{"id":40988,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/credit-agreement-tibco-software-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"credit-agreement-tibco-software-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/credit-agreement-tibco-software-inc.html","title":{"rendered":"Credit Agreement – TIBCO Software Inc."},"content":{"rendered":"

AMENDED AND RESTATED CREDIT AGREEMENT <\/strong><\/p>\n

Dated as of December 19, 2011<\/p>\n

among<\/p>\n

TIBCO SOFTWARE INC., <\/strong><\/p>\n

as a Borrower,<\/p>\n

and<\/p>\n

CERTAIN SUBSIDIARIES, <\/strong><\/p>\n

as Designated Borrowers,<\/p>\n

BANK OF AMERICA, N.A., <\/strong><\/p>\n

as Administrative Agent, Swing Line Lender<\/p>\n

and L\/C Issuer,<\/p>\n

CITIBANK, N.A., <\/strong><\/p>\n

as Syndication Agent,<\/p>\n

UNION BANK, N.A. <\/strong><\/p>\n

and<\/p>\n

U.S. BANK NATIONAL ASSOCIATION, <\/strong><\/p>\n

as Co-Documentation Agents,<\/p>\n

and<\/p>\n

The Other Lenders Party Hereto<\/p>\n

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
\n<\/strong><\/p>\n

and<\/p>\n

CITIGROUP GLOBAL MARKETS INC., <\/strong><\/p>\n

as Joint Lead Arrangers and Joint Bookrunners<\/p>\n

\n

TABLE OF CONTENTS <\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Page<\/strong><\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE I<\/p>\n<\/td>\n

<\/td>\n\n

DEFINITIONS AND ACCOUNTING TERMS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.01<\/p>\n<\/td>\n

<\/td>\n\n

Defined Terms<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.02<\/p>\n<\/td>\n

<\/td>\n\n

Other Interpretive Provisions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

29<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.03<\/p>\n<\/td>\n

<\/td>\n\n

Accounting Terms<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

29<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.04<\/p>\n<\/td>\n

<\/td>\n\n

Rounding<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

30<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.05<\/p>\n<\/td>\n

<\/td>\n\n

Exchange Rates; Currency Equivalents.<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

30<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.06<\/p>\n<\/td>\n

<\/td>\n\n

Additional Alternative Currencies<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

31<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.07<\/p>\n<\/td>\n

<\/td>\n\n

Change of Currency<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

31<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.08<\/p>\n<\/td>\n

<\/td>\n\n

Times of Day<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

32<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

1.09<\/p>\n<\/td>\n

<\/td>\n\n

Letter of Credit Amounts<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

32<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE II<\/p>\n<\/td>\n

<\/td>\n\n

THE COMMITMENTS AND CREDIT EXTENSIONS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

32<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.01<\/p>\n<\/td>\n

<\/td>\n\n

Committed Loans<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

32<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.02<\/p>\n<\/td>\n

<\/td>\n\n

Borrowings, Conversions and Continuations of Committed Loans<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

33<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.03<\/p>\n<\/td>\n

<\/td>\n\n

Letters of Credit<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

35<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.04<\/p>\n<\/td>\n

<\/td>\n\n

Swing Line Loans.<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

43<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.05<\/p>\n<\/td>\n

<\/td>\n\n

Prepayments<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

46<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.06<\/p>\n<\/td>\n

<\/td>\n\n

Termination or Reduction of Commitments<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

48<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.07<\/p>\n<\/td>\n

<\/td>\n\n

Repayment of Loans<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

48<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.08<\/p>\n<\/td>\n

<\/td>\n\n

Interest<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

49<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.09<\/p>\n<\/td>\n

<\/td>\n\n

Fees<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

49<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.10<\/p>\n<\/td>\n

<\/td>\n\n

Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate\n<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

50<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.11<\/p>\n<\/td>\n

<\/td>\n\n

Evidence of Debt<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

51<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.12<\/p>\n<\/td>\n

<\/td>\n\n

Payments Generally; Administrative Agent153s Clawback<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

51<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.13<\/p>\n<\/td>\n

<\/td>\n\n

Sharing of Payments by Lenders<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

53<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.14<\/p>\n<\/td>\n

<\/td>\n\n

Designated Borrowers<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

54<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.15<\/p>\n<\/td>\n

<\/td>\n\n

Increase in Commitments<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

55<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.16<\/p>\n<\/td>\n

<\/td>\n\n

Cash Collateral<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

56<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.17<\/p>\n<\/td>\n

<\/td>\n\n

Defaulting Lenders<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

57<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE III<\/p>\n<\/td>\n

<\/td>\n\n

TAXES, YIELD PROTECTION AND ILLEGALITY<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

59<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

3.01<\/p>\n<\/td>\n

<\/td>\n\n

Taxes.<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

59<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

3.02<\/p>\n<\/td>\n

<\/td>\n\n

Illegality<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

63<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

3.03<\/p>\n<\/td>\n

<\/td>\n\n

Inability to Determine Rates<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

64<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

3.04<\/p>\n<\/td>\n

<\/td>\n\n

Increased Costs; Reserves on Eurocurrency Rate Loans<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

65<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

3.05<\/p>\n<\/td>\n

<\/td>\n\n

Compensation for Losses<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

66<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

3.06<\/p>\n<\/td>\n

<\/td>\n\n

Mitigation Obligations; Replacement of Lenders<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

67<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

3.07<\/p>\n<\/td>\n

<\/td>\n\n

Survival<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

68<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE IV<\/p>\n<\/td>\n

<\/td>\n\n

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

68<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

4.01<\/p>\n<\/td>\n

<\/td>\n\n

Conditions of Initial Credit Extension<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

68<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

4.02<\/p>\n<\/td>\n

<\/td>\n\n

Conditions to all Credit Extensions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

69<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE V<\/p>\n<\/td>\n

<\/td>\n\n

REPRESENTATIONS AND WARRANTIES<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

70<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.01<\/p>\n<\/td>\n

<\/td>\n\n

Existence, Qualification and Power<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

70<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.02<\/p>\n<\/td>\n

<\/td>\n\n

Authorization; No Contravention<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

70<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.03<\/p>\n<\/td>\n

<\/td>\n\n

Governmental Authorization; Other Consents<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

71<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.04<\/p>\n<\/td>\n

<\/td>\n\n

Binding Effect<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

71<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.05<\/p>\n<\/td>\n

<\/td>\n\n

Financial Statements; No Material Adverse Effect<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

71<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.06<\/p>\n<\/td>\n

<\/td>\n\n

Litigation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

71<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.07<\/p>\n<\/td>\n

<\/td>\n\n

No Default<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

72<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.08<\/p>\n<\/td>\n

<\/td>\n\n

Ownership of Property; Liens<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

72<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.09<\/p>\n<\/td>\n

<\/td>\n\n

Environmental Compliance<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

72<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.10<\/p>\n<\/td>\n

<\/td>\n\n

Insurance<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

72<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.11<\/p>\n<\/td>\n

<\/td>\n\n

Taxes<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

72<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.12<\/p>\n<\/td>\n

<\/td>\n\n

ERISA Compliance<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

72<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.13<\/p>\n<\/td>\n

<\/td>\n\n

Subsidiaries; Equity Interests<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

73<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.14<\/p>\n<\/td>\n

<\/td>\n\n

Margin Regulations; Investment Company Act<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

73<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.15<\/p>\n<\/td>\n

<\/td>\n\n

Disclosure<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

74<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.16<\/p>\n<\/td>\n

<\/td>\n\n

Compliance with Laws<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

74<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.17<\/p>\n<\/td>\n

<\/td>\n\n

Taxpayer Identification Number<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

74<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.18<\/p>\n<\/td>\n

<\/td>\n\n

Intellectual Property; Licenses, Etc<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

74<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.19<\/p>\n<\/td>\n

<\/td>\n\n

Solvency<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

74<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.20<\/p>\n<\/td>\n

<\/td>\n\n

Representations as to Foreign Obligors<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

75<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

5.21<\/p>\n<\/td>\n

<\/td>\n\n

Pari Passu Ranking<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

76<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE VI<\/p>\n<\/td>\n

<\/td>\n\n

AFFIRMATIVE COVENANTS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

76<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.01<\/p>\n<\/td>\n

<\/td>\n\n

Financial Statements<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

76<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

ii<\/p>\n

\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.02<\/p>\n<\/td>\n

<\/td>\n\n

Certificates; Other Information<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

77<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.03<\/p>\n<\/td>\n

<\/td>\n\n

Notices<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

78<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.04<\/p>\n<\/td>\n

<\/td>\n\n

Payment of Obligations<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

79<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.05<\/p>\n<\/td>\n

<\/td>\n\n

Preservation of Existence, Etc<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

79<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.06<\/p>\n<\/td>\n

<\/td>\n\n

Maintenance of Properties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

79<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.07<\/p>\n<\/td>\n

<\/td>\n\n

Maintenance of Insurance<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

80<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.08<\/p>\n<\/td>\n

<\/td>\n\n

Compliance with Laws<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

80<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.09<\/p>\n<\/td>\n

<\/td>\n\n

Books and Records<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

80<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.10<\/p>\n<\/td>\n

<\/td>\n\n

Inspection Rights<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

80<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.11<\/p>\n<\/td>\n

<\/td>\n\n

Use of Proceeds<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

81<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.12<\/p>\n<\/td>\n

<\/td>\n\n

Additional Guarantors<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

81<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.13<\/p>\n<\/td>\n

<\/td>\n\n

Procedures for Information Dissemination<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

81<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

6.14<\/p>\n<\/td>\n

<\/td>\n\n

Approvals and Authorizations<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

81<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE VII<\/p>\n<\/td>\n

<\/td>\n\n

NEGATIVE COVENANTS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

82<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.01<\/p>\n<\/td>\n

<\/td>\n\n

Liens<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

82<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.02<\/p>\n<\/td>\n

<\/td>\n\n

Investments<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

83<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.03<\/p>\n<\/td>\n

<\/td>\n\n

Indebtedness<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

85<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.04<\/p>\n<\/td>\n

<\/td>\n\n

Fundamental Changes<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

86<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.05<\/p>\n<\/td>\n

<\/td>\n\n

Dispositions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

87<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.06<\/p>\n<\/td>\n

<\/td>\n\n

Restricted Payments<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

88<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.07<\/p>\n<\/td>\n

<\/td>\n\n

Change in Nature of Business<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

89<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.08<\/p>\n<\/td>\n

<\/td>\n\n

Transactions with Affiliates<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

89<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.09<\/p>\n<\/td>\n

<\/td>\n\n

Burdensome Agreements<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

89<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.10<\/p>\n<\/td>\n

<\/td>\n\n

Use of Proceeds<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

90<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

7.11<\/p>\n<\/td>\n

<\/td>\n\n

Financial Covenants<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

90<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE VIII<\/p>\n<\/td>\n

<\/td>\n\n

EVENTS OF DEFAULT AND REMEDIES<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

90<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

8.01<\/p>\n<\/td>\n

<\/td>\n\n

Events of Default<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

90<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

8.02<\/p>\n<\/td>\n

<\/td>\n\n

Remedies Upon Event of Default<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

92<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

8.03<\/p>\n<\/td>\n

<\/td>\n\n

Application of Funds<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

92<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

8.04<\/p>\n<\/td>\n

<\/td>\n\n

Collateral Allocation Mechanism<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

93<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE IX<\/p>\n<\/td>\n

<\/td>\n\n

ADMINISTRATIVE AGENT<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

94<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.01<\/p>\n<\/td>\n

<\/td>\n\n

Appointment and Authority<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

94<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.02<\/p>\n<\/td>\n

<\/td>\n\n

Rights as a Lender<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

94<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

iii<\/p>\n

\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.03<\/p>\n<\/td>\n

<\/td>\n\n

Exculpatory Provisions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

94<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.04<\/p>\n<\/td>\n

<\/td>\n\n

Reliance by Administrative Agent<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

95<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.05<\/p>\n<\/td>\n

<\/td>\n\n

Delegation of Duties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

96<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.06<\/p>\n<\/td>\n

<\/td>\n\n

Resignation of Administrative Agent<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

96<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.07<\/p>\n<\/td>\n

<\/td>\n\n

Non-Reliance on Administrative Agent and Other Lenders<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

97<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.08<\/p>\n<\/td>\n

<\/td>\n\n

No Other Duties, Etc<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

97<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.09<\/p>\n<\/td>\n

<\/td>\n\n

Administrative Agent May File Proofs of Claim<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

97<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

9.10<\/p>\n<\/td>\n

<\/td>\n\n

Guaranty Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

98<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE X<\/p>\n<\/td>\n

<\/td>\n\n

MISCELLANEOUS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

98<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.01<\/p>\n<\/td>\n

<\/td>\n\n

Amendments, Etc<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

98<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.02<\/p>\n<\/td>\n

<\/td>\n\n

Notices; Effectiveness; Electronic Communication<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

100<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.03<\/p>\n<\/td>\n

<\/td>\n\n

No Waiver; Cumulative Remedies; Enforcement<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

102<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.04<\/p>\n<\/td>\n

<\/td>\n\n

Expenses; Indemnity; Damage Waiver<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

103<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.05<\/p>\n<\/td>\n

<\/td>\n\n

Payments Set Aside<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

104<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.06<\/p>\n<\/td>\n

<\/td>\n\n

Successors and Assigns<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

105<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.07<\/p>\n<\/td>\n

<\/td>\n\n

Treatment of Certain Information; Confidentiality<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

109<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.08<\/p>\n<\/td>\n

<\/td>\n\n

Right of Setoff<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

110<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.09<\/p>\n<\/td>\n

<\/td>\n\n

Interest Rate Limitation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

111<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.10<\/p>\n<\/td>\n

<\/td>\n\n

Counterparts; Integration; Effectiveness<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

111<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.11<\/p>\n<\/td>\n

<\/td>\n\n

Survival of Representations and Warranties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

111<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.12<\/p>\n<\/td>\n

<\/td>\n\n

Severability<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

112<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.13<\/p>\n<\/td>\n

<\/td>\n\n

Replacement of Lenders<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

112<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.14<\/p>\n<\/td>\n

<\/td>\n\n

Governing Law; Jurisdiction; Etc<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

112<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.15<\/p>\n<\/td>\n

<\/td>\n\n

Waiver of Jury Trial<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

114<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.16<\/p>\n<\/td>\n

<\/td>\n\n

No Advisory or Fiduciary Responsibility<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

114<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.17<\/p>\n<\/td>\n

<\/td>\n\n

Electronic Execution of Assignments and Certain Other Documents<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

115<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.18<\/p>\n<\/td>\n

<\/td>\n\n

USA PATRIOT Act<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

115<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.19<\/p>\n<\/td>\n

<\/td>\n\n

Judgment Currency<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

115<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

10.20<\/p>\n<\/td>\n

<\/td>\n\n

Effect of Amendment and Restatement of the Existing Agreement<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

116<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

iv<\/p>\n

\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

SCHEDULES<\/strong><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

1.01<\/p>\n<\/td>\n

<\/td>\n\n

Mandatory Cost Formulae<\/p>\n<\/td>\n<\/tr>\n

\n

2.01<\/p>\n<\/td>\n

<\/td>\n\n

Commitments and Applicable Percentages<\/p>\n<\/td>\n<\/tr>\n

\n

10.02<\/p>\n<\/td>\n

<\/td>\n\n

Administrative Agent153s Office; Certain Addresses for Notices Disclosure
\nLetter<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

EXHIBITS<\/strong><\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n
\n

Form of<\/em><\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

A<\/p>\n<\/td>\n

<\/td>\n\n

Committed Loan Notice<\/p>\n<\/td>\n<\/tr>\n

\n

B<\/p>\n<\/td>\n

<\/td>\n\n

Swing Line Loan Notice<\/p>\n<\/td>\n<\/tr>\n

\n

C<\/p>\n<\/td>\n

<\/td>\n\n

Note<\/p>\n<\/td>\n<\/tr>\n

\n

D<\/p>\n<\/td>\n

<\/td>\n\n

Compliance Certificate<\/p>\n<\/td>\n<\/tr>\n

\n

E<\/p>\n<\/td>\n

<\/td>\n\n

Assignment and Assumption<\/p>\n<\/td>\n<\/tr>\n

\n

F-1<\/p>\n<\/td>\n

<\/td>\n\n

Company Guaranty<\/p>\n<\/td>\n<\/tr>\n

\n

F-2<\/p>\n<\/td>\n

<\/td>\n\n

Subsidiary Guaranty<\/p>\n<\/td>\n<\/tr>\n

\n

G<\/p>\n<\/td>\n

<\/td>\n\n

Opinion Matters<\/p>\n<\/td>\n<\/tr>\n

\n

H<\/p>\n<\/td>\n

<\/td>\n\n

Designated Borrower Request and Assumption Agreement<\/p>\n<\/td>\n<\/tr>\n

\n

I<\/p>\n<\/td>\n

<\/td>\n\n

Designated Borrower Notice<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

v<\/p>\n

\n

AMENDED AND RESTATED CREDIT AGREEMENT <\/strong><\/p>\n

This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement<\/u>“) is
\nentered into as of December 19, 2011 among TIBCO SOFTWARE INC., a Delaware
\ncorporation (the “Company<\/u>“), and certain Subsidiaries of the Company from
\ntime to time party hereto pursuant to Section 2.14<\/u> (each such Subsidiary,
\na “Designated Borrower<\/u>” and, together with the Company, the
\n“Borrowers<\/u>” and each, a “Borrower<\/u>“), each lender from time to time
\nparty hereto (collectively, the “Lenders<\/u>” and individually, a
\n“Lender<\/u>“), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line
\nLender and L\/C Issuer.<\/p>\n

Pursuant to the Credit Agreement, dated as of November 2, 2009 (as amended,
\nsupplemented or otherwise modified prior to the Closing Date, the “Existing
\nAgreement<\/u>“), among the Company, certain lenders party thereto (the
\n“Existing Lenders<\/u>“) and the Administrative Agent, the Existing Lenders
\nagreed to make extensions of credit to the Company on the terms and conditions
\nset forth therein, including making loans (the “Existing Loans<\/u>“) to the
\nCompany.<\/p>\n

The Company has requested that the Existing Agreement be amended and restated
\nin its entirety to become effective and binding on the Company pursuant to the
\nterms of this Agreement, and the Lenders (including certain of the Existing
\nLenders) have agreed (subject to the terms of this Agreement) to amend and
\nrestate the Existing Agreement in its entirety to read as set forth in this
\nAgreement, and it has been agreed by the parties to the Existing Agreement that
\n(a) the commitments which the Existing Lenders have agreed to extend to the
\nCompany under the Existing Agreement shall be extended or advanced upon the
\namended and restated terms and conditions contained in this Agreement and (b)
\nthe Existing Loans and other Obligations (as defined in the Existing Agreement)
\noutstanding under the Existing Agreement shall be governed by and deemed to be
\noutstanding under the amended and restated terms and conditions contained in
\nthis Agreement, with the intent that the terms of this Agreement shall supersede
\nthe terms of the Existing Agreement (each of which shall hereafter have no
\nfurther effect upon the parties thereto, other than for accrued fees and
\nexpenses, and indemnification provisions accrued and owing, under the terms of
\nthe Existing Agreement on or prior to the Closing Date or arising (in the case
\nof indemnification) under the terms of the Existing Agreement).<\/p>\n

In consideration of the mutual covenants and agreements herein contained, the
\nparties hereto covenant and agree as follows:<\/p>\n

ARTICLE I <\/strong><\/p>\n

DEFINITIONS AND ACCOUNTING TERMS <\/strong><\/p>\n

1.01 Defined Terms<\/strong>. As used in this Agreement, the following
\nterms shall have the meanings set forth below:<\/p>\n

“Administrative Agent<\/u>” means Bank of America in its capacity as
\nadministrative agent for the Lenders under any of the Loan Documents, or any
\nsuccessor administrative agent.<\/p>\n

“Administrative Agent153s Office<\/u>” means, with respect to any currency,
\nthe Administrative Agent153s address and, as appropriate, account as set forth on
\nSchedule 10.02<\/u> with respect to such<\/p>\n

\n

currency, or such other address or account with respect to such currency as
\nthe Administrative Agent may from time to time notify to the Company and the
\nLenders.<\/p>\n

“Administrative Questionnaire<\/u>” means an Administrative Questionnaire
\nin a form supplied by the Administrative Agent.<\/p>\n

“Affiliate<\/u>” means, with respect to any Person, another Person that
\ndirectly, or indirectly through one or more intermediaries, Controls or is
\nControlled by or is under common Control with the Person specified.<\/p>\n

“Aggregate Commitments<\/u>” means the Commitments of all the Lenders.<\/p>\n

“Agreement<\/u>” has the meaning specified in the introductory paragraph
\nhereto.<\/p>\n

“Agreement Currency<\/u>” has the meaning specified in Section
\n10.19<\/u>.<\/p>\n

“Alternative Currency<\/u>” means each of Euro, Sterling, Yen and each
\nother currency (other than Dollars) that is approved in accordance with
\nSection 1.06<\/u>.<\/p>\n

“Alternative Currency Equivalent<\/u>” means, at any time, with respect to
\nany amount denominated in Dollars, the equivalent amount thereof in the
\napplicable Alternative Currency as determined by the Administrative Agent at
\nsuch time on the basis of the Spot Rate (determined in respect of the most
\nrecent Revaluation Date) for the purchase of such Alternative Currency with
\nDollars.<\/p>\n

“Applicable Foreign Obligor Documents<\/u>” has the meaning specified in
\nSection 5.20(a)<\/u>.<\/p>\n

“Applicable Percentage<\/u>” means:<\/p>\n

(a) in respect of any Loan denominated in Dollars, with respect to any Lender
\nat any time, the percentage (carried out to the ninth decimal place) of the
\nAggregate Commitments represented by such Lender153s Commitment at such time,
\nsubject to adjustment as provided in Section 2.17<\/u>;<\/p>\n

(b) in respect of any Loan denominated in any Alternative Currency, with
\nrespect to any Global Revolving Credit Lender at any time, the percentage
\n(carried out to the ninth decimal place) of the Global Revolving Credit Facility
\nrepresented by such Global Revolving Credit Lender153s Global Revolving Credit
\nCommitment at such time, subject to adjustment as provided in Section
\n2.17<\/u>; and<\/p>\n

(c) in respect of Swing Line Borrowings or L\/C Credit Extensions, with
\nrespect to any Lender at any time, the percentage (carried out to the ninth
\ndecimal place) of the Aggregate Commitments represented by such Lender153s
\nCommitment at such time, subject to adjustment as provided in Section
\n2.17<\/u>.<\/p>\n

If the commitment of each Lender to make Loans and the obligation of the L\/C
\nIssuer to make L\/C Credit Extensions have been terminated pursuant to
\nSection 8.02<\/u>, or if the Aggregate Commitments have expired, then the
\nApplicable Percentage of each Lender in respect of the U.S.<\/p>\n

2<\/p>\n

\n

Revolving Credit Facility or the Global Revolving Credit Facility, as the
\ncase may be, shall be determined based on the Applicable Percentage of such
\nLender in respect of the U.S. Revolving Credit Facility or the Global Revolving
\nCredit Facility, as the case may be, most recently in effect, giving effect to
\nany subsequent assignments. The initial Applicable Percentage of each Lender in
\nrespect of each Facility is set forth opposite the name of such Lender on
\nSchedule 2.01<\/u> or in the Assignment and Assumption pursuant to which such
\nLender becomes a party hereto, as applicable.<\/p>\n

“Applicable Rate<\/u>” means, from time to time, the following percentages
\nper annum, based upon the Consolidated Leverage Ratio as set forth on the most
\nrecent Compliance Certificate received by the Administrative Agent pursuant to
\nSection 6.02(a)<\/u>:<\/p>\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Applicable Rate<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

Pricing<\/strong><\/p>\n

Level<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Consolidated
\nLeverage Ratio<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Eurocurrency
\nRate Loans\/
\nLetters of
\nCredit<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Base Rate
\nLoans<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Commitment
\nFee<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

1<\/p>\n<\/td>\n

<\/td>\n\n

<0.75:1<\/p>\n<\/td>\n

<\/td>\n\n

1.25%<\/p>\n<\/td>\n

<\/td>\n\n

0.25%<\/p>\n<\/td>\n

<\/td>\n\n

0.200%<\/p>\n<\/td>\n<\/tr>\n

\n

2<\/p>\n<\/td>\n

<\/td>\n\n

><\/u>0.75:1 but <1.25:1<\/p>\n<\/td>\n

<\/td>\n\n

1.50%<\/p>\n<\/td>\n

<\/td>\n\n

0.50%<\/p>\n<\/td>\n

<\/td>\n\n

0.250%<\/p>\n<\/td>\n<\/tr>\n

\n

3<\/p>\n<\/td>\n

<\/td>\n\n

><\/u>1.25:1 but <1.75:1<\/p>\n<\/td>\n

<\/td>\n\n

1.75%<\/p>\n<\/td>\n

<\/td>\n\n

0.75%<\/p>\n<\/td>\n

<\/td>\n\n

0.300%<\/p>\n<\/td>\n<\/tr>\n

\n

4<\/p>\n<\/td>\n

<\/td>\n\n

><\/u>1.75:1<\/p>\n<\/td>\n

<\/td>\n\n

2.00%<\/p>\n<\/td>\n

<\/td>\n\n

1.00%<\/p>\n<\/td>\n

<\/td>\n\n

0.375%<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Any increase or decrease in the Applicable Rate resulting from a change in
\nthe Consolidated Leverage Ratio shall become effective as of the first Business
\nDay immediately following the date a Compliance Certificate is delivered
\npursuant to Section 6.02(a)<\/u>; provided<\/u> that if a Compliance
\nCertificate is not delivered when due in accordance with such Section, then
\nPricing Level 4 shall apply as of the first Business Day after the date on which
\nsuch Compliance Certificate was required to have been delivered and shall remain
\nin effect until the date on which such Compliance Certificate is delivered. For
\nthe period from the Closing Date through the date on which the first Compliance
\nCertificate is delivered pursuant to Section 6.02(a)<\/u>, the Applicable Rate
\nshall be determined by reference to Pricing Level 1.<\/p>\n

Notwithstanding anything to the contrary contained in this definition, the
\ndetermination of the Applicable Rate for any period shall be subject to the
\nprovisions of Section 2.10(b)<\/u>.<\/p>\n

“Applicable Time<\/u>” means, with respect to any borrowings and payments
\nin any Alternative Currency, the local time in the place of settlement for such
\nAlternative Currency as may be determined by the Administrative Agent to be
\nnecessary for timely settlement on the relevant date in accordance with normal
\nbanking procedures in the place of payment.<\/p>\n

“Applicant Borrower<\/u>” has the meaning specified in Section
\n2.14<\/u>.<\/p>\n

“Approved Foreign Bank<\/u>” has the meaning specified in the definition of
\n“Cash Equivalent Investments”.<\/p>\n

3<\/p>\n

\n

“Approved Fund<\/u>” means any Fund that is administered or managed by (a)
\na Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
\nentity that administers or manages a Lender.<\/p>\n

“Arrangers<\/u>” means, collectively, MLPFSI and CGMI, each in its capacity
\nas a joint lead arranger and a joint bookrunner.<\/p>\n

“Assignee Group<\/u>” means two or more Eligible Assignees that are
\nAffiliates of one another or two or more Approved Funds managed by the same
\ninvestment advisor.<\/p>\n

“Assignment and Assumption<\/u>” means an assignment and assumption entered
\ninto by a Lender and an assignee (with the consent of any party whose consent is
\nrequired by Section 10.06(b)<\/u>), and accepted by the Administrative Agent,
\nin substantially the form of Exhibit E<\/u> or any other form approved by the
\nAdministrative Agent.<\/p>\n

“Attributable Indebtedness<\/u>” means, on any date, (a) in respect of any
\ncapital lease of any Person, the capitalized amount thereof that would appear on
\na balance sheet of such Person prepared as of such date in accordance with GAAP,
\nand (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
\nthe remaining lease payments under the relevant lease that would appear on a
\nbalance sheet of such Person prepared as of such date in accordance with GAAP if
\nsuch lease were accounted for as a capital lease.<\/p>\n

“Audited Financial Statements<\/u>” means the audited consolidated balance
\nsheet of the Company and its Subsidiaries for the fiscal year ended November 30,
\n2010, and the related consolidated statements of income or operations,
\nshareholders153 equity and cash flows for such fiscal year of the Company and its
\nSubsidiaries, including the notes thereto.<\/p>\n

“Availability Period<\/u>” means the period from and including the Closing
\nDate to the earliest of (a) the Maturity Date, (b) the date of termination of
\nthe Aggregate Commitments pursuant to Section 2.06<\/u>, and (c) the date of
\ntermination of the commitment of each Lender to make Loans and of the obligation
\nof the L\/C Issuer to make L\/C Credit Extensions pursuant to Section
\n8.02<\/u>.<\/p>\n

“Bank of America<\/u>” means Bank of America, N.A. and its successors.<\/p>\n

“Base Rate<\/u>” means for any day a fluctuating rate per annum equal to
\nthe highest of (a) the Federal Funds Rate plus<\/u> 1\/2 of 1%, (b) the rate of
\ninterest in effect for such day as publicly announced from time to time by Bank
\nof America as its “prime rate,” and (c) the Eurocurrency Rate plus<\/u>
\n1.00%. The “prime rate” is a rate set by Bank of America based upon various
\nfactors including Bank of America153s costs and desired return, general economic
\nconditions and other factors, and is used as a reference point for pricing some
\nloans, which may be priced at, above, or below such announced rate. Any change
\nin such prime rate announced by Bank of America shall take effect at the opening
\nof business on the day specified in the public announcement of such change.<\/p>\n

“Base Rate Committed Loan<\/u>” means a Committed Loan that is a Base Rate
\nLoan.<\/p>\n

4<\/p>\n

\n

“Base Rate Loan<\/u>” means a Loan that bears interest based on the Base
\nRate. All Base Rate Loans shall be denominated in Dollars.<\/p>\n

“Bond Hedge<\/u>” has the meaning specified in the definition of “Swap
\nContract”.<\/p>\n

“Borrower<\/u>” and “Borrowers<\/u>” each has the meaning specified in
\nthe introductory paragraph hereto.<\/p>\n

“Borrower Materials<\/u>” has the meaning specified in Section
\n6.02<\/u>.<\/p>\n

