TABLE OF CONTENTS

 

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ARTICLE I
Definitions
SECTION 1.01.   Defined Terms	1
SECTION 1.02.   Classification of Loans and Borrowings	26
SECTION 1.03.   Pro Forma Determinations	26
SECTION 1.04.   Terms Generally	26
SECTION 1.05.   Accounting Terms; GAAP	27
SECTION 1.06.   Change of Currency	27
SECTION 1.07.   Currency Equivalents Generally	27
ARTICLE II
The Credits
SECTION 2.01.   Term Loans	27
SECTION 2.02.   Incremental Term Loans	28
SECTION 2.03.   Revolving Commitments	28
SECTION 2.04.   Procedure for Revolving Loan Borrowing	29
SECTION 2.05.   Funding of Borrowings	29
SECTION 2.06.   Interest Elections	30
SECTION 2.07.   Termination and Reduction of Commitments	31
SECTION 2.08.   Repayment of Loans; Evidence of Debt	31
SECTION 2.09.   Prepayments	32
SECTION 2.10.   Fees	33
SECTION 2.11.   Interest	33
SECTION 2.12.   Alternate Rate of Interest	34
SECTION 2.13.   Increased Costs	34
SECTION 2.14.   Break Funding Payments	35
SECTION 2.15.   Taxes	36
SECTION 2.16.   Pro Rata Treatment and Payments	37
SECTION 2.17.   Mitigation Obligations; Replacement of Lenders	39
ARTICLE III
Representations and Warranties
SECTION 3.01.   Organization; Powers	40
SECTION 3.02.   Authorization; Enforceability	40
SECTION 3.03.   Governmental Approvals; No Conflicts	40
SECTION 3.04.   Financial Position	40
SECTION 3.05.   Properties	40
SECTION 3.06.   Litigation and Environmental Matters	41
SECTION 3.07.   Compliance with Laws and Agreements	41
SECTION 3.08.   Investment Company Status	41
SECTION 3.09.   Taxes	41

 

 

SECTION 3.10.   ERISA	41
SECTION 3.11.   Disclosure	42
SECTION 3.12.   Security Agreement	42
SECTION 3.13.   Subsidiaries	42
ARTICLE IV
Conditions
SECTION 4.01.   Restatement Effective Date	42
SECTION 4.02.   Each Credit Event	44
ARTICLE V
Affirmative Covenants
SECTION 5.01.   Financial Statements; Other Information	44
SECTION 5.02.   Notices of Material Events	46
SECTION 5.03.   Existence; Conduct of Business	46
SECTION 5.04.   Payment of Obligations	46
SECTION 5.05.   Maintenance of Properties; Insurance	46
SECTION 5.06.   Books and Records; Inspection Rights	46
SECTION 5.07.   Compliance with Laws	47
SECTION 5.08.   Use of Proceeds	47
SECTION 5.09.   Additional Guarantors and Collateral	47
ARTICLE VI
Negative Covenants
SECTION 6.01.   Indebtedness	47
SECTION 6.02.   Liens	48
SECTION 6.03.   Fundamental Changes	49
SECTION 6.04.   Disposition of Property	50
SECTION 6.05.   Restricted Payments	50
SECTION 6.06.   Transactions with Affiliates	50
SECTION 6.07.   Changes in Fiscal Periods	51
SECTION 6.08.   Sales and Leasebacks	51
SECTION 6.09.   Clauses Restricting Subsidiary Distributions	51
SECTION 6.10.   Consolidated Leverage Ratio	51
SECTION 6.11.   Investments	52
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent

 

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SECTION 8.01.   Appointment and Authorization		56
SECTION 8.02.   Administrative Agent and Affiliates		56
SECTION 8.03.   Action by Administrative Agent		56
SECTION 8.04.   Consultation with Experts		56
SECTION 8.05.   Delegation of Duties		57
SECTION 8.06.   Successor Administrative Agent		57
SECTION 8.07.   Credit Decision		57
SECTION 8.08.   Joint Lead Arrangers; Syndication Agent; Documentation Agents		57
ARTICLE IX
Miscellaneous
SECTION 9.01.   Notices		58
SECTION 9.02.   Waivers; Amendments		59
SECTION 9.02A Waivers; Amendments to other Credit Documents		59
SECTION 9.03.   Expenses; Indemnity; Damage Waiver		60
SECTION 9.04.   Successors and Assigns		61
SECTION 9.05.   Survival		63
SECTION 9.06.   Counterparts; Integration; Effectiveness		64
SECTION 9.07.   Severability		64
SECTION 9.08.   Right of Setoff		64
SECTION 9.09.   Governing Law; Jurisdiction; Consent to Service of Process		64
SECTION 9.10.   WAIVER OF JURY TRIAL		65
SECTION 9.11.   Headings		65
SECTION 9.12.   Confidentiality		65
SECTION 9.13.   Judgment Currency		66
SECTION 9.14.   USA PATRIOT Act		66
SECTION 9.15.   Releases of Guarantees and Liens		66
SECTION 9.16.   Addenda		67
SCHEDULES:
Schedule 1.01A	— Commitments
Schedule 1.01B	— Unrestricted Subsidiaries on Restatement Effective Date
Schedule 3.06	— Disclosed Matters
Schedule 3.12	— Filings
Schedule 3.13	— Subsidiaries
Schedule 6.02	— Existing Liens
Schedule 6.09	— Existing Restrictions
EXHIBITS:
Exhibit A	— Form of Assignment and Assumption
Exhibit B	— Form of Opinion of Credit Parties’ Counsel
Exhibit C	— Form of Subsidiary Guarantee
Exhibit D	— Form of Security Agreement
Exhibit E	— Form of LMC Pledge Agreement
Exhibit F	— Form of Certificate
Exhibit G-1	— Form of New Lender Supplement

 

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Exhibit G-2	— Form of Incremental Term Facility Activation Notice
Exhibit H	— Form of Addendum

 

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CREDIT AGREEMENT, dated as of March 3, 2006, as amended and restated as of June 16, 2009 (this “ Agreement ”), among QVC, INC., a Delaware corporation (the “ Borrower ”), the LENDERS party hereto from time to time, JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the “ Administrative Agent ”) for the Lenders, WACHOVIA CAPITAL MARKETS, LLC (“ WCM ”) as syndication agent (in such capacity, the “ Syndication Agent ”), and JPMORGAN SECURITIES INC. and WCM, as joint lead arrangers and joint bookrunners (collectively, in such capacity, the “ Joint Lead Arrangers ”), MIZUHO CORPORATE BANK, LTD., CALYON NEW YORK BRANCH and ROYAL BANK OF SCOTLAND PLC, as Documentation Agents (in such capacity, the “ Documentation Agents ”).

 

W I T N E S S E T H :

 

WHEREAS, the Borrower entered into the Credit Agreement, dated as of March 3, 2006, as amended prior to the Restatement Effective Date (as defined below) (the “ Existing Credit Agreement ”), among the Borrower, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and certain other parties;

 

WHEREAS, the parties hereto have agreed to amend and restate the Existing Credit Agreement as provided in this Agreement, which Agreement shall become effective upon the satisfaction of the conditions precedent set forth in Section 4.01 hereof; and

 

WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities existing under the Existing Credit Agreement or evidence repayment of any of such obligations and liabilities and that this Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the obligations of the Borrower outstanding thereunder;

 

NOW, THEREFORE, in consideration of the above premises, the parties hereto hereby agree that on the Restatement Effective Date, the Existing Credit Agreement shall be amended and restated in its entirety as follows:

 

ARTICLE I

 

Definitions

 

SECTION 1.01.      Defined Terms .  As used in this Agreement, the following terms have the meanings specified below:

 

“ ABR ,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

 

“ Addendum ” means an instrument, substantially in the form of Exhibit H, by which a Lender consents to (a) the amendment and restatement of the Existing Credit Agreement pursuant to this Agreement and (b) the relevant assignments pursuant to the LMC Assignment Agreement, in each case as of the Restatement Effective Date.

