(a)           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.

 

(b)           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 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.

 

(c)           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

 

41

 

between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

 

(d)           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.

 

1.04                         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).

 

1.05                         Times of Day .

 

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

 

1.06                         Exchange Rates; Currency Equivalents .

 

(a)           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 statements delivered hereunder or calculating financial 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.

 

(b)           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.

 

1.07                         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)

 

42

 

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.

 

1.08                         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).

 

1.09                         Change of Currency .

 

(a)           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 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.

 

(b)           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.

 

(c)           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

 

43

 

to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.

 

1.10                         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.

 

ARTICLE II

 

COMMITMENTS AND CREDIT EXTENSIONS

 

2.01                         Commitments .

 

Subject to the terms and conditions set forth herein:

 

(a)           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 THIRTY FIVE MILLION DOLLARS ($35,000,000) (as such amount may be increased pursuant to Section 2.01(f) 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 in accordance with the provisions hereof.  Notwithstanding anything contained herein, no Dollar Revolving Loans may be used to fund the IAC Dividend, the Spin-Off, any transaction related to the Spin-Off or undertaken as contemplated by Section 8.12 .

 

(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 FIFTEEN MILLION DOLLARS ($15,000,000) (as such amount may be increased pursuant to Section 2.01(f) or decreased in accordance with the Sections 2.07 or 9.02(a) , the “ Aggregate

 

44

 

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 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 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 may be used to fund the IAC Dividend, the Spin-Off, any transaction related to the Spin-Off or undertaken as contemplated by Section 8.12 .

 

(b)           Letters of Credit .  On and after the Funding Date, (x) the 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, 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 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) 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 FIFTEEN MILLION DOLLARS ($15,000,000) (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 and (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.  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 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.

 

(c)           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 on any Business Day; provided that (i) the Outstanding Amount of Swingline Loans shall not exceed TEN MILLION DOLLARS ($10,000,000) (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,

 

45

 

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 .

 

(d)           Term Loan .  Each of the Term Lenders severally agrees to make its portion of the term loans (in the amount of its respective Term Loan Committed Amount) to the Borrower on the Funding Date in a single advance in an aggregate principal amount of ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000) (the “ Term Loans ”).  The Term Loans may consist of Base Rate Loans, Eurodollar Rate Loans or a combination thereto, as the Borrower may request.  Amounts repaid on the Term Loans may not be reborrowed.

 

(e)           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(f)  (the “ Incremental Revolving Commitments ”), or establishing new term loans hereunder as provided in Section 2.01(g)  (the “ Incremental Term Loans ”); provided that:

 

(i)            the aggregate principal amount of loans and commitments for all the Incremental Loan Facilities established after the Funding Date will not exceed $75.0 million;

 

(ii)           no Default or Event of Default shall have occurred and be continuing or shall result after giving effect to any such Incremental Loan Facility;

 

(iii)          the conditions to the making of a Credit Extension under Section 5.02 shall be satisfied; and

 

(iv)          the Borrower shall have delivered a certificate to the Administrative Agent demonstrating that, after giving effect on a Pro Forma Basis to the borrowings to be made pursuant to such Incremental Loan Facility, 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 .

 

In connection with the establishment of any Incremental Loan Facility, (A) neither of the Lead Arrangers hereunder shall have any obligation to arrange for or assist in arranging for any Incremental Loan Facility, (B) any Incremental Loan Facility shall be subject to such conditions, including fee arrangements, as may be provided in connection

 

46

 

therewith and (C) none of the Lenders shall have any obligation to provide commitments or loans for any Incremental Loan Facility.

 

(f)            Establishment of Incremental Revolving Commitments .  Subject to Section 2.01(e) , the Borrower may establish Incremental Revolving Commitments by increasing the Aggregate Dollar Revolving Committed Amount or Aggregate Approved Currency Revolving Committed Amount hereunder, provided that:

 

(i)            any Person that is not a Revolving Lender that is proposed to be a Lender under any such increased Aggregate Revolving Committed Amount shall be reasonably acceptable to the Administrative Agent and any Person that is proposed to provide any such increased Aggregate Dollar Revolving Committed Amount (whether or not an existing Dollar Revolving Lender) shall be reasonably acceptable to the L/C Issuer;

 

(ii)           Persons providing commitments for the Incremental Revolving Commitments pursuant to this Section 2.01(f) will provide a Revolving Lender Joinder Agreement;

 

(iii)          increases in the Aggregate Revolving Committed Amount will be in a minimum principal amount of $10.0 million and integral multiples of $5.0 million in excess thereof;

 

(iv)          if any Revolving Loans are outstanding at the time of any such increase under the applicable Revolving Facility, either (x) the Borrower will prepay 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.

 

(g)           Establishment of Incremental Term Loans .  Subject to Section 2.01(e) , the Borrower may, at any time, establish additional term loan commitments, provided that:

 

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

 

47

 

(ii)           Persons providing commitments for the Incremental Term Loan pursuant to this Section 2.01(g)  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 Loan Termination Date;

 

(v)           the Applicable Percentage (which for the purposes of this Section 2.01(g)  being deemed to include any similar interest margin measure) for any proposed Incremental Term Loans shall be determined by 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 Loans (other than such Incremental Term Loans), then the Applicable Percentage for all Term Loans (other than such Incremental Term Loans) shall be increased to the extent necessary so that the Applicable Percentage for the Term Loans (other than such Incremental Term Loans) is equal to the Applicable Percentage for the proposed Incremental Term Loans; provided , further , that in determining the Applicable Percentage applicable to the Term 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 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 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 Loans); provided that, to the extent that such terms and documentation are not consistent with the Term 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 Loans, or such Incremental Term Loans contain any covenant, term (except to the extent permitted by

 

48

 

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 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.