“Borrowing<\/u>” means a Committed Borrowing or a Swing Line Borrowing, as
\nthe context may require.<\/p>\n

“Business Day<\/u>” means any day other than a Saturday, Sunday or other
\nday on which commercial banks are authorized to close under the Laws of, or are
\nin fact closed in, the state where the Administrative Agent153s Office with
\nrespect to Obligations denominated in Dollars is located and:<\/p>\n

(a) if such day relates to any interest rate settings as to a Eurocurrency
\nRate Loan denominated in Dollars, any fundings, disbursements, settlements and
\npayments in Dollars in respect of any such Eurocurrency Rate Loan, or any other
\ndealings in Dollars to be carried out pursuant to this Agreement in respect of
\nany such Eurocurrency Rate Loan, means any such day on which dealings in
\ndeposits in Dollars are conducted by and between banks in the London interbank
\neurodollar market;<\/p>\n

(b) if such day relates to any interest rate settings as to a Eurocurrency
\nRate Loan denominated in Euro, any fundings, disbursements, settlements and
\npayments in Euro in respect of any such Eurocurrency Rate Loan, or any other
\ndealings in Euro to be carried out pursuant to this Agreement in respect of any
\nsuch Eurocurrency Rate Loan, means a TARGET Day;<\/p>\n

(c) if such day relates to any interest rate settings as to a Eurocurrency
\nRate Loan denominated in a currency other than Dollars or Euro, means any such
\nday on which dealings in deposits in the relevant currency are conducted by and
\nbetween banks in the London or other applicable offshore interbank market for
\nsuch currency; and<\/p>\n

(d) if such day relates to any fundings, disbursements, settlements and
\npayments in a currency other than Dollars or Euro in respect of a Eurocurrency
\nRate Loan denominated in a currency other than Dollars or Euro, or any other
\ndealings in any currency other than Dollars or Euro to be carried out pursuant
\nto this Agreement in respect of any such Eurocurrency Rate Loan (other than any
\ninterest rate settings), means any such day on which banks are open for foreign
\nexchange business in the principal financial center of the country of such
\ncurrency.<\/p>\n

“CAM Exchange<\/u>” means the exchange of the Lenders153 interests provided
\nfor in Section 8.03<\/u>.<\/p>\n

5<\/p>\n

\n

“CAM Exchange Date<\/u>” means the date on which any Event of Default
\nreferred to in Section 8.01(f)<\/u> shall occur or the date on which the
\nCompany receives written notice from the Administrative Agent that any Event of
\nDefault referred to in Section 8.01(f)<\/u> has occurred.<\/p>\n

“CAM Percentage<\/u>” means, as to each Lender, a fraction, expressed as a
\ndecimal, of which (a) the numerator shall be the aggregate Dollar Equivalent of
\nthe Designated Obligations owed to such Lender (whether or not at the time due
\nand payable) immediately prior to the CAM Exchange Date and (b) the denominator
\nshall be the aggregate amount of the Designated Obligations owed to all the
\nLenders (whether or not at the time due and payable) immediately prior to the
\nCAM Exchange Date.<\/p>\n

“Cash Collateralize<\/u>” means to pledge and deposit with or deliver to
\nthe Administrative Agent, for the benefit of the Administrative Agent, the L\/C
\nIssuer or the Swing Line Lender (as applicable) and the Lenders, as collateral
\nfor L\/C Obligations, Obligations in respect of Swing Line Loans, or obligations
\nof Lenders to fund participations in respect of either thereof (as the context
\nmay require), cash or deposit account balances or, if the L\/C Issuer or the
\nSwing Line Lender benefitting from such collateral shall agree in its sole
\ndiscretion, other credit support, in each case pursuant to documentation in form
\nand substance satisfactory to (a) the Administrative Agent and (b) the L\/C
\nIssuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have a
\nmeaning correlative to the foregoing and shall include the proceeds of such cash
\ncollateral and other credit support.<\/p>\n

“Cash Equivalent Investments<\/u>” means any of the following types of
\nInvestments, to the extent owned by the Company or any of its Subsidiaries free
\nand clear of all Liens (other than Liens permitted hereunder):<\/p>\n

(a) readily marketable obligations issued or directly and fully guaranteed or
\ninsured by the United States of America or any agency or instrumentality thereof
\nhaving maturities of not more than 360 days from the date of acquisition
\nthereof; provided<\/u> that the full faith and credit of the United States of
\nAmerica is pledged in support thereof;<\/p>\n

(b) time deposits with, or insured certificates of deposit or bankers153
\nacceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized
\nunder the laws of the United States of America, any state thereof or the
\nDistrict of Columbia or is the principal banking subsidiary of a bank holding
\ncompany organized under the laws of the United States of America, any state
\nthereof or the District of Columbia, and is a member of the Federal Reserve
\nSystem, (ii) issues (or the parent of which issues) commercial paper rated as
\ndescribed in clause (c) of this definition and (iii) has combined capital and
\nsurplus of at least $1,000,000,000, in each case with maturities of not more
\nthan 90 days from the date of acquisition thereof (each such commercial bank, a
\n“Qualified Bank<\/u>“);<\/p>\n

(c) commercial paper issued by any Person organized under the laws of any
\nstate of the United States of America and rated at least “Prime-1” (or the then
\nequivalent grade) by Moody153s or at least “A-1” (or the then equivalent grade) by
\nS&P, in each case with maturities of not more than 270 days from the date of
\nacquisition thereof;<\/p>\n

6<\/p>\n

\n

(d) Investments, classified in accordance with GAAP as current assets of the
\nCompany or any of its Subsidiaries, in money market investment programs
\nregistered under the Investment Company Act of 1940, which are administered by
\nfinancial institutions that have the highest rating obtainable from either
\nMoody153s or S&P, and the portfolios of which are limited solely to
\nInvestments of the character, quality and maturity described in clauses
\n(a)<\/u>, (b)<\/u> and (c)<\/u> of this definition; and<\/p>\n

(e) with respect to any Foreign Subsidiary of the Company: (i) readily
\nmarketable obligations issued by the national government of the country in which
\nsuch Foreign Subsidiary maintains its chief executive office and principal place
\nof business provided such country is a member of the Organization for Economic
\nCooperation and Development, in each case maturing within one year after the
\ndate of investment therein, (ii) certificates of deposit of, bankers acceptances
\nof, or time deposits with, any commercial bank which is organized and existing
\nunder the laws of the country in which such Foreign Subsidiary maintains its
\nchief executive office and principal place of business provided such country is
\na member of the Organization for Economic Cooperation and Development, and whose
\nshort-term commercial paper rating from S&P is at least A-1 or the
\nequivalent thereof or from Moody153s is at least P-1 or the equivalent thereof
\n(any such bank being an “Approved Foreign B<\/u>ank”), and in each case with
\nmaturities of not more than 180 days from the date of acquisition and (iii) the
\nequivalent of demand deposit accounts which are maintained with an Approved
\nForeign Bank.<\/p>\n

“Cash Management Agreement<\/u>” means any agreement to provide cash
\nmanagement services, including treasury, depository, overdraft, credit or debit
\ncard, electronic funds transfer, foreign exchange services and other cash
\nmanagement arrangements.<\/p>\n

“CGMI<\/u>” means Citigroup Global Markets Inc.<\/p>\n

“Change in Law<\/u>” means the occurrence, after the date of this
\nAgreement, of any of the following: (a) the adoption or taking effect of any
\nlaw, rule, regulation or treaty; (b) any change in any law, rule, regulation or
\ntreaty or in the administration, interpretation or application thereof by any
\nGovernmental Authority; or (c) the making or issuance of any request, guideline
\nor directive (whether or not having the force of law) by any Governmental
\nAuthority; provided<\/u> that notwithstanding anything herein to the contrary,
\n(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
\nrequests, rules, guidelines or directives thereunder or issued in connection
\ntherewith; and (y) all requests, rules, guidelines or directives promulgated by
\nthe Bank for International Settlements, the Basel Committee on Banking
\nSupervision (or any successor or similar authority) or the United States or
\nCanadian regulatory authorities, in each case pursuant to Basel III, shall in
\neach case be deemed to be a “Change in Law”, regardless of the date enacted,
\nadopted or issued.<\/p>\n

“Change of Control<\/u>” means an event or series of events by which:<\/p>\n

(a) any “person” or “group” (as such terms are used in Sections 13(d) and
\n14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit
\nplan of such person or its subsidiaries, and any person or entity acting in its
\ncapacity as trustee, agent or other fiduciary or administrator of any such plan)
\nbecomes the “beneficial owner” (as defined in Rules 13d-3<\/p>\n

7<\/p>\n

\n

and 13d-5 under the Securities Exchange Act of 1934, except that a person or
\ngroup shall be deemed to have “beneficial ownership” of all securities that such
\nperson or group has the right to acquire, whether such right is exercisable
\nimmediately or only after the passage of time (such right, an “option right”)),
\ndirectly or indirectly, of 30% or more of the equity securities of the Company
\nentitled to vote for members of the board of directors or equivalent governing
\nbody of the Company on a fully-diluted basis (and taking into account all such
\nsecurities that such person or group has the right to acquire pursuant to any
\noption right); or<\/p>\n

(b) during any period of twenty-four (24) consecutive months, a majority of
\nthe members of the board of directors or other equivalent governing body of the
\nCompany cease to be composed of individuals (i) who were members of that board
\nor equivalent governing body on the first day of such period, (ii) whose
\nelection or nomination to that board or equivalent governing body was approved
\nby individuals referred to in clause (i)<\/u> above constituting at the time
\nof such election or nomination at least a majority of that board or equivalent
\ngoverning body or (iii) whose election or nomination to that board or other
\nequivalent governing body was approved by individuals referred to in clauses
\n(i)<\/u> and (ii)<\/u> above constituting at the time of such election or
\nnomination at least a majority of that board or equivalent governing body
\n(excluding, in the case of both clauses (ii)<\/u> and (iii)<\/u>, any
\nindividual whose initial nomination for, or assumption of office as, a member of
\nthat board or equivalent governing body occurs as a result of an actual or
\nthreatened solicitation of proxies or consents for the election or removal of
\none or more directors by any person or group other than a solicitation for the
\nelection of one or more directors by or on behalf of the board of directors); or\n<\/p>\n

(c) any Person or two or more Persons acting in concert shall have acquired
\nby contract or otherwise a controlling influence over the management or policies
\nof the Company.<\/p>\n

“Closing Date<\/u>” means the first date all the conditions precedent in
\nSection 4.01<\/u> are satisfied or waived in accordance with Section
\n10.01<\/u>.<\/p>\n

“Code<\/u>” means the Internal Revenue Code of 1986.<\/p>\n

“Commitment<\/u>” means, as to each Lender, its U.S. Revolving Credit
\nCommitment or its Global Revolving Credit Commitment.<\/p>\n

“Committed Borrowing<\/u>” means a (a) U.S. Revolving Credit Borrowing or
\n(b) Global Revolving Credit Borrowing, as applicable.<\/p>\n

“Committed Loan<\/u>” means a (a) U.S. Revolving Credit Loan or (b) Global
\nRevolving Credit Loan, as the context may require.<\/p>\n

“Committed Loan Notice<\/u>” means a notice of a (a) U.S. Revolving Credit
\nBorrowing, (b) Global Revolving Credit Borrowing, (c) conversion of Committed
\nLoans from one Type to the other or (d) continuation of Eurocurrency Rate Loans,
\npursuant to Section 2.02(a)<\/u>, which, if in writing, shall be substantially
\nin the form of Exhibit A<\/u>.<\/p>\n

“Company<\/u>” has the meaning specified in the introductory paragraph
\nhereto.<\/p>\n

8<\/p>\n

\n

“Company Guaranty<\/u>” means the Company Guaranty made by the Company in
\nfavor of the Administrative Agent and the Lenders, substantially in the form of
\nExhibit F-1<\/u>.<\/p>\n

“Compliance Certificate<\/u>” means a certificate substantially in the form
\nof Exhibit D<\/u>.<\/p>\n

“Consolidated EBITDA<\/u>” means, for any period, for the Company and its
\nSubsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
\nfor such period plus<\/u> (a) the following to the extent deducted in
\ncalculating such Consolidated Net Income: (i) Consolidated Interest Charges for
\nsuch period, (ii) the provision for Federal, state, local and foreign income
\ntaxes expensed by the Company and its Subsidiaries for such period, (iii)
\ndepreciation and amortization expense, (iv) other non-recurring expenses of the
\nCompany and its Subsidiaries reducing such Consolidated Net Income which do not
\nrepresent a cash item in such period, (v) any costs or expenses incurred
\npursuant to any management equity plan or stock option plan or any other
\nmanagement or employee benefit plan or agreement or any stock subscription or
\nshareholder agreement, to the extent that such costs or expenses are funded with
\ncash proceeds contributed to the capital of the Company or net cash proceeds
\nfrom the issuance of Equity Interests, (vi) non-cash expenses or charges
\nincurred in connection with stock-based compensation for such period, (vii)
\nnon-cash charges or expenses incurred in connection with an impairment or
\nwrite-off of goodwill or any other intangible asset, (viii) non-cash charges
\nresulting from the application of FASB ASC 805, (ix) non-cash accounting
\nadjustments (including, purchase accounting adjustments) and the cumulative
\neffect of changes in accounting principles and (x) any cash litigation costs,
\nincluding judgments, orders, awards, settlements and related legal costs paid
\nduring such period in an aggregate amount not to exceed $20,000,000 for all such
\ncosts from and after the Closing Date and minus<\/u> (b) the following to the
\nextent included in calculating such Consolidated Net Income: (i) Federal, state,
\nlocal and foreign income tax benefits of the Company and its Subsidiaries for
\nsuch period, (ii) all non-cash items increasing Consolidated Net Income for such
\nperiod, (iii) any cash payments made during such period in respect of any
\nnon-cash expenses or charges described in subsection (iv)<\/u>, (vi)<\/u>
\nor (vii)<\/u> of clause (a)<\/u> taken in a prior period and (iv) any cash
\nlitigation or settlement payments awarded to the Company and\/or any Subsidiary
\nthereof during such period.<\/p>\n

“Consolidated Funded Indebtedness<\/u>” means, as of any date of
\ndetermination, for the Company and its Subsidiaries on a consolidated basis, the
\nsum of (a) the outstanding principal amount of all obligations, whether current
\nor long-term, for borrowed money (including Obligations hereunder) and all
\nobligations evidenced by bonds, debentures, notes, loan agreements or other
\nsimilar instruments, (b) all purchase money Indebtedness, (c) all direct
\nobligations arising under letters of credit (including standby and commercial,
\nand less the amount then cash-collateralized on commercially reasonable and
\ncustomary terms), bankers153 acceptances, bank guaranties, surety bonds and
\nsimilar instruments, (d) all obligations in respect of the deferred purchase
\nprice of property or services (other than trade accounts payable in the ordinary
\ncourse of business), (e) Attributable Indebtedness, (f) without duplication, all
\nGuarantees with respect to outstanding Indebtedness of the types specified in
\nclauses (a)<\/u> through (e)<\/u> above of Persons other than the Company or
\nany Subsidiary, and (g) all Indebtedness of the types referred to in clauses
\n(a)<\/u> through (f)<\/u> above of any partnership or joint venture (other than
\na joint venture that is itself a corporation or limited liability company) in
\nwhich the Company or a Subsidiary is a general partner or joint venturer, unless
\nsuch Indebtedness is expressly made non-recourse to the Company or such
\nSubsidiary.<\/p>\n

9<\/p>\n

\n

“Consolidated Interest Charges<\/u>” means, for any period, for the Company
\nand its Subsidiaries on a consolidated basis, the sum of (a) all interest,
\npremium payments, debt discount, fees, charges and related expenses of the
\nCompany and its Subsidiaries in connection with borrowed money (including
\ncapitalized interest) or in connection with the deferred purchase price of
\nassets, in each case (i) to the extent treated as interest in accordance with
\nGAAP and (ii) paid or payable in cash during such period, and (b) the portion of
\nrent expense of the Company and its Subsidiaries with respect to such period
\nunder capital leases that is treated as interest in accordance with GAAP.<\/p>\n

“Consolidated Interest Coverage Ratio<\/u>” means, as of any date of
\ndetermination, the ratio of (a) Consolidated EBITDA for the period of the four
\n(4) prior fiscal quarters ending on such date to<\/em> (b) Consolidated
\nInterest Charges for such period.<\/p>\n

“Consolidated Leverage Ratio<\/u>” means, as of any date of determination,
\nthe ratio of (a) Consolidated Funded Indebtedness as of such date to
\n<\/em>(b) Consolidated EBITDA for the period of the four (4) fiscal quarters most
\nrecently ended.<\/p>\n

“Consolidated Net Income<\/u>” means, for any period, for the Company and
\nits Subsidiaries on a consolidated basis, the net income of the Company and its
\nSubsidiaries (excluding extraordinary gains and extraordinary losses) for that
\nperiod.<\/p>\n

“Consolidated Tangible Assets<\/u>” means, at any time, the consolidated
\ntangible assets of the Company and its Subsidiaries.<\/p>\n

“Contractual Obligation<\/u>” means, as to any Person, any provision of any
\nsecurity issued by such Person or of any agreement, instrument or other
\nundertaking to which such Person is a party or by which it or any of its
\nproperty is bound.<\/p>\n

“Control<\/u>” means the possession, directly or indirectly, of the power
\nto direct or cause the direction of the management or policies of a Person,
\nwhether through the ability to exercise voting power, by contract or otherwise.
\n“Controlling<\/u>” and “Controlled<\/u>” have meanings correlative thereto.\n<\/p>\n

“Convertible Debt Securities<\/u>” means debt securities, the terms of
\nwhich provide for conversion into Equity Interests, cash or a combination
\nthereof.<\/p>\n

“Covered Cash Management Agreement<\/u>” means any Cash Management
\nAgreement that is entered into by and between any Loan Party and any Covered
\nCash Management Bank.<\/p>\n

“Covered Cash Management Bank<\/u>” means any Person that, at the time it
\nenters into a Cash Management Agreement, is a Lender or an Affiliate of a
\nLender, in its capacity as a party to such Cash Management Agreement.<\/p>\n

“Covered Hedge Agreement<\/u>” means any Swap Contract permitted under
\nArticle VI<\/u> or VII<\/u> that is entered into by and between any Loan
\nParty and any Covered Hedge Bank.<\/p>\n

10<\/p>\n

\n

“Covered Hedge Bank<\/u>” means any Person that, at the time it enters into
\na Swap Contract permitted under Article VI<\/u> or VII<\/u>, is a Lender or
\nan Affiliate of a Lender, in its capacity as a party to such Swap Contract.<\/p>\n

“Credit Extension<\/u>” means each of the following: (a) a Borrowing and
\n(b) an L\/C Credit Extension.<\/p>\n

“Debtor Relief Laws<\/u>” means the Bankruptcy Code of the United States,
\nand all other liquidation, conservatorship, bankruptcy, assignment for the
\nbenefit of creditors, moratorium, rearrangement, receivership, insolvency,
\nreorganization, or similar debtor relief Laws of the United States or other
\napplicable jurisdictions from time to time in effect and affecting the rights of
\ncreditors generally.<\/p>\n

“Default<\/u>” means any event or condition that constitutes an Event of
\nDefault or that, with the giving of any notice, the passage of time, or both,
\nwould be an Event of Default.<\/p>\n

“Default Rate<\/u>” means (a) when used with respect to Obligations other
\nthan Letter of Credit Fees, an interest rate equal to (i) the Base Rate
\nplus<\/u> (ii) the Applicable Rate, if any, applicable to Base Rate Loans
\nplus<\/u> (iii) 2% per annum; provided<\/u>, however<\/u>, that with
\nrespect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate
\nequal to the interest rate (including any Applicable Rate and any Mandatory
\nCost) otherwise applicable to such Loan plus<\/u> 2% per annum, and (b) when
\nused with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
\nplus<\/u> 2% per annum.<\/p>\n

“Defaulting Lender<\/u>” means, subject to Section 2.17(b)<\/u>, any
\nLender that, as determined by the Administrative Agent, (a) has failed to
\nperform any of its funding obligations hereunder, including in respect of its
\nLoans or participations in respect of Letters of Credit or Swing Line Loans,
\nwithin three (3) Business Days of the date required to be funded by it
\nhereunder, (b) has notified the Company, the Administrative Agent or any Lender
\nthat it does not intend to comply with its funding obligations or has made a
\npublic statement to that effect with respect to its funding obligations
\nhereunder or under other agreements in which it commits to extend credit, (c)
\nhas failed, within three (3) Business Days after request by the Administrative
\nAgent, to confirm in a manner satisfactory to the Administrative Agent that it
\nwill comply with its funding obligations, or (d) has, or has a direct or
\nindirect parent company that has, (i) become the subject of a proceeding under
\nany Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator,
\nassignee for the benefit of creditors or similar Person charged with
\nreorganization or liquidation of its business or a custodian appointed for it,
\nor (iii) taken any action in furtherance of, or indicated its consent to,
\napproval of or acquiescence in any such proceeding or appointment;
\nprovided<\/u> that a Lender shall not be a Defaulting Lender solely by virtue
\nof the ownership or acquisition of any equity interest in that Lender or any
\ndirect or indirect parent company thereof by a Governmental Authority.<\/p>\n

“Designated Borrower<\/u>” has the meaning specified in the introductory
\nparagraph hereto.<\/p>\n

“Designated Borrower Notice<\/u>” has the meaning specified in Section
\n2.14<\/u>.<\/p>\n

“Designated Borrower Request and Assumption Agreement<\/u>” has the meaning
\nspecified in Section 2.14<\/u>.<\/p>\n

11<\/p>\n

\n

“Designated Material Subsidiary<\/u>” means any Subsidiary of the Company
\ndesignated in writing as a “Material Subsidiary” by the Company to the
\nAdministrative Agent.<\/p>\n

“Designated Obligations<\/u>” means all obligations of the Borrowers with
\nrespect to (a) principal of and interest on the Loans and (b) accrued and unpaid
\nfees under the Loan Documents.<\/p>\n

“Disclosure Letter<\/u>” means the disclosure letter dated as of the date
\nhereof delivered by the Borrower to Agent and the Lenders and made a part of
\nthis Agreement.<\/p>\n

“Disposition<\/u>” or “Dispose<\/u>” means the sale, transfer, license,
\nlease or other disposition (including any sale and leaseback transaction) of any
\nproperty by any Person, including any sale, assignment, transfer or other
\ndisposal, with or without recourse, of any notes or accounts receivable or any
\nrights and claims associated therewith.<\/p>\n

“Dollar<\/u>” and “$<\/u>” mean lawful money of the United States.<\/p>\n

“Dollar Equivalent<\/u>” means, at any time, (a) with respect to any amount
\ndenominated in Dollars, such amount, and (b) with respect to any amount
\ndenominated in any Alternative Currency, the equivalent amount thereof in
\nDollars as determined by the Administrative Agent or the L\/C Issuer, as the case
\nmay be, at such time on the basis of the Spot Rate (determined in respect of the
\nmost recent Revaluation Date) for the purchase of Dollars with such Alternative
\nCurrency.<\/p>\n

“Domestic Subsidiary<\/u>” means any Subsidiary that is organized under the
\nlaws of any political subdivision of the United States other than any Subsidiary
\nof a Foreign Subsidiary.<\/p>\n

“Eligible Assignee<\/u>” means any Person that meets the requirements to be
\nan assignee under Section 10.06(b)(iii)<\/u> and (v)<\/u> (subject to such
\nconsents, if any, as may be required under Section 10.06(b)(iii)<\/u>).<\/p>\n

“EMU<\/u>” means the economic and monetary union in accordance with the
\nTreaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht
\nTreaty of 1992 and the Amsterdam Treaty of 1998.<\/p>\n

“EMU Legislation<\/u>” means the legislative measures of the European
\nCouncil for the introduction of, changeover to or operation of a single or
\nunified European currency.<\/p>\n

“Environmental Laws<\/u>” means any and all Federal, state, local, and
\nforeign statutes, laws, regulations, ordinances, rules, judgments, orders,
\ndecrees, permits, concessions, grants, franchises, licenses, agreements or
\ngovernmental restrictions relating to pollution and the protection of the
\nenvironment or the release of any materials into the environment, including
\nthose related to hazardous substances or wastes, air emissions and discharges to
\nwaste or public systems.<\/p>\n

“Environmental Liability<\/u>” means any liability, contingent or otherwise
\n(including any liability for damages, costs of environmental remediation, fines,
\npenalties or indemnities), of the Company, any other Loan Party or any of their
\nrespective Subsidiaries directly or indirectly<\/p>\n

12<\/p>\n

\n

resulting from or based upon (a) violation of any Environmental Law, (b) the
\ngeneration, use, handling, transportation, storage, treatment or disposal of any
\nHazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
\nthreatened release of any Hazardous Materials into the environment or (e) any
\ncontract, agreement or other consensual arrangement pursuant to which liability
\nis assumed or imposed with respect to any of the foregoing.<\/p>\n

“Equity Interests<\/u>” means, with respect to any Person, all of the
\nshares of capital stock of (or other ownership or profit interests in) such
\nPerson, all of the warrants, options or other rights for the purchase or
\nacquisition from such Person of shares of capital stock of (or other ownership
\nor profit interests in) such Person, all of the securities convertible into or
\nexchangeable for shares of capital stock of (or other ownership or profit
\ninterests in) such Person or warrants, rights or options for the purchase or
\nacquisition from such Person of such shares (or such other interests), and all
\nof the other ownership or profit interests in such Person (including
\npartnership, member or trust interests therein), whether voting or nonvoting,
\nand whether or not such shares, warrants, options, rights or other interests are
\noutstanding on any date of determination. For purposes of clarification, (i)
\nConvertible Debt Securities shall not for purposes of this definition be deemed
\nto be a warrant, option or other right to purchase or acquire any capital stock
\nor other ownership or profit interest or otherwise classified as Equity
\nInterests and (ii) Bond Hedges shall not for purposes of this definition be
\ndeemed to be an Equity Interest.<\/p>\n

“ERISA<\/u>” means the Employee Retirement Income Security Act of 1974.\n<\/p>\n

“ERISA Affiliate<\/u>” means any trade or business (whether or not
\nincorporated) under common control with the Company within the meaning of
\nSection 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
\npurposes of provisions relating to Section 412 of the Code).<\/p>\n

“ERISA Event<\/u>” means (a) a Reportable Event with respect to a Pension
\nPlan; (b) the withdrawal of the Company or any ERISA Affiliate from a Pension
\nPlan subject to Section 4063 of ERISA during a plan year in which such entity
\nwas a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a
\ncessation of operations that is treated as such a withdrawal under Section
\n4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any
\nERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
\nPlan is in reorganization; (d) the filing of a notice of intent to terminate a
\nPension Plan, or the treatment of a Pension Plan amendment as a termination,
\nunder Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of
\nproceedings to terminate a Pension Plan; (f) any event or condition which
\nconstitutes grounds under Section 4042 of ERISA for the termination of, or the
\nappointment of a trustee to administer, any Pension Plan; (g) the determination
\nthat any Pension Plan is considered an at-risk plan or a plan in endangered or
\ncritical status within the meaning of Sections 430, 431 and 432 of the Code or
\nSections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under
\nTitle IV of ERISA, other than for PBGC premiums due but not delinquent under
\nSection 4007 of ERISA, upon the Company or any ERISA Affiliate.<\/p>\n

“Euro<\/u>” and “EUR<\/u>” mean the lawful currency of the Participating
\nMember States introduced in accordance with the EMU Legislation.<\/p>\n

“Eurocurrency Rate<\/u>” means:<\/p>\n

13<\/p>\n

\n

(a) for any Interest Period with respect to a Eurocurrency Rate Loan, the
\nrate per annum equal to (i) the British Bankers Association LIBOR Rate (“BBA
\nLIBOR”), as published by Reuters (or such other commercially available source
\nproviding quotations of BBA LIBOR as may be designated by the Administrative
\nAgent from time to time) at approximately 11:00 a.m., London time, two (2)
\nBusiness Days prior to the commencement of such Interest Period, for deposits in
\nthe relevant currency (for delivery on the first day of such Interest Period)
\nwith a term equivalent to such Interest Period or (ii) if such rate is not
\navailable at such time for any reason, the rate per annum determined by the
\nAdministrative Agent to be the rate at which deposits in the relevant currency
\nfor delivery on the first day of such Interest Period in Same Day Funds in the
\napproximate amount of the Eurocurrency Rate Loan being made, continued or
\nconverted by Bank of America and with a term equivalent to such Interest Period
\nwould be offered by Bank of America153s London Branch (or other Bank of America
\nbranch or Affiliate) to major banks in the London or other offshore interbank
\nmarket for such currency at their request at approximately 11:00 a.m. (London
\ntime) two (2) Business Days prior to the commencement of such Interest Period;
\nand<\/p>\n

(b) for any interest calculation with respect to a Base Rate Loan on any
\ndate, the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m.,
\nLondon time determined two (2) Business Days prior to such date for Dollar
\ndeposits being delivered in the London interbank market for a term of one (1)
\nmonth commencing that day or (ii) if such published rate is not available at
\nsuch time for any reason, the rate per annum determined by the Administrative
\nAgent to be the rate at which deposits in Dollars for delivery on the date of
\ndetermination in Same Day Funds in the approximate amount of the Base Rate Loan
\nbeing made or maintained and with a term equal to one month would be offered by
\nBank of America153s London Branch to major banks in the London interbank
\nEurocurrency market at their request at the date and time of determination.<\/p>\n

“Eurocurrency Rate Loan<\/u>” means a Committed Loan that bears interest at
\na rate based on clause (a) of the definition of “Eurocurrency Rate”.
\nEurocurrency Rate Loans may be denominated in Dollars or an Alternative
\nCurrency. All Committed Loans denominated in an Alternative Currency must be
\nEurocurrency Rate Loans.<\/p>\n

“Event of Default<\/u>” has the meaning specified in Section 8.01<\/u>.\n<\/p>\n

“Excluded Subsidiary<\/u>” means 3301 Hillview Holdings Inc., a Delaware
\ncorporation.<\/p>\n