 

“ Additional Indebtedness ” means (a) any Indebtedness for borrowed money or Guarantee thereof incurred by the Borrower (i) under this Agreement pursuant to additional term loans made in connection with an amendment to this Agreement after the Restatement Effective Date or (ii) in connection with any incurrence by any Person of loans (including any Incremental Term Loans and any

 

 

“Incremental Term Loans” under and as defined in the Wachovia Credit Agreement) or a private placement, Rule 144A offering or public offering by any Person of notes, or any incurrence or offering of Indebtedness similar to the foregoing, but excluding Revolving Loans and Indebtedness incurred pursuant to Section 6.01(b)(iii), and (b) any Indebtedness incurred by any Subsidiary of the Borrower pursuant to Section 6.01(b)(ii).  Notwithstanding the foregoing, once Additional Indebtedness (whether secured or unsecured) having an aggregate principal amount of at least $250,000,000 has been incurred after the Restatement Effective Date, any Indebtedness incremental to such amount shall not be considered “Additional Indebtedness” unless either (i) in addition to the requirements in the first sentence of this definition, it is secured by a Lien on one or more assets of the Borrower or any of its Subsidiaries or on any Equity Interests of the Borrower or (ii) the Borrower determines in its sole discretion to treat such Indebtedness as “Additional Indebtedness” hereunder.

 

“ Administrative Agent ” means JPMorgan Chase Bank, N.A. in its capacity as administrative agent for the Lenders hereunder and, as applicable, as Collateral Agent.

 

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

“ Affiliate ” means, with respect to a specified 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.

 

“ Affiliated Persons ” mean, with respect to any specified Person, (a) such specified Person’s parents, spouse, siblings, descendants, step children, step grandchildren, nieces and nephews and their respective spouses, (b) the estate, legatees and devisees of such specified Person and each of the Persons referred to in clause (a), and (c) any company, partnership, trust or other entity or investment vehicle Controlled by any of the Persons referred to in clause (a) or (b) or the holdings of which are for the primary benefit of any of such Persons.

 

“ Aggregate Exposure ” means, with respect to any Lender at any time, an amount equal to the sum of (a) the aggregate then outstanding principal amount of such Lender’s Term Loans and (b) the amount of such Lender’s Revolving Commitment then in effect or, if such Revolving Commitment has been terminated, the aggregate then outstanding principal amount of such Lender’s Revolving Loans.

 

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (c) except in the case of the Tranche A Term Facility, the Existing Dollar Revolving Facility and the Existing Multicurrency Revolving Facility, the LIBO Rate that would be calculated as of such day (or, if such day is not a Business Day, as of the next preceding Business Day) in respect of a proposed Eurocurrency Borrowing in Dollars with a one-month Interest Period plus 1.0%.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or such LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or such LIBO Rate, respectively.

 

“ Alternative Currency ” means Sterling, Yen or Euros.

 

“ Alternative Currency Loan ” means a Loan that is a Eurocurrency Loan and that is made in an Alternative Currency pursuant to the applicable Borrowing Request.

 

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

 

“ 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 reasonably determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment and notified to the relevant parties hereto.

 

“ Approved Fund ” has the meaning assigned to such term in Section 9.04.

 

“ Asset Sale ” means any Disposition of property or series of related Dispositions of property (other than Excluded Asset Sales) that (a) yields gross proceeds to the Borrower or any Subsidiary (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $20,000,000 and (b) is consummated at a time when, after giving pro forma effect thereto, the Consolidated Leverage Ratio is greater than 2.50 to 1.00.

 

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

 

“ Available Delayed Draw Term Commitments ” has the meaning assigned to such term in the Existing Credit Agreement.  It is understood that, as of the Restatement Effective Date, there are no Available Delayed Draw Term Commitments.

 

“ beneficial owner ” shall be determined in accordance with Rule 13d-3 and Rule 13d-5 under the Exchange Act, as in effect on the Restatement Effective Date.  “Beneficially own,” “beneficially owned” and “beneficial ownership” have meanings correlative to that of beneficial owner.

 

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

 

“ Borrower ” means QVC, Inc., a Delaware corporation.

 

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

 

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

 

“ Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurocurrency Loan, the term “ Business Day ” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

 

“ Capital Lease Obligations ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal

 

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property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

“ Cash Equivalents ” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States or any state thereof; (c) commercial paper of an issuer rated at least A-1 by Standard & Poor’s or P-1 by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by Standard & Poor’s or A by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition; (h) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by Standard & Poor’s or Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000; and (i) in the case of any Foreign Subsidiary, investments substantially comparable to any of the foregoing investments with respect to the country in which such Foreign Subsidiary is organized.

 

“ Change in Control ” means the acquisition of beneficial ownership by any person or group (excluding any Permitted Holder or group Controlled by any Permitted Holder) of more than 30% of the aggregate voting power of all outstanding classes or series of the Borrower’s voting stock and such aggregate voting power exceeds the aggregate voting power of all outstanding classes or series of Borrower’s voting stock beneficially owned by the Permitted Holders collectively, and either (a) such person or group is a Disqualified Person or (b) on any day until the date that is six months after the date on which such person or group becomes such beneficial owner, the Borrower is rated by one of Moody’s or Standard & Poor’s and the rating assigned by either of them is not an investment grade rating.

 

“ Change in Law ” means (a) the adoption of any law, rule or regulation after the Restatement Effective Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Restatement Effective Date or (c) compliance by any Lender (or, for purposes of Section 2.13(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Restatement Effective Date.

 

“ Class ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Tranche A Term Loans, Tranche 2-J Term Loans, Tranche 3-J Term Loans, Tranche 4-J Term Loans, Tranche 5-J Term Loans, Tranche 6-J Term Loans, Existing Revolving Loans, New Revolving Loans or Incremental Term Loans incurred pursuant to a particular Incremental Term Facility Activation Notice.

 

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“ Closing Date ” has the meaning assigned to such term in the Existing Credit Agreement.

 

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

 

“ Collateral ” means all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is granted under the Security Agreement.

 

“ Collateral Agent ” means JPMorgan Chase Bank, N.A. in its capacity as collateral agent under the Subsidiary Guarantee, the Security Agreement and the LMC Pledge Agreement for the Lenders and certain other holders of obligations of the Loan Parties.

 

“ Commitment ” means, as to any Lender at any date, the Existing Revolving Commitment or the New Revolving Commitment of such Lender at such date.

 

“ Consolidated EBITDA ” means, for any period, operating income as reported in the Borrower’s consolidated financial statements and determined in a manner substantially consistent with the Borrower’s historical practices as of the Restatement Effective Date plus , to the extent deducted in calculating such operating income, (a) depreciation, (b) amortization, (c) stock compensation, as reported in the Borrower’s consolidated financial statements and (d) up to $25,000,000 of noncash charges taken in the fiscal year of the Borrower ending December 31, 2009 in connection with changes in accounting related to customer deliveries.

 

“ Consolidated Leverage Ratio ” means, as at any day, the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for the most recent four fiscal quarter period.

 

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

 

“ 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 Documents ” means the collective reference to the Loan Documents and the LMC Pledge Agreement.

 

“ Credit Parties ” means the collective reference to the Loan Parties and the “Pledgors” party to the LMC Pledge Agreement.

 

“ Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

“ Disclosed Matters ” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06.

 

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

 

“ Disqualified Person ” means a Person whose senior debt does not have an investment grade rating with either Moody’s or Standard & Poor’s on (a) the date on which such Person becomes a

 

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beneficial owner of the Borrower or (b) any day until the date that is 45 days after the date on which such Person becomes such beneficial owner the Borrower.

 

“ Dollar Amount ” means, at any date, (a) with respect to any Loan or Commitment denominated in Dollars, the principal amount thereof then outstanding and (b) with respect to any Alternative Currency Loan or Commitment, the principal amount thereof then outstanding in the relevant Alternative Currency, converted to Dollars at the Exchange Rate on such date.

 

“ Dollar Delayed Draw Term Commitment ” has the meaning assigned to such term in the Existing Credit Agreement.  It is understood that, as of the Restatement Effective Date, no Dollar Delayed Draw Term Commitments remain in effect.

 

“ Dollar Revolving Commitment ” means, as applicable, an Existing Dollar Revolving Commitment or a New Dollar Revolving Commitment.

 

“ Dollar Revolving Facility ” means, as applicable, the Existing Dollar Revolving Facility or the New Dollar Revolving Facility.

 

“ Dollar Revolving Lender ” means, as applicable, an Existing Dollar Revolving Lender or a New Dollar Revolving Lender.