 

2.02                         Borrowings, Conversions and Continuations .

 

(a)           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, which may be given by telephone.  Each such notice must be received by the Administrative Agent not later than 12:00 noon (New York time) (or, with respect to amounts denominated in Alternative Currency, 11:00 a.m. (London 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, or (ii) with respect to Base Rate Loans, on the requested date of, any Borrowing, conversion or continuation.  Each telephonic notice by the Borrower pursuant to this Section 2.02(a)  must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Except as provided in Sections 2.03(c)  and 2.04(b) , 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 or (ii) with respect to Base Rate Loans, $500,000 or a whole multiple of $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 or the Term 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), 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.

 

(b)           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

 

49

 

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 1:00 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 1:00 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 Wachovia 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; provided , however , that if on the date of such Borrowing there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first , to the payment in full of any such L/C Borrowings, and second , to the Borrower as provided above.

 

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

 

(d)           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 Wachovia’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

 

(e)           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 not be more than ten (10) Interest Periods in effect with respect to the Revolving Loans and five (5) Interest Periods with respect to the Term Loan.

 

2.03                         Additional Provisions with Respect to Letters of Credit .

 

(a)           Obligation to Issue or Amend .

 

(i)            The L/C Issuer shall not issue any Letter of Credit if:

 

50

 

(A)          the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof; or

 

(B)           the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

 

(iv)          The L/C Issuer shall act on behalf of the Dollar Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article X included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

 

(b)           Procedures for Issuance and Amendment; Auto-Extension Letters of Credit .

 

(i)            Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a L/C Application, appropriately completed and signed by a Responsible Officer.  Such L/C Application must be received by the L/C Issuer and the Administrative Agent (A) not later than 12:00 noon (New York time) at least two (2) Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in Dollars and (B) not later than 12:00 noon (London time) at least five (5) Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in an Alternative Currency (or, in each case, such later date and time as the L/C Issuer and the Administrative Agent may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such L/C Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably require.  In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; (D) the purpose and nature of the requested Letter of Credit; and (E) such other matters as the L/C Issuer may reasonably require.  Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.

 

52

 

(ii)           Promptly after receipt of any L/C Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such L/C Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written notice from the Administrative Agent, any Dollar Revolving Lender or any Credit Party, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Sections 5.02 (if issued on the Funding Date) and 5.03 shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Dollar Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to such Dollar Revolving Lender’s Dollar Revolving Commitment Percentage thereof.

 

(iii)          If the Borrower so requests in any L/C Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued (but in any event not later than 30 days prior to the scheduled expiry date thereof).  Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Dollar Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the L/C Expiration Date; provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 2.03(a)  or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five (5) Business Days before the Non-Extension Notice Date from the Administrative Agent or the Borrower that one or more of the applicable conditions specified in Section 5.03 is not then satisfied, and in each case directing the L/C Issuer not to permit such extension.

 

(iv)          Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

53

 

(c)           Drawings and Reimbursements; Funding of Participations .

 

(i)            Upon any drawing under any Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof.  In the case of a Letter of Credit denominated in Dollars, the Borrower shall reimburse the L/C Issuer in Dollars.  In the case of a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse the L/C Issuer in such Alternative Currency unless (x) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (y) in the absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified the L/C Issuer promptly following receipt of the notice of drawing that the Borrower will reimburse the L/C Issuer in Dollars.  In the case of any such reimbursement in Dollars of a drawing as of the applicable Revaluation Date under a Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof.  Not later than (x) 12:00 noon (New York time) on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, and (y) the Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “ Honor Date ”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in Dollars or in the applicable Alternative Currency, as the case may be, in an amount equal to the amount of such drawing; provided , that the Borrower, and the L/C Issuer may, each in their discretion, with the consent of the Administrative Agent and so long as such arrangements do not adversely affect the rights of any Lender in any material respect, enter into Letter of Credit cash collateral prefunding arrangements acceptable to them for the purpose of reimbursing Letter of Credit draws.  If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Dollar Revolving Lender of the Honor Date, the amount and denomination of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof) (the “ Unreimbursed Amount ”), and the amount of such Dollar Revolving Lender’s Dollar Revolving Commitment Percentage thereof.  In such event, the Borrower shall be deemed to have requested a Borrowing in Dollars of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02(a)  for the principal amount of Base Rate Loans (but subject to the amount of the unutilized portion of Dollar Revolving Committed Amount) and the conditions set forth in Section 5.03 ).  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)  may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

(ii)           Each Dollar Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i)  make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars at the Administrative Agent’s Office for payments in Dollars in an amount equal to its Dollar Revolving Commitment Percentage of the Unreimbursed Amount not later than 1:00 p.m. (New York time) on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Dollar Revolving Lender that so makes funds available shall be deemed to have made a Dollar Revolving Loan that is a Base Rate Loan, to the Borrower.

 

54