“Excluded Taxes<\/u>” means, with respect to the Administrative Agent, any
\nLender, the L\/C Issuer or any other recipient of any payment to be made by or on
\naccount of any obligation of any Borrower hereunder, (a) taxes imposed on or
\nmeasured by its overall net income (however denominated), and franchise taxes
\nimposed on it (in lieu of net income taxes), by the jurisdiction (or any
\npolitical subdivision thereof) under the Laws of which such recipient is
\norganized or in which its principal office is located or, in the case of any
\nLender, in which its applicable Lending Office is located, or with which it
\notherwise has a present or former connection (other than any such connection
\narising from having executed, delivered, performed its obligations, received
\npayment or enforced its rights or remedies under any Loan Document), (b) any
\nbranch profits taxes imposed by the United States or any similar tax imposed by
\nany other jurisdiction in which such Borrower is located, (c) any backup
\nwithholding tax that is required by the Code to be<\/p>\n

14<\/p>\n

\n

withheld from amounts payable to a Lender that has failed to comply with
\nclause (A)<\/u> of Section 3.01(e)(ii)<\/u>, (d) in the case of a Foreign
\nLender (other than an assignee pursuant to a request by the Company under
\nSection 10.13<\/u>, other than any such request with respect to a Defaulting
\nLender) any United States withholding tax that (i) is required to be imposed on
\namounts payable to such Foreign Lender pursuant to the Laws in force at the time
\nsuch Foreign Lender becomes a party hereto (or designates a new Lending Office)
\nor (ii) is attributable to such Foreign Lender153s failure or inability (other
\nthan as a result of a Change in Law) to comply with clause (B) of Section
\n3.01(e)(ii)<\/u>, except to the extent that such Foreign Lender (or its assignor,
\nif any) was entitled, at the time of designation of a new Lending Office (or
\nassignment), to receive additional amounts from such Borrower with respect to
\nsuch withholding tax pursuant to Section 3.01(a)(ii) or (c) <\/u>and (e) any
\nU.S. withholding Taxes imposed under FATCA.<\/p>\n

“Existing Agreement<\/u>” has the meaning specified in the
\npreliminary<\/u> statements<\/u> hereto.<\/p>\n

“Existing Lenders<\/u>” has the meaning specified in the preliminary<\/u>
\nstatements<\/u> hereto.<\/p>\n

“Existing Loans<\/u>” has the meaning specified in the preliminary<\/u>
\nstatements<\/u> hereto.<\/p>\n

“Facility<\/u>” means the U.S. Revolving Credit Facility or the Global
\nRevolving Credit Facility, as the context may require.<\/p>\n

“FASB ASC<\/u>” means the Accounting Standards Codification of the
\nFinancial Accounting Standards Board.<\/p>\n

“FATCA<\/u>” means Sections 1471 through 1474 of the Code as of the date of
\nthis Agreement (or any amended or successor version that is substantively
\ncomparable and not materially more onerous to comply with) and any current or
\nfuture regulations or official interpretations thereof.<\/p>\n

“Federal Funds Rate<\/u>” means, for any day, the rate per annum equal to
\nthe weighted average of the rates on overnight Federal funds transactions with
\nmembers of the Federal Reserve System arranged by Federal funds brokers on such
\nday, as published by the Federal Reserve Bank of New York on the Business Day
\nnext succeeding such day; provided<\/u> that (a) if such day is not a Business
\nDay, the Federal Funds Rate for such day shall be such rate on such transactions
\non the next preceding Business Day as so published on the next succeeding
\nBusiness Day, and (b) if no such rate is so published on such next succeeding
\nBusiness Day, the Federal Funds Rate for such day shall be the average rate
\n(rounded upward, if necessary, to a whole multiple of 1\/100 of 1%) charged to
\nBank of America on such day on such transactions as determined by the
\nAdministrative Agent.<\/p>\n

“Fee Letters<\/u>” means collectively, the letter agreements, each dated
\nNovember 16, 2011 among (a) the Company, the Administrative Agent and MLPFSI and
\n(b) the Company and CGMI.<\/p>\n

“Foreign Lender<\/u>” means, with respect to any Borrower, any Lender that
\nis organized under the Laws of a jurisdiction other than that in which such
\nBorrower is resident for tax purposes (including such a Lender when acting in
\nthe capacity of the L\/C Issuer). For purposes<\/p>\n

15<\/p>\n

\n

of this definition, the United States, each State thereof and the District of
\nColumbia shall be deemed to constitute a single jurisdiction.<\/p>\n

“Foreign Obligor<\/u>” means a Loan Party that is a Foreign Subsidiary.\n<\/p>\n

“Foreign Subsidiary<\/u>” means any Subsidiary that is organized under the
\nlaws of a jurisdiction other than the United States or any political subdivision
\nthereof.<\/p>\n

“FRB<\/u>” means the Board of Governors of the Federal Reserve System of
\nthe United States.<\/p>\n

“Fronting Exposure<\/u>” means, at any time there is a Defaulting Lender,
\n(a) with respect to the L\/C Issuer, such Defaulting Lender153s Applicable
\nPercentage of the outstanding L\/C Obligations other than L\/C Obligations as to
\nwhich such Defaulting Lender153s participation obligation has been reallocated to
\nother Lenders or Cash Collateralized in accordance with the terms hereof and (b)
\nwith respect to the Swing Line Lender, such Defaulting Lender153s Applicable
\nPercentage of Swing Line Loans other than Swing Line Loans as to which such
\nDefaulting Lender153s participation obligation has been reallocated to other
\nLenders or Cash Collateralized in accordance with the terms hereof.<\/p>\n

“Fund<\/u>” means any Person (other than a natural person) that is (or will
\nbe) engaged in making, purchasing, holding or otherwise investing in commercial
\nloans and similar extensions of credit in the ordinary course of its activities.\n<\/p>\n

“GAAP<\/u>” means generally accepted accounting principles in the United
\nStates set forth in the opinions and pronouncements of the Accounting Principles
\nBoard and the American Institute of Certified Public Accountants and statements
\nand pronouncements of the Financial Accounting Standards Board or such other
\nprinciples as may be approved by a significant segment of the accounting
\nprofession in the United States, that are applicable to the circumstances as of
\nthe date of determination, consistently applied.<\/p>\n

“Global Revolving Credit Borrowing<\/u>” means a borrowing consisting of
\nsimultaneous Global Revolving Credit Loans of the same Type and, in the case of
\nEurocurrency Rate Loans, having the same Interest Period made by each of the
\nGlobal Revolving Credit Lenders pursuant to Section 2.01(b)<\/u>.<\/p>\n

“Global Revolving Credit Commitment<\/u>” means, as to each Lender, its
\nobligation to (a) make Global Revolving Credit Loans to the Borrowers pursuant
\nto Section 2.01(b)<\/u>, (b) purchase participations in L\/C Obligations, and
\n(c) purchase participations in Swing Line Loans, in an aggregate principal
\namount at any one time outstanding not to exceed the amount set forth opposite
\nsuch Lender153s name on Schedule 2.01<\/u> under the caption “Global Revolving
\nCredit Commitment” or opposite such caption in the Assignment and Assumption
\npursuant to which such Lender becomes a party hereto, as applicable, as such
\namount may be adjusted from time to time in accordance with this Agreement.<\/p>\n

“Global Revolving Credit Facility<\/u>” means, at any time, the aggregate
\namount of the Global Revolving Credit Commitments of the Global Revolving Credit
\nLenders at such time. As of the Closing Date, the Global Revolving Credit
\nFacility is $240,000,000.<\/p>\n

16<\/p>\n

\n

“Global Revolving Credit Lender<\/u>” means, at any time, any Lender that
\nhas a Global Revolving Credit Commitment at such time.<\/p>\n

“Global Revolving Credit Loan<\/u>” has the meaning specified in
\nSection 2.01(b)<\/u>.<\/p>\n

“Governmental Authority<\/u>” means the government of the United States or
\nany other nation, or of any political subdivision thereof, whether state or
\nlocal, and any agency, authority, instrumentality, regulatory body, court,
\ncentral bank or other entity exercising executive, legislative, judicial,
\ntaxing, regulatory or administrative powers or functions of or pertaining to
\ngovernment (including any supra-national bodies such as the European Union or
\nthe European Central Bank).<\/p>\n

“Guarantee<\/u>” means, as to any Person, (a) any obligation, contingent or
\notherwise, of such Person guaranteeing or having the economic effect of
\nguaranteeing any Indebtedness or other obligation payable or performable by
\nanother Person (the “primary obligor”) in any manner, whether directly or
\nindirectly, and including any obligation of such Person, direct or indirect, (i)
\nto purchase or pay (or advance or supply funds for the purchase or payment of)
\nsuch Indebtedness or other obligation, (ii) to purchase or lease property,
\nsecurities or services for the purpose of assuring the obligee in respect of
\nsuch Indebtedness or other obligation of the payment or performance of such
\nIndebtedness or other obligation, (iii) to maintain working capital, equity
\ncapital or any other financial statement condition or liquidity or level of
\nincome or cash flow of the primary obligor so as to enable the primary obligor
\nto pay such Indebtedness or other obligation, or (iv) entered into for the
\npurpose of assuring in any other manner the obligee in respect of such
\nIndebtedness or other obligation of the payment or performance thereof or to
\nprotect such obligee against loss in respect thereof (in whole or in part), or
\n(b) any Lien on any assets of such Person securing any Indebtedness or other
\nobligation of any other Person, whether or not such Indebtedness or other
\nobligation is assumed by such Person (or any right, contingent or otherwise, of
\nany holder of such Indebtedness to obtain any such Lien). The amount of any
\nGuarantee shall be deemed to be an amount equal to the stated or determinable
\namount of the related primary obligation, or portion thereof, in respect of
\nwhich such Guarantee is made or, if not stated or determinable, the maximum
\nreasonably anticipated liability in respect thereof as determined by the
\nguaranteeing Person in good faith. The term “Guarantee” as a verb has a
\ncorresponding meaning.<\/p>\n

“Guarantors<\/u>” means, individually or collectively as the context may
\nrequire, the Company and\/or any Subsidiary Guarantor.<\/p>\n

“Guaranty<\/u>” means, individually or collectively as the context may
\nrequire, the Company Guaranty and\/or any Subsidiary Guaranty.<\/p>\n

“Hazardous Materials<\/u>” means all explosive or radioactive substances or
\nwastes and all hazardous or toxic substances, wastes or other pollutants,
\nincluding petroleum or petroleum distillates, asbestos or asbestos-containing
\nmaterials, polychlorinated biphenyls, radon gas, infectious or medical wastes
\nand all other substances or wastes of any nature regulated pursuant to any
\nEnvironmental Law.<\/p>\n

“Honor Date<\/u>” has the meaning specified in Section 2.03(c)(i)<\/u>.\n<\/p>\n

17<\/p>\n

\n

“Indebtedness<\/u>” means, as to any Person at a particular time, without
\nduplication, all of the following, whether or not included as indebtedness or
\nliabilities in accordance with GAAP:<\/p>\n

(a) all obligations of such Person for borrowed money and all obligations of
\nsuch Person evidenced by bonds, debentures, notes, loan agreements or other
\nsimilar instruments;<\/p>\n

(b) all direct or contingent obligations of such Person arising under letters
\nof credit (including standby and commercial), bankers153 acceptances, bank
\nguaranties, surety bonds and similar instruments;<\/p>\n

(c) net obligations of such Person under any Swap Contract;<\/p>\n

(d) all obligations of such Person to pay the deferred purchase price of
\nproperty or services (other than trade accounts payable in the ordinary course
\nof business not past due for more than sixty (60) days past the due date, except
\nthose which are being contested in good faith by appropriate proceedings
\ndiligently conducted and for which adequate reserves have been set aside in
\naccordance with GAAP);<\/p>\n

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
\nproperty owned or being purchased by such Person (including indebtedness arising
\nunder conditional sales or other title retention agreements), whether or not
\nsuch indebtedness shall have been assumed by such Person or is limited in
\nrecourse;<\/p>\n

(f) capital leases and Synthetic Lease Obligations;<\/p>\n

(g) all obligations of such Person to purchase, redeem, retire, defease or
\notherwise make any payment in respect of any Equity Interest in such Person or
\nany other Person, valued, in the case of a redeemable preferred interest, at the
\ngreater of its voluntary or involuntary liquidation preference plus<\/u>
\naccrued and unpaid dividends; and<\/p>\n

(h) all Guarantees of such Person in respect of any of the foregoing.<\/p>\n

For all purposes hereof, the Indebtedness of any Person shall include the
\nIndebtedness of any partnership or joint venture (other than a joint venture
\nthat is itself a corporation or limited liability company) in which such Person
\nis a general partner or a joint venturer, unless such Indebtedness is expressly
\nmade non-recourse to such Person. The amount of any net obligation under any
\nSwap Contract on any date shall be deemed to be the Swap Termination Value
\nthereof as of such date. The amount of any capital lease or Synthetic Lease
\nObligation as of any date shall be deemed to be the amount of Attributable
\nIndebtedness in respect thereof as of such date.<\/p>\n

“Indemnified Taxes<\/u>” means Taxes other than Excluded Taxes.<\/p>\n

“Indemnitees<\/u>” has the meaning specified in Section 10.04(b)<\/u>.\n<\/p>\n

“Information<\/u>” has the meaning specified in Section 10.07<\/u>.<\/p>\n

“Interest Payment Date<\/u>” means, (a) as to any Loan other than a Base
\nRate Loan, the last day of each Interest Period applicable to such Loan and the
\nMaturity Date; provided<\/u>, however<\/u>,<\/p>\n

18<\/p>\n

\n

that if any Interest Period for a Eurocurrency Rate Loan exceeds three (3)
\nmonths, the respective dates that fall every three (3) months after the
\nbeginning of such Interest Period shall also be Interest Payment Dates; and (b)
\nas to any Base Rate Loan (including a Swing Line Loan), the last Business Day of
\neach February, May, August and November and the Maturity Date.<\/p>\n

“Interest Period<\/u>” means, as to each Eurocurrency Rate Loan, the period
\ncommencing on the date such Eurocurrency Rate Loan is disbursed or converted to
\nor continued as a Eurocurrency Rate Loan and ending on the date one (1), two
\n(2), three (3) or six (6) months thereafter, as selected by the Company in its
\nCommitted Loan Notice, or such other period that is twelve (12) months or less
\nrequested by the Company and consented to by all the Lenders; provided<\/u>
\nthat:<\/p>\n

(i) any Interest Period that would otherwise end on a day that is not a
\nBusiness Day shall be extended to the next succeeding Business Day unless such
\nBusiness Day falls in another calendar month, in which case such Interest Period
\nshall end on the next preceding Business Day;<\/p>\n

(ii) any Interest Period that begins on the last Business Day of a calendar
\nmonth (or on a day for which there is no numerically corresponding day in the
\ncalendar month at the end of such Interest Period) shall end on the last
\nBusiness Day of the calendar month at the end of such Interest Period; and<\/p>\n

(iii) no Interest Period shall extend beyond the Maturity Date.<\/p>\n

“Investment<\/u>” means, as to any Person, any direct or indirect
\nacquisition or investment by such Person, whether by means of (a) the purchase
\nor other acquisition of capital stock or other securities of another Person, (b)
\na loan, advance or capital contribution to, Guarantee or assumption of
\nIndebtedness of, or purchase or other acquisition of any other Indebtedness or
\nequity participation or interest in, another Person, including any partnership
\nor joint venture interest in such other Person and any arrangement pursuant to
\nwhich the investor Guarantees Indebtedness of such other Person or (c) the
\npurchase or other acquisition (in one transaction or a series of transactions)
\nof assets of another Person that constitute a business unit. For purposes of
\ncovenant compliance, the amount of any Investment shall be the amount actually
\ninvested, without adjustment for subsequent increases or decreases in the value
\nof such Investment.<\/p>\n

“IP Rights<\/u>” has the meaning specified in Section 5.18<\/u>.<\/p>\n

“IRS<\/u>” means the United States Internal Revenue Service.<\/p>\n

“ISP<\/u>” means, with respect to any Letter of Credit, the “International
\nStandby Practices 1998” published by the Institute of International Banking Law
\n& Practice, Inc. (or such later version thereof as may be in effect at the
\ntime of issuance).<\/p>\n

“Issuer Documents<\/u>” means with respect to any Letter of Credit, the
\nLetter of Credit Application, and any other document, agreement and instrument
\nentered into by the L\/C Issuer and the Company (or any Subsidiary) or in favor
\nof the L\/C Issuer and relating to such Letter of Credit.<\/p>\n

19<\/p>\n

\n

“Judgment Currency<\/u>” has the meaning specified in Section
\n10.19<\/u>.<\/p>\n

“Laws<\/u>” means, collectively, all international, foreign, Federal, state
\nand local statutes, treaties, rules, guidelines, regulations, ordinances, codes
\nand administrative or judicial precedents or authorities, including the
\ninterpretation or administration thereof by any Governmental Authority charged
\nwith the enforcement, interpretation or administration thereof, and all
\napplicable administrative orders, directed duties, requests, licenses,
\nauthorizations and permits of, and agreements with, any Governmental Authority,
\nin each case whether or not having the force of law.<\/p>\n

“L\/C Advance<\/u>” means, with respect to each Lender, such Lender153s
\nfunding of its participation in any L\/C Borrowing in accordance with its
\nApplicable Percentage. All L\/C Advances shall be denominated in Dollars.<\/p>\n

“L\/C Borrowing<\/u>” means an extension of credit resulting from a drawing
\nunder any Letter of Credit which has not been reimbursed on the date when made
\nor refinanced as a Committed Borrowing. All L\/C Borrowings shall be denominated
\nin Dollars.<\/p>\n

“L\/C Credit Extension<\/u>” means, with respect to any Letter of Credit,
\nthe issuance thereof or extension of the expiry date thereof, or the increase of
\nthe amount thereof.<\/p>\n

“L\/C Issuer<\/u>” means Bank of America in its capacity as issuer of
\nLetters of Credit hereunder, or any successor issuer of Letters of Credit
\nhereunder.<\/p>\n

“L\/C Obligations<\/u>” means, as at any date of determination, the
\naggregate amount available to be drawn under all outstanding Letters of Credit
\nplus<\/u> the aggregate of all Unreimbursed Amounts, including all L\/C
\nBorrowings. For purposes of computing the amount available to be drawn under any
\nLetter of Credit, the amount of such Letter of Credit shall be determined in
\naccordance with Section 1.09<\/u>. For all purposes of this Agreement, if on
\nany date of determination a Letter of Credit has expired by its terms but any
\namount may still be drawn thereunder by reason of the operation of Rule 3.14 of
\nthe ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount
\nso remaining available to be drawn.<\/p>\n

“Lender<\/u>” has the meaning specified in the introductory paragraph
\nhereto and, as the context requires, includes each U.S. Revolving Credit Lender,
\neach Global Revolving Credit Lender and the Swing Line Lender.<\/p>\n

“Lending Office<\/u>” means, as to any Lender, the office or offices of
\nsuch Lender described as such in such Lender153s Administrative Questionnaire, or
\nsuch other office or offices as a Lender may from time to time notify the
\nCompany and the Administrative Agent.<\/p>\n

“Letter of Credit<\/u>” means any standby letter of credit issued
\nhereunder. Letters of Credit may only be issued in Dollars.<\/p>\n

“Letter of Credit Application<\/u>” means an application and agreement for
\nthe issuance or amendment of a Letter of Credit in the form from time to time in
\nuse by the L\/C Issuer.<\/p>\n

20<\/p>\n

\n

“Letter of Credit Expiration Date<\/u>” means the day that is seven (7)
\ndays prior to the Maturity Date then in effect (or, if such day is not a
\nBusiness Day, the next preceding Business Day).<\/p>\n

“Letter of Credit Fee<\/u>” has the meaning specified in Section
\n2.03(h)<\/u>.<\/p>\n

“Letter of Credit Sublimit<\/u>” means an amount equal to $50,000,000. The
\nLetter of Credit Sublimit is part of, and not in addition to, the Aggregate
\nCommitments.<\/p>\n

“Lien<\/u>” means any mortgage, pledge, hypothecation, assignment, deposit
\narrangement, encumbrance, lien (statutory or other), charge, or preference,
\npriority or other security interest or preferential arrangement in the nature of
\na security interest of any kind or nature whatsoever (including any conditional
\nsale or other title retention agreement, any easement, right of way or other
\nencumbrance on title to real property, and any financing lease having
\nsubstantially the same economic effect as any of the foregoing).<\/p>\n

“Loan<\/u>” means an extension of credit by a Lender to the Borrower under
\nArticle II<\/u> in the form of a Committed Loan or a Swing Line Loan.<\/p>\n

“Loan Documents<\/u>” means this Agreement, each Designated Borrower
\nRequest and Assumption Agreement, each Note, each Issuer Document, any agreement
\ncreating or perfecting rights in Cash Collateral pursuant to the provisions of
\nSection 2.15<\/u> of this Agreement, the Fee Letters, and each Guaranty.<\/p>\n

“Loan Parties<\/u>” means, collectively, each Borrower and each Guarantor.\n<\/p>\n

“Mandatory Cost<\/u>” means, with respect to any period, the percentage
\nrate per annum determined in accordance with Schedule 1.01<\/u>.<\/p>\n

“Material Adverse Effect<\/u>” means (a) a material adverse change in, or a
\nmaterial adverse effect upon, the operations, business, assets, properties,
\nliabilities (actual or contingent), condition (financial or otherwise) or
\nprospects of the Company or the Company and its Subsidiaries taken as a whole;
\n(b) a material impairment of the rights or remedies of the Administrative Agent
\nor any Lender under any Loan Document, or of the ability of any Loan Party to
\nperform its obligations under any Loan Document to which it is a party; or (c) a
\nmaterial adverse effect upon the legality, validity, binding effect or
\nenforceability against any Loan Party of any Loan Document to which it is a
\nparty.<\/p>\n

“Material Foreign Subsidiary<\/u>” means any Foreign Subsidiary of the
\nCompany that is a Material Subsidiary.<\/p>\n

“Material Subsidiary<\/u>” means any Subsidiary of the Company (a) for
\nwhich (i) the Consolidated Tangible Assets of such Subsidiary and its
\nSubsidiaries were more than 5% of the Company153s Consolidated Tangible Assets as
\nof the end of the most recently completed fiscal year of the Company for which
\naudited financial statements are available or (ii) the consolidated revenue of
\nsuch Subsidiary and its Subsidiaries was more than 5% of the Company153s
\nconsolidated revenue for such period; provided<\/u>, however<\/u>, that in
\nthe event at any time any two or more Subsidiaries (other than Excluded
\nSubsidiaries) of the Company not otherwise Material<\/p>\n

21<\/p>\n

\n

Subsidiaries pursuant to clause (i)<\/u> or (ii)<\/u> above, for which
\n(x) the Consolidated Tangible Assets of such Subsidiaries and their respective
\nSubsidiaries were more than 20% of the Company153s Consolidated Tangible Assets as
\nof the end of the most recently completed fiscal year of the Company for which
\naudited financial statements are available or (y) the consolidated revenue of
\nsuch Subsidiaries and their respective Subsidiaries was more than 20% of the
\nCompany153s consolidated revenue for such period, then the Company shall designate
\nadditional Subsidiaries as Designated Material Subsidiaries to satisfy the test
\nin the immediately preceding clause (x)<\/u> or (y)<\/u>, and be included
\nand considered to be Material Subsidiaries and (b) that is a Designated Material
\nSubsidiary.<\/p>\n

“Material Subsidiary Grace Period<\/u>” has the meaning specified in
\nSection 6.12<\/u>.<\/p>\n

“Maturity Date<\/u>” means December 19, 2016; provided<\/u>,
\nhowever<\/u>, that if such date is not a Business Day, the Maturity Date shall
\nbe the next preceding Business Day.<\/p>\n

“MLPFSI<\/u>” means Merrill Lynch, Pierce Fenner & Smith Incorporated.\n<\/p>\n

“Multiemployer Plan<\/u>” means any employee benefit plan of the type
\ndescribed in Section 4001(a)(3) of ERISA, to which the Company or any ERISA
\nAffiliate makes or is obligated to make contributions, or during the preceding
\nfive (5) plan years, has made or been obligated to make contributions.<\/p>\n

“Multiple Employer Plan<\/u>” means a Pension Plan which has two or more
\ncontributing sponsors (including the Company or any ERISA Affiliate) at least
\ntwo of whom are not under common control, as such a plan is described in Section
\n4064 of ERISA.<\/p>\n

“Note<\/u>” means a promissory note made by a Borrower in favor of a Lender
\nevidencing Loans made by such Lender to such Borrower, substantially in the form
\nof Exhibit C<\/u>.<\/p>\n

“Obligations<\/u>” means all advances to, and debts, liabilities,
\nobligations, covenants and duties of, any Loan Party arising under any Loan
\nDocument or otherwise with respect to any Loan, Letter of Credit, Covered Cash
\nManagement Agreement or Covered Hedge Agreement, whether direct or indirect
\n(including those acquired by assumption), absolute or contingent, due or to
\nbecome due, now existing or hereafter arising and including interest and fees
\nthat accrue after the commencement by or against any Loan Party or any Affiliate
\nthereof of any proceeding under any Debtor Relief Laws naming such Person as the
\ndebtor in such proceeding, regardless of whether such interest and fees are
\nallowed claims in such proceeding.<\/p>\n

“Organization Documents<\/u>” means, (a) with respect to any corporation,
\nthe certificate or articles of incorporation and the bylaws (or equivalent or
\ncomparable constitutive documents with respect to any non-U.S. jurisdiction);
\n(b) with respect to any limited liability company, the certificate or articles
\nof formation or organization and operating agreement; and (c) with respect to
\nany partnership, joint venture, trust or other form of business entity, the
\npartnership, joint venture or other applicable agreement of formation or
\norganization and any agreement, instrument, filing or notice with respect
\nthereto filed in connection with its formation or organization with the
\napplicable Governmental Authority in the jurisdiction of its formation or
\norganization and, if applicable, any certificate or articles of formation or
\norganization of such entity.<\/p>\n

22<\/p>\n

\n

“Other Taxes<\/u>” means all present or future stamp or documentary taxes
\nor any other excise or property taxes, charges or similar levies arising from
\nany payment made hereunder or under any other Loan Document or from the
\nexecution, delivery or enforcement of, or otherwise with respect to, this
\nAgreement or any other Loan Document.<\/p>\n

“Outstanding Amount<\/u>” means (a) with respect to Committed Loans and
\nSwing Line Loans on any date, the Dollar Equivalent amount of the aggregate
\noutstanding principal amount thereof after giving effect to any borrowings and
\nprepayments or repayments of Committed Loans and Swing Line Loans, as the case
\nmay be, occurring on such date; and (b) with respect to any L\/C Obligations on
\nany date, the Dollar Equivalent amount of the aggregate outstanding amount of
\nsuch L\/C Obligations on such date after giving effect to any L\/C Credit
\nExtension occurring on such date and any other changes in the aggregate amount
\nof the L\/C Obligations as of such date, including as a result of any
\nreimbursements by the Borrowers of Unreimbursed Amounts.<\/p>\n

“Overnight Rate<\/u>” means, for any day, (a) with respect to any amount
\ndenominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
\novernight rate determined by the Administrative Agent, the L\/C Issuer, or the
\nSwing Line Lender, as the case may be, in accordance with banking industry rules
\non interbank compensation, and (b) with respect to any amount denominated in an
\nAlternative Currency, the rate of interest per annum at which overnight deposits
\nin the applicable Alternative Currency, in an amount approximately equal to the
\namount with respect to which such rate is being determined, would be offered for
\nsuch day by a branch or Affiliate of Bank of America in the applicable offshore
\ninterbank market for such currency to major banks in such interbank market.<\/p>\n

“Participant<\/u>” has the meaning specified in Section 10.06(d)<\/u>.\n<\/p>\n

“Participating Member State<\/u>” means each state so described in any EMU
\nLegislation.<\/p>\n

“PBGC<\/u>” means the Pension Benefit Guaranty Corporation.<\/p>\n

“Pension Act<\/u>” means the Pension Protection Act of 2006.<\/p>\n

“Pension Funding Rules<\/u>” means the rules of the Code and ERISA
\nregarding minimum required contributions (including any installment payment
\nthereof) to Pension Plans and set forth in, with respect to plan years ending
\nprior to the effective date of the Pension Act, Section 412 of the Code and
\nSection 302 of ERISA, each as in effect prior to the Pension Act and,
\nthereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302,
\n303, 304 and 305 of ERISA.<\/p>\n

“Pension Plan<\/u>” means any employee pension benefit plan (including a
\nMultiple Employer Plan or a Multiemployer Plan) that is maintained or is
\ncontributed to by the Company and any ERISA Affiliate and is either covered by
\nTitle IV of ERISA or is subject to the minimum funding standards under Section
\n412 of the Code.<\/p>\n

“Permitted Exclusive License<\/u>” means a license entered into in the
\nordinary course of business, provided that such exclusivity is limited to (i)
\ngeographic scope, (ii) field of use or distribution, (iii) a limited duration in
\ntime, or (iv) customized products for a specific Person or group of Persons.\n<\/p>\n

23<\/p>\n

\n

“Permitted Restrictions<\/u>” means Contractual Obligations existing solely
\nas a result of a requirement of Law that is applicable to the Company or any
\napplicable Subsidiary, as well as customary and reasonable Contractual
\nObligations (based on the underlying transaction that gives rise to the
\nContractual Obligations) of the following types: (a) any restriction contained
\nin any agreement relating to (i) any Indebtedness otherwise permitted hereunder
\n(provided that such restrictions apply only to the Person incurring or otherwise
\nissuing, as well as any property or assets securing, such Indebtedness) or (ii)
\nany Indebtedness issued or otherwise incurred by a Subsidiary on or prior to the
\ndate on which such Subsidiary becomes a Subsidiary of the Company in a
\ntransaction otherwise permitted hereunder and that is not created in
\ncontemplation of or in connection with such transaction, and in the case of
\nclauses (i)<\/u> and (ii)<\/u>, any refinancing, renewal or extension of
\nsuch Indebtedness, to the extent permitted hereunder and which do not expand the
\nscope of such restriction; (b) provisions in joint venture agreements and other
\nsimilar agreements applicable to joint ventures entered into in the ordinary
\ncourse of business; (c) provisions restricting subletting or assignment of, or
\nencumbrances on, any leases governing leasehold interests of the Company or any
\nof its Subsidiaries entered into in the ordinary course of business; (d)
\nprovisions restricting assignment of, or encumbrances on, any agreement or
\nlicense entered into by the Company or any Subsidiary in the ordinary course of
\nbusiness; (e) provisions contained in sales agreements, purchase agreements,
\nacquisition agreements (including by way of merger, acquisition or
\nconsolidation) entered into by the Company or any Subsidiary and solely to the
\nextent in effect pending the closing of such transaction; and (f) Contractual
\nObligations substantially of the type referred to above that are in existence on
\nthe Closing Date and identified on Schedule 7.09 to the Disclosure Letter.<\/p>\n