 

“ Dollar Revolving Loans ” means, as applicable, Existing Dollar Revolving Loans or New Dollar Revolving Loans.

 

“ Dollars ” or “ $ ” refers to lawful money of the United States of America.

 

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

 

“ EMU ” means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.

 

“ 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 all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material.

 

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

 

“ Equity Interests “ means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in

 

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a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

 

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

 

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

“ ERISA Event ” means (a) any “reportable event” (as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan) other than an event for which the 30-day notice period is waived; (b) any failure by any Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived; (c) the filing pursuant to Section 412 of the Code or Section 303 of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure by the Borrower or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (e) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Plan; (f) a determination that any Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA); (g) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan; (h) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (i) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent, in Reorganization or in endangered or critical status, within the meaning of Section 432 of the Code or Section 304 or Title IV of ERISA.

 

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

 

“ Eurocurrency ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the LIBO Rate.

 

“ Event of Default ” has the meaning assigned to such term in Article VII.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

“ Exchange Rate ” means, on any day with respect to any two currencies, the rate at which the first such currency may be exchanged into the other such currency, as set forth at approximately 11:00 a.m., London time, on such day on the applicable Reuters World Spot Page.  In the event that any such rate does not appear on any Reuters World Spot Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates reasonably selected by the Administrative Agent or, at the discretion of the Administrative Agent, such Exchange Rate shall instead be the spot rate of the Administrative Agent in a market reasonably selected by it where it customarily

 

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conducts foreign currency exchange operations at or about 11:00 a.m., London time, on such day for exchange of such first currency for such other currency.

 

“ Excluded Asset Sales ” means (a) Dispositions of inventory and obsolete or worn out property in the ordinary course of business and defaulted or past due accounts receivable in connection with the collection thereof and (b) Dispositions of property made by the Borrower or any Subsidiary to the Borrower or any Subsidiary.

 

“ Excluded Taxes ” means (a) in the case of each Lender and the Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under the laws of which such Lender or the Administrative Agent, as the case may be, is organized or any political subdivision thereof, (b) in the case of each Lender, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender’s applicable lending office or any political subdivision thereof, (c) in the case of each Lender and the Administrative Agent, taxes that would not be imposed but for a present or former connection between the Lender or the Administrative Agent, as the case may be, and the taxing jurisdiction or any political subdivision thereof (other than any such connection arising solely from the execution, delivery, performance or receipt of payment under this Agreement), (d) in the case of each Lender and the Administrative Agent, taxes imposed by the United States by means of withholding if and to the extent that such taxes shall be in effect and shall be applicable on the Restatement Effective Date to payments to be made to such Lender’s applicable lending office, (e) in the case of an assignment by a Lender, any taxes that exceed the amount of taxes that are imposed prior to such assignment, unless such assignment and acceptance resulted from the request of the Borrower pursuant to Section 2.17(b), and (f) in the case of each Lender, any tax that is attributable to such Lender’s failure to comply with Section 2.15(e).

 

“ Existing Alternative Currency Revolving Sublimit ” means, with respect to all Alternative Currencies, the Dollar Amount of $11,758,321.27.

 

“ Existing Applicable Rate ” means, for each Type of Existing Loan, a percentage determined in accordance with the Existing Pricing Grid.

 

“ Existing Available Revolving Commitment ” means, as to any Existing Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Existing Revolving Commitment then in effect at such time over (b) the Dollar Amount of such Lender’s Existing Revolving Loans then outstanding.

 

“ Existing Commitment Fee Rate ” means a rate determined in accordance with the Existing Pricing Grid; provided , that in computing the Existing Commitment Fee with respect to the Existing Multicurrency Revolving Commitments, the aggregate principal amount of the Existing Multicurrency Revolving Loans shall be determined by using the daily average Dollar Amount thereof.

 

“ Existing Credit Agreement ” has the meaning assigned to such term in the recitals hereto.

 

“ Existing Dollar Revolving Commitment ” means, as to any Lender, the obligation of such Lender, if any, to make Existing Dollar Revolving Loans in an aggregate principal amount not to exceed the amount set forth under the heading “Existing Dollar Revolving Commitment” opposite such Lender’s name on Schedule 1.01A or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.

 

“ Existing Dollar Revolving Lender ” means each Lender holding an Existing Dollar Revolving Commitment or an Existing Dollar Revolving Loan.

 

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“ Existing Dollar Revolving Loans ” has the meaning assigned to such term in Section 2.03(a).

 

“ Existing Loans ” means the collective reference to the Existing Revolving Loans and the Tranche A Term Loans.

 

“ Existing Multicurrency Revolving Commitment ” means, as to any Lender, the obligation of such Lender, if any, to make Existing Multicurrency Revolving Loans in an aggregate principal amount not to exceed the amount set forth under the heading “Existing Multicurrency Revolving Commitment” opposite such Lender’s name on Schedule 1.01A or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.

 

“ Existing Multicurrency Revolving Lender ” means a Lender holding an Existing Multicurrency Revolving Commitment or an Existing Multicurrency Revolving Loan.

 

“ Existing Multicurrency Revolving Loans ” has the meaning assigned to such term in Section 2.03(a).

 

“ Existing Pricing Grid ” means the table set forth below.

 

Consolidated Leverage Ratio		Commitment Fee		Applicable Rate for Eurocurrency Loans		Applicable Rate for ABR Loans
>3.50:1.00		0.200	%	1.000	%	0	%
< 3.50:1.00		0.175	%	0.875	%	0	%
< 3.00:1.00		0.150	%	0.750	%	0	%
< 2.50:1.00		0.125	%	0.625	%	0	%
< 2.00:1.00		0.100	%	0.550	%	0	%
< 1.50:1.00		0.090	%	0.450	%	0	%

 

For the purposes of the Existing Pricing Grid, changes in the Existing Applicable Rate resulting from changes in the Consolidated Leverage Ratio shall become effective on the date on which financial statements are delivered to the Lenders pursuant to Section 5.01 and shall remain in effect until the next change to be effected pursuant to this paragraph.  If any financial statements referred to above are not delivered within the time periods specified in Section 5.01, then, until the date on which such financial statements are delivered, the highest rate set forth in each column of the Existing Pricing Grid shall apply.  In addition, at all times while an Event of Default shall have occurred and be continuing, the highest rate set forth in each column of the Existing Pricing Grid shall apply.  Each determination of the Consolidated Leverage Ratio pursuant to the Existing Pricing Grid shall be made in a manner consistent with the determination thereof pursuant to Section 6.10.

 

“ Existing Revolving Commitment ” means, as to any Lender, such Lender’s Existing Dollar Revolving Commitment and Existing Multicurrency Revolving Commitment.  As of the Restatement Effective Date, the aggregate Dollar Amount of all Existing Revolving Commitments is $39,928,571.43.

 

“ Existing Revolving Commitment Period ” means the period from and including the Closing Date to the Existing Revolving Termination Date.

 

“ Existing Revolving Lender ” means each Lender that has an Existing Revolving Commitment or that holds Existing Revolving Loans.

 

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“ Existing Revolving Loans ” has the meaning set forth in Section 2.03(a).

 

“ Existing Revolving Termination Date ” means March 3, 2011.

 

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

 

“ Existing Total Dollar Revolving Loans ” means, at any time, the aggregate amount of the Existing Dollar Revolving Loans outstanding at such time.

 

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

 

“ Existing Total Multicurrency Revolving Loans ” means, at any time, the aggregate amount of the Existing Multicurrency Revolving Loans outstanding at such time.

 

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

 

“ Existing Total Revolving Loans ” means, at any time, the aggregate amount of the Existing Revolving Loans outstanding at such time.

 

“ Facility ” means any of (a) the Tranche A Term Loans (the “ Tranche A Term Facility ”), (b) the Tranche 2-J Term Loans (the “ Tranche 2-J Term Facility ”), (c) the Tranche 3-J Term Loans (the “ Tranche 3-J Term Facility ”), (d) the Tranche 4-J Term Loans (the “ Tranche 4-J Term Facility ”), (e) the Tranche 5-J Term Loans (the “ Tranche 5-J Term Facility ”), (f) the Tranche 6-J Term Loans (the “ Tranche 6-J Term Facility ”), (g) the credit facility constituted by the Existing Dollar Revolving Commitments and the extensions of credit thereunder (the “ Existing Dollar Revolving Facility ”), (h) the credit facility constituted by the Existing Multicurrency Revolving Commitments and the extensions of credit thereunder (the “ Existing Multicurrency Revolving Facility ”), (i) the credit facility constituted by the New Dollar Revolving Commitments and the extensions of credit thereunder (the “ New Dollar Revolving Facility ”), (j) the credit facility constituted by the New Multicurrency Revolving Commitments and the extensions of credit thereunder (the “ New Multicurrency Revolving Facility ”) and (k) each incurrence of Incremental Term Loans pursuant to an Incremental Term Facility Activation Notice (each, an “ Incremental Term Facility ”).