“Person<\/u>” means any natural person, corporation, limited liability
\ncompany, trust, joint venture, association, company, partnership, Governmental
\nAuthority or other entity.<\/p>\n

“Plan<\/u>” means any employee benefit plan within the meaning of Section
\n3(3) of ERISA (including a Pension Plan), maintained for employees of the
\nCompany or any ERISA Affiliate or any such Plan to which the Company or any
\nERISA Affiliate is required to contribute on behalf of any of its employees.\n<\/p>\n

“Platform<\/u>” has the meaning specified in Section 6.02<\/u>.<\/p>\n

“Public Lender<\/u>” has the meaning specified in Section 6.02<\/u>.<\/p>\n

“Qualified Bank<\/u>” has the meaning specified in the definition of “Cash
\nEquivalent Investments”.<\/p>\n

“Register<\/u>” has the meaning specified in Section 10.06(c)<\/u>.<\/p>\n

“Regulation<\/u>” has the meaning specified in Section 5.20(d)<\/u>.<\/p>\n

“Related Parties<\/u>” means, with respect to any Person, such Person153s
\nAffiliates and the partners, directors, officers, employees, agents, trustees
\nand advisors of such Person and of such Person153s Affiliates.<\/p>\n

“Reportable Event<\/u>” means any of the events set forth in Section
\n4043(c) of ERISA, other than events for which the thirty (30) day notice period
\nhas been waived.<\/p>\n

24<\/p>\n

\n

“Request for Credit Extension<\/u>” means (a) with respect to a Borrowing,
\nconversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
\nrespect to an L\/C Credit Extension, a Letter of Credit Application, and (c) with
\nrespect to a Swing Line Loan, a Swing Line Loan Notice.<\/p>\n

“Required Lenders<\/u>” means, as of any date of determination, Lenders
\nhaving more than 50% of the Aggregate Commitments or, if the commitment of each
\nLender to make Loans and the obligation of the L\/C Issuer to make L\/C Credit
\nExtensions have been terminated pursuant to Section 8.02<\/u>, Lenders holding
\nin the aggregate more than 50% of the Total Outstandings (with the aggregate
\namount of each Lender153s risk participation and funded participation in L\/C
\nObligations and Swing Line Loans being deemed “held” by such Lender for purposes
\nof this definition); provided<\/u> that the Commitment of, and the portion of
\nthe Total Outstandings held or deemed held by, any Defaulting Lender shall be
\nexcluded for purposes of making a determination of Required Lenders.<\/p>\n

“Responsible Officer<\/u>” means the chief executive officer, president,
\nchief financial officer, chief operating officer, treasurer, assistant treasurer
\nor controller of a Loan Party and, solely for purposes of notices given pursuant
\nto Article II, any other officer or employee of the applicable Loan Party so
\ndesignated by any of the foregoing officers in a notice to the Administrative
\nAgent. Any document delivered hereunder that is signed by a Responsible Officer
\nof a Loan Party shall be conclusively presumed to have been authorized by all
\nnecessary corporate, partnership or other action on the part of such Loan Party
\nand such Responsible Officer shall be conclusively presumed to have acted on
\nbehalf of such Loan Party.<\/p>\n

“Restricted Payment<\/u>” means any dividend or other distribution (whether
\nin cash, securities or other property) with respect to any capital stock or
\nother Equity Interest of the Company or any Subsidiary, or any payment (whether
\nin cash, securities or other property), including any sinking fund or similar
\ndeposit, on account of the purchase, redemption, retirement, acquisition,
\ncancellation or termination of any such capital stock or other Equity Interest,
\nor on account of any return of capital to the Company153s stockholders, partners
\nor members (or the equivalent Person thereof). For purposes of clarification,
\n(i) a conversion of any Convertible Debt Securities (in accordance with its
\nterms) shall not constitute a Restricted Payment and (ii) the settlement of any
\nBond Hedge (in accordance with its terms) shall not constitute a Restricted
\nPayment.<\/p>\n

“Revaluation Date<\/u>” means with respect to any Loan, each of the
\nfollowing: (a) each date of a Borrowing of a Eurocurrency Rate Loan denominated
\nin an Alternative Currency, (b) each date of a continuation of a Eurocurrency
\nRate Loan denominated in an Alternative Currency pursuant to Section
\n2.02<\/u>, and (c) such additional dates as the Administrative Agent shall
\ndetermine or the Required Lenders shall require.<\/p>\n

“Same Day Funds<\/u>” means (a) with respect to disbursements and payments
\nin Dollars, immediately available funds, and (b) with respect to disbursements
\nand payments in an Alternative Currency, same day or other funds as may be
\ndetermined by the Administrative Agent to be customary in the place of
\ndisbursement or payment for the settlement of international banking transactions
\nin the relevant Alternative Currency.<\/p>\n

25<\/p>\n

\n

“SEC<\/u>” means the Securities and Exchange Commission, or any
\nGovernmental Authority succeeding to any of its principal functions.<\/p>\n

“Solvent<\/u>” and “Solvency<\/u>” mean, with respect to any Person on
\nany date of determination, that on such date (a) the fair value of the tangible
\nand intangible property (including goodwill) of such Person is greater than the
\ntotal amount of liabilities, including contingent liabilities, of such Person,
\n(b) the present fair salable value of the assets of such Person is not less than
\nthe amount that will be required to pay the probable liability of such Person on
\nits debts as they become absolute and matured, (c) such Person does not intend
\nto, and does not believe that it will, incur debts or liabilities beyond such
\nPerson153s ability to pay such debts and liabilities as they mature, (d) such
\nPerson is not engaged in business or a transaction, and is not about to engage
\nin business or a transaction, for which such Person153s property would constitute
\nan unreasonably small capital, and (e) such Person is able to pay its debts and
\nliabilities, contingent obligations and other commitments as they mature in the
\nordinary course of business. The amount of contingent liabilities at any time
\nshall be computed as the amount that, in the light of all the facts and
\ncircumstances existing at such time, represents the amount that can reasonably
\nbe expected to become an actual or matured liability.<\/p>\n

“Special Notice Currency<\/u>” means at any time an Alternative Currency,
\nother than the currency of a country that is a member of the Organization for
\nEconomic Cooperation and Development at such time located in North America or
\nEurope.<\/p>\n

“Spot Rate<\/u>” for a currency means the rate determined by the
\nAdministrative Agent to be the rate quoted by the Person acting in such capacity
\nas the spot rate for the purchase by such Person of such currency with another
\ncurrency through its principal foreign exchange trading office at approximately
\n11:00 a.m. on the date two Business Days prior to the date as of which the
\nforeign exchange computation is made; provided<\/u> that the Administrative
\nAgent may obtain such spot rate from another financial institution designated by
\nthe Administrative Agent if the Person acting in such capacity does not have as
\nof the date of determination a spot buying rate for any such currency.<\/p>\n

“Sterling<\/u>” and “ <\/u>” mean the lawful currency of the United
\nKingdom.<\/p>\n

“Subsidiary<\/u>” of a Person means a corporation, partnership, joint
\nventure, limited liability company or other business entity of which a majority
\nof the shares of securities or other interests having ordinary voting power for
\nthe election of directors or other governing body (other than securities or
\ninterests having such power only by reason of the happening of a contingency)
\nare at the time beneficially owned, or the management of which is otherwise
\ncontrolled, directly, or indirectly through one or more intermediaries, or both,
\nby such Person. Unless otherwise specified, all references herein to a
\n“Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of
\nthe Company.<\/p>\n

“Subsidiary Guarantors<\/u>” means each Subsidiary that has executed and
\ndelivered to the Administrative Agent a duly executed Subsidiary Guaranty,
\nwhether on the Closing Date or pursuant to Section 6.12,<\/u> and including by
\nmeans of delivery of a supplement to a Subsidiary Guaranty.<\/p>\n

26<\/p>\n

\n

“Subsidiary Guaranty<\/u>” means the Subsidiary Guaranty made by the
\nSubsidiary Guarantors in favor of the Administrative Agent and the Lenders,
\nsubstantially in the form of Exhibit F-2<\/u>.<\/p>\n

“Swap Contract<\/u>” means (a) any and all rate swap transactions, basis
\nswaps, credit derivative transactions, forward rate transactions, commodity
\nswaps, commodity options, forward commodity contracts, equity swaps or equity
\nindex swaps or options, bond or bond price or bond index swaps or options or
\nforward bond or forward bond price or forward bond index transactions, interest
\nrate options, forward foreign exchange transactions, cap transactions, floor
\ntransactions, collar transactions, currency swap transactions, cross-currency
\nrate swap transactions, currency options, spot contracts, or any other similar
\ntransactions or any combination of any of the foregoing (including any options
\nto enter into any of the foregoing), whether or not any such transaction is
\ngoverned by or subject to any master agreement, and (b) any and all transactions
\nof any kind, and the related confirmations, which are subject to the terms and
\nconditions of, or governed by, any form of master agreement published by the
\nInternational Swaps and Derivatives Association, Inc., any International Foreign
\nExchange Master Agreement, or any other master agreement (any such master
\nagreement, together with any related schedules, a “Master Agreement<\/u>“),
\nincluding any such obligations or liabilities under any Master Agreement. For
\npurposes of clarification, any of the foregoing that is settled (after payment
\nof any premium or any prepayment thereunder) through the delivery of cash or of
\nEquity Interests of the Borrower and is entered into in connection with any
\nConvertible Debt Securities, the purpose of which is to provide for an
\neffectively higher conversion premium (each a “Bond Hedge<\/u>“) shall not for
\npurposes of this definition be deemed to be a Swap Contract.<\/p>\n

“Swap Termination Value<\/u>” means, in respect of any one or more Swap
\nContracts, after taking into account the effect of any legally enforceable
\nnetting agreement relating to such Swap Contracts, (a) for any date on or after
\nthe date such Swap Contracts have been closed out and termination value(s)
\ndetermined in accordance therewith, such termination value(s), and (b) for any
\ndate prior to the date referenced in clause (a), the amount(s) determined as the
\nmark-to-market value(s) for such Swap Contracts, as determined based upon one or
\nmore mid-market or other readily available quotations provided by any recognized
\ndealer in such Swap Contracts (which may include a Lender or any Affiliate of a
\nLender).<\/p>\n

“Swing Line Borrowing<\/u>” means a borrowing of a Swing Line Loan pursuant
\nto Section 2.04<\/u>.<\/p>\n

“Swing Line Lender<\/u>” means Bank of America in its capacity as provider
\nof Swing Line Loans, or any successor swing line lender hereunder.<\/p>\n

“Swing Line Loan<\/u>” has the meaning specified in Section
\n2.04(a)<\/u>.<\/p>\n

“Swing Line Loan Notice<\/u>” means a notice of a Swing Line Borrowing
\npursuant to Section 2.04(b)<\/u>, which, if in writing, shall be substantially
\nin the form of Exhibit B<\/u>.<\/p>\n

“Swing Line Sublimit<\/u>” means an amount equal to the lesser of (a)
\n$10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
\nof, and not in addition to, the Aggregate Commitments.<\/p>\n

27<\/p>\n

\n

“Synthetic Lease Obligation<\/u>” means the monetary obligation of a Person
\nunder (a) a so-called synthetic, off-balance sheet or tax retention lease, or
\n(b) an agreement for the use or possession of property creating obligations that
\ndo not appear on the balance sheet of such Person but which, upon the insolvency
\nor bankruptcy of such Person, would be characterized as the indebtedness of such
\nPerson (without regard to accounting treatment).<\/p>\n

“TARGET Day<\/u>” means any day on which the Trans-European Automated
\nReal-time Gross Settlement Express Transfer (TARGET) payment system (or, if such
\npayment system ceases to be operative, such other payment system (if any)
\ndetermined by the Administrative Agent to be a suitable replacement) is open for
\nthe settlement of payments in Euro.<\/p>\n

“Taxes<\/u>” means all present or future taxes, levies, imposts, duties,
\ndeductions, withholdings (including backup withholding), assessments, fees or
\nother charges imposed by any Governmental Authority, including any interest,
\nadditions to tax or penalties applicable thereto.<\/p>\n

“Threshold Amount<\/u>” means $15,000,000.<\/p>\n

“Total Global Revolving Credit Outstandings<\/u>” means (a) the aggregate
\nOutstanding Amount of all Global Revolving Credit Loans and (b) the aggregate
\namount of all participations of the Global Revolving Lenders in respect of Swing
\nLine Loans and L\/C Obligations.<\/p>\n

“Total Outstandings<\/u>” means the aggregate Outstanding Amount of all
\nLoans and all L\/C Obligations.<\/p>\n

“Total U.S. Revolving Credit Outstandings<\/u>” means (a) the aggregate
\nOutstanding Amount of all U.S. Revolving Credit Loans and (b) the aggregate
\namount of all participations of the U.S. Revolving Lenders in respect of Swing
\nLine Loans and L\/C Obligations.<\/p>\n

“Type<\/u>” means, with respect to a Committed Loan, its character as a
\nBase Rate Loan or a Eurocurrency Rate Loan.<\/p>\n

“United States<\/u>” and “U.S.<\/u>” mean the United States of America.\n<\/p>\n

“Unreimbursed Amount<\/u>” has the meaning specified in Section
\n2.03(c)(i)<\/u>.<\/p>\n

“U.S. Revolving Credit Borrowing<\/u>” means a borrowing consisting of
\nsimultaneous U.S. Revolving Credit Loans of the same Type and, in the case of
\nEurocurrency Rate Loans, having the same Interest Period made by each of the
\nU.S. Revolving Credit Lenders pursuant to Section 2.01(a)<\/u>.<\/p>\n

“U.S. Revolving Credit Commitment<\/u>” means, as to each Lender, its
\nobligation to (a) make U.S. Revolving Credit Loans to the Borrowers pursuant to
\nSection 2.01(a)<\/u>, (b) purchase participations in L\/C Obligations, and (c)
\npurchase participations in Swing Line Loans, in an aggregate principal amount at
\nany one time outstanding not to exceed the amount set forth opposite such
\nLender153s name on Schedule 2.01<\/u> under the caption “U.S. Revolving Credit
\nCommitment” or opposite such caption in the Assignment and Assumption pursuant
\nto which such Lender becomes a party hereto, as applicable, as such amount may
\nbe adjusted from time to time in accordance with this Agreement.<\/p>\n

28<\/p>\n

\n

“U.S. Revolving Credit Facility<\/u>” means, at any time, the aggregate
\namount of the U.S. Revolving Credit Commitments of the U.S. Revolving Credit
\nLenders at such time. As of the Closing Date, the U.S. Revolving Credit Facility
\nis $10,000,000.<\/p>\n

“U.S. Revolving Credit Lender<\/u>” means, at any time, any Lender that has
\na U.S. Revolving Credit Commitment at such time.<\/p>\n

“U.S. Revolving Credit Loan<\/u>” has the meaning specified in Section
\n2.01(a)<\/u>.<\/p>\n

“Yen<\/u>” and “ \u00a5<\/u>” mean the lawful currency of Japan.<\/p>\n

1.02 Other Interpretive Provisions<\/strong>. With reference to this
\nAgreement and each other Loan Document, unless otherwise specified herein or in
\nsuch other Loan Document:<\/p>\n

(a) The definitions of terms herein shall apply equally to the singular and
\nplural forms of the terms defined. Whenever the context may require, any pronoun
\nshall include the corresponding masculine, feminine and neuter forms. The words
\n“include<\/u>“, “includes<\/u>” and “including<\/u>” shall be deemed to be
\nfollowed by the phrase “without limitation.” The word “will<\/u>” shall be
\nconstrued to have the same meaning and effect as the word “shall<\/u>“. Unless
\nthe context requires otherwise, (i) any definition of or reference to any
\nagreement, instrument or other document (including any Organization Document)
\nshall be construed as referring to such agreement, instrument or other document
\nas from time to time amended, supplemented or otherwise modified (subject to any
\nrestrictions on such amendments, supplements or modifications set forth herein
\nor in any other Loan Document), (ii) any reference herein to any Person shall be
\nconstrued to include such Person153s successors and assigns, (iii) the words
\n“hereto<\/u>“, “herein<\/u>“, “hereof<\/u>” and “hereunder<\/u>“, and
\nwords of similar import when used in any Loan Document, shall be construed to
\nrefer to such Loan Document in its entirety and not to any particular provision
\nthereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits
\nand Schedules shall be construed to refer to Articles and Sections of, and
\nExhibits and Schedules to, the Loan Document in which such references appear,
\n(v) any reference to any law shall include all statutory and regulatory
\nprovisions consolidating, amending, replacing or interpreting such law and any
\nreference to any law or regulation shall, unless otherwise specified, refer to
\nsuch law or regulation as amended, modified or supplemented from time to time,
\nand (vi) the words “asset<\/u>” and “property<\/u>” shall be construed to
\nhave the same meaning and effect and to refer to any and all tangible and
\nintangible assets and properties, including cash, securities, accounts and
\ncontract rights.<\/p>\n

(b) In the computation of periods of time from a specified date to a later
\nspecified date, the word “from” means “from and including”; the words “to” and
\n“until” each mean “to but excluding”; and the word “through” means “to and
\nincluding”.<\/p>\n

(c) Section headings herein and in the other Loan Documents are included for
\nconvenience of reference only and shall not affect the interpretation of this
\nAgreement or any other Loan Document.<\/p>\n

1.03 Accounting Terms<\/strong>. (a) Generally<\/u>. All accounting
\nterms not specifically or completely defined herein shall be construed in
\nconformity with, and all financial data (including financial ratios and other
\nfinancial calculations) required to be submitted pursuant to this<\/p>\n

29<\/p>\n

\n

Agreement shall be prepared in conformity with, GAAP applied on a consistent
\nbasis, as in effect from time to time, applied in a manner consistent with that
\nused in preparing the Audited Financial Statements, except as otherwise
\nspecifically prescribed herein. Notwithstanding the foregoing, for purposes of
\ndetermining compliance with any covenant (including the computation of any
\nfinancial covenant) contained herein, Indebtedness of the Company and its
\nSubsidiaries shall be deemed to be carried at 100% of the outstanding principal
\namount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial
\nliabilities shall be disregarded.<\/p>\n

(b) Changes in GAAP<\/u>. If at any time any change in GAAP would affect
\nthe computation of any financial ratio or requirement set forth in any Loan
\nDocument, and either the Company or the Required Lenders shall so request, the
\nAdministrative Agent, the Lenders and the Company shall negotiate in good faith
\nto amend such ratio or requirement to preserve the original intent thereof in
\nlight of such change in GAAP (subject to the approval of the Required Lenders);
\nprovided<\/u> that, until so amended, (i) such ratio or requirement shall
\ncontinue to be computed in accordance with GAAP prior to such change therein and
\n(ii) the Company shall provide to the Administrative Agent and the Lenders
\nfinancial statements and other documents required under this Agreement or as
\nreasonably requested hereunder setting forth a reconciliation between
\ncalculations of such ratio or requirement made before and after giving effect to
\nsuch change in GAAP.<\/p>\n

(c) Consolidation of Variable Interest Entities<\/u>. All references herein
\nto consolidated financial statements of the Company and its Subsidiaries or to
\nthe determination of any amount for the Company and its Subsidiaries on a
\nconsolidated basis or any similar reference shall, in each case, be deemed to
\ninclude each variable interest entity that the Company is required to
\nconsolidate pursuant to FASB ASC 810 as if such variable interest entity were a
\nSubsidiary as defined herein.<\/p>\n

1.04 Rounding<\/strong>. Any financial ratios required to be
\nmaintained by the Company pursuant to this Agreement shall be calculated by
\ndividing the appropriate component by the other component, carrying the result
\nto one place more than the number of places by which such ratio is expressed
\nherein and rounding the result up or down to the nearest number (with a
\nrounding-up if there is no nearest number).<\/p>\n

1.05 Exchange Rates; Currency Equivalents. <\/strong><\/p>\n

(a) The Administrative Agent shall determine the Spot Rates as of each
\nRevaluation Date to be used for calculating Dollar Equivalent amounts of Credit
\nExtensions and Outstanding Amounts denominated in Alternative Currencies. Such
\nSpot Rates shall become effective as of such Revaluation Date and shall be the
\nSpot Rates employed in converting any amounts between the applicable currencies
\nuntil the next Revaluation Date to occur. Except for purposes of financial
\nstatements delivered by Loan Parties hereunder or calculating financial
\ncovenants hereunder or except as otherwise provided herein, the applicable
\namount of any currency (other than Dollars) for purposes of the Loan Documents
\nshall be such Dollar Equivalent amount as so determined by the Administrative
\nAgent.<\/p>\n

30<\/p>\n

\n

(b) Wherever in this Agreement in connection with a Committed Borrowing or
\nconversion, continuation or prepayment of a Eurocurrency Rate Loan, an amount,
\nsuch as a required minimum or multiple amount, is expressed in Dollars, but such
\nCommitted Borrowing or Eurocurrency Rate Loan is denominated in an Alternative
\nCurrency, such amount shall be the relevant Alternative Currency Equivalent of
\nsuch Dollar amount (rounded to the nearest unit of such Alternative Currency,
\nwith 0.5 of a unit being rounded upward), as determined by the Administrative
\nAgent.<\/p>\n

1.06 Additional Alternative Currencies. <\/strong><\/p>\n

(a) The Company may from time to time request that Eurocurrency Rate Loans be
\nmade under the Global Revolving Credit Facility in a currency other than those
\nspecifically listed in the definition of “Alternative Currency”; provided<\/u>
\nthat such requested currency is a lawful currency (other than Dollars) that is
\nreadily available and freely transferable and convertible into Dollars. In the
\ncase of any such request with respect to the making of Eurocurrency Rate Loans,
\nsuch request shall be subject to the approval of the Administrative Agent and
\nthe Lenders under the Global Revolving Credit Facility.<\/p>\n

(b) Any such request shall be made to the Administrative Agent not later than
\n11:00 a.m., twenty (20) Business Days prior to the date of the desired Credit
\nExtension. In the case of any such request pertaining to Eurocurrency Rate
\nLoans, the Administrative Agent shall promptly notify each Lender under the
\nGlobal Revolving Credit Facility thereof. Each such Lender shall notify the
\nAdministrative Agent, not later than 11:00 a.m., ten (10) Business Days after
\nreceipt of such request whether it consents, in its sole discretion, to the
\nmaking of Eurocurrency Rate Loans in such requested currency.<\/p>\n

(c) Any failure by a Lender under the Global Revolving Credit Facility to
\nrespond to such request within the time period specified in the preceding
\nsentence shall be deemed to be a refusal by such Lender to permit Eurocurrency
\nRate Loans to be made in such requested currency. If the Administrative Agent
\nand all the Lenders under the Global Revolving Credit Facility consent to making
\nEurocurrency Rate Loans in such requested currency, the Administrative Agent
\nshall so notify the Company and such currency shall thereupon be deemed for all
\npurposes to be an Alternative Currency hereunder for purposes of any Committed
\nBorrowings of Eurocurrency Rate Loans. If the Administrative Agent shall fail to
\nobtain consent to any request for an additional currency under this Section
\n1.06<\/u>, the Administrative Agent shall promptly so notify the Company.<\/p>\n

1.07 Change of Currency. <\/strong><\/p>\n

(a) Each obligation of the Borrowers to make a payment denominated in the
\nnational currency unit of any member state of the European Union that adopts the
\nEuro as its lawful currency after the date hereof shall be redenominated into
\nEuro at the time of such adoption (in accordance with the EMU Legislation). If,
\nin relation to the currency of any such member state, the basis of accrual of
\ninterest expressed in this Agreement in respect of that currency shall be
\ninconsistent with any convention or practice in the London interbank market for
\nthe basis of accrual of interest in respect of the Euro, such expressed basis
\nshall be replaced by such convention or practice with effect from the date on
\nwhich such member state adopts the Euro as<\/p>\n

31<\/p>\n

\n

its lawful currency; provided<\/u> that if any Committed Borrowing in the
\ncurrency of such member state is outstanding immediately prior to such date,
\nsuch replacement shall take effect, with respect to such Committed Borrowing, at
\nthe end of the then current Interest Period.<\/p>\n

(b) Each provision of this Agreement shall be subject to such reasonable
\nchanges of construction as the Administrative Agent may from time to time
\nspecify to be appropriate to reflect the adoption of the Euro by any member
\nstate of the European Union and any relevant market conventions or practices
\nrelating to the Euro.<\/p>\n

(c) Each provision of this Agreement also shall be subject to such reasonable
\nchanges of construction as the Administrative Agent may from time to time
\nspecify to be appropriate to reflect a change in currency of any other country
\nand any relevant market conventions or practices relating to the change in
\ncurrency.<\/p>\n

1.08 Times of Day<\/strong>. Unless otherwise specified, all
\nreferences herein to times of day shall be references to Eastern time (daylight
\nor standard, as applicable).<\/p>\n

1.09 Letter of Credit Amounts<\/strong>. Unless otherwise specified
\nherein, the amount of a Letter of Credit at any time shall be deemed to be the
\nDollar Equivalent of the stated amount of such Letter of Credit in effect at
\nsuch time; provided<\/u>, however<\/u>, that with respect to any Letter of
\nCredit that, by its terms or the terms of any Issuer Document related thereto,
\nprovides for one or more automatic increases in the stated amount thereof, the
\namount of such Letter of Credit shall be deemed to be the Dollar Equivalent of
\nthe maximum stated amount of such Letter of Credit after giving effect to all
\nsuch increases, whether or not such maximum stated amount is in effect at such
\ntime.<\/p>\n

ARTICLE II <\/strong><\/p>\n

THE COMMITMENTS AND CREDIT EXTENSIONS <\/strong><\/p>\n

2.01 Committed Loans<\/strong>. Subject to the terms and conditions
\nset forth herein, (a) each U.S. Revolving Credit Lender severally agrees to make
\nloans (each such loan, a “U.S. Revolving Credit Loan<\/u>“) to the Borrowers
\nin Dollars, from time to time on any Business Day during the Availability
\nPeriod, in an aggregate amount not to exceed at any time outstanding the amount
\nof such U.S. Revolving Credit Lender153s U.S. Revolving Credit Commitment; and (b)
\neach Global Revolving Credit Lender severally agrees to make loans (each such
\nloan, a “Global Revolving Credit Loan<\/u>“) to the Borrowers in Dollars or in
\none or more Alternative Currencies, from time to time on any Business Day during
\nthe Availability Period, in an aggregate amount not to exceed at any time
\noutstanding the amount of such Global Revolving Credit Lender153s Global Revolving
\nCredit Commitment; provided<\/u> that, after giving effect to any Committed
\nBorrowing: (i)(A) the Total U.S. Revolving Credit Outstandings shall not exceed
\nthe U.S. Revolving Credit Facility and (B) the Total Global Revolving Credit
\nOutstandings shall not exceed the Global Revolving Credit Facility; and (ii)(A)
\nthe aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any U.S.
\nRevolving Credit Lender, plus such U.S. Revolving Credit Lender153s Applicable
\nPercentage of the Outstanding Amount of all Swing Line Loans and L\/C Obligations
\nshall not exceed such U.S. Revolving Credit Lender153s U.S. Revolving Credit
\nCommitment; and (B) the aggregate Outstanding Amount of the Global Revolving
\nCredit Loans of any Global Revolving Credit Lender, plus such Global Revolving
\nCredit Lender153s Applicable Percentage of<\/p>\n

32<\/p>\n

\n

the Outstanding Amount of all Swing Line Loans and L\/C Obligations shall not
\nexceed such Global Revolving Credit Lender153s Global Revolving Credit Commitment.
\nWithin the limits of each Lender153s Commitment, and subject to the other terms
\nand conditions hereof, the Borrowers may borrow under this Section 2.01<\/u>,
\nprepay under Section 2.05, and reborrow under this Section 2.01<\/u>.
\nCommitted Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further
\nprovided herein. Notwithstanding anything to the contrary contained herein, with
\nrespect to each Committed Borrowing consisting of Loans designated in Dollars,
\nthe Borrower shall, in accordance with Section 2.02<\/u>, request that such
\nCommitted Borrowing be drawn ratably from each of the U.S. Revolving Credit
\nFacility and the Global Revolving Credit Facility, based upon the percentage of
\nthe Aggregate Commitments represented by the U.S. Revolving Credit Facility and
\nthe Global Revolving Credit Facility, respectively.<\/p>\n

2.02 Borrowings, Conversions and Continuations of Committed Loans.
\n<\/strong><\/p>\n

(a) Each Committed Borrowing, each conversion of Committed Loans from one
\nType to the other, and each continuation of Eurocurrency Rate Loans shall be
\nmade upon the Company153s irrevocable notice to the Administrative Agent, which
\nmay be given by telephone. Each such notice must be received by the
\nAdministrative Agent not later than 11:00 a.m. (i) three (3) Business Days prior
\nto the requested date of any Borrowing of, conversion to or continuation of
\nEurocurrency Rate Loans denominated in Dollars or of any conversion of
\nEurocurrency Rate Loans denominated in Dollars to Base Rate Committed Loans,
\n(ii) four (4) Business Days (or five (5) Business Days in the case of a Special
\nNotice Currency) prior to the requested date of any Borrowing or continuation of
\nEurocurrency Rate Loans denominated in Alternative Currencies, and (iii) on the
\nrequested date of any Borrowing of Base Rate Committed Loans; provided<\/u>,
\nhowever<\/u>, that if the Company wishes to request Eurocurrency Rate Loans
\nhaving an Interest Period other than one (1), two (2), three (3) or six (6)
\nmonths in duration as provided in the definition of “Interest Period,” the
\napplicable notice must be received by the Administrative Agent not later than
\n11:00 a.m. (i) four (4) Business Days prior to the requested date of such
\nBorrowing, conversion or continuation of Eurocurrency Rate Loans denominated in
\nDollars or (ii) five (5) Business Days (or six (6) Business days in the case of
\na Special Notice Currency) prior to the requested date of such Borrowing,
\nconversion or continuation of Eurocurrency Rate Loans denominated in Alternative
\nCurrencies, whereupon the Administrative Agent shall give prompt notice to the
\nLenders of such request and determine whether the requested Interest Period is
\nacceptable to all of them. Not later than 11:00 a.m., (i) three (3) Business
\nDays before the requested date of such Borrowing, conversion or continuation of
\nEurocurrency Rate Loans denominated in Dollars or (ii) four (4) Business Days
\n(or five (5) Business days in the case of a Special Notice Currency) prior to
\nthe requested date of such Borrowing or continuation of Eurocurrency Rate Loans
\ndenominated in Alternative Currencies, the Administrative Agent shall notify the
\nCompany (which notice may be by telephone) whether or not the requested Interest
\nPeriod has been consented to by all the Lenders. Each telephonic notice by the
\nCompany pursuant to this Section 2.02(a)<\/u> must be confirmed promptly by
\ndelivery to the Administrative Agent of a written Committed Loan Notice,
\nappropriately completed and signed by a Responsible Officer of the Company. Each
\nBorrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be
\nin a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
\nthereof. Except as provided in Sections 2.03(c)<\/u> and 2.04(c)<\/u>, each
\nCommitted Borrowing of or conversion to Base Rate Committed Loans shall be in a
\nprincipal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
\nEach<\/p>\n

33<\/p>\n

\n

Committed Loan Notice (whether telephonic or written) shall specify (i)
\nwhether the Company is requesting a Committed Borrowing, a conversion of
\nCommitted Loans from one Type to the other, or a continuation of Eurocurrency
\nRate Loans, (ii) the requested date of the Borrowing, conversion or
\ncontinuation, as the case may be (which shall be a Business Day), (iii) the
\nprincipal amount of Committed Loans to be borrowed, converted or continued, (iv)
\nthe Type of Committed Loans to be borrowed or to which existing Committed Loans
\nare to be converted, (v) if applicable, the duration of the Interest Period with
\nrespect thereto, (vi) the currency of the Committed Loans to be borrowed, (vii)
\nif applicable, the Designated Borrower and (viii) if the Committed Loans are to
\nbe borrowed in Dollars, that such Committed Loan shall be drawn ratably from
\neach of the U.S. Revolving Credit Facility and the Global Revolving Credit
\nFacility. If the Company fails to specify a currency in a Committed Loan Notice
\nrequesting a Borrowing, then the Committed Loans so requested shall be made in
\nDollars. If the Company fails to specify a Type of Committed Loan in a Committed
\nLoan Notice or if the Company fails to give a timely notice requesting a
\nconversion or continuation, then the applicable Committed Loans shall be made
\nas, or converted to, Base Rate Loans; provided<\/u> that in the case of a
\nfailure to timely request a continuation of Committed Loans denominated in an
\nAlternative Currency, such Loans shall be continued as Eurocurrency Rate Loans
\nin their original currency with an Interest Period of one month. Any automatic
\nconversion to Base Rate Loans shall be effective as of the last day of the
\nInterest Period then in effect with respect to the applicable Eurocurrency Rate
\nLoans. If the Company requests a Borrowing of, conversion to, or continuation of
\nEurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify
\nan Interest Period, it will be deemed to have specified an Interest Period of
\none (1) month. No Committed Loan may be converted into or continued as a
\nCommitted Loan denominated in a different currency, but instead must be prepaid
\nin the original currency of such Committed Loan and reborrowed in the other
\ncurrency.<\/p>\n

(b) Following receipt of a Committed Loan Notice, the Administrative Agent
\nshall promptly notify each Lender of the amount (and currency) of its Applicable
\nPercentage of the applicable Committed Loans, and if no timely notice of a
\nconversion or continuation is provided by the Company, the Administrative Agent
\nshall notify each Lender of the details of any automatic conversion to Base Rate
\nLoans or continuation of Committed Loans denominated in a currency other than
\nDollars, in each case as described in the preceding clause<\/u>. In the case
\nof a Committed Borrowing, each Lender shall make the amount of its Committed
\nLoan available to the Administrative Agent in Same Day Funds at the
\nAdministrative Agent153s Office for the applicable currency not later than 1:00
\np.m., in the case of any Committed Loan denominated in Dollars, and not later
\nthan the Applicable Time specified by the Administrative Agent in the case of
\nany Committed Loan in an Alternative Currency, in each case on the Business Day
\nspecified in the applicable Committed Loan Notice; provided<\/u> that each
\nLender may, at its option, make the amount of its Committed Loans available to
\nany Designated Borrower that is a Foreign Obligor by causing any foreign or
\ndomestic branch or Affiliate of such Lender to make such Committed Loans;
\nprovided<\/u> further<\/u> that any exercise of such option to use any such
\nforeign or domestic branch or Affiliate of such Lender to make such Committed
\nLoans shall not affect the obligation of such Designated Borrower to repay such
\nLoans in accordance with the terms of this Agreement. Upon satisfaction of the
\napplicable conditions set forth in Section 4.02<\/u> (and, if such Borrowing
\nis the initial Credit Extension, Section 4.01<\/u>), the Administrative Agent
\nshall make all funds so received available to the Company or the other
\napplicable Borrower in like funds as received by the Administrative Agent either
\nby (i) crediting the account of such Borrower on the books of Bank of America
\nwith the amount of such funds or (ii) wire transfer of such funds, in<\/p>\n

34<\/p>\n

\n

each case in accordance with instructions provided to (and reasonably
\nacceptable to) the Administrative Agent by the Company; provided<\/u>,
\nhowever<\/u>, that if, on the date the Committed Loan Notice with respect to
\nsuch Borrowing denominated in Dollars is given by the Company, there are L\/C
\nBorrowings outstanding, then the proceeds of such Borrowing, first<\/u>, shall
\nbe applied to the payment in full of any such L\/C Borrowings, and
\nsecond<\/u>, shall be made available to the applicable Borrower as provided
\nabove.<\/p>\n

(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be
\ncontinued or converted only on the last day of an Interest Period for such
\nEurocurrency Rate Loan. During the existence of a Default, no Loans may be
\nrequested as, converted to or continued as Eurocurrency Rate Loans (whether in
\nDollars or any Alternative Currency) without the consent of the Required Lenders
\nand the Required Lenders may demand that any or all of the then outstanding
\nEurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or
\nredenominated into Dollars in the amount of the Dollar Equivalent thereof, on
\nthe last day of the then current Interest Period with respect thereto.<\/p>\n

(d) The Administrative Agent shall promptly notify the Company and the
\nLenders of the interest rate applicable to any Interest Period for Eurocurrency
\nRate Loans upon determination of such interest rate. At any time that Base Rate
\nLoans are outstanding, the Administrative Agent shall notify the Company and the
\nLenders of any change in the prime rate used in determining the Base Rate
\npromptly following the public announcement of such change.<\/p>\n

(e) After giving effect to all Committed Borrowings, all conversions of
\nCommitted Loans from one Type to the other, and all continuations of Committed
\nLoans as the same Type, there shall not be more than ten (10) Interest Periods
\nin effect with respect to Committed Loans.<\/p>\n

2.03 Letters of Credit. <\/strong><\/p>\n

(a) The Letter of Credit Commitment<\/u>.<\/p>\n

(i) Subject to the terms and conditions set forth herein, (A) the L\/C Issuer
\nagrees, in reliance upon the agreements of the Lenders set forth in this
\nSection 2.03<\/u>, (1) from time to time on any Business Day during the period
\nfrom the Closing Date until the Letter of Credit Expiration Date, to issue
\nLetters of Credit denominated in Dollars for the account of the Company or its
\nSubsidiaries or any other Borrower, and to amend or extend Letters of Credit
\npreviously issued by it, in accordance with clause (b)<\/u> below, and (2) to
\nhonor drawings under the Letters of Credit; and (B) the Lenders severally agree
\nto participate in Letters of Credit issued for the account of the Company or its
\nSubsidiaries or any other Borrower and any drawings thereunder; provided<\/u>
\nthat, after giving effect to any L\/C Credit Extension with respect to any Letter
\nof Credit, (v) the Total Outstandings shall not exceed the Aggregate
\nCommitments, (w) the Total U.S. Revolving Credit Outstandings shall not exceed
\nthe U.S. Revolving Credit Facility at such time, (x) the Total Global Revolving
\nCredit Outstandings shall not exceed the Global Revolving Credit Facility at
\nsuch time, (y) the aggregate Outstanding Amount of the Committed Loans of any
\nLender, plus<\/u> such Lender153s Applicable Percentage of the Outstanding
\nAmount of all L\/C Obligations, plus<\/u> such Lender153s Applicable Percentage
\nof the Outstanding Amount of all Swing Line Loans shall not exceed such Lender153s\n<\/p>\n

35<\/p>\n

\n

Commitment and (z) the Outstanding Amount of the L\/C Obligations shall not
\nexceed the Letter of Credit Sublimit. Each request by a Borrower for the
\nissuance or amendment of a Letter of Credit shall be deemed to be a
\nrepresentation by such Borrower that the L\/C Credit Extension so requested
\ncomplies with the conditions set forth in the proviso to the preceding sentence.
\nWithin the foregoing limits, and subject to the terms and conditions hereof,
\neach Borrower153s ability to obtain Letters of Credit shall be fully revolving,
\nand accordingly such Borrower may, during the foregoing period, obtain Letters
\nof Credit to replace Letters of Credit that have expired or that have been drawn
\nupon and reimbursed.<\/p>\n

(ii) The L\/C Issuer shall not issue any Letter of Credit, if:<\/p>\n

(A) subject to Section 2.03(b)(iii)<\/u>, the expiry date of the requested
\nLetter of Credit would occur more than twelve months after the date of issuance
\nor last extension, unless the Required Lenders have approved such expiry date;
\nor<\/p>\n

(B) the expiry date of the requested Letter of Credit would occur after the
\nLetter of Credit Expiration Date, unless all the Lenders have approved such
\nexpiry date.<\/p>\n

(iii) The L\/C Issuer shall not be under any obligation to issue any Letter of
\nCredit if:<\/p>\n

(A) any order, judgment or decree of any Governmental Authority or arbitrator
\nshall by its terms purport to enjoin or restrain the L\/C Issuer from issuing
\nsuch Letter of Credit, or any Law applicable to the L\/C Issuer or any request or
\ndirective (whether or not having the force of law) from any Governmental
\nAuthority with jurisdiction over the L\/C Issuer shall prohibit, or request that
\nthe L\/C Issuer refrain from, the issuance of letters of credit generally or such
\nLetter of Credit in particular or shall impose upon the L\/C Issuer with respect
\nto such Letter of Credit any restriction, reserve or capital requirement (for
\nwhich the L\/C Issuer is not otherwise compensated hereunder) not in effect on
\nthe Closing Date, or shall impose upon the L\/C Issuer any unreimbursed loss,
\ncost or expense which was not applicable on the Closing Date and which the L\/C
\nIssuer in good faith deems material to it;<\/p>\n

(B) the issuance of such Letter of Credit would violate one or more policies
\nof the L\/C Issuer applicable to letters of credit generally;<\/p>\n

(C) except as otherwise agreed by the Administrative Agent and the L\/C
\nIssuer, such Letter of Credit is in an initial stated amount less than $500,000;\n<\/p>\n

(D) such Letter of Credit is to be denominated in a currency other than
\nDollars;<\/p>\n

(E) any Lender is at that time a Defaulting Lender, unless the L\/C Issuer has
\nentered into arrangements, including the delivery of Cash Collateral,
\nsatisfactory to the L\/C Issuer (in its sole discretion) with the applicable
\nBorrower or such Lender to eliminate the L\/C Issuer153s actual or potential
\nFronting Exposure<\/p>\n

36<\/p>\n

\n

(after giving effect to Section 2.18(a)(iv)<\/u>) with respect to the
\nDefaulting Lender arising from either the Letter of Credit then proposed to be
\nissued or that Letter of Credit and all other L\/C Obligations as to which the
\nL\/C Issuer has actual or potential Fronting Exposure, as it may elect in its
\nsole discretion; or<\/p>\n

(F) the Letter of Credit contains any provisions for automatic reinstatement
\nof the stated amount after any drawing thereunder.<\/p>\n

(iv) The L\/C Issuer shall not amend any Letter of Credit if the L\/C Issuer
\nwould not be permitted at such time to issue such Letter of Credit in its
\namended form under the terms hereof.<\/p>\n

(v) The L\/C Issuer shall be under no obligation to amend any Letter of Credit
\nif (A) the L\/C Issuer would have no obligation at such time to issue such Letter
\nof Credit in its amended form under the terms hereof, or (B) the beneficiary of
\nsuch Letter of Credit does not accept the proposed amendment to such Letter of
\nCredit.<\/p>\n

(vi) The L\/C Issuer shall act on behalf of the Lenders with respect to any
\nLetters of Credit issued by it and the documents associated therewith, and the
\nL\/C Issuer shall have all of the benefits and immunities (A) provided to the
\nAdministrative Agent in Article IX<\/u> with respect to any acts taken or
\nomissions suffered by the L\/C Issuer in connection with Letters of Credit issued
\nby it or proposed to be issued by it and Issuer Documents pertaining to such
\nLetters of Credit as fully as if the term “Administrative Agent” as used in
\nArticle IX<\/u> included the L\/C Issuer with respect to such acts or
\nomissions, and (B) as additionally provided herein with respect to the L\/C
\nIssuer.<\/p>\n

(b) Procedures for Issuance and Amendment of Letters of Credit;
\nAuto-Extension Letters of Credit<\/u>.<\/p>\n

(i) Each Letter of Credit shall be issued or amended, as the case may be,
\nupon the request of any Borrower delivered to the L\/C Issuer (with a copy to the
\nAdministrative Agent) in the form of a Letter of Credit Application,
\nappropriately completed and signed by a Responsible Officer of such Borrower.
\nSuch Letter of Credit Application must be received by the L\/C Issuer and the
\nAdministrative Agent not later than 11:00 a.m. at least two (2) Business Days
\n(or such later date and time as the Administrative Agent and the L\/C Issuer may
\nagree in a particular instance in their sole discretion) prior to the proposed
\nissuance date or date of amendment, as the case may be. In the case of a request
\nfor an initial issuance of a Letter of Credit, such Letter of Credit Application
\nshall specify in form and detail satisfactory to the L\/C Issuer: (A) the
\nproposed issuance date of the requested Letter of Credit (which shall be a
\nBusiness Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name
\nand address of the beneficiary thereof; (E) the documents to be presented by
\nsuch beneficiary in case of any drawing thereunder; (F) the full text of any
\ncertificate to be presented by such beneficiary in case of any drawing
\nthereunder; (G) the purpose and nature of the requested Letter of Credit; and
\n(H) such other matters as the L\/C Issuer may require. In the case of a request
\nfor an amendment of any outstanding Letter of Credit, such Letter of Credit
\nApplication shall specify in form and detail satisfactory to the L\/C Issuer (1)
\nthe Letter of Credit to be<\/p>\n

37<\/p>\n

\n

amended; (2) the proposed date of amendment thereof (which shall be a
\nBusiness Day); (3) the nature of the proposed amendment; and (4) such other
\nmatters as the L\/C Issuer may require. Additionally, the applicable Borrower
\nshall furnish to the L\/C Issuer and the Administrative Agent such other
\ndocuments and information pertaining to such requested Letter of Credit issuance
\nor amendment, including any Issuer Documents, as the L\/C Issuer or the
\nAdministrative Agent may require.<\/p>\n

(ii) Promptly after receipt of any Letter of Credit Application, the L\/C
\nIssuer will confirm with the Administrative Agent (by telephone or in writing)
\nthat the Administrative Agent has received a copy of such Letter of Credit
\nApplication from the applicable Borrower and, if not, the L\/C Issuer will
\nprovide the Administrative Agent with a copy thereof. Unless the L\/C Issuer has
\nreceived written notice from any Lender, the Administrative Agent or any Loan
\nParty, at least one (1) Business Day prior to the requested date of issuance or
\namendment of the applicable Letter of Credit, that one or more applicable
\nconditions contained in Article IV<\/u> shall not then be satisfied, then,
\nsubject to the terms and conditions hereof, the L\/C Issuer shall, on the
\nrequested date, issue a Letter of Credit for the account of the Company or the
\napplicable Subsidiaries or any other Borrower or enter into the applicable
\namendment, as the case may be, in each case in accordance with the L\/C Issuer153s
\nusual and customary business practices. Immediately upon the issuance of each
\nLetter of Credit, each Lender shall be deemed to, and hereby irrevocably and
\nunconditionally agrees to, purchase from the L\/C Issuer a risk participation in
\nsuch Letter of Credit in an amount equal to the product of such Lender153s
\nApplicable Percentage times<\/u> the amount of such Letter of Credit.<\/p>\n

(iii) If the applicable Borrower so requests in any applicable Letter of
\nCredit Application, the L\/C Issuer may, in its sole discretion, agree to issue a
\nLetter of Credit that has automatic extension provisions (each, an
\n“Auto-Extension Letter of Credit<\/u>“); provided<\/u> that any such
\nAuto-Extension Letter of Credit must permit the L\/C Issuer to prevent any such
\nextension at least once in each twelve-month period (commencing with the date of
\nissuance of such Letter of Credit) by giving prior notice to the beneficiary
\nthereof not later than a day (the “Non-Extension Notice Date<\/u>“) in each
\nsuch twelve-month period to be agreed upon at the time such Letter of Credit is
\nissued. Unless otherwise directed by the L\/C Issuer, the applicable Borrower
\nshall not be required to make a specific request to the L\/C Issuer for any such
\nextension. Once an Auto-Extension Letter of Credit has been issued, the Lenders
\nshall be deemed to have authorized (but may not require) the L\/C Issuer to
\npermit the extension of such Letter of Credit at any time to an expiry date not
\nlater than the Letter of Credit Expiration Date; provided<\/u> that the L\/C
\nIssuer shall not permit any such extension if (A) the L\/C Issuer has determined
\nthat it would not be permitted, or would have no obligation, at such time to
\nissue such Letter of Credit in its revised form (as extended) under the terms
\nhereof (by reason of the provisions of clause (ii)<\/u> or (iii)<\/u> of
\nSection 2.03(a)<\/u> or otherwise), or (B) it has received notice (which may
\nbe by telephone or in writing) on or before the day that is seven Business Days
\nbefore the Non-Extension Notice Date (1) from the Administrative Agent that the
\nRequired Lenders have elected not to permit such extension or (2) from the
\nAdministrative Agent, any Lender or the applicable Borrower that one or more of
\nthe conditions specified in Section 4.02<\/u> is not then satisfied, and in
\neach such case directing the L\/C Issuer not to permit such extension.<\/p>\n

38<\/p>\n

\n

(iv) Promptly after its delivery of any Letter of Credit or any amendment to
\na Letter of Credit to an advising bank with respect thereto or to the
\nbeneficiary thereof, the L\/C Issuer will also deliver to the applicable Borrower
\nand the Administrative Agent a true and complete copy of such Letter of Credit
\nor amendment.<\/p>\n

(c) Drawings and Reimbursements; Funding of Participations<\/u>.<\/p>\n

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice
\nof a drawing under such Letter of Credit, the L\/C Issuer shall notify the
\napplicable Borrower and the Administrative Agent thereof. Not later than 11:00
\na.m. on the date of any payment by the L\/C Issuer under a Letter of Credit (each
\nsuch date, an “Honor Date<\/u>“), the applicable Borrower shall reimburse the
\nL\/C Issuer through the Administrative Agent in an amount equal to the amount of
\nsuch drawing. If the applicable Borrower fails to so reimburse the L\/C Issuer by
\nsuch time, the Administrative Agent shall promptly notify each Lender of the
\nHonor Date, the amount of the unreimbursed drawing (the “Unreimbursed
\nAmount<\/u>“), and the amount of such Lender153s Applicable Percentage thereof. In
\nsuch event, the Company shall be deemed to have requested a Committed Borrowing
\nof Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
\nUnreimbursed Amount, without regard to the minimum and multiples specified in
\nSection 2.02<\/u> for the principal amount of Base Rate Loans, but subject to
\nthe amount of the unutilized portion of the Aggregate Commitments and the
\nconditions set forth in Section 4.02<\/u> (other than the delivery of a
\nCommitted Loan Notice). Any notice given by the L\/C Issuer or the Administrative
\nAgent pursuant to this Section 2.03(c)(i)<\/u> may be given by telephone if
\nimmediately confirmed in writing; provided<\/u> that the lack of such an
\nimmediate confirmation shall not affect the conclusiveness or binding effect of
\nsuch notice.<\/p>\n

(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i)<\/u>
\nmake funds available (and the Administrative Agent may apply Cash Collateral
\nprovided for this purpose) for the account of the L\/C Issuer, in Dollars, at the
\nAdministrative Agent153s Office for Dollar denominated payments in an amount equal
\nto its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m.
\non the Business Day specified in such notice by the Administrative Agent,
\nwhereupon, subject to the provisions of Section 2.03(c)(iii)<\/u>, each Lender
\nthat so makes funds available shall be deemed to have made a Base Rate Committed
\nLoan to the applicable Borrower in such amount. The Administrative Agent shall
\nremit the funds so received to the L\/C Issuer in Dollars.<\/p>\n

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by
\na Committed Borrowing of Base Rate Loans because the conditions set forth in
\nSection 4.02<\/u> cannot be satisfied or for any other reason, the applicable
\nBorrower shall be deemed to have incurred from the L\/C Issuer an L\/C Borrowing
\nin the amount of the Unreimbursed Amount that is not so refinanced, which L\/C
\nBorrowing shall be due and payable on demand (together with interest) and shall
\nbear interest at the Default Rate. In such event, each Lender153s payment to the
\nAdministrative Agent for the account of the L\/C Issuer pursuant to Section
\n2.03(c)(ii)<\/u> shall be deemed payment in respect of its participation in such
\nL\/C Borrowing and shall constitute an L\/C Advance from such Lender in
\nsatisfaction of its participation obligation under this Section 2.03<\/u>.\n<\/p>\n

39<\/p>\n

\n

(iv) Until each Lender funds its Committed Loan or L\/C Advance pursuant to
\nthis Section 2.03(c)<\/u> to reimburse the L\/C Issuer for any amount drawn
\nunder any Letter of Credit, interest in respect of such Lender153s Applicable
\nPercentage of such amount shall be solely for the account of the L\/C Issuer.\n<\/p>\n

(v) Each Lender153s obligation to make Committed Loans or L\/C Advances to
\nreimburse the L\/C Issuer for amounts drawn under Letters of Credit, as
\ncontemplated by this Section 2.03(c)<\/u>, shall be absolute and unconditional
\nand shall not be affected by any circumstance, including (A) any setoff,
\ncounterclaim, recoupment, defense or other right which such Lender may have
\nagainst the L\/C Issuer, the Company, any other Loan Party, any Subsidiary or any
\nother Person for any reason whatsoever; (B) the occurrence or continuance of a
\nDefault, or (C) any other occurrence, event or condition, whether or not similar
\nto any of the foregoing; provided<\/u>, however<\/u>, that each Lender153s
\nobligation to make Committed Loans pursuant to this Section 2.03(c)<\/u> is
\nsubject to the conditions set forth in Section 4.02<\/u> (other than delivery
\nby the Company of a Committed Loan Notice). No such making of an L\/C Advance
\nshall relieve or otherwise impair the obligation of any Borrower to reimburse
\nthe L\/C Issuer for the amount of any payment made by the L\/C Issuer under any
\nLetter of Credit, together with interest as provided herein.<\/p>\n

(vi) If any Lender fails to make available to the Administrative Agent for
\nthe account of the L\/C Issuer any amount required to be paid by such Lender
\npursuant to the foregoing provisions of this Section 2.03(c)<\/u> by the time
\nspecified in Section 2.03(c)(ii)<\/u>, then, without limiting the other
\nprovisions of this Agreement, the L\/C Issuer shall be entitled to recover from
\nsuch Lender (acting through the Administrative Agent), on demand, such amount
\nwith interest thereon for the period from the date such payment is required to
\nthe date on which such payment is immediately available to the L\/C Issuer at a
\nrate per annum equal to the applicable Overnight Rate from time to time in
\neffect, plus<\/u> any administrative, processing or similar fees customarily
\ncharged by the L\/C Issuer in connection with the foregoing. If such Lender pays
\nsuch amount (with interest and fees as aforesaid), the amount so paid shall
\nconstitute such Lender153s Committed Loan included in the relevant Committed
\nBorrowing or L\/C Advance in respect of the relevant L\/C Borrowing, as the case
\nmay be. A certificate of the L\/C Issuer submitted to any Lender (through the
\nAdministrative Agent) with respect to any amounts owing under this clause
\n(vi)<\/u> shall be conclusive absent manifest error.<\/p>\n

(d) Repayment of Participations<\/u>.<\/p>\n

(i) At any time after the L\/C Issuer has made a payment under any Letter of
\nCredit and has received from any Lender such Lender153s L\/C Advance in respect of
\nsuch payment in accordance with Section 2.03(c)<\/u>, if the Administrative
\nAgent receives for the account of the L\/C Issuer any payment in respect of the
\nrelated Unreimbursed Amount or interest thereon (whether directly from the
\napplicable Borrower or otherwise, including proceeds of Cash Collateral applied
\nthereto by the Administrative Agent), the Administrative Agent will distribute
\nto such Lender its Applicable Percentage thereof in the same funds as those
\nreceived by the Administrative Agent.<\/p>\n

40<\/p>\n

\n

(ii) If any payment received by the Administrative Agent for the account of
\nthe L\/C Issuer pursuant to Section 2.03(c)(i)<\/u> is required to be returned
\nunder any of the circumstances described in Section 10.05<\/u> (including
\npursuant to any settlement entered into by the L\/C Issuer in its discretion),
\neach Lender shall pay to the Administrative Agent for the account of the L\/C
\nIssuer its Applicable Percentage thereof on demand of the Administrative Agent,
\nplus interest thereon from the date of such demand to the date such amount is
\nreturned by such Lender, at a rate per annum equal to the applicable Overnight
\nRate from time to time in effect. The obligations of the Lenders under this
\nclause shall survive the payment in full of the Obligations and the termination
\nof this Agreement.<\/p>\n

(e) Obligations Absolute<\/u>. The obligation of the Borrowers to reimburse
\nthe L\/C Issuer for each drawing under each Letter of Credit and to repay each
\nL\/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
\npaid strictly in accordance with the terms of this Agreement under all
\ncircumstances, including the following:<\/p>\n

(i) any lack of validity or enforceability of such Letter of Credit, this
\nAgreement, or any other Loan Document;<\/p>\n

(ii) the existence of any claim, counterclaim, setoff, defense or other right
\nthat the Company, any other Loan Party or any of their respective Subsidiaries
\nmay have at any time against any beneficiary or any transferee of such Letter of
\nCredit (or any Person for whom any such beneficiary or any such transferee may
\nbe acting), the L\/C Issuer or any other Person, whether in connection with this
\nAgreement, the transactions contemplated hereby or by such Letter of Credit or
\nany agreement or instrument relating thereto, or any unrelated transaction;<\/p>\n

(iii) any draft, demand, certificate or other document presented under such
\nLetter of Credit proving to be forged, fraudulent, invalid or insufficient in
\nany respect or any statement therein being untrue or inaccurate in any respect;
\nor any loss or delay in the transmission or otherwise of any document required
\nin order to make a drawing under such Letter of Credit;<\/p>\n

(iv) any payment by the L\/C Issuer under such Letter of Credit against
\npresentation of a draft or certificate that does not strictly comply with the
\nterms of such Letter of Credit; or any payment made by the L\/C Issuer under such
\nLetter of Credit to any Person purporting to be a trustee in bankruptcy,
\ndebtor-in-possession, assignee for the benefit of creditors, liquidator,
\nreceiver or other representative of or successor to any beneficiary or any
\ntransferee of such Letter of Credit, including any arising in connection with
\nany proceeding under any Debtor Relief Law; or<\/p>\n

(v) any other circumstance or happening whatsoever, whether or not similar to
\nany of the foregoing, including any other circumstance that might otherwise
\nconstitute a defense available to, or a discharge of, any Borrower or any of
\ntheir respective Subsidiaries.<\/p>\n

41<\/p>\n

\n

The applicable Borrower shall promptly examine a copy of each Letter of
\nCredit and each amendment thereto that is delivered to it and, in the event of
\nany claim of noncompliance with such Borrower153s instructions or other
\nirregularity, such Borrower will immediately notify the L\/C Issuer. The
\napplicable Borrower shall be conclusively deemed to have waived any such claim
\nagainst the L\/C Issuer and its correspondents unless such notice is given as
\naforesaid.<\/p>\n

(f) Role of L\/C Issuer<\/u>. Each Lender and each Borrower agree that, in
\npaying any drawing under a Letter of Credit, the L\/C Issuer shall not have any
\nresponsibility to obtain any document (other than any sight draft, certificates
\nand documents expressly required by the Letter of Credit) or to ascertain or
\ninquire as to the validity or accuracy of any such document or the authority of
\nthe Person executing or delivering any such document. None of the L\/C Issuer,
\nthe Administrative Agent, any of their respective Related Parties nor any
\ncorrespondent, participant or assignee of the L\/C Issuer shall be liable to any
\nLender for (i) any action taken or omitted in connection herewith at the request
\nor with the approval of the Lenders or the Required Lenders, as applicable; (ii)
\nany action taken or omitted in the absence of gross negligence or willful
\nmisconduct; or (iii) the due execution, effectiveness, validity or
\nenforceability of any document or instrument related to any Letter of Credit or
\nIssuer Document. The Borrowers hereby assume all risks of the acts or omissions
\nof any beneficiary or transferee with respect to their use of any Letter of
\nCredit; provided<\/u>, however<\/u>, that this assumption is not intended
\nto, and shall not, preclude the Borrowers153 pursuing such rights and remedies as
\nit may have against the beneficiary or transferee at law or under any other
\nagreement. None of the L\/C Issuer, the Administrative Agent, any of their
\nrespective Related Parties nor any correspondent, participant or assignee of the
\nL\/C Issuer shall be liable or responsible for any of the matters described in
\nclauses (i)<\/u> through (v<\/u>) of Section 2.03(e)<\/u>;
\nprovided<\/u>, however<\/u>, that anything in such clauses to the contrary
\nnotwithstanding, the Borrowers may have a claim against the L\/C Issuer, and the
\nL\/C Issuer may be liable to the Borrowers, to the extent, but only to the
\nextent, of any direct, as opposed to consequential or exemplary, damages
\nsuffered by the Borrowers which the Borrowers prove were caused by the L\/C
\nIssuer153s willful misconduct or gross negligence or the L\/C Issuer153s willful
\nfailure to pay under any Letter of Credit after the presentation to it by the
\nbeneficiary of a sight draft and certificate(s) strictly complying with the
\nterms and conditions of a Letter of Credit. In furtherance and not in limitation
\nof the foregoing, the L\/C Issuer may accept documents that appear on their face
\nto be in order, without responsibility for further investigation, regardless of
\nany notice or information to the contrary, and the L\/C Issuer shall not be
\nresponsible for the validity or sufficiency of any instrument transferring or
\nassigning or purporting to transfer or assign a Letter of Credit or the rights
\nor benefits thereunder or proceeds thereof, in whole or in part, which may prove
\nto be invalid or ineffective for any reason.<\/p>\n