 

“ Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) charged to the Administrative Agent on such day on such transactions from three Federal funds brokers of recognized standing selected by it.

 

“ Financial Officer ” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.

 

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

 

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

 

“ GAAP ” means generally accepted accounting principles in the United States of America.

 

“ Governmental Authority ” means the government of the United States of America, any other nation or 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.

 

“ Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other similar obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other similar obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other similar obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other similar obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or similar obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

 

“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

 

“ Incremental Term Facility Activation Notice ” means a notice substantially in the form of Exhibit G-2.

 

“ Incremental Term Facility Closing Date ” means any Business Day designated as such in an Incremental Term Facility Activation Notice.

 

“ Incremental Term Lenders ” means (a) on any Incremental Term Facility Activation Date relating to Incremental Term Loans, the Lenders signatory to the relevant Incremental Term Facility Activation Notice and (b) thereafter, each Lender that is a holder of an Incremental Term Loan.

 

“ Incremental Term Loans ” means any term loans borrowed in connection with an Incremental Term Facility Activation Notice.

 

“ Incremental Term Maturity Date ” means, with respect to the Incremental Term Loans to be made pursuant to any Incremental Term Facility Activation Notice, the final maturity date specified in such Incremental Term Facility Activation Notice, which date shall not be prior to the date that is six months after the latest final maturity date applicable to the Term Loans (other than any Incremental Term Loans) outstanding at the time the relevant Incremental Term Loans are borrowed.

 

“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such

 

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Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements constituting liens hereunder relating to property acquired by such Person (excluding obligations arising from inventory transactions in the ordinary course of business), (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.  “Indebtedness” shall not include (i) any amounts payable under any deferred compensation plans of any Person relating to its or its subsidiaries’ directors, management, employees or consultants or (ii) for the purposes of Section 6.01 and the terms “Additional Indebtedness” and “Material Indebtedness” only, any amounts owed to the Borrower or any Subsidiary.

 

“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

 

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

 

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

 

“ Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.06.

 

“ Interest Payment Date ” means (a) with respect to any ABR Loan, the last day of each March, June, September and December and (b) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

 

“ Interest Period ” means, as to any Eurocurrency Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurocurrency Loan and ending one, two, three or six months (or, if available to all Lenders under the relevant Facility, nine or twelve months) thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto, and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurocurrency Loan and ending one, two, three or six months (or, if available to all Lenders under the relevant Facility, nine or twelve months or such other, shorter period) thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 12:00 noon, New York City time (or in the case of an Alternative

 

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Currency, the Applicable Time), on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:

 

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

 

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

 

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

 

“ Investments ” has the meaning assigned to such term in Section 6.11.

 

“ Lender Presentation ” means the Lender presentation and related materials made available to the Lenders in connection with the Lender meeting held on May 11, 2009 with respect to the amendments effected pursuant to this Agreement.

 

“ Lenders ” means the Persons listed on Schedule 1.01A and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

 

“ LIBO Rate ” means, with respect to any Eurocurrency Borrowing in Dollars or an Alternative Currency for any Interest Period, an interest rate per annum equal to the rate appearing on the Reuters Screen LIBOR01 Page (or on any successor or substitute page of such Screen, or any successor to or substitute for such Screen, providing rate quotations comparable to those currently provided on such page of such Screen, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in such currency in the London interbank market) at approximately 11:00 a.m., London time, on (in the case of Eurocurrency Borrowings in Sterling), or two Business Days prior to (in the case of Eurocurrency Borrowings in Dollars or another Alternative Currency) the commencement of such Interest Period, as the rate for deposits in such currency with a maturity comparable to such Interest Period, provided that in the event that such rate is not available at such time for any reason, then the “ LIBO Rate ” with respect to such Eurocurrency Borrowing for such Interest Period shall be the rate at which deposits in such currency and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, on (in the case of Eurocurrency Borrowings in Sterling), or two Business Days prior to (in the case of Eurocurrency Borrowings in Dollars or another Alternative Currency) the commencement of such Interest Period.

 

“ Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.  “Lien” shall not, however, include any interest of a vendor in any inventory of the Borrower or any

 

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of its Subsidiaries arising out of such inventory being subject to a “sale or return” arrangement with such vendor or any consignment by any third party of any inventory to the Borrower or any of its Subsidiaries.

 

“ LMC ” means Liberty Media Corporation, a Delaware corporation, and any successor (by merger, consolidation, transfer or otherwise) to all or substantially all of its assets; and any subsequent successor (by merger, consolidation, transfer or otherwise) to all or substantially all of a successor’s assets, provided, that if a Transferee Parent becomes the beneficial owner of all or substantially all of the equity securities of the Borrower then beneficially owned by LMC as to which LMC has dispositive power, the term “LMC” shall also mean such Transferee Parent and any successor (by merger, consolidation, transfer or otherwise) to all or substantially all of its assets.  “ Transferee Parent ” for this purpose means, in the event of any transaction or series of related transactions involving the direct or indirect transfer (or relinquishment of control) by LMC of a Person or Persons (a “ Transferred Person ”) that hold equity securities of the Borrower beneficially owned by LMC, such Transferred Person or its successor in such transaction or any ultimate parent entity (within the meaning of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) of such Transferred Person or its successor if immediately after giving effect to such transaction or the last transaction in such series, voting securities representing at least a majority of the voting power of the outstanding voting securities of such Transferred Person, successor or ultimate parent entity are beneficially owned by any combination of LMC, Persons who prior to such transaction were beneficial owners of a majority of, or a majority of the voting power of, the outstanding voting securities of LMC (or of any publicly traded class or series of voting securities of LMC designed to track the economic performance of a specified group of assets or businesses) or Persons who are Control Persons as of the date of such transaction or the last transaction in such series.  “ Control Person ” for this purpose means each of (a) the Chairman of the Board of LMC, (b) the President of LMC, (c) any Senior Vice President of LMC, (d) each of the directors of LMC and (e) the respective Affiliated Persons of the Persons referred to in clauses (a) through (d).

 

“ LMC Assignment Agreement ” has the meaning assigned to such term in Section 4.01(b).

 

“ LMC Collateral ” means any “Collateral” under and as defined in the LMC Pledge Agreement.

 

“ LMC Pledge Agreement ” means the collective reference to one or more Pledge Agreements to be executed and delivered by the holders of the Equity Interests in the Borrower, in each case substantially in the form of Exhibit E.

 

“ Loan Documents ” means the collective reference to this Agreement, the Subsidiary Guarantee and the Security Agreement.

 

“ Loan Parties ” means the collective reference to the Borrower and the Subsidiary Guarantors.

 

“ Loans ” means the loans made or maintained by the Lenders to the Borrower pursuant to this Agreement.

 

“ Material Adverse Effect ” means a material adverse effect on (a) the business, operations, property or condition, financial or otherwise, of the Borrower and its Subsidiaries that results in a material impairment of the ability of the Borrower to perform any payment obligations hereunder or (b) the validity or enforceability of this Agreement or the other Credit Documents or the rights or remedies of the Administrative Agent (including in its capacity as Collateral Agent) or the Lenders hereunder or thereunder.