(g) Applicability of ISP<\/u>. Unless otherwise expressly agreed by the L\/C
\nIssuer and the Company when a Letter of Credit is issued (including any such
\nagreement applicable to an Existing Letter of Credit), the rules of the ISP
\nshall apply to each Letter of Credit.<\/p>\n

(h) Letter of Credit Fees<\/u>. The Company shall pay to the Administrative
\nAgent for the account of each Lender in accordance with its Applicable
\nPercentage, in Dollars, a Letter of Credit fee (the “Letter of Credit
\nFee<\/u>“) for each Letter of Credit equal to the Applicable Rate times<\/u>
\nthe Dollar Equivalent of the daily amount available to be drawn under such
\nLetter of Credit; provided<\/u> that any Letter of Credit Fees otherwise
\npayable for the account of a Defaulting Lender with respect to any Letter of
\nCredit as to which such Defaulting Lender has not provided<\/p>\n

42<\/p>\n

\n

Cash Collateral satisfactory to the L\/C Issuer pursuant to this Section
\n2.03<\/u> shall be payable, to the maximum extent permitted by applicable Law, to
\nthe other Lenders in accordance with the upward adjustments in their respective
\nApplicable Percentages allocable to such Letter of Credit pursuant to
\nSection 2.17(a)(iv)<\/u>, with the balance of such fee, if any, payable to the
\nL\/C Issuer for its own account. For purposes of computing the daily amount
\navailable to be drawn under any Letter of Credit, the amount of such Letter of
\nCredit shall be determined in accordance with Section 1.09<\/u>. Letter of
\nCredit Fees shall be (i) due and payable on the first Business Day after the end
\nof each February, May, August and November, commencing with the first such date
\nto occur after the issuance of such Letter of Credit, on the Letter of Credit
\nExpiration Date and thereafter on demand and (ii) computed on a quarterly basis
\nin arrears. If there is any change in the Applicable Rate during any quarter,
\nthe daily amount available to be drawn under each Letter of Credit shall be
\ncomputed and multiplied by the Applicable Rate separately for each period during
\nsuch quarter that such Applicable Rate was in effect. Notwithstanding anything
\nto the contrary contained herein, upon the request of the Required Lenders.
\nwhile any Event of Default exists, all Letter of Credit Fees shall accrue at the
\nDefault Rate.<\/p>\n

(i) Fronting Fee and Documentary and Processing Charges Payable to L\/C
\nIssuer<\/u>. The Company shall pay directly to the L\/C Issuer for its own account
\na fronting fee with respect to each Letter of Credit, at a rate per annum equal
\nto 0.125%, computed on the Dollar Equivalent of the daily amount available to be
\ndrawn under such Letter of Credit on a quarterly basis in arrears. Such fronting
\nfee shall be due and payable on the tenth Business Day after the end of each
\nFebruary, May, August and November in respect of the most recently-ended
\nquarterly period (or portion thereof, in the case of the first payment),
\ncommencing with the first such date to occur after the issuance of such Letter
\nof Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
\npurposes of computing the daily amount available to be drawn under any Letter of
\nCredit, the amount of such Letter of Credit shall be determined in accordance
\nwith Section 1.09<\/u>. In addition, the Company shall pay directly to the L\/C
\nIssuer for its own account, in Dollars, the customary issuance, presentation,
\namendment and other processing fees, and other standard costs and charges, of
\nthe L\/C Issuer relating to letters of credit as from time to time in effect.
\nSuch customary fees and standard costs and charges are due and payable on demand
\nand are nonrefundable.<\/p>\n

(j) Conflict with Issuer Documents<\/u>. In the event of any conflict
\nbetween the terms hereof and the terms of any Issuer Document, the terms hereof
\nshall control.<\/p>\n

(k) Letters of Credit Issued for Subsidiaries<\/u>. Notwithstanding that a
\nLetter of Credit issued or outstanding hereunder is in support of any
\nobligations of, or is for the account of, a Subsidiary, the Company shall be
\nobligated to reimburse the L\/C Issuer hereunder for any and all drawings under
\nsuch Letter of Credit. The Company hereby acknowledges that the issuance of
\nLetters of Credit for the account of Subsidiaries inures to the benefit of the
\nCompany, and that the Company153s business derives substantial benefits from the
\nbusinesses of such Subsidiaries.<\/p>\n

2.04 Swing Line Loans. <\/strong><\/p>\n

(a) The Swing Line<\/u>. Subject to the terms and conditions set forth
\nherein, the Swing Line Lender agrees, in reliance upon the agreements of the
\nother Lenders set forth in this Section 2.04<\/u>, to make loans in Dollars
\n(each such loan, a “Swing Line Loan<\/u>“) to the Company<\/p>\n

43<\/p>\n

\n

from time to time on any Business Day during the Availability Period in an
\naggregate amount not to exceed at any time outstanding the amount of the Swing
\nLine Sublimit, notwithstanding the fact that such Swing Line Loans, when
\naggregated with the Applicable Percentage of the Outstanding Amount of Committed
\nLoans and L\/C Obligations of the Lender acting as Swing Line Lender, may exceed
\nthe amount of such Lender153s Commitment; provided<\/u> that after giving effect
\nto any Swing Line Loan, (i) the Total Outstandings shall not exceed the
\nAggregate Commitments, (ii) the Total U.S. Revolving Credit Outstandings shall
\nnot exceed the U.S. Revolving Credit Facility at such time, (iii) the Total
\nGlobal Revolving Credit Outstandings shall not exceed the Global Revolving
\nCredit Facility at such time, (iv) the aggregate Outstanding Amount of all Swing
\nLine Loans shall not exceed the Swing Line Sublimit, and (v) the aggregate
\nOutstanding Amount of the Committed Loans of any Lender, plus such Lender153s
\nApplicable Percentage of the Outstanding Amount of all L\/C Obligations, plus
\nsuch Lender153s Applicable Percentage of the Outstanding Amount of all Swing Line
\nLoans shall not exceed such Lender153s Commitment, and provided<\/u>,
\nfurther<\/u>, that the Company shall not use the proceeds of any Swing Line
\nLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits,
\nand subject to the other terms and conditions hereof, the Company may borrow
\nunder this Section 2.04<\/u>, prepay under Section 2.05<\/u>, and reborrow
\nunder this Section 2.04<\/u>. Each Swing Line Loan shall be a Base Rate Loan.
\nImmediately upon the making of a Swing Line Loan, each Lender shall be deemed
\nto, and hereby irrevocably and unconditionally agrees to, purchase from the
\nSwing Line Lender a risk participation in such Swing Line Loan in an amount
\nequal to the product of such Lender153s Applicable Percentage times<\/u> the
\namount of such Swing Line Loan.<\/p>\n

(b) Borrowing Procedures<\/u>. Each Swing Line Borrowing shall be made upon
\nthe Company153s irrevocable notice to the Swing Line Lender and the Administrative
\nAgent, which may be given by telephone. Each such notice must be received by the
\nSwing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
\nrequested borrowing date, and shall specify (i) the amount to be borrowed, which
\nshall be a minimum of $100,000, and (ii) the requested borrowing date, which
\nshall be a Business Day. Each such telephonic notice must be confirmed promptly
\nby delivery to the Swing Line Lender and the Administrative Agent of a written
\nSwing Line Loan Notice, appropriately completed and signed by a Responsible
\nOfficer of the Company. Promptly after receipt by the Swing Line Lender of any
\ntelephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
\nAdministrative Agent (by telephone or in writing) that the Administrative Agent
\nhas also received such Swing Line Loan Notice and, if not, the Swing Line Lender
\nwill notify the Administrative Agent (by telephone or in writing) of the
\ncontents thereof. Unless the Swing Line Lender has received notice (by telephone
\nor in writing) from the Administrative Agent (including at the request of any
\nLender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
\ndirecting the Swing Line Lender not to make such Swing Line Loan as a result of
\nthe limitations set forth in the first proviso to the first sentence of
\nSection 2.04(a)<\/u>, or (B) that one or more of the applicable conditions
\nspecified in Article IV<\/u> is not then satisfied, then, subject to the terms
\nand conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on
\nthe borrowing date specified in such Swing Line Loan Notice, make the amount of
\nits Swing Line Loan available to the Company at its office by crediting the
\naccount of the Company on the books of the Swing Line Lender in Same Day Funds.\n<\/p>\n

(c) Refinancing of Swing Line Loans<\/u>.<\/p>\n

44<\/p>\n

\n

(i) The Swing Line Lender at any time in its sole discretion may request, on
\nbehalf of the Company (which hereby irrevocably authorizes the Swing Line Lender
\nto so request on its behalf), that each Lender make a Base Rate Committed Loan
\nin an amount equal to such Lender153s Applicable Percentage of the amount of Swing
\nLine Loans then outstanding. Such request shall be made in writing (which
\nwritten request shall be deemed to be a Committed Loan Notice for purposes
\nhereof) and in accordance with the requirements of Section 2.02<\/u>, without
\nregard to the minimum and multiples specified therein for the principal amount
\nof Base Rate Loans, but subject to the unutilized portion of the Aggregate
\nCommitments and the conditions set forth in Section 4.02<\/u>. The Swing Line
\nLender shall furnish the Company with a copy of the applicable Committed Loan
\nNotice promptly after delivering such notice to the Administrative Agent. Each
\nLender shall make an amount equal to its Applicable Percentage of the amount
\nspecified in such Committed Loan Notice available to the Administrative Agent in
\nSame Day Funds in Dollars (and the Administrative Agent may apply Cash
\nCollateral available with respect to the applicable Swing Line Loan), for the
\naccount of the Swing Line Lender at the Administrative Agent153s Office for
\nDollar-denominated payments not later than 1:00 p.m. on the day specified in
\nsuch Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii)<\/u>,
\neach Lender that so makes funds available shall be deemed to have made a Base
\nRate Committed Loan to the Company in such amount. The Administrative Agent
\nshall remit the funds so received to the Swing Line Lender.<\/p>\n

(ii) If for any reason any Swing Line Loan cannot be refinanced by such a
\nCommitted Borrowing in accordance with Section 2.04(c)(i)<\/u>, the request
\nfor Base Rate Committed Loans submitted by the Swing Line Lender as set forth
\nherein shall be deemed to be a request by the Swing Line Lender that each of the
\nLenders fund its risk participation in the relevant Swing Line Loan and each
\nLender153s payment to the Administrative Agent for the account of the Swing Line
\nLender pursuant to Section 2.04(c)(i)<\/u> shall be deemed payment in respect
\nof such participation.<\/p>\n

(iii) If any Lender fails to make available to the Administrative Agent for
\nthe account of the Swing Line Lender any amount required to be paid by such
\nLender pursuant to the foregoing provisions of this Section 2.04(c)<\/u> by
\nthe time specified in Section 2.04(c)(i)<\/u>, the Swing Line Lender shall be
\nentitled to recover from such Lender (acting through the Administrative Agent),
\non demand, such amount with interest thereon for the period from the date such
\npayment is required to the date on which such payment is immediately available
\nto the Swing Line Lender at a rate per annum equal to the applicable Overnight
\nRate from time to time in effect, plus<\/u> any administrative, processing or
\nsimilar fees customarily charged by the Swing Line Lender in connection with the
\nforegoing. If such Lender pays such amount (with interest and fees as
\naforesaid), the amount so paid shall constitute such Lender153s Committed Loan
\nincluded in the relevant Committed Borrowing or funded participation in the
\nrelevant Swing Line Loan, as the case may be. A certificate of the Swing Line
\nLender submitted to any Lender (through the Administrative Agent) with respect
\nto any amounts owing under this clause (iii)<\/u> shall be conclusive absent
\nmanifest error.<\/p>\n

(iv) Each Lender153s obligation to make Committed Loans or to purchase and fund
\nrisk participations in Swing Line Loans pursuant to this Section 2.04(c)<\/u>
\nshall be<\/p>\n

45<\/p>\n

\n

absolute and unconditional and shall not be affected by any circumstance,
\nincluding (A) any setoff, counterclaim, recoupment, defense or other right which
\nsuch Lender may have against the Swing Line Lender, the Company or any other
\nPerson for any reason whatsoever, (B) the occurrence or continuance of a
\nDefault, or (C) any other occurrence, event or condition, whether or not similar
\nto any of the foregoing; provided<\/u>, however<\/u>, that each Lender153s
\nobligation to make Committed Loans pursuant to this Section 2.04(c)<\/u> is
\nsubject to the conditions set forth in Section 4.02<\/u>. No such funding of
\nrisk participations shall relieve or otherwise impair the obligation of the
\nCompany to repay Swing Line Loans, together with interest as provided herein.\n<\/p>\n

(d) Repayment of Participations<\/u>.<\/p>\n

(i) At any time after any Lender has purchased and funded a risk
\nparticipation in a Swing Line Loan, if the Swing Line Lender receives any
\npayment on account of such Swing Line Loan, the Swing Line Lender will
\ndistribute to such Lender its Applicable Percentage thereof in the same funds as
\nthose received by the Swing Line Lender.<\/p>\n

(ii) If any payment received by the Swing Line Lender in respect of principal
\nor interest on any Swing Line Loan is required to be returned by the Swing Line
\nLender under any of the circumstances described in Section 10.05<\/u>
\n(including pursuant to any settlement entered into by the Swing Line Lender in
\nits discretion), each Lender shall pay to the Swing Line Lender its Applicable
\nPercentage thereof on demand of the Administrative Agent, plus interest thereon
\nfrom the date of such demand to the date such amount is returned, at a rate per
\nannum equal to the applicable Overnight Rate. The Administrative Agent will make
\nsuch demand upon the request of the Swing Line Lender. The obligations of the
\nLenders under this clause shall survive the payment in full of the Obligations
\nand the termination of this Agreement.<\/p>\n

(e) Interest for Account of Swing Line Lender<\/u>. The Swing Line Lender
\nshall be responsible for invoicing the Company for interest on the Swing Line
\nLoans. Until each Lender funds its Base Rate Committed Loan or risk
\nparticipation pursuant to this Section 2.04<\/u> to refinance such Lender153s
\nApplicable Percentage of any Swing Line Loan, interest in respect of such
\nApplicable Percentage shall be solely for the account of the Swing Line Lender.\n<\/p>\n

(f) Payments Directly to Swing Line Lender<\/u>. The Company shall make all
\npayments of principal and interest in respect of the Swing Line Loans directly
\nto the Swing Line Lender.<\/p>\n

2.05 Prepayments. <\/strong><\/p>\n

(a) Each Borrower may, upon notice from the Company to the Administrative
\nAgent, at any time or from time to time voluntarily prepay Committed Loans in
\nwhole or in part without premium or penalty; provided<\/u> that (i) such
\nnotice must be received by the Administrative Agent not later than 11:00 a.m.
\n(A) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate
\nLoans denominated in Dollars, (B) four (4) Business Days (or five (5), in the
\ncase of prepayment of Loans denominated in Special Notice Currencies) prior to
\nany date of prepayment of Eurocurrency Rate Loans denominated in Alternative
\nCurrencies and (C) on the date of prepayment of Base Rate Committed Loans; (ii)
\nany prepayment of Eurocurrency Rate<\/p>\n

46<\/p>\n

\n

Loans denominated in Dollars shall be in a minimum principal amount of
\n$5,000,000 or a whole multiple of $1,000,000 in excess thereof, (iii) any
\nprepayment of Eurocurrency Rate Loans denominated in Alternative Currencies
\nshall be in a minimum principal amount of the Alternative Currency Equivalent of
\n$5,000,000 or a whole multiple of the Alternative Currency Equivalent of
\n$1,000,000 in excess thereof and (iv) any prepayment of Base Rate Committed
\nLoans shall be in a principal amount of $500,000 or a whole multiple of $100,000
\nin excess thereof or, in each case, if less, the entire principal amount thereof
\nthen outstanding. Each such notice shall specify the date and amount of such
\nprepayment and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency
\nRate Loans are to be prepaid, the Interest Period(s) of such Loans. The
\nAdministrative Agent will promptly notify each Lender of its receipt of each
\nsuch notice, and of the amount of such Lender153s ratable portion of such
\nprepayment (based on such Lender153s Applicable Percentage in respect of the
\ncurrency of the Committed Loans being prepaid). If such notice is given by the
\nCompany, the applicable Borrower shall make such prepayment and the payment
\namount specified in such notice shall be due and payable on the date specified
\ntherein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all
\naccrued interest on the amount prepaid, together with any additional amounts
\nrequired pursuant to Section 3.05<\/u>. Subject to Section 2.17<\/u>, each
\nsuch prepayment shall be applied to the Committed Loans of the Lenders in
\naccordance with their respective Applicable Percentages.<\/p>\n

(b) The Company may, upon notice to the Swing Line Lender (with a copy to the
\nAdministrative Agent), at any time or from time to time, voluntarily prepay
\nSwing Line Loans in whole or in part without premium or penalty; provided<\/u>
\nthat (i) such notice must be received by the Swing Line Lender and the
\nAdministrative Agent not later than 1:00 p.m. on the date of the prepayment, and
\n(ii) any such prepayment shall be in a minimum principal amount of $100,000.
\nEach such notice shall specify the date and amount of such prepayment. If such
\nnotice is given by the Company, the Company shall make such prepayment and the
\npayment amount specified in such notice shall be due and payable on the date
\nspecified therein.<\/p>\n

(c) If for any reason the Total Outstandings at any time exceed an amount
\nequal to 105% of the Aggregate Commitments then in effect, then within two (2)
\nBusiness Days after receipt of notice thereof, the Borrowers shall prepay Loans
\nand\/or the Company shall Cash Collateralize the L\/C Obligations in an aggregate
\namount sufficient to reduce such Outstanding Amount as of such date of payment
\nto an amount not to exceed 100% of the Aggregate Commitments then in effect;
\nprovided<\/u> that the Company shall not be required to Cash Collateralize the
\nL\/C Obligations pursuant to this Section 2.05(c)<\/u> unless after the
\nprepayment in full of the Loans, the Total Outstandings exceed the Aggregate
\nCommitments then in effect.<\/p>\n

(d) If for any reason the Outstanding Amount of Loans denominated in any
\nAlternative Currency under the Global Revolving Credit Facility at any time
\nexceeds an amount equal to 105% of the Global Revolving Credit Facility then in
\neffect, then, within two (2) Business Days after receipt of notice thereof, the
\nBorrowers shall prepay Global Revolving Credit Loans and\/or the Company shall
\nCash Collateralize the L\/C Obligations in an aggregate amount sufficient to
\nreduce such Outstanding Amount as of such date of payment to an amount not to
\nexceed 100% of the Global Revolving Credit Facility then in effect;
\nprovided<\/u> that the Company shall not be required to Cash Collateralize the
\nL\/C Obligations pursuant to this Section 2.05(d)<\/u> unless after the
\nprepayment in full of the Global Revolving Credit Loans, the Total<\/p>\n

47<\/p>\n

\n

Global Revolving Credit Outstandings exceed the Global Revolving Credit
\nCommitments then in effect.<\/p>\n

2.06 Termination or Reduction of Commitments<\/strong>. The Company
\nmay, upon notice to the Administrative Agent, terminate the U.S. Revolving
\nCredit Facility or the Global Revolving Credit Facility, or from time to time
\npermanently reduce the U.S. Revolving Credit Facility or the Global Revolving
\nCredit Facility; provided<\/u> that (i) any such notice shall be received by
\nthe Administrative Agent not later than 11:00 a.m. five (5) Business Days prior
\nto the date of termination or reduction, (ii) any such partial reduction shall
\nbe in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in
\nexcess thereof, (iii) (A) if, after giving effect to any reduction of the U.S.
\nRevolving Credit Facility and to any concurrent prepayments hereunder, the Total
\nU.S. Revolving Credit Outstandings exceed the U.S. Revolving Credit Facility,
\n(B) if, after giving effect to any reduction of the Global Revolving Credit
\nFacility and to any concurrent prepayments hereunder the Total Global Revolving
\nCredit Outstandings exceed the Global Revolving Credit Facility, (C) if, after
\ngiving effect to any reduction of the Letter of Credit Sublimit, the Outstanding
\nAmount of L\/C Obligations not fully Cash Collateralized hereunder exceeds the
\nLetter of Credit Sublimit or (D) if, after giving effect to any reduction of the
\nSwing Line Sublimit and to any concurrent prepayments hereunder, the Outstanding
\nAmount of Swing Line Loans exceed the Swing Line Sublimit, such U.S. Revolving
\nCredit Facility, Global Revolving Credit Facility, Letter of Credit Sublimit
\nand\/or Swing Line Sublimit, as applicable, shall be automatically reduced
\nproportionally by the amount of such excess. The Administrative Agent will
\npromptly notify the Lenders of any such notice of termination or reduction.
\nExcept as otherwise set forth above, the amount of any such U.S. Revolving
\nCredit Commitment and\/or Global Revolving Credit Commitment reduction shall not
\nbe applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless
\notherwise specified by the Company. Any reduction of the U.S. Revolving Credit
\nFacility shall be applied to the U.S. Revolving Credit Commitment of each U.S.
\nRevolving Credit Lender according to its Applicable Percentage. Any reduction of
\nthe Global Revolving Credit Facility shall be applied to the Global Revolving
\nCredit Commitment of each Global Revolving Credit Lender according to its
\nApplicable Percentage. All fees accrued until the effective date of any
\ntermination of the Aggregate Commitments, the U.S. Revolving Credit Commitments
\nand\/or the Global Revolving Credit Commitments shall be paid on the effective
\ndate of such termination.<\/p>\n

2.07 Repayment of Loans. <\/strong><\/p>\n

(a) Each Borrower shall repay to (i) the U.S. Revolving Credit Lenders on the
\nMaturity Date the aggregate principal amount of all U.S. Revolving Credit Loans
\nmade to such Borrower outstanding on such date and (ii) the Global Revolving
\nCredit Lenders on the Maturity Date the aggregate principal amount of all Global
\nRevolving Credit Loans made to such Borrower outstanding on such date.<\/p>\n

(b) The Company shall repay each Swing Line Loan on the earlier to occur of
\n(i) the date ten (10) Business Days after such Loan is made and (ii) the
\nMaturity Date.<\/p>\n

48<\/p>\n

\n

2.08 Interest. <\/strong><\/p>\n

(a) Subject to the provisions of clause (b)<\/u> below, (i) each
\nEurocurrency Rate Loan shall bear interest on the outstanding principal amount
\nthereof for each Interest Period at a rate per annum equal to the Eurocurrency
\nRate for such Interest Period plus<\/u> the Applicable Rate plus<\/u> (in
\nthe case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending
\nOffice in the United Kingdom or a Participating Member State) the Mandatory
\nCost; (ii) each Base Rate Committed Loan shall bear interest on the outstanding
\nprincipal amount thereof from the applicable borrowing date at a rate per annum
\nequal to the Base Rate plus<\/u> the Applicable Rate; and (iii) each Swing
\nLine Loan shall bear interest on the outstanding principal amount thereof from
\nthe applicable borrowing date at a rate per annum equal to the Base Rate
\nplus<\/u> the Applicable Rate for Base Rate Loans.<\/p>\n

(b)(i)If any amount of principal of any Loan is not paid when due (without
\nregard to any applicable grace periods), whether at stated maturity, by
\nacceleration or otherwise, such amount shall thereafter bear interest at a
\nfluctuating interest rate per annum at all times equal to the Default Rate to
\nthe fullest extent permitted by applicable Laws.<\/p>\n

(ii) If any amount (other than principal of any Loan) payable by any Borrower
\nunder any Loan Document is not paid when due (without regard to any applicable
\ngrace periods), whether at stated maturity, by acceleration or otherwise, then
\nupon the request of the Required Lenders, such amount shall thereafter bear
\ninterest at a fluctuating interest rate per annum at all times equal to the
\nDefault Rate to the fullest extent permitted by applicable Laws.<\/p>\n

(iii) Upon the request of the Required Lenders, while any Event of Default
\nexists, the Borrowers shall pay interest on the principal amount of all
\noutstanding Obligations hereunder at a fluctuating interest rate per annum at
\nall times equal to the Default Rate to the fullest extent permitted by
\napplicable Laws.<\/p>\n

(iv) Accrued and unpaid interest on past due amounts (including interest on
\npast due interest) shall be due and payable upon demand.<\/p>\n

(c) Interest on each Loan shall be due and payable in arrears on each
\nInterest Payment Date applicable thereto and at such other times as may be
\nspecified herein. Interest hereunder shall be due and payable in accordance with
\nthe terms hereof before and after judgment, and before and after the
\ncommencement of any proceeding under any Debtor Relief Law.<\/p>\n

2.09 Fees<\/strong>. In addition to certain fees described in
\nclauses (i)<\/u> and (j)<\/u> of Section 2.03<\/u>:<\/p>\n

(a) Commitment Fee<\/u>. The Company shall pay to the Administrative Agent
\nfor the account of each Lender in accordance with its Applicable Percentage, a
\ncommitment fee, in Dollars, equal to the Applicable Rate times<\/u> the actual
\ndaily amount by which the Aggregate Commitments exceed the sum of (i) the
\nOutstanding Amount of Committed Loans and (ii) the Outstanding Amount of L\/C
\nObligations, subject to adjustment as provided in Section 2.17<\/u>. The
\ncommitment fee shall accrue at all times during the Availability Period,
\nincluding at any time during which one or more of the conditions in Article
\nIV<\/u> is not met, and shall be due and payable<\/p>\n

49<\/p>\n

\n

quarterly in arrears on the last Business Day of each February, May, August
\nand November, commencing with the first such date to occur after the Closing
\nDate, and on the last day of the Availability Period. The commitment fee shall
\nbe calculated quarterly in arrears, and if there is any change in the Applicable
\nRate during any quarter, the actual daily amount shall be computed and
\nmultiplied by the Applicable Rate separately for each period during such quarter
\nthat such Applicable Rate was in effect.<\/p>\n

(b) Other Fees<\/u>. (i) The Company shall pay to the Arrangers and the
\nAdministrative Agent for their own respective accounts, in Dollars, fees in the
\namounts and at the times specified in the Fee Letters. Such fees shall be fully
\nearned when paid and shall not be refundable for any reason whatsoever.<\/p>\n

(ii) The Company shall pay to the Lenders, in Dollars, such fees as shall
\nhave been separately agreed upon in writing in the amounts and at the times so
\nspecified. Such fees shall be fully earned when paid and shall not be refundable
\nfor any reason whatsoever.<\/p>\n

2.10 Computation of Interest and Fees; Retroactive Adjustments of
\nApplicable Rate<\/strong>. All computations of interest for Base Rate Loans shall
\nbe made on the basis of a year of 365 or 366 days, as the case may be, and
\nactual days elapsed. All other computations of fees and interest shall be made
\non the basis of a 360-day year and actual days elapsed (which results in more
\nfees or interest, as applicable, being paid than if computed on the basis of a
\n365-day year) or, in the case of interest in respect of Committed Loans
\ndenominated in Alternative Currencies as to which market practice differs from
\nthe foregoing, in accordance with such market practice. Interest shall accrue on
\neach Loan for the day on which the Loan is made, and shall not accrue on a Loan,
\nor any portion thereof, for the day on which the Loan or such portion is paid,
\nprovided<\/u> that any Loan that is repaid on the same day on which it is made
\nshall, subject to Section 2.12(a)<\/u>, bear interest for one (1) day. Each
\ndetermination by the Administrative Agent of an interest rate or fee hereunder
\nshall be conclusive and binding for all purposes, absent manifest error.<\/p>\n

(b) If, as a result of any restatement of or other adjustment to the
\nfinancial statements of the Company or for any other reason, the Company or the
\nLenders determine that (i) the Consolidated Leverage Ratio as calculated by the
\nCompany as of any applicable date was inaccurate and (ii) a proper calculation
\nof the Consolidated Leverage Ratio would have resulted in higher pricing for
\nsuch period, each Borrower shall immediately and retroactively be obligated to
\npay to the Administrative Agent for the account of the applicable Lenders or the
\nL\/C Issuer, as the case may be, promptly on demand by the Administrative Agent
\n(or, after the occurrence of an actual or deemed entry of an order for relief
\nwith respect to any Borrower under any Debtor Relief Law, automatically and
\nwithout further action by the Administrative Agent, any Lender or the L\/C
\nIssuer), an amount equal to the excess of the amount of interest and fees that
\nshould have been paid for such period over the amount of interest and fees
\nactually paid for such period. This clause (b)<\/u> shall not limit the rights
\nof the Administrative Agent, any Lender or the L\/C Issuer, as the case may be,
\nunder Section 2.03(c)(iii)<\/u>, 2.03(i)<\/u> or 2.08(b)<\/u> or under
\nArticle VIII<\/u>. The Borrowers153 obligations under this paragraph shall
\nsurvive the termination of the Aggregate Commitments and the repayment of all
\nother Obligations hereunder.<\/p>\n

50<\/p>\n

\n

2.11 Evidence of Debt. <\/strong><\/p>\n

(a) The Credit Extensions made by each Lender shall be evidenced by one or
\nmore accounts or records maintained by such Lender and by the Administrative
\nAgent in the ordinary course of business. The accounts or records maintained by
\nthe Administrative Agent and each Lender shall be conclusive, absent manifest
\nerror, of the amount of the Credit Extensions made by the Lenders to the
\nBorrowers and the interest and payments thereon. Any failure to so record or any
\nerror in doing so shall not, however, limit or otherwise affect the obligation
\nof the Borrowers hereunder to pay any amount owing with respect to the
\nObligations. In the event of any conflict between the accounts and records
\nmaintained by any Lender and the accounts and records of the Administrative
\nAgent in respect of such matters, the accounts and records of the Administrative
\nAgent shall control in the absence of manifest error. Upon the request of any
\nLender to a Borrower made through the Administrative Agent, such Borrower shall
\nexecute and deliver to such Lender (through the Administrative Agent) a Note,
\nwhich shall evidence such Lender153s Loans to such Borrower in addition to such
\naccounts or records. Each Lender may attach schedules to its Note and endorse
\nthereon the date, Type (if applicable), amount, currency and maturity of its
\nLoans and payments with respect thereto.<\/p>\n