 

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“ Material Domestic Subsidiary ” means any Domestic Subsidiary of the Borrower, as of the last day of the fiscal quarter of the Borrower most recently ended, that has assets (including Equity Interests in Subsidiaries) or revenues (including both third party and intercompany revenues) with a value in excess of 2.50% of the consolidated assets of the Borrower and its Domestic Subsidiaries or 2.50% of the consolidated revenues of the Borrower and its Domestic Subsidiaries; provided , that in the event Domestic Subsidiaries that would otherwise not be Material Domestic Subsidiaries shall in the aggregate account for a percentage in excess of 7.50% of the consolidated assets of the Borrower and its Domestic Subsidiaries or 7.50% of the consolidated revenues of the Borrower and its Domestic Subsidiaries as of the end of and for the most recently completed fiscal quarter, then one or more of such Domestic Subsidiaries designated by the Borrower (or, if the Borrower shall make no designation, one or more of such Domestic Subsidiaries in descending order based on their respective contributions to the consolidated assets of the Borrower), shall be included as Material Domestic Subsidiaries to the extent necessary to eliminate such excess.  For the purposes of this definition only, Commerce Technologies, Inc. shall be deemed not to be a Subsidiary of the Borrower so long as (a) it is not a wholly owned Subsidiary of the Borrower and (b) its operations are substantially of the type and scope existing as of the Restatement Effective Date.

 

“ Material Indebtedness ” means Indebtedness (other than the Loans), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $50,000,000.  For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

 

“ Material Subsidiary ” means any Subsidiary of the Borrower, as of the last day of the fiscal quarter of the Borrower most recently ended, that has assets or revenues (on a consolidated basis including its Subsidiaries) with a value in excess of 1.0% of the consolidated assets of the Borrower or 1.0% of the consolidated revenues of the Borrower; provided , that in the event Subsidiaries that would otherwise not be Material Subsidiaries shall in the aggregate account for a percentage in excess of 5.0% of the consolidated assets of the Borrower or 5.0% of the consolidated revenues of the Borrower as of the end of and for the most recently completed fiscal quarter, then one or more of such Subsidiaries designated by the Borrower (or, if the Borrower shall make no designation, one or more of such Subsidiaries in descending order based on their respective contributions to the consolidated assets of the Borrower), shall be included as Material Subsidiaries to the extent necessary to eliminate such excess.

 

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

 

“ Multicurrency Delayed Draw Term Commitment ” has the meaning assigned to such term in the Existing Credit Agreement.  It is understood that, as of the Restatement Effective Date, no Multicurrency Delayed Draw Term Commitments remain in effect.

 

“ Multicurrency Revolving Commitment ” means, as applicable, an Existing Multicurrency Revolving Commitment or a New Multicurrency Revolving Commitment.

 

“ Multicurrency Revolving Facility ” means, as applicable, the Existing Multicurrency Revolving Facility or the New Multicurrency Revolving Facility.

 

“ Multicurrency Revolving Lender ” means, as applicable, an Existing Multicurrency Revolving Lender or a New Multicurrency Revolving Lender.

 

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“ Multicurrency Revolving Loans ” means as applicable, Existing Multicurrency Revolving Loans or New Multicurrency Revolving Loans.

 

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

 

“ Net Cash Asset Sale Proceeds Percentage ” means, at any time, the ratio (expressed as a percentage) of (a) the aggregate outstanding principal amount of the Term Loans to (b) the sum of (i) the aggregate outstanding principal amount of the Term Loans, (ii) the aggregate outstanding principal amount of the Wachovia Term Loans and (iii) the aggregate outstanding principal amount of any other Indebtedness secured pursuant to the Security Agreement or any Separate Security Document to the extent, in the case of this clause (iii), such Indebtedness is entitled to a mandatory prepayment in connection with the relevant Asset Sale.

 

“ Net Cash Debt Proceeds Percentage ” means, at any time, the ratio (expressed as a percentage) of (a) the aggregate outstanding principal amount of the Term Loans to (b) the sum of (i) the aggregate outstanding principal amount of the Term Loans and (ii) the aggregate outstanding principal amount of the Wachovia Term Loans.

 

“ Net Cash Proceeds ” means (a) with respect to any Asset Sale, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received), net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale (other than any Lien pursuant to the Security Agreement or any Separate Security Document or created in contemplation of such Asset Sale) and other customary fees and expenses actually incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and (b) with respect to any incurrence of Indebtedness, the cash proceeds received in connection therewith by any Person that incurred such Indebtedness, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.

 

“ Net Cash Proceeds Amount ” means, with respect to any Net Cash Proceeds, the amount thereof multiplied by the Net Cash Asset Sale Proceeds Percentage (in the case of Net Cash Proceeds of any Asset Sale) or the Net Cash Debt Proceeds Percentage (in the case of Net Cash Proceeds of any Indebtedness), and in each case rounded down to a multiple of $1,000,000.

 

“ New Alternative Currency Revolving Sublimit ” means, with respect to all Alternative Currencies, the Dollar Amount of $250,000,000.

 

“ New Applicable Rate ” means, (a) for each Type of New Revolving Loan or New Term Loan (other than Incremental Term Loans), a percentage determined in accordance with the New Pricing Grid and (b) for each Type of Incremental Term Loan, such per annum rates as shall be agreed to by the Borrower and the applicable Incremental Term Lenders as shown in the applicable Incremental Term Facility Activation Notice.

 

“ New Available Revolving Commitment ” means, as to any New Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s New Revolving Commitment then in effect at such time over (b) the Dollar Amount of such Lender’s New Revolving Loans then outstanding.

 

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“ New Commitment Fee Rate ” means 0.50% per annum; provided , that in computing the New Commitment Fee with respect to the New Multicurrency Revolving Commitments, the aggregate principal amount of the New Multicurrency Revolving Loans shall be determined by using the daily average Dollar Amount thereof.

 

“ New Dollar Revolving Commitment ” means, as to any Lender, the obligation of such Lender, if any, to make New Dollar Revolving Loans in an aggregate principal amount not to exceed the amount set forth under the heading “New Dollar Revolving Commitment” opposite such Lender’s name on Schedule 1.01A or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.

 

“ New Dollar Revolving Lender ” means each Lender holding a New Dollar Revolving Commitment or a New Dollar Revolving Loan.

 

“ New Dollar Revolving Loans ” has the meaning assigned to such term in Section 2.03(a).

 

“ New Lender ” has the meaning assigned to such term in Section 2.02(b).

 

“ New Lender Supplement ” has the meaning assigned to such term in Section 2.02(b).

 

“ New Multicurrency Revolving Commitment ” means, as to any Lender, the obligation of such Lender, if any, to make New Multicurrency Revolving Loans in an aggregate principal amount not to exceed the amount set forth under the heading “New Multicurrency Revolving Commitment” opposite such Lender’s name on Schedule 1.01A or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.

 

“ New Multicurrency Revolving Lender ” means a Lender holding a New Multicurrency Revolving Commitment or a New Multicurrency Revolving Loan.

 

“ New Multicurrency Revolving Loans ” has the meaning assigned to such term in Section 2.03(a).

 

“ New Pricing Grid ” means the table set forth below.

 

 

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For the purposes of the New Pricing Grid, changes in the New Applicable Rate resulting from changes in the Consolidated Leverage Ratio shall become effective on the date on which financial statements are delivered to the Lenders pursuant to Section 5.01 and shall remain in effect until the next change to be effected pursuant to this paragraph.  If any financial statements referred to above are not delivered within the time periods specified in Section 5.01, then, until the date on which such financial statements are delivered, the higher of the two rates for the relevant Facilities set forth in the relevant row of the New Pricing Grid shall apply.  In addition, at all times while an Event of Default shall have occurred and be continuing, the higher of the two rates for the relevant Facilities set forth in the relevant row of the New Pricing Grid shall apply.  Each determination of the Consolidated Leverage Ratio pursuant to the New Pricing Grid shall be made in a manner consistent with the determination thereof pursuant to Section 6.10.

 

“ New Revolving Commitment ” means, as to any Lender, such Lender’s New Dollar Revolving Commitment and New Multicurrency Revolving Commitment.  As of the Restatement Effective Date, the aggregate Dollar Amount of all New Revolving Commitments is $500,000,000.

 

“ New Revolving Commitment Period ” means the period from and including the Restatement Effective Date to the New Revolving Termination Date.

 

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

 

“ New Revolving Loans ” has the meaning set forth in Section 2.03(a).

 

“ New Revolving Termination Date ” means March 30, 2014.

 

“ New Term Facilities ” means the collective reference to the Tranche 2-J Term Facility, the Tranche 3-J Term Facility, the Tranche 4-J Term Facility, the Tranche 5-J Term Facility, the Tranche 6-J Term Facility and any Incremental Term Facility.