(b) In addition to the accounts and records referred to in clause
\n(a)<\/u>, each Lender and the Administrative Agent shall maintain in accordance
\nwith its usual practice, accounts or records evidencing the purchases and sales
\nby such Lender of participations in Letters of Credit and Swing Line Loans. In
\nthe event of any conflict between the accounts and records maintained by the
\nAdministrative Agent and the accounts and records of any Lender in respect of
\nsuch matters, the accounts and records of the Administrative Agent shall control
\nin the absence of manifest error.<\/p>\n

2.12 Payments Generally; Administrative Agent153s Clawback. <\/strong>\n<\/p>\n

(a) General<\/u>. All payments to be made by the Borrowers shall be made
\nwithout condition or deduction for any counterclaim, defense, recoupment or
\nsetoff. Except as otherwise expressly provided herein and except with respect to
\nprincipal of and interest on Loans denominated in an Alternative Currency, all
\npayments by the Borrowers hereunder shall be made to the Administrative Agent,
\nfor the account of the respective Lenders to which such payment is owed, at the
\nAdministrative Agent153s Office in Dollars and in Same Day Funds not later than
\n2:00 p.m. on the date specified herein. Except as otherwise expressly provided
\nherein, all payments by the Borrowers hereunder with respect to principal and
\ninterest on Loans denominated in an Alternative Currency shall be made to the
\nAdministrative Agent, for the account of the respective Lenders to which such
\npayment is owed, at the applicable Administrative Agent153s Office in such
\nAlternative Currency and in Same Day Funds not later than the Applicable Time
\nspecified by the Administrative Agent on the dates specified herein. Without
\nlimiting the generality of the foregoing, the Administrative Agent may require
\nthat any payments due under this Agreement be made in the United States. If, for
\nany reason, any Borrower is prohibited by any Law from making any required
\npayment hereunder in an Alternative Currency, such Borrower shall make such
\npayment in Dollars in the Dollar Equivalent of the Alternative Currency payment
\namount. The Administrative Agent will promptly distribute to each Lender its
\nApplicable Percentage (or other applicable share as provided herein) of such
\npayment in like funds as received by wire transfer to such Lender153s Lending
\nOffice. All payments received by<\/p>\n

51<\/p>\n

\n

the Administrative Agent (i) after 2:00 p.m., in the case of payments in
\nDollars, or (ii) after the Applicable Time specified by the Administrative Agent
\nin the case of payments in an Alternative Currency, shall in each case be deemed
\nreceived on the next succeeding Business Day and any applicable interest or fee
\nshall continue to accrue. If any payment to be made by any Borrower shall come
\ndue on a day other than a Business Day, payment shall be made on the next
\nfollowing Business Day, and such extension of time shall be reflected in
\ncomputing interest or fees, as the case may be.<\/p>\n

(b) (i) Funding by Lenders; Presumption by Administrative Agent<\/u>.
\nUnless the Administrative Agent shall have received notice from a Lender prior
\nto the proposed date of any Committed Borrowing of Eurocurrency Rate Loans (or,
\nin the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon
\non the date of such Committed Borrowing) that such Lender will not make
\navailable to the Administrative Agent such Lender153s share of such Committed
\nBorrowing, the Administrative Agent may assume that such Lender has made such
\nshare available on such date in accordance with Section 2.02<\/u> (or, in the
\ncase of a Committed Borrowing of Base Rate Loans, that such Lender has made such
\nshare available in accordance with and at the time required by Section
\n2.02<\/u>) and may, in reliance upon such assumption, make available to the
\napplicable Borrower a corresponding amount. In such event, if a Lender has not
\nin fact made its share of the applicable Committed Borrowing available to the
\nAdministrative Agent, then the applicable Lender and the applicable Borrower
\nseverally agree to pay to the Administrative Agent forthwith on demand such
\ncorresponding amount in Same Day Funds with interest thereon, for each day from
\nand including the date such amount is made available to such Borrower to but
\nexcluding the date of payment to the Administrative Agent, at (A) in the case of
\na payment to be made by such Lender, the Overnight Rate plus<\/u> any
\nadministrative, processing or similar fees customarily charged by the
\nAdministrative Agent in connection with the foregoing, and (B) in the case of a
\npayment to be made by such Borrower, the interest rate applicable to Base Rate
\nLoans. If such Borrower and such Lender shall pay such interest to the
\nAdministrative Agent for the same or an overlapping period, the Administrative
\nAgent shall promptly remit to such Borrower the amount of such interest paid by
\nsuch Borrower for such period. If such Lender pays its share of the applicable
\nCommitted Borrowing to the Administrative Agent, then the amount so paid shall
\nconstitute such Lender153s Committed Loan included in such Committed Borrowing.
\nAny payment by such Borrower shall be without prejudice to any claim such
\nBorrower may have against a Lender that shall have failed to make such payment
\nto the Administrative Agent.<\/p>\n

(ii) Payments by Borrowers; Presumptions by Administrative Agent<\/u>.
\nUnless the Administrative Agent shall have received notice from a Borrower prior
\nto the date on which any payment is due to the Administrative Agent for the
\naccount of the Lenders or the L\/C Issuer hereunder that such Borrower will not
\nmake such payment, the Administrative Agent may assume that such Borrower has
\nmade such payment on such date in accordance herewith and may, in reliance upon
\nsuch assumption, distribute to the Lenders or the L\/C Issuer, as the case may
\nbe, the amount due. In such event, if such Borrower has not in fact made such
\npayment, then each of the Lenders or the L\/C Issuer, as the case may be,
\nseverally agrees to repay to the Administrative Agent forthwith on demand the
\namount so distributed to such Lender or the L\/C Issuer, in Same Day Funds with
\ninterest thereon, for each day from and including the date such amount is
\ndistributed<\/p>\n

52<\/p>\n

\n

to it to but excluding the date of payment to the Administrative Agent, at
\nthe Overnight Rate.<\/p>\n

A notice of the Administrative Agent to any Lender or any Borrower with
\nrespect to any amount owing under this clause (b)<\/u> shall be conclusive,
\nabsent manifest error.<\/p>\n

(c) Failure to Satisfy Conditions Precedent<\/u>. If any Lender makes
\navailable to the Administrative Agent funds for any Loan to be made by such
\nLender to any Borrower as provided in the foregoing provisions of this
\nArticle II<\/u>, and such funds are not made available to such Borrower by the
\nAdministrative Agent because the conditions to the applicable Credit Extension
\nset forth in Article IV<\/u> are not satisfied or waived in accordance with
\nthe terms hereof, the Administrative Agent shall return such funds (in like
\nfunds as received from such Lender) to such Lender, without interest.<\/p>\n

(d) Obligations of Lenders Several<\/u>. The obligations of the Lenders
\nhereunder to make Committed Loans, to fund participations in Letters of Credit
\nand Swing Line Loans and to make payments pursuant to Section 10.04(c)<\/u>
\nare several and not joint. The failure of any Lender to make any Committed Loan,
\nto fund any such participation or to make any payment under Section
\n10.04(c)<\/u> on any date required hereunder shall not relieve any other Lender
\nof its corresponding obligation to do so on such date, and no Lender shall be
\nresponsible for the failure of any other Lender to so make its Committed Loan,
\nto purchase its participation or to make its payment under Section
\n10.04(c)<\/u>.<\/p>\n

(e) Funding Source<\/u>. Nothing herein shall be deemed to obligate any
\nLender to obtain the funds for any Loan in any particular place or manner or to
\nconstitute a representation by any Lender that it has obtained or will obtain
\nthe funds for any Loan in any particular place or manner.<\/p>\n

2.13 Sharing of Payments by Lenders<\/strong>. If any Lender shall, by
\nexercising any right of setoff or counterclaim or otherwise, obtain payment in
\nrespect of any principal of or interest on any of the Committed Loans made by
\nit, or the participations in L\/C Obligations or in Swing Line Loans held by it
\nresulting in such Lender153s receiving payment of a proportion of the aggregate
\namount of such Committed Loans or participations and accrued interest thereon
\ngreater than its pro<\/u> rata<\/u> share thereof as provided herein, then
\nthe Lender receiving such greater proportion shall (a) notify the Administrative
\nAgent of such fact, and (b) purchase (for cash at face value) participations in
\nthe Committed Loans and subparticipations in L\/C Obligations and Swing Line
\nLoans of the other Lenders, or make such other adjustments as shall be
\nequitable, so that the benefit of all such payments shall be shared by the
\nLenders ratably in accordance with the aggregate amount of principal of and
\naccrued interest on their respective Committed Loans and other amounts owing
\nthem, provided<\/u> that:<\/p>\n

(i) if any such participations or subparticipations are purchased and all or
\nany portion of the payment giving rise thereto is recovered, such participations
\nor subparticipations shall be rescinded and the purchase price restored to the
\nextent of such recovery, without interest; and<\/p>\n

53<\/p>\n

\n

(ii) the provisions of this Section shall not be construed to apply to (x)
\nany payment made by or on behalf of the Borrower pursuant to and in accordance
\nwith the express terms of this Agreement (including the application of funds
\narising from the existence of a Defaulting Lender), (y) the application of Cash
\nCollateral provided for in Section 2.17<\/u>, or (z) any payment obtained by a
\nLender as consideration for the assignment of or sale of a participation in any
\nof its Committed Loans or subparticipations in L\/C Obligations or Swing Line
\nLoans to any assignee or participant, other than an assignment to the Borrower
\nor any Subsidiary thereof (as to which the provisions of this Section shall
\napply).<\/p>\n

Each Loan Party consents to the foregoing and agrees, to the extent it may
\neffectively do so under applicable Law, that any Lender acquiring a
\nparticipation pursuant to the foregoing arrangements may exercise against such
\nLoan Party rights of setoff and counterclaim with respect to such participation
\nas fully as if such Lender were a direct creditor of such Loan Party in the
\namount of such participation.<\/p>\n

2.14 Designated Borrowers. <\/strong><\/p>\n

(a) Effective as of the date hereof, TIBCO International Holdings BV shall be
\na “Designated Borrower<\/u>” hereunder and may receive Loans for its account
\non the terms and conditions set forth in this Agreement.<\/p>\n

(b) The Company may at any time, upon not less than 15 days153 notice from the
\nCompany to the Administrative Agent (or such shorter period as may be agreed by
\nthe Administrative Agent in its sole discretion), designate any Material
\nSubsidiary (other than an Excluded Subsidiary) of the Company (an “Applicant
\nBorrower<\/u>“) as a Designated Borrower to receive Loans hereunder by delivering
\nto the Administrative Agent (which shall promptly deliver counterparts thereof
\nto each Lender) a duly executed notice and agreement in substantially the form
\nof Exhibit H<\/u> (a “Designated Borrower Request and Assumption
\nAgreement<\/u>“). The parties hereto acknowledge and agree that prior to any
\nApplicant Borrower becoming entitled to utilize the credit facilities provided
\nfor herein, the Administrative Agent and the Lenders shall have received such
\nsupporting resolutions, incumbency certificates, opinions of counsel and other
\ndocuments of the types referred to in clauses (iii)<\/u>, (iv)<\/u>,
\n(v)<\/u> and (vi)<\/u> of Section 4.01(a)<\/u>, in form, content and scope
\nreasonably satisfactory to the Administrative Agent, as may be required by the
\nAdministrative Agent or the Lenders in their sole discretion, and Notes signed
\nby such new Borrowers to the extent any Lender so requires. If the
\nAdministrative Agent and each of the Lenders agree that an Applicant Borrower
\nshall be entitled to receive Loans hereunder, then promptly following receipt of
\nall such requested resolutions, incumbency certificates, opinions of counsel and
\nother documents of the types referred to in clauses (iii)<\/u>, (iv)<\/u>,
\n(v)<\/u> and (vi)<\/u> of Section 4.01(a)<\/u>, the Administrative Agent
\nshall send a notice in substantially the form of Exhibit I<\/u> (a
\n“Designated Borrower Notice<\/u>“) to the Company and each of the Lenders
\nspecifying the effective date upon which the Applicant Borrower shall constitute
\na Designated Borrower for purposes hereof, whereupon each of the Lenders agrees
\nto permit such Designated Borrower to receive Loans hereunder, on the terms and
\nconditions set forth herein, and each of the parties agrees that such Designated
\nBorrower otherwise shall be a Borrower for all purposes of this Agreement;
\nprovided<\/u> that no Committed Loan Notice or Letter of Credit Application
\nmay be submitted by or<\/p>\n

54<\/p>\n

\n

on behalf of such Designated Borrower until the date five (5) Business Days
\nafter such effective date.<\/p>\n

(c) The Obligations of the Company and each Designated Borrower that is a
\nDomestic Subsidiary shall be joint and several in nature. The Obligations of all
\nDesignated Borrowers that are Foreign Subsidiaries shall be several in nature.\n<\/p>\n

(d) Each Subsidiary of the Company that is or becomes a “Designated Borrower”
\npursuant to this Section 2.14<\/u> hereby irrevocably appoints the Company as
\nits agent for all purposes relevant to this Agreement and each of the other Loan
\nDocuments, including (i) the giving and receipt of notices, (ii) the execution
\nand delivery of all documents, instruments and certificates contemplated herein
\nand all modifications hereto, and (iii) the receipt of the proceeds of any Loans
\nmade by the Lenders to any such Designated Borrower hereunder. Any
\nacknowledgment, consent, direction, certification or other action which might
\notherwise be valid or effective only if given or taken by all Borrowers, or by
\neach Borrower acting singly, shall be valid and effective if given or taken only
\nby the Company, whether or not any such other Borrower joins therein. Any
\nnotice, demand, consent, acknowledgement, direction, certification or other
\ncommunication delivered to the Company in accordance with the terms of this
\nAgreement shall be deemed to have been delivered to each Designated Borrower.\n<\/p>\n

(e) The Company may from time to time, upon not less than 15 days153 notice
\nfrom the Company to the Administrative Agent (or such shorter period as may be
\nagreed by the Administrative Agent in its sole discretion), terminate a
\nDesignated Borrower153s status as such; provided that there are no outstanding
\nLoans payable by such Designated Borrower, or other amounts payable by such
\nDesignated Borrower on account of any Loans made to it, as of the effective date
\nof such termination. The Administrative Agent will promptly notify the Lenders
\nof any such termination of a Designated Borrower153s status.<\/p>\n

2.15 Increase in Commitments. <\/strong><\/p>\n

(a) Request for Increase<\/u>. Provided there exists no Default, upon
\nnotice to the Administrative Agent (which shall promptly notify the Lenders),
\nthe Company may from time to time, request an increase in the Aggregate
\nCommitments by an amount (for all such requests) not exceeding $100,000,000;
\nprovided<\/u> that any such request for an increase shall be in a minimum
\namount of $25,000,000 or any whole multiple of $10,000,000 in excess thereof. At
\nthe time of sending such notice, the Company (in consultation with the
\nAdministrative Agent) shall specify the time period within which each Lender is
\nrequested to respond (which shall in no event be less than ten Business Days
\nfrom the date of delivery of such notice to the Lenders).<\/p>\n

(b) Lender Elections to Increase<\/u>. Each Lender shall notify the
\nAdministrative Agent within such time period whether or not it agrees to
\nincrease its Commitment and, if so, whether by an amount equal to, greater than,
\nor less than its Applicable Percentage of such requested increase. Any Lender
\nnot responding within such time period shall be deemed to have declined to
\nincrease its Commitment.<\/p>\n

(c) Notification by Administrative Agent; Additional Lenders<\/u>. The
\nAdministrative Agent shall notify the Company and each Lender of the Lenders153
\nresponses to each request made<\/p>\n

55<\/p>\n

\n

hereunder. To achieve the full amount of a requested increase and subject to
\nthe approval of the Administrative Agent, the L\/C Issuer and the Swing Line
\nLender (which approvals shall not be unreasonably withheld), the Company may
\nalso invite additional Eligible Assignees to become Lenders pursuant to a
\njoinder agreement in form and substance satisfactory to the Administrative Agent
\nand its counsel.<\/p>\n

(d) Effective Date and Allocations<\/u>. If the Aggregate Commitments are
\nincreased in accordance with this Section, the Administrative Agent and the
\nCompany shall determine the effective date (the “Increase Effective
\nDate<\/u>“) and the final allocation of such increase. The Administrative Agent
\nshall promptly notify the Company and the Lenders of the final allocation of
\nsuch increase and the Increase Effective Date.<\/p>\n

(e) Conditions to Effectiveness of Increase<\/u>. As a condition precedent
\nto such increase, the Company shall deliver to the Administrative Agent a
\ncertificate of each Loan Party dated as of the Increase Effective Date (in
\nsufficient copies for each Lender) signed by a Responsible Officer of such Loan
\nParty (x) certifying and attaching the resolutions adopted by such Loan Party
\napproving or consenting to such increase, and (y) in the case of the Company,
\ncertifying that, before and after giving effect to such increase, (A) the
\nrepresentations and warranties contained in Article V<\/u> and the other Loan
\nDocuments are true and correct on and as of the Increase Effective Date, except
\nto the extent that such representations and warranties specifically refer to an
\nearlier date, in which case they are true and correct as of such earlier date,
\nand except that for purposes of this Section 2.15<\/u>, the representations
\nand warranties contained in clauses (a)<\/u> and (b)<\/u> of Section
\n5.05<\/u> shall be deemed to refer to the most recent statements furnished
\npursuant to clauses (a)<\/u> and (b)<\/u>, respectively, of Section
\n6.01<\/u>, and (B) no Default exists. The Company shall prepay any Committed
\nLoans outstanding on the Increase Effective Date (and pay any additional amounts
\nrequired pursuant to Section 3.05<\/u>) to the extent necessary to keep the
\noutstanding Committed Loans ratable with any revised Applicable Percentages
\narising from any nonratable increase in the Commitments under this Section.<\/p>\n

(f) Conflicting Provisions<\/u>. This Section shall supersede any
\nprovisions in Sections 2.13<\/u> or 10.01<\/u> to the contrary.<\/p>\n

2.16 Cash Collateral. <\/strong><\/p>\n

(a) Certain Credit Support Events<\/u>. Upon the request of the
\nAdministrative Agent or the L\/C Issuer, (i) if the L\/C Issuer has honored any
\nfull or partial drawing request under any Letter of Credit and such drawing has
\nresulted in an L\/C Borrowing, or (ii) if, as of the Letter of Credit Expiration
\nDate, any L\/C Obligation for any reason remains outstanding, the Company shall,
\nin each case, immediately Cash Collateralize the then Outstanding Amount of all
\nL\/C Obligations. At any time that there shall exist a Defaulting Lender,
\nimmediately upon the request of the Administrative Agent, the L\/C Issuer or the
\nSwing Line Lender, the Company shall deliver to the Administrative Agent Cash
\nCollateral in an amount sufficient to cover all Fronting Exposure (after giving
\neffect to Section 2.17(a)(iv)<\/u> and any Cash Collateral provided by the
\nDefaulting Lender).<\/p>\n

(b) Grant of Security Interest<\/u>. All Cash Collateral (other than credit
\nsupport not constituting funds subject to deposit) shall be maintained in
\nblocked, non-interest bearing deposit<\/p>\n

56<\/p>\n

\n

accounts at Bank of America. The Company, and to the extent provided by any
\nLender, such Lender, hereby grants to (and subjects to the control of) the
\nAdministrative Agent, for the benefit of the Administrative Agent, the L\/C
\nIssuer and the Lenders (including the Swing Line Lender), and agrees to
\nmaintain, a first priority security interest in all such cash, deposit accounts
\nand all balances therein, and all other property so provided as collateral
\npursuant hereto, and in all proceeds of the foregoing, all as security for the
\nobligations to which such Cash Collateral may be applied pursuant to Section
\n2.16(c)<\/u>. If at any time the Administrative Agent determines that Cash
\nCollateral is subject to any right or claim of any Person other than the
\nAdministrative Agent as herein provided, or that the total amount of such Cash
\nCollateral is less than the applicable Fronting Exposure and other obligations
\nsecured thereby, the Company or the relevant Defaulting Lender will, promptly
\nupon demand by the Administrative Agent, pay or provide to the Administrative
\nAgent additional Cash Collateral in an amount sufficient to eliminate such
\ndeficiency.<\/p>\n

(c) Application<\/u>. Notwithstanding anything to the contrary contained in
\nthis Agreement, Cash Collateral provided under any of this Section 2.16<\/u>
\nor Sections 2.03<\/u>, 2.04<\/u>, 2.05<\/u>, 2.16<\/u> or 8.02<\/u>
\nin respect of Letters of Credit or Swing Line Loans shall be held and applied to
\nthe satisfaction of the specific L\/C Obligations, Swing Line Loans, obligations
\nto fund participations therein (including, as to Cash Collateral provided by a
\nDefaulting Lender, any interest accrued on such obligation) and other
\nobligations for which the Cash Collateral was so provided, prior to any other
\napplication of such property as may be provided for herein.<\/p>\n

(d) Release<\/u>. Cash Collateral (or the appropriate portion thereof)
\nprovided to reduce Fronting Exposure or other obligations shall be released
\npromptly following (i) the elimination of the applicable Fronting Exposure or
\nother obligations giving rise thereto (including by the termination of
\nDefaulting Lender status of the applicable Lender (or, as appropriate, its
\nassignee following compliance with Section 10.06(b)(vi)<\/u>)) or (ii) the
\nAdministrative Agent153s good faith determination that there exists excess Cash
\nCollateral; provided<\/u> that (x) Cash Collateral furnished by or on behalf
\nof a Loan Party shall not be released during the continuance of a Default or
\nEvent of Default (and following application as provided in this Section
\n2.16<\/u> may be otherwise applied in accordance with Section 8.03<\/u>), and
\n(y) the Person providing Cash Collateral and the L\/C Issuer or the Swing Line
\nLender, as applicable, may agree that Cash Collateral shall not be released but
\ninstead held to support future anticipated Fronting Exposure or other
\nobligations.<\/p>\n

2.17 Defaulting Lenders. <\/strong><\/p>\n

(a) Adjustments<\/u>. Notwithstanding anything to the contrary contained in
\nthis Agreement, if any Lender becomes a Defaulting Lender, then, until such time
\nas such Lender is no longer a Defaulting Lender, to the extent permitted by
\napplicable Law:<\/p>\n

(i) Waivers and Amendments<\/u>. Such Defaulting Lender153s right to approve
\nor disapprove any amendment, waiver or consent with respect to this Agreement
\nshall be restricted as set forth in Section 10.01<\/u>.<\/p>\n

(ii) Reallocation of Payments<\/u>. Any payment of principal, interest,
\nfees or other amounts received by the Administrative Agent for the account of
\nsuch Defaulting<\/p>\n

57<\/p>\n

\n

Lender (whether voluntary or mandatory, at maturity, pursuant to Article
\nVIII<\/u> or otherwise, and including any amounts made available to the
\nAdministrative Agent by such Defaulting Lender pursuant to Section
\n10.08<\/u>), shall be applied at such time or times as may be determined by the
\nAdministrative Agent as follows: first<\/u>, to the payment of any amounts
\nowing by such Defaulting Lender to the Administrative Agent hereunder;
\nsecond<\/u>, to the payment on a pro rata basis of any amounts owing by such
\nDefaulting Lender to the L\/C Issuer or the Swing Line Lender hereunder;
\nthird<\/u>, if so determined by the Administrative Agent or requested by the
\nL\/C Issuer or the Swing Line Lender, to be held as Cash Collateral for future
\nfunding obligations of such Defaulting Lender of any participation in any Swing
\nLine Loan or Letter of Credit; fourth<\/u>, as the Company may request (so
\nlong as no Default or Event of Default exists), to the funding of any Loan in
\nrespect of which such Defaulting Lender has failed to fund its portion thereof
\nas required by this Agreement, as determined by the Administrative Agent;
\nfifth<\/u>, if so determined by the Administrative Agent and the Company, to
\nbe held in a non-interest bearing deposit account and released in order to
\nsatisfy obligations of such Defaulting Lender to fund Loans under this
\nAgreement; sixth<\/u>, to the payment of any amounts owing to the Lenders, the
\nL\/C Issuer or the Swing Line Lender as a result of any judgment of a court of
\ncompetent jurisdiction obtained by any Lender, the L\/C Issuer or the Swing Line
\nLender against such Defaulting Lender as a result of such Defaulting Lender153s
\nbreach of its obligations under this Agreement; seventh<\/u>, so long as no
\nDefault or Event of Default exists, to the payment of any amounts owing to any
\nBorrower as a result of any judgment of a court of competent jurisdiction
\nobtained by such Borrower against such Defaulting Lender as a result of such
\nDefaulting Lender153s breach of its obligations under this Agreement; and
\neighth<\/u>, to such Defaulting Lender or as otherwise directed by a court of
\ncompetent jurisdiction; provided<\/u> that if (x) such payment is a payment of
\nthe principal amount of any Loans or L\/C Borrowings in respect of which such
\nDefaulting Lender has not fully funded its appropriate share and (y) such Loans
\nor L\/C Borrowings were made at a time when the conditions set forth in
\nSection 4.02<\/u> were satisfied or waived, such payment shall be applied
\nsolely to pay the Loans of, and L\/C Borrowings owed to, all non-Defaulting
\nLenders on a pro rata basis prior to being applied to the payment of any Loans
\nof, or L\/C Borrowings owed to, such Defaulting Lender. Any payments, prepayments
\nor other amounts paid or payable to a Defaulting Lender that are applied (or
\nheld) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
\npursuant to this Section 2.17(a)(ii)<\/u> shall be deemed paid to and
\nredirected by such Defaulting Lender, and each Lender irrevocably consents
\nhereto.<\/p>\n

(iii) Certain Fees<\/u>. Such Defaulting Lender (x) shall not be entitled
\nto receive any commitment fee pursuant to Section 2.09(a)<\/u> for any period
\nduring which such Lender is a Defaulting Lender (and the Company shall not be
\nrequired to pay any such fee that otherwise would have been required to have
\nbeen paid to such Defaulting Lender) except to extent allocable to the sum of
\n(1) the Outstanding Amount of the Committed Loans funded by it and (2) its
\nApplicable Percentage of the stated amount of Letters of Credit and Swing Line
\nLoans for which it has provided Cash Collateral pursuant to Section
\n2.03<\/u>, Section 2.04<\/u>, Section 2.16<\/u>, or Section
\n2.17(a)(ii)<\/u>, as applicable (and the Company shall (A) be required to pay to
\nthe L\/C Issuer and the Swing Line Lender, as applicable, the amount of such fee
\nallocable to its Fronting Exposure arising from such Defaulting Lender and (B)
\nnot be required to pay the remaining amount of such fee that otherwise<\/p>\n

58<\/p>\n

\n

would have been required to have been paid to such Defaulting Lender) and (y)
\nshall be limited in its right to receive Letter of Credit Fees as provided in
\nSection 2.03(h)<\/u>.<\/p>\n

(iv) Reallocation of Applicable Percentages to Reduce Fronting
\nExposure<\/u>. During any period in which there is a Defaulting Lender, for
\npurposes of computing the amount of the obligation of each non-Defaulting Lender
\nto acquire, refinance or fund participations in Letters of Credit or Swing Line
\nLoans pursuant to Sections 2.03<\/u> and 2.04<\/u>, the “Applicable
\nPercentage” of each non-Defaulting Lender shall be computed without giving
\neffect to the Commitment of such Defaulting Lender; provided<\/u> that (A)
\neach such reallocation shall be given effect only if, at the date the applicable
\nLender becomes a Defaulting Lender, no Default or Event of Default exists; and
\n(B) the aggregate obligation of each non-Defaulting Lender to acquire, refinance
\nor fund participations in Letters of Credit and Swing Line Loans shall not
\nexceed the positive difference, if any, of (1) the Commitment of such
\nnon-Defaulting Lender minus<\/u> (2) the aggregate Outstanding Amount of the
\nCommitted Loans of such Lender.<\/p>\n

(b) Defaulting Lender Cure<\/u>. If the Company, the Administrative Agent,
\nthe Swing Line Lender and the L\/C Issuer agree in writing in their sole
\ndiscretion that a Defaulting Lender should no longer be deemed to be a
\nDefaulting Lender, the Administrative Agent will so notify the parties hereto,
\nwhereupon as of the effective date specified in such notice and subject to any
\nconditions set forth therein (which may include arrangements with respect to any
\nCash Collateral), such Lender will, to the extent applicable, purchase that
\nportion of outstanding Loans of the other Lenders or take such other actions as
\nthe Administrative Agent may determine to be necessary to cause the Committed
\nLoans and funded and unfunded participations in Letters of Credit and Swing Line
\nLoans to be held on a pro rata basis by the Lenders in accordance with their
\nApplicable Percentages (without giving effect to Section 2.17(a)(iv)<\/u>),
\nwhereupon such Lender will cease to be a Defaulting Lender; provided<\/u>
\nthat no adjustments will be made retroactively with respect to fees accrued or
\npayments made by or on behalf of any Borrower while such Lender was a Defaulting
\nLender; and provided<\/u>, further<\/u>, that except to the extent otherwise
\nexpressly agreed by the affected parties, no change hereunder from Defaulting
\nLender to Lender will constitute a waiver or release of any claim of any party
\nhereunder arising from such Lender153s having been a Defaulting Lender.<\/p>\n

ARTICLE III <\/strong><\/p>\n

TAXES, YIELD PROTECTION AND ILLEGALITY <\/strong><\/p>\n

3.01 Taxes. <\/strong><\/p>\n

(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of
\nTaxes<\/u>. (i) Any and all payments by or on account of any obligation of the
\nrespective Borrowers hereunder or under any other Loan Document shall to the
\nextent permitted by applicable Laws be made free and clear of and without
\nreduction or withholding for any Taxes. If, however, applicable Laws require any
\nBorrower or the Administrative Agent to withhold or deduct any Tax, such Tax
\nshall be withheld or deducted in accordance with such Laws as determined by such
\nBorrower or the Administrative Agent, as the case may be, upon the basis of the
\ninformation and documentation to be delivered pursuant to clause (e)<\/u>
\nbelow.<\/p>\n