 

“ New Term Loans ” means the collective reference to the Tranche 2-J Term Loans, the Tranche 3-J Term Loans, the Tranche 4-J Term Loans, the Tranche 5-J Term Loans, the Tranche 6-J Term Loans and any Incremental Term Loans.

 

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

 

“ New Total Dollar Revolving Loans ” means, at any time, the aggregate amount of the New Dollar Revolving Loans outstanding at such time.

 

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

 

“ New Total Multicurrency Revolving Loans ” means, at any time, the aggregate amount of the New Multicurrency Revolving Loans outstanding at such time.

 

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

 

“ New Total Revolving Loans ” means, at any time, the aggregate amount of the New Revolving Loans outstanding at such time.

 

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“ Non-Consenting Lender ” has the meaning assigned to such term in Section 2.17(c).

 

“ Obligations ” means the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the Administrative Agent or to any Lender (or, in the case of Specified Swap Agreements, any affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, any Specified Swap Agreement or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, fees, indemnities, costs, expenses or otherwise (including all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto).

 

“ OFAC ” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.

 

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

 

“ Participant ” has the meaning set forth in Section 9.04.

 

“ Participating Member State ” means any member state of the EMU which has the Euro as its lawful currency.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

“ Permitted Encumbrances ” means:

 

(a)          Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 5.04;

 

(b)         carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;

 

(c)          pledges and deposits made in the ordinary course of business in compliance with workers’ compensation (or pursuant to letters of credit issued in connection with such workers’ compensation compliance), unemployment insurance and other social security laws or regulations;

 

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

 

(e)          judgment liens in respect of judgments that do not constitute an Event of Default under clause (j) of Article VII;

 

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(f)                       easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary; and

 

(g)                    Liens securing obligations in respect of trade-related letters of credit and covering the goods (or the documents of title in respect of such goods) financed or the purchase of which is supported by such letters of credit and the proceeds and products thereof.

 

“ Permitted Holders ” means any one or more of (a) LMC, (b) John C. Malone, (c) each of the respective Affiliated Persons of the Person referred to in clause (b) and (d) any Person a majority of the aggregate voting power of all the outstanding classes or series of the equity securities of which are beneficially owned by any one or more of the Persons referred to in clauses (a), (b) or (c).

 

“ person ” and “ group ” have the meanings given to them for purposes of Section 13(d) and 14(d) of the Exchange Act or any successor provisions, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of rule 13d-5(b)(1) under the Exchange Act, or any successor provision.

 

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

 

“ Plan ” means an employee pension plan as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), subject to the provisions of Section 302 and Title IV of ERISA or Section 412 of the Code, and in respect of which the Borrower or any ERISA Affiliate is (or if such plan were terminated, would under Section 4062 or 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“ Prime Rate ” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

 

“ Priority Indebtedness ” has the meaning set forth in Section 6.01.

 

“ Register ” has the meaning set forth in Section 9.04.

 

“ Reinvestment Deferred Amount ” means, with respect to any Reinvestment Event, the Net Cash Proceeds Amount relating thereto that is not applied to prepay the Term Loans pursuant to Section 2.09(c) as a result of the delivery of a Reinvestment Notice.

 

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

 

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

 

“ Reinvestment Prepayment Amount ” means, with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less the Net Cash Asset Sale Proceeds Percentage of any

 

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portion of the relevant Net Cash Proceeds expended prior to the relevant Reinvestment Prepayment Date to acquire or repair assets useful in the business of the Borrower and its Subsidiaries, rounded down to a multiple of $1,000,000.

 

“ Reinvestment Prepayment Date ” means, with respect to any Reinvestment Event, the earlier of (a) the date occurring 180 days after such Reinvestment Event and (b) the date on which the Borrower shall have determined not to acquire assets useful in the Borrower’s business with all or any portion of the relevant Reinvestment Deferred Amount.

 

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

 

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

 

“ Required Lenders ” means, at any time, the holders of more than 50% of (a) until the Closing Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding and the aggregate amount of Available Delayed Draw Term Commitments then in effect and (ii) the Total Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the Total Revolving Loans then outstanding.

 

“ Requirement of Law ” means, as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“ Restatement Effective Date ” means the date on which the conditions precedent set forth in Section 4.01 shall have been satisfied, which date is June 16, 2009.

 

“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests or any option, warrant or other right to acquire any such Equity Interests.

 

“ Revolving Commitment ” means, as applicable, an Existing Revolving Commitment or a New Revolving Commitment.

 

“ Revolving Commitment Period ” means, as applicable, the Existing Revolving Commitment Period or the New Revolving Commitment Period.

 

“ Revolving Fee Payment Date ” means (a) the third Business Day following the last day of each March, June, September and December during the relevant Revolving Commitment Period and (b) the last day of the relevant Revolving Commitment Period.

 

“ Revolving Lender ” means, as applicable, an Existing Revolving Lender or a New Revolving Lender.

 

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“ Revolving Loans ” means, as applicable, the Existing Revolving Loans and/or the New Revolving Loans.

 

“ Revolving Termination Date ” means, as applicable, the Existing Revolving Termination Date or the New Revolving Termination Date.

 

“ Secured Indebtedness ” has the meaning set forth in Section 6.01.

 

“ Security Agreement ” means the Security Agreement to be executed and delivered by the Borrower and each Subsidiary Guarantor, substantially in the form of Exhibit D.

 

“ Separate Security Documents ” has the meaning assigned to such term in Section 6.02(g).

 

“ Specified Loan Purchase ” means a purchase at par by LMC or any of its subsidiaries (other than the Borrower and its Subsidiaries) of Term Loans (including accrued interest thereon) made (a) with respect to the Tranche 2-J Term Facility on or about June 30, 2010 or (b) with respect to one or more Facilities selected by LMC in order to comply with clause (n)(ii) of Article VII, with any such purchase being made ratably in proportion to the Term Loans outstanding under the relevant Facility or Facilities and any Term Loans so purchased being contributed to the Borrower concurrently with such purchase for cancellation in exchange for no consideration (other than existing equity investments in the Borrower), pursuant to cancellation documentation substantially comparable to the cancellation documentation used on the Restatement Effective Date pursuant to Section 4.01(b) or otherwise reasonably satisfactory to the Administrative Agent; provided , that the first aggregate $250,000,000 used to make Specified Loan Purchases pursuant to clause (b) above and the corresponding “Specified Loan Purchases” under and as defined in the Wachovia Credit Agreement shall be made ratably in respect of Tranche 6-J Term Loans and “Tranche 6-W Term Loans” under and as defined in the Wachovia Credit Agreement.  Specified Loan Purchases made pursuant to clause (b) of this definition and “Specified Loan Purchases” made pursuant to the comparable clause of the Wachovia Credit Agreement (other than any such purchases in respect of Incremental Term Loans or “Incremental Term Loans” under and as defined in the Wachovia Credit Agreement) shall be allocated ratably to the Term Loans under the selected Facility or Facilities hereunder and to the Wachovia Term Loans under the corresponding (determined as provided in Section 2.09(d)) Wachovia Term Facility or Wachovia Term Facilities under the Wachovia Credit Agreement.

 

“ Specified Swap Agreement ” means any Swap Agreement in respect of interest rates or currency exchange rates entered into by the Borrower or any Subsidiary Guarantor and any Person that is a Lender or an affiliate of a Lender at the time such Swap Agreement is entered into.

 

“ Standard & Poor’s ” means Standard & Poor’s Ratings Services.

 

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

 

“ Stock Compensation Plans ” means compensation plans in connection with which the Borrower and its Subsidiaries make payments to LMC and its Affiliates in consideration for securities of LMC issued to employees of the Borrower and its Subsidiaries.

 

“ subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other

 

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corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

“ Subsidiary ” means any subsidiary of the Borrower; provided , that Unrestricted Subsidiaries shall be deemed not to constitute “Subsidiaries” for the purposes of this Agreement (other than when such term is used in the definition of “Unrestricted Subsidiary”).

 

“ Subsidiary Guarantee ” means the Subsidiary Guarantee Agreement to be executed and delivered by each Subsidiary Guarantor, substantially in the form of Exhibit C.

 

“ Subsidiary Guarantor ” means each Domestic Subsidiary that at any time on or after the Restatement Effective Date qualifies as a Material Domestic Subsidiary (whether or not it subsequently ceases to qualify as such).

 

“ Subsidiary Indebtedness ” has the meaning set forth in Section 6.01.

 

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

 

“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

 

“ Term Facilities ” means the collective reference to the Tranche A Term Facility and the New Term Facilities.

 

“ Term Lenders ” means each Lender that holds a Term Loan.

 

“ Term Loans ” means the collective reference to the Tranche A Term Loans and the New Term Loans.

 

“ Total Dollar Revolving Commitment ” means, as applicable, the Existing Total Dollar Revolving Commitment and/or the New Total Dollar Revolving Commitment.

 

“ Total Dollar Revolving Loans ” means, as applicable, the Existing Total Dollar Revolving Loans and/or the New Total Dollar Revolving Loans.

 

“ Total Multicurrency Revolving Commitment ” means, as applicable, the Existing Total Multicurrency Revolving Commitment and/or the New Total Multicurrency Revolving Commitment.

 

“ Total Multicurrency Revolving Loans ” means, as applicable, the Existing Total Multicurrency Revolving Loans and/or the New Total Multicurrency Revolving Loans.

 

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“ Total Revolving Commitment ” means, as applicable, the Existing Total Revolving Commitment and/or the New Total Revolving Commitment.

 

“ Total Revolving Loans ” means, as applicable, the Existing Total Revolving Loans and/or the New Total Revolving Loans.

 

“ Tranche A Term Commitment ” has the meaning assigned to such term in the Existing Credit Agreement.  It is understood that, as of the Restatement Effective Date, no Tranche A Term Commitments remain in effect.

 

“ Tranche A Term Lenders ” means each Lender that holds a Tranche A Term Loan.

 

“ Tranche A Term Loan ” means any Loan with a maturity date occurring on the Tranche A Maturity Date and pricing based on the Existing Pricing Grid.

 

“ Tranche A Term Maturity Date ” means March 3, 2011.

 

“ Tranche A Term Percentage ” means, at any time, the ratio (expressed as a percentage) of the aggregate outstanding principal amount of the Tranche A Term Loans at such time to the aggregate outstanding principal amount of all Term Loans at such time.

 

“ Tranche 2-J Term Lenders ” means each Lender that holds a Tranche 2-J Term Loan.

 

“ Tranche 2-J Term Loan ” means any Loan with a maturity date occurring on the Tranche 2-J Maturity Date and pricing based on the New Pricing Grid.

 

“ Tranche 2-J Term Maturity Date ” means March 3, 2011.

 

“ Tranche 3-J Term Loan ” means any Loan with a maturity date occurring on the Tranche 3-J Maturity Date.

 

“ Tranche 3-J Term Maturity Date ” means June 30, 2011.

 

“ Tranche 4-J Term Loan ” means any Loan with a maturity date occurring on the Tranche 4-J Maturity Date.

 

“ Tranche 4-J Term Maturity Date ” means June 30, 2012.

 

“ Tranche 5-J Term Loan ” means any Loan with a maturity date occurring on the Tranche 5-J Maturity Date.

 

“ Tranche 5-J Term Maturity Date ” means June 30, 2013.

 

“ Tranche 6-J Term Loan ” means any Loan with a maturity date occurring on the Tranche 6-J Maturity Date.

 

“ Tranche 6-J Term Maturity Date ” means March 30, 2014.

 

“ Transactions ” means the execution, delivery and performance by the Borrower of this Agreement, the execution, delivery and performance by the Credit Parties of the other Credit Documents, the borrowing of Loans and the use of proceeds thereof.

 

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“ Type ” means, as to any Loan, its nature as an ABR Loan or a Eurocurrency Loan.

 

“ Unrestricted Subsidiary ” means (a) any Subsidiary of the Borrower listed on Schedule 1.01B, (b) any Subsidiary of the Borrower that is designated as a Unrestricted Subsidiary by the Borrower after the Restatement Effective Date in a written notice to the Administrative Agent and (c) any Subsidiary of any Subsidiary described in clause (a) or (b) above, provided , that, in each case, (i) at no time shall any creditor of any such Subsidiary have any claim (whether pursuant to a Guarantee or otherwise) against the Borrower or any of its other Subsidiaries (other than another Unrestricted Subsidiary) in respect of any Indebtedness or other obligation (except for obligations arising by operation of law, including joint and several liability for taxes, ERISA and similar items) of any such Subsidiary (collectively, “ Unrestricted Subsidiary Support Obligations ”), except pursuant to Investments permitted by Section 6.11; (ii) neither the Borrower nor any of its Subsidiaries (other than another Unrestricted Subsidiary) shall become a general partner of any such Subsidiary; (iii) no default with respect to any Indebtedness of any such Subsidiary (including any right which the holders thereof may have to take enforcement action against any such Subsidiary), shall permit solely as a result of such Indebtedness being in default or accelerated (upon notice, lapse of time or both) any holder of any Indebtedness of the Borrower or its other Subsidiaries (other than another Unrestricted Subsidiary) to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity; (iv) no such Subsidiary shall own any Equity Interests of, or own or hold any Lien on any property of, the Borrower or any other Subsidiary of the Borrower (other than another Unrestricted Subsidiary); (v) no Investments may be made in any such Subsidiary by the Borrower or any of its Subsidiaries (other than by another Unrestricted Subsidiary) except to the extent permitted under Section 6.11(f) or (h) (it being understood that, if a Subsidiary is designated as an Unrestricted Subsidiary after the Restatement Effective Date, the aggregate fair market value of all outstanding Investments owned by the Borrower and its Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall be subject to the limits set forth in Section 6.11(f) and (h), as applicable); (vi) the Borrower shall not directly own any Equity Interests in such Subsidiary; (vii) at the time of such designation, no Default shall have occurred and be continuing or would result therefrom; and (viii) at the time of such designation, after giving pro forma effect thereto, the Consolidated Leverage Ratio shall be less than 3.25 to 1.00 (or, if less, the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10).  It is understood that Unrestricted Subsidiaries shall be disregarded for the purposes of any calculation pursuant to this Agreement relating to financial matters with respect to the Borrower.

 

The Borrower may revoke the designation of a Subsidiary as an Unrestricted Subsidiary pursuant to a written notice to the Administrative Agent so long as, after giving pro forma effect to such revocation, (i) the Consolidated Leverage Ratio shall be less than or equal to the Consolidated Leverage Ratio then required to be maintained by the Borrower pursuant to Section 6.10 and (ii) no Default shall be in existence.  In addition, if any of the requirements specified in the first sentence of this definition ceases at any time to be complied with as to any Unrestricted Subsidiary, the designation thereof shall automatically be deemed to be revoked without requirement of any action by any Person on the date that is 30 days after the Borrower or any of its Subsidiaries has obtained knowledge of such noncompliance, unless such noncompliance has been cured prior to such date.  Any revocation described in the preceding two sentences is referred to herein as a “Revocation”.  Upon any Revocation, such Unrestricted Subsidiary shall constitute a Subsidiary for all purposes of this Agreement and the Borrower shall comply with Section 5.09 if such Subsidiary is a Material Domestic Subsidiary.  In the case of any Revocation, if the designation of such Subsidiary as an Unrestricted Subsidiary caused the available basket amount referred to in Section 6.11(f) or (h), as applicable, to be utilized by an amount equal to the aggregate fair market value of all outstanding Investments owned by the Borrower and its Subsidiaries in the Subsidiary so designated (the amount so utilized, the “Designation Amount”), then, effective upon such Revocation, the relevant available basket amount shall be increased by the lesser of (i) the Designation Amount and

 

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(ii) the aggregate fair market value of all outstanding Investments owned by the Borrower and its Subsidiaries in such Subsidiary at the time of such revocation.  Any Subsidiary as to which any Revocation has been made may not subsequently be designated as an Unrestricted Subsidiary.

 

“ Unrestricted Subsidiary Support Obligations ” has the meaning assigned to such term in the definition of “Unrestricted Subsidiary”.

 

“ Wachovia Credit Agreement ” means the Credit Agreement, dated as of October 4, 2006, as amended and restated on the Restatement Effective Date, among the Borrower, the lenders party thereto, Wachovia Bank, N.A., as administrative agent, and certain other parties, as in effect on the Restatement Effective Date.

 

“ Wachovia Term Facilities ” means the “Term Facilities” under and as defined in the Wachovia Credit Agreement, which as of the Restatement Effective Date consist of the Initial Term Facility, the Tranche 2-W Term Facility, the Tranche 3-W Term Facility, the Tranche 4-W Term Facility, the Tranche 5-W Term Facility, the Tranche 6-W Term Facility and any Incremental Term Facility, as each such term is defined in the Wachovia Credit Agreement.

 

“ Wachovia Term Loans ” means the “Term Loans” under and as defined in the Wachovia Credit Agreement.

 

“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

“ Yen ” and “ ¥ ” mean the lawful currency of Japan.

 

SECTION 1.02.                  Classification of Loans and Borrowings .  For purposes of this Agreement, Loans may be classified and referred to by Class ( e.g. , a “Dollar Revolving Loan”) or by Type ( e.g. , a “Eurocurrency Loan”) or by Class and Type ( e.g. , a “Dollar Eurocurrency Revolving Loan”).  Borrowings also may be classified and referred to by Class ( e.g. , a “Dollar Revolving Borrowing”) or by Type ( e.g. , a “Dollar Eurocurrency Borrowing”) or by Class and Type ( e.g. , a “Dollar Eurocurrency Revolving Borrowing”).

 

SECTION 1.03.                  Pro Forma Determinations .  Whether or not specified elsewhere herein, in order to determine that no Default shall have occurred and be continuing after giving effect to a particular transaction or event, such determination shall require, without limitation, a determination that the Borrower would be in compliance with Section 6.10 after giving effect thereto.

 

SECTION 1.04.                  Terms Generally .  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to

 

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Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) 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.  The foregoing standards shall also apply to the other Credit Documents.

 

SECTION 1.05.                  Accounting Terms; GAAP .  Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Restatement Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until  such notice shall have been withdrawn or such provision  amended in accordance herewith.

 

SECTION 1.06.                  Change of Currency .   Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify after consultation with the Borrower to be appropriate to the extent necessary to reflect a change in currency of any country and any relevant market conventions or practices relating to such change in currency.

 

SECTION 1.07.                  Currency Equivalents Generally .  Unless the context otherwise requires, any amount specified in this Agreement to be in Dollars shall also include the Dollar Amount of any Alternative Currency.  The maximum amount of Indebtedness and other threshold amounts that the Borrower and its Subsidiaries may incur under Article VI shall not be deemed to be exceeded, with respect to any outstanding Indebtedness and other threshold amounts solely as a result of fluctuations in the exchange rate of currencies.  When calculating capacity for the incurrence of additional Indebtedness and other threshold amounts by the Borrower and any Subsidiary, the exchange rate of currencies shall be measured as of the date of such calculation.

 

ARTICLE II

The Credits

 

SECTION 2.01.                  Term Loans (a).  Subject to the terms and conditions hereof, each Term Lender severally agrees to maintain hereunder a portion of its “Loans” presently outstanding under the Existing Credit Agreement as Term Loans denominated in Dollars under one or more Term Facilities as set forth with respect to such Term Lender on Schedule 1.01A.  The Term Loans may from time to time be Eurocurrency Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Section 2.06; provided that there shall not at any time be more than a total of 3 Eurocurrency Term Loan Borrowings outstanding under any Term Facility.  At the commencement of each Interest Period for any Eurocurrency Term Loan Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000.  At the time that each ABR Term Loan Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided , that an ABR Term Loan Borrowing may be in an aggregate amount that is equal to any portion of any Term Facility that is not outstanding under any other Borrowing.

 

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SECTION 2.02.                  Incremental Term Loans (a).(a)  The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make Incremental Term Loans by executing and delivering to the Administrative Agent an Incremental Term Facility Activation Notice specifying (i) the amount of such Incremental Term Loans, (ii) the applicable Incremental Term Facility Closing Date, (iii) the applicable Incremental Term Maturity Date, (iv) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.08(b), (v) the New Applicable Rate for such Incremental Term Loans, (vi) the proposed original issue discount applicable to such Incremental Term Loans, if any, (vii) if applicable, the manner in which prepayments of such Incremental Term Loans shall be applied to the installments thereof, and (viii) any other terms applicable to such Incremental Term Loans acceptable to the Borrower and the Administrative Agent that are consistent with the terms of this Section 2.02 and Section 2.08(b).  Notwithstanding the foregoing, (1) unless otherwise agreed by the Required Lenders, (A) the aggregate amount of borrowings of Incremental Term Loans shall not exceed $1,000,000,000 and (B) no Incremental Term Loans may be borrowed if a Default would be in existence after giving pro forma effect thereto and any substantially concurrent use of the proceeds thereof and (2) unless otherwise agreed by the Administrative Agent, (A) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $100,000,000 and (B) no more than four Incremental Term Facility Closing Dates may be selected by the Borrower after the Restatement Effective Date.   No Lender shall have any obligation to make any Incremental Term Loans unless it agrees to do so in its sole discretion.

 

(b)                                  Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.02(a) shall execute a New Lender Supplement (each, a “ New Lender Supplement ”), substantially in the form of Exhibit G-1, whereupon such bank, financial institution or other entity (a “ New Lender ”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement and the other Credit Documents.

 

SECTION 2.03.                  Revolving Commitments .  (a)  Subject to the terms and conditions hereof, from time to time during the applicable Revolving Commitment Period, (i) each Existing Dollar Revolving Lender severally agrees to make to the Borrower revolving credit loans denominated in Dollars (“ Existing Dollar Revolving Loans ”) in an aggregate principal amount that will not result in such Lender’s Existing Revolving Loans under the Existing Dollar Revolving Commitments exceeding such Lender’s Existing Dollar Revolving Commitment, (ii) each Existing Multicurrency Revolving Lender severally agrees to make to the Borrower revolving credit loans denominated in Dollars or an Alternative Currency (“ Existing Multicurrency Revolving Loans ”; together with the Existing Dollar Revolving Loans, the “ Existing Revolving Loans ”) in an aggregate principal amount that will not result at the time of such Borrowing in (A) the Dollar Amount of such Lender’s Existing Revolving Loans under the Existing Multicurrency Revolving Commitments exceeding such Lender’s Existing Multicurrency Revolving Commitment or (B) the Dollar Amount of Existing Multicurrency Revolving Loans in Alternative Currencies exceeding the Existing Alternative Currency Revolving Sublimit, (iii) each New Dollar Revolving Lender severally agrees to make to the Borrower revolving credit loans denominated in Dollars (“ New Dollar Revolving Loans ”) in an aggregate principal amount that will not result in such Lender’s New Revolving Loans under the New Dollar Revolving Commitments exceeding such Lender’s New Dollar Revolving Commitment, and (iv) each New Multicurrency Revolving Lender severally agrees to make to the Borrower revolving credit loans denominated in Dollars or an Alternative Currency (“ New Multicurrency Revolving Loans ”; together with the New Dollar Revolving Loans, the “ New Revolving Loans ”) in an aggregate principal amount that will not result at the time of such Borrowing in (A) the Dollar Amount of such Lender’s New Revolving Loans under the New Multicurrency Revolving Commitments exceeding such Lender’s New Multicurrency Revolving Commitment or (B) the Dollar Amount of New Multicurrency Revolving Loans in Alternative Currencies exceeding the New

 

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Alternative Currency Revolving Sublimit.  During the applicable Revolving Commitment Period the Borrower may use the relevant Revolving Commitments by borrowing, prepaying the relevant Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof.  The Revolving Loans may from time to time be Eurocurrency Loans or, in the case of Dollar Revolving Loans or Multicurrency Revolving Loans in Dollars, ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.04 and 2.06.

 

(b)                                  Each Revolving Loan under the Dollar Revolving Commitments or Multicurrency Revolving Commitments, as the case may be, shall be made as part of a Borrowing consisting of Revolving Loans made by the Lenders thereunder ratably in accordance with their respective Dollar Revolving Commitments or Multicurrency Revolving Commitments, as the case may be.  The failure of any Revolving Lender to make any Revolving Loan required to be made by it shall not relieve any other Revolving Lender of its obligations hereunder; provided that the Revolving Commitments of the Revolving Lenders are several and no Revolving Lender shall be responsible for any other Revolving Lender’s failure to make Revolving Loans as required.

 

(c)                                   At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000 (or comparable amounts determined by the Administrative Agent in the case of Alternative Currency Loans).  At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that i