59<\/p>\n

\n

(ii) If any Borrower or the Administrative Agent shall be required by any
\napplicable Laws to withhold or deduct any Taxes, including United States Federal
\nbackup withholding and withholding taxes, from any payment, then (A) the
\nBorrower or the Administrative Agent, as applicable, shall withhold or make such
\ndeductions as are determined by the Borrower or the Administrative Agent, as
\napplicable, to be required based upon the information and documentation it has
\nreceived pursuant to clause (e)<\/u> below, (B) the Borrower or the
\nAdministrative Agent, as applicable, shall timely pay the full amount withheld
\nor deducted to the relevant Governmental Authority in accordance with applicable
\nLaws, and (C) to the extent that such withholding or deduction is made on
\naccount of Indemnified Taxes or Other Taxes, the sum payable by such Borrower
\nshall be increased as necessary so that after any such required withholding or
\nthe making of all such required deductions (including such deductions applicable
\nto additional sums payable under this Section) the Administrative Agent, Lender
\nor L\/C Issuer, as the case may be, receives an amount equal to the sum it would
\nhave received had no such withholding or deduction been made.<\/p>\n

(b) Payment of Other Taxes by the Borrowers<\/u>. Without limiting the
\nprovisions of clause (a)<\/u> above (but without duplication), each Borrower
\nshall timely pay any Other Taxes to the relevant Governmental Authority in
\naccordance with applicable Laws.<\/p>\n

(c) Tax Indemnifications<\/u>. (i) Without limiting the provisions of
\nclauses (a)<\/u> or (b)<\/u> above (but without duplication), each Borrower
\nshall, and does hereby, indemnify the Administrative Agent, each Lender and the
\nL\/C Issuer, and shall make payment in respect thereof within ten (10) days after
\ndemand therefor, for the full amount of any Indemnified Taxes or Other Taxes
\n(including Indemnified Taxes or Other Taxes imposed or asserted on or
\nattributable to amounts payable under this Section) withheld or deducted by such
\nBorrower or the Administrative Agent or paid by the Administrative Agent, such
\nLender or the L\/C Issuer, as the case may be, and any penalties, interest and
\nreasonable expenses arising therefrom or with respect thereto, whether or not
\nsuch Indemnified Taxes or Other Taxes were correctly or legally imposed or
\nasserted by the relevant Governmental Authority. Each Borrower shall also, and
\ndoes hereby (but without duplication), indemnify the Administrative Agent, and
\nshall make payment in respect thereof within ten (10) days after demand
\ntherefor, for any amount which a Lender or the L\/C Issuer for any reason fails
\nto pay indefeasibly to the Administrative Agent as required by subsection
\n(ii<\/u>) of this clause (c)<\/u>. A certificate as to the amount of any such
\npayment or liability delivered to the relevant Borrower by a Lender or the L\/C
\nIssuer (with a copy to the Administrative Agent), or by the Administrative Agent
\non its own behalf or on behalf of a Lender or the L\/C Issuer, shall be
\nconclusive absent manifest error.<\/p>\n

(ii) Without limiting the provisions of clauses (a)<\/u> or (b)<\/u>
\nabove, each Lender and the L\/C Issuer shall, and does hereby, indemnify each
\nBorrower and the Administrative Agent, and shall make payment in respect thereof
\nwithin ten (10) days after demand therefor, against any and all Taxes and any
\nand all related losses, claims, liabilities, penalties, interest and expenses
\n(including the fees, charges and disbursements of any counsel for such Borrower
\nor the Administrative Agent) incurred by or asserted against such Borrower or
\nthe Administrative Agent by any Governmental Authority as a result of the
\nfailure by such Lender or the L\/C Issuer, as the case may be, to deliver, or as
\na result of the inaccuracy, inadequacy or deficiency of, any documentation
\nrequired to be<\/p>\n

60<\/p>\n

\n

delivered by such Lender or the L\/C Issuer, as the case may be, to such
\nBorrower or the Administrative Agent pursuant to clause (e)<\/u>. Each Lender
\nand the L\/C Issuer hereby authorizes the Administrative Agent to set off and
\napply any and all amounts at any time owing to such Lender or the L\/C Issuer, as
\nthe case may be, under this Agreement or any other Loan Document against any
\namount due to the Administrative Agent under this clause (ii)<\/u>. The
\nagreements in this clause (ii)<\/u> shall survive the resignation and\/or
\nreplacement of the Administrative Agent, any assignment of rights by, or the
\nreplacement of, a Lender or the L\/C Issuer, the termination of the Aggregate
\nCommitments and the repayment, satisfaction or discharge of all other
\nObligations.<\/p>\n

(d) Evidence of Payments<\/u>. Upon request by a Borrower or the
\nAdministrative Agent, as the case may be, after any payment of Taxes by such
\nBorrower or by the Administrative Agent to a Governmental Authority as provided
\nin this Section 3.01<\/u>, such Borrower shall deliver to the Administrative
\nAgent or the Administrative Agent shall deliver to such Borrower, as the case
\nmay be, the original or a certified copy of a receipt issued by such
\nGovernmental Authority evidencing such payment, a copy of any return required by
\nLaws to report such payment or other evidence of such payment reasonably
\nsatisfactory to such Borrower or the Administrative Agent, as the case may be.\n<\/p>\n

(e) Status of Lenders; Tax Documentation<\/u>. (i) Each Lender shall
\ndeliver to the Company and to the Administrative Agent, at the time or times
\nprescribed by applicable Laws or when reasonably requested by the Company or the
\nAdministrative Agent, such properly completed and executed documentation
\nprescribed by applicable Laws or by the taxing authorities of any jurisdiction
\nand such other reasonably requested information as will permit the Company or
\nthe Administrative Agent, as the case may be, to determine (A) whether or not
\npayments made by the respective Borrowers hereunder or under any other Loan
\nDocument are subject to Taxes, (B) if applicable, the required rate of
\nwithholding or deduction, and (C) such Lender153s entitlement to any available
\nexemption from, or reduction of, applicable Taxes in respect of all payments to
\nbe made to such Lender by the respective Borrowers pursuant to this Agreement or
\notherwise to establish such Lender153s status for withholding tax purposes in the
\napplicable jurisdictions.<\/p>\n

(ii) Without limiting the generality of the foregoing, if a Borrower is
\nresident for tax purposes in the United States,<\/p>\n

(A) any Lender that is a “United States person” within the meaning of Section
\n7701(a)(30) of the Code shall deliver to the Company and the Administrative
\nAgent executed originals of Internal Revenue Service Form W-9 or such other
\ndocumentation or information prescribed by applicable Laws or reasonably
\nrequested by the Company on behalf of such Borrower or the Administrative Agent
\nas will enable such Borrower or the Administrative Agent, as the case may be, to
\ndetermine whether or not such Lender is subject to backup withholding or
\ninformation reporting requirements; and<\/p>\n

(B) each Foreign Lender that is entitled under the Code or any applicable
\ntreaty to an exemption from or reduction of withholding tax with respect to
\npayments hereunder or under any other Loan Document shall deliver to<\/p>\n

61<\/p>\n

\n

the Company and the Administrative Agent (in such number of copies as shall
\nbe requested by the recipient) on or prior to the date on which such Foreign
\nLender becomes a Lender under this Agreement (and from time to time thereafter
\nupon the request of the Company on behalf of such Borrower or the Administrative
\nAgent, but only if such Foreign Lender is legally entitled to do so), whichever
\nof the following is applicable:<\/p>\n

(I) executed originals of Internal Revenue Service Form W-8BEN claiming
\neligibility for benefits of an income tax treaty to which the United States is a
\nparty,<\/p>\n

(II) executed originals of Internal Revenue Service Form W-8ECI,<\/p>\n

(III) executed originals of Internal Revenue Service Form W-8IMY and all
\nrequired supporting documentation,<\/p>\n

(IV) in the case of a Foreign Lender claiming the benefits of the exemption
\nfor portfolio interest under section 881(c) of the Code, (x) a certificate to
\nthe effect that such Foreign Lender is not (A) a “bank” within the meaning of
\nsection 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of such
\nBorrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a
\n“controlled foreign corporation” described in section 881(c)(3)(C) of the Code
\nand (y) executed originals of Internal Revenue Service Form W-8BEN, or<\/p>\n

(V) executed originals of any other form prescribed by applicable Laws as a
\nbasis for claiming exemption from or a reduction in United States Federal
\nwithholding tax together with such supplementary documentation as may be
\nprescribed by applicable Laws to permit such Borrower or the Administrative
\nAgent to determine the withholding or deduction required to be made.<\/p>\n

(iii) Each Lender shall promptly (A) notify the Company and the
\nAdministrative Agent of any change in circumstances which would modify or render
\ninvalid any claimed exemption or reduction, and (B) take such steps as shall not
\nbe materially disadvantageous to it, in the reasonable judgment of such Lender,
\nand as may be reasonably necessary (including the re-designation of its Lending
\nOffice) to avoid any requirement of applicable Laws of any jurisdiction that any
\nBorrower or the Administrative Agent make any withholding or deduction for taxes
\nfrom amounts payable to such Lender.<\/p>\n

(iv) Each of the Borrowers shall promptly deliver to the Administrative Agent
\nor any Lender, as the Administrative Agent or such Lender shall reasonably
\nrequest, on or prior to the Closing Date (or such later date on which it first
\nbecomes a Borrower), and in a timely fashion thereafter, such documents and
\nforms required by any relevant taxing authorities under the Laws of any
\njurisdiction, duly executed and completed by such<\/p>\n

62<\/p>\n

\n

Borrower, as are required to be furnished by such Lender or the
\nAdministrative Agent under such Laws in connection with any payment by the
\nAdministrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
\nconnection with the Loan Documents, with respect to such jurisdiction.<\/p>\n

(f) Treatment of Certain Refunds<\/u>. Unless required by applicable Laws,
\nat no time shall the Administrative Agent have any obligation to file for or
\notherwise pursue on behalf of a Lender or the L\/C Issuer, or have any obligation
\nto pay to any Lender or the L\/C Issuer, any refund of Taxes withheld or deducted
\nfrom funds paid for the account of such Lender or the L\/C Issuer, as the case
\nmay be. If the Administrative Agent, any Lender or the L\/C Issuer determines, in
\nits sole discretion, that it has received a refund of any Taxes or Other Taxes
\nas to which it has been indemnified by any Borrower or with respect to which any
\nBorrower has paid additional amounts pursuant to this Section, it shall pay to
\nsuch Borrower an amount equal to such refund (but only to the extent of
\nindemnity payments made, or additional amounts paid, by such Borrower under this
\nSection with respect to the Taxes or Other Taxes giving rise to such refund),
\nnet of all out-of-pocket expenses and net of any loss or gain realized in the
\nconversion of such funds from or to another currency incurred by the
\nAdministrative Agent, such Lender or the L\/C Issuer, as the case may be, and
\nwithout interest (other than any interest paid by the relevant Governmental
\nAuthority with respect to such refund), provided<\/u> that each Borrower, upon
\nthe request of the Administrative Agent, such Lender or the L\/C Issuer, agrees
\nto repay the amount paid over to such Borrower (plus any penalties, interest or
\nother charges imposed by the relevant Governmental Authority) to the
\nAdministrative Agent, such Lender or the L\/C Issuer in the event the
\nAdministrative Agent, such Lender or the L\/C Issuer is required to repay such
\nrefund to such Governmental Authority. This clause (f)<\/u> shall not be
\nconstrued to require the Administrative Agent, any Lender or the L\/C Issuer to
\nmake available its tax returns (or any other information relating to its taxes
\nthat it deems confidential) to any Borrower or any other Person.<\/p>\n

(g) FATCA<\/u>. If a payment made to a Lender or a L\/C Issuer under any
\nLoan Document would be subject to U.S. Federal withholding Tax imposed by FATCA
\nif such Lender or such L\/C Issuer fails to comply with the applicable reporting
\nrequirements of FATCA, such Lender or such L\/C Issuer shall, to the extent
\nlegally entitled, deliver to the Company and the Administrative Agent at the
\ntime or times prescribed by applicable Laws or when reasonably requested by the
\nCompany or the Administrative Agent (i) a certification signed by the chief
\nfinancial officer, principal accounting officer, treasurer or controller and
\n(ii) other documentation prescribed by applicable Laws or reasonably requested
\nby the Company or the Administrative Agent sufficient for the Administrative
\nAgent and the Company to comply with their obligations under FATCA and to
\nestablish that such Lender or such L\/C Issuer has complied with its obligations
\nunder FATCA or to determine the amount to deduct and withhold from such payment.
\nSolely for purposes of this clause (g)<\/u>, FATCA shall include any
\namendments made to FATCA after the date of this Agreement (and thus shall not be
\nlimited to amendments or successor provisions that are substantively comparable
\nto (and not materially more onerous to comply with than) Section 1471 through
\n1474 of the Code as of the date of this Agreement).<\/p>\n

3.02 Illegality<\/strong>. If any Lender determines that any Law has
\nmade it unlawful, or that any Governmental Authority has asserted that it is
\nunlawful, for any Lender or its applicable Lending Office to make, maintain or
\nfund Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
\nCurrency), or to determine or charge interest rates based upon the<\/p>\n

63<\/p>\n

\n

Eurocurrency Rate, or any Governmental Authority has imposed material
\nrestrictions on the authority of such Lender to purchase or sell, or to take
\ndeposits of, Dollars or any Alternative Currency in the applicable interbank
\nmarket, then, on notice thereof by such Lender to the Company through the
\nAdministrative Agent, (i) any obligation of such Lender to make or continue
\nEurocurrency Rate Loans in the affected currency or currencies or, in the case
\nof Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to
\nEurocurrency Rate Loans, shall be suspended, and (ii) if such notice asserts the
\nillegality of such Lender making or maintaining Base Rate Loans the interest
\nrate on which is determined by reference to the Eurocurrency Rate component of
\nthe Base Rate, the interest rate on which Base Rate Loans of such Lender shall,
\nif necessary to avoid such illegality, be determined by the Administrative Agent
\nwithout reference to the Eurocurrency Rate component of the Base Rate, in each
\ncase until such Lender notifies the Administrative Agent and the Company that
\nthe circumstances giving rise to such determination no longer exist. Upon
\nreceipt of such notice, (x) the Borrowers shall, upon demand from such Lender
\n(with a copy to the Administrative Agent), prepay or, if applicable, and such
\nloans are denominated in Dollars convert all Eurocurrency Rate Loans of such
\nLender to Base Rate Loans (the interest rate on which Base Rate Loans of such
\nLender shall, if necessary to avoid such illegality, be determined by the
\nAdministrative Agent without reference to the Eurocurrency Rate component of the
\nBase Rate), either on the last day of the Interest Period therefor, if such
\nLender may lawfully continue to maintain such Eurocurrency Rate Loans to such
\nday, or immediately, if such Lender may not lawfully continue to maintain such
\nEurocurrency Rate Loans and (y) if such notice asserts the illegality of such
\nLender determining or charging interest rates based upon the Eurocurrency Rate,
\nthe Administrative Agent shall during the period of such suspension compute the
\nBase Rate applicable to such Lender without reference to the Eurocurrency Rate
\ncomponent thereof until the Administrative Agent is advised in writing by such
\nLender that it is no longer illegal for such Lender to determine or charge
\ninterest rates based upon the Eurocurrency Rate. Despite the illegality for such
\na Lender to make, maintain or fund Eurocurrency Rate Loans or Base Rate Loans as
\nto which the interest rate is determined with reference to the Eurocurrency
\nRate, such Lender shall remain committed to make Base Rate Loans and shall be
\nentitled to recover interest at the Base Rate. Upon any such prepayment or
\nconversion, the Borrowers shall also pay accrued interest on the amount so
\nprepaid or converted.<\/p>\n

3.03 Inability to Determine Rates<\/strong>. If the Required Lenders
\ndetermine that for any reason in connection with any request for a Eurocurrency
\nRate Loan or a conversion to or continuation thereof that (a) deposits (whether
\nin Dollars or an Alternative Currency) are not being offered to banks in the
\napplicable offshore interbank eurodollar market for such currency for the
\napplicable amount and Interest Period of such Eurocurrency Rate Loan, (b)
\nadequate and reasonable means do not exist for determining the Eurocurrency Rate
\nfor any requested Interest Period with respect to a proposed Eurocurrency Rate
\nLoan (whether denominated in Dollars or an Alternative Currency), or (c) the
\nEurocurrency Rate for any requested Interest Period with respect to a proposed
\nEurocurrency Rate Loan does not adequately and fairly reflect the cost to such
\nLenders of funding such Eurocurrency Rate Loan, the Administrative Agent will
\npromptly so notify the Company and each Lender. Thereafter, the obligation of
\nthe Lenders to make or maintain Eurocurrency Rate Loans in the affected currency
\nor currencies shall be suspended until the Administrative Agent (upon the
\ninstruction of the Required Lenders) revokes such notice. Upon receipt of such
\nnotice, the Company may revoke any pending request for a Borrowing of,
\nconversion to or continuation of Eurocurrency Rate Loans in the affected
\ncurrency or currencies<\/p>\n

64<\/p>\n

\n

or, failing that, will be deemed to have converted such request into a
\nrequest for a Committed Borrowing of Base Rate Loans in the amount specified
\ntherein.<\/p>\n

3.04 Increased Costs; Reserves on Eurocurrency Rate Loans. <\/strong>\n<\/p>\n

(a) Increased Costs Generally<\/u>. If any Change in Law shall:<\/p>\n

(i) impose, modify or deem applicable any reserve, special deposit,
\ncompulsory loan, insurance charge or similar requirement against assets of,
\ndeposits with or for the account of, or credit extended or participated in by,
\nany Lender (except (A) any reserve requirement contemplated by Section
\n3.04(e)<\/u> and (B) the requirements of the Bank of England and the Financial
\nServices Authority or the European Central Bank reflected in the Mandatory Cost,
\nother than as set forth below) or the L\/C Issuer;<\/p>\n

(ii) subject any Lender or the L\/C Issuer to any tax of any kind whatsoever
\nwith respect to this Agreement, any Letter of Credit, any participation in a
\nLetter of Credit or any Eurocurrency Rate Loan made by it, or change the basis
\nof taxation of payments to such Lender or the L\/C Issuer in respect thereof
\n(except for Indemnified Taxes or Other Taxes covered by Section 3.01<\/u> and
\nthe imposition of, or any change in the rate of, any Excluded Tax payable by
\nsuch Lender or the L\/C Issuer);<\/p>\n

(iii) result in the failure of the Mandatory Cost, as calculated hereunder,
\nto represent the cost to any Lender of complying with the requirements of the
\nBank of England and\/or the Financial Services Authority or the European Central
\nBank in relation to its making, funding or maintaining Eurocurrency Rate Loans;
\nor<\/p>\n

(iv) impose on any Lender or the L\/C Issuer or the London interbank market
\nany other condition, cost or expense affecting this Agreement or Eurocurrency
\nRate Loans made by such Lender or any Letter of Credit or participation therein;\n<\/p>\n

and the result of any of the foregoing shall be to increase the cost to such
\nLender of making or maintaining any Eurocurrency Rate Loan (or of maintaining
\nits obligation to make any such Loan), or to increase the cost to such Lender or
\nthe L\/C Issuer of participating in, issuing or maintaining any Letter of Credit
\n(or of maintaining its obligation to participate in or to issue any Letter of
\nCredit), or to reduce the amount of any sum received or receivable by such
\nLender or the L\/C Issuer hereunder (whether of principal, interest or any other
\namount) then, upon request of such Lender or the L\/C Issuer, the Company will
\npay (or cause the applicable Designated Borrower to pay) to such Lender or the
\nL\/C Issuer, as the case may be, such additional amount or amounts as will
\ncompensate such Lender or the L\/C Issuer, as the case may be, for such
\nadditional costs incurred or reduction suffered.<\/p>\n

(b) Capital Requirements<\/u>. If any Lender or the L\/C Issuer determines
\nthat any Change in Law affecting such Lender or the L\/C Issuer or any Lending
\nOffice of such Lender or such Lender153s or the L\/C Issuer153s holding company, if
\nany, regarding capital requirements has or would have the effect of reducing the
\nrate of return on such Lender153s or the L\/C Issuer153s capital or on the capital of
\nsuch Lender153s or the L\/C Issuer153s holding company, if any, as a consequence of
\nthis Agreement, the Commitments of such Lender or the Loans made by, or
\nparticipations in Letters of Credit held by, such Lender, or the Letters of
\nCredit issued by the L\/C Issuer, to a level<\/p>\n

65<\/p>\n

\n

below that which such Lender or the L\/C Issuer or such Lender153s or the L\/C
\nIssuer153s holding company could have achieved but for such Change in Law (taking
\ninto consideration such Lender153s or the L\/C Issuer153s policies and the policies
\nof such Lender153s or the L\/C Issuer153s holding company with respect to capital
\nadequacy), then from time to time the Company will pay (or cause the applicable
\nDesignated Borrower to pay) to such Lender or the L\/C Issuer, as the case may
\nbe, such additional amount or amounts as will compensate such Lender or the L\/C
\nIssuer or such Lender153s or the L\/C Issuer153s holding company for any such
\nreduction suffered.<\/p>\n

(c) Certificates for Reimbursement<\/u>. A certificate of a Lender or the
\nL\/C Issuer setting forth the amount or amounts necessary to compensate such
\nLender or the L\/C Issuer or its holding company, as the case may be, as
\nspecified in clauses (a)<\/u> or (b)<\/u> of this Section and delivered to
\nthe Company shall be conclusive absent manifest error. The Company shall pay (or
\ncause the applicable Designated Borrower to pay) such Lender or the L\/C Issuer,
\nas the case may be, the amount shown as due on any such certificate within ten
\n(10) days after receipt thereof.<\/p>\n

(d) Delay in Requests<\/u>. Failure or delay on the part of any Lender or
\nthe L\/C Issuer to demand compensation pursuant to the foregoing provisions of
\nthis Section shall not constitute a waiver of such Lender153s or the L\/C Issuer153s
\nright to demand such compensation; provided<\/u> that no Borrower shall be
\nrequired to compensate a Lender or the L\/C Issuer pursuant to the foregoing
\nprovisions of this Section for any increased costs incurred or reductions
\nsuffered more than 180 days prior to the date that such Lender or the L\/C
\nIssuer, as the case may be, notifies the Company of the Change in Law giving
\nrise to such increased costs or reductions and of such Lender153s or the L\/C
\nIssuer153s intention to claim compensation therefor (except that, if the Change in
\nLaw giving rise to such increased costs or reductions is retroactive, then the
\n180 day period referred to above shall be extended to include the period of
\nretroactive effect thereof).<\/p>\n

(e) Reserves on Eurocurrency Rate Loans<\/u>. The Company shall pay (or
\ncause the applicable Designated Borrower to pay) to each Lender, (i) as long as
\nsuch Lender shall be required to maintain reserves with respect to liabilities
\nor assets consisting of or including Eurocurrency funds or deposits (currently
\nknown as “Eurocurrency liabilities<\/u>“), additional interest on the unpaid
\nprincipal amount of each Eurocurrency Rate Loan equal to the actual costs of
\nsuch reserves allocated to such Loan by such Lender (as determined by such
\nLender in good faith, which determination shall be conclusive) and (ii) as long
\nas such Lender shall be required to comply with any reserve ratio requirement or
\nanalogous requirement of any central banking or financial regulatory authority
\nimposed in respect of the maintenance of the Commitments or the funding of the
\nEurocurrency Rate Loans, such additional costs (expressed as a percentage per
\nannum and rounded upwards, if necessary, to the nearest five decimal places)
\nequal to the actual costs allocated to such Commitment or Loan by such Lender
\n(as determined by such Lender in good faith, which determination shall be
\nconclusive), which shall be due and payable on each date on which interest is
\npayable on such Loan; provided<\/u> the Company shall have received at least
\nten (10) days153 prior notice (with a copy to the Administrative Agent) of such
\nadditional interest or costs from such Lender. If a Lender fails to give notice
\nten (10) days prior to the relevant Interest Payment Date, such additional
\ninterest or costs shall be due and payable ten (10) days from receipt of such
\nnotice.<\/p>\n

3.05 Compensation for Losses<\/strong>. Upon demand of any Lender
\n(with a copy to the Administrative Agent) from time to time, the Company shall
\npromptly compensate (or cause the<\/p>\n

66<\/p>\n

\n

applicable Designated Borrower to compensate) such Lender for and hold such
\nLender harmless from any loss, cost or expense incurred by it as a result of:\n<\/p>\n

(a) any continuation, conversion, payment or prepayment of any Loan other
\nthan a Base Rate Loan on a day other than the last day of the Interest Period
\nfor such Loan (whether voluntary, mandatory, automatic, by reason of
\nacceleration, or otherwise);<\/p>\n

(b) any failure by any Borrower (for a reason other than the failure of such
\nLender to make a Loan) to prepay, borrow, continue or convert any Loan other
\nthan a Base Rate Loan on the date or in the amount notified by the Company or
\nthe applicable Designated Borrower; or<\/p>\n

(c) any assignment of a Eurocurrency Rate Loan on a day other than the last
\nday of the Interest Period therefor as a result of a request by the Company
\npursuant to Section 10.13<\/u>;<\/p>\n

including any loss of anticipated profits, any foreign exchange losses and
\nany loss or expense arising from the liquidation or reemployment of funds
\nobtained by it to maintain such Loan, from fees payable to terminate the
\ndeposits from which such funds were obtained or from the performance of any
\nforeign exchange contract. The Company shall also pay (or cause the applicable
\nDesignated Borrower to pay) any customary administrative fees charged by such
\nLender in connection with the foregoing.<\/p>\n

For purposes of calculating amounts payable by Company (or the applicable
\nDesignated Borrower) to the Lenders under this Section 3.05<\/u>, each Lender
\nshall be deemed to have funded each Eurocurrency Rate Loan made by it at the
\nEurocurrency Rate for such Loan by a matching deposit or other borrowing in the
\noffshore interbank market for such currency for a comparable amount and for a
\ncomparable period, whether or not such Eurocurrency Rate Loan was in fact so
\nfunded.<\/p>\n

3.06 Mitigation Obligations; Replacement of Lenders. <\/strong><\/p>\n

(a) Designation of a Different Lending Office<\/u>. If any Lender requests
\ncompensation under Section 3.04<\/u>, or any Borrower is required to pay any
\nadditional amount to any Lender, the L\/C Issuer, or any Governmental Authority
\nfor the account of any Lender or the L\/C Issuer pursuant to Section
\n3.01<\/u>, or if any Lender gives a notice pursuant to Section 3.02<\/u>, then
\nsuch Lender or the L\/C Issuer shall, as applicable, use reasonable efforts to
\ndesignate a different Lending Office for funding or booking its Loans hereunder
\nor to assign its rights and obligations hereunder to another of its offices,
\nbranches or affiliates, if, in the judgment of such Lender or the L\/C Issuer,
\nsuch designation or assignment (i) would eliminate or reduce amounts payable
\npursuant to Section 3.01<\/u> or 3.04<\/u>, as the case may be, in the
\nfuture, or eliminate the need for the notice pursuant to Section 3.02<\/u>, as
\napplicable, and (ii) in each case, would not subject such Lender or the L\/C
\nIssuer, as the case may be, to any unreimbursed cost or expense and would not
\notherwise be disadvantageous to such Lender or the L\/C Issuer, as the case may
\nbe. The Company hereby agrees to pay (or cause the applicable Designated
\nBorrower to pay) all reasonable costs and expenses incurred by any Lender or the
\nL\/C Issuer in connection with any such designation or assignment.<\/p>\n

(b) Replacement of Lenders<\/u>. If any Lender requests compensation under
\nSection 3.04<\/u>, or if any Borrower is required to pay any additional amount
\nto any Lender or any<\/p>\n

67<\/p>\n

\n

Governmental Authority for the account of any Lender pursuant to Section
\n3.01<\/u>, the Company may replace such Lender in accordance with Section
\n10.13<\/u>.<\/p>\n

3.07 Survival<\/strong>. All of the Borrowers153 obligations under this
\nArticle III<\/u> shall survive termination of the Aggregate Commitments,
\nrepayment of all other Obligations hereunder, and resignation of the
\nAdministrative Agent.<\/p>\n

ARTICLE IV <\/strong><\/p>\n

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS <\/strong>\n<\/p>\n

4.01 Conditions of Initial Credit Extension<\/strong>. The obligation
\nof the L\/C Issuer and each Lender to make its initial Credit Extension hereunder
\nis subject to satisfaction of the following conditions precedent:<\/p>\n

(a) The Administrative Agent153s receipt of the following, each of which shall
\nbe originals or telecopies (followed promptly by originals) unless otherwise
\nspecified, each properly executed by a Responsible Officer of the signing Loan
\nParty, each dated the Closing Date (or, in the case of certificates of
\ngovernmental officials, a recent date before the Closing Date) and each in form
\nand substance satisfactory to the Administrative Agent and each of the Lenders:\n<\/p>\n

(i) executed counterparts of this Agreement and the Guaranty, sufficient in
\nnumber for distribution to the Administrative Agent, each Lender and the
\nCompany;<\/p>\n

(ii) a Note executed by the Borrowers in favor of each Lender requesting a
\nNote;<\/p>\n

(iii) such certificates of resolutions or other action, incumbency
\ncertificates or other certificates of Responsible Officers of each Loan Party as
\nthe Administrative Agent may require evidencing the identity, authority and
\ncapacity of each Responsible Officer thereof authorized to act as a Responsible
\nOfficer in connection with this Agreement and the other Loan Documents to which
\nsuch Loan Party is a party;<\/p>\n

(iv) such documents and certifications as the Administrative Agent may
\nreasonably require to evidence that each Loan Party is duly organized or formed,
\nand that each Loan Party is validly existing, in good standing and qualified to
\nengage in business in each jurisdiction where its ownership, lease or operation
\nof properties or the conduct of its business requires such qualification, except
\nto the extent that failure to do so could not reasonably be expected to have a
\nMaterial Adverse Effect;<\/p>\n

(v) favorable opinions of Wilson Sonsini Goodrich & Rosati, P.C., U.S.
\ncounsel to the Loan Parties and Baker & McKenzie LLP, Dutch counsel to the
\nLoan Parties, addressed to the Administrative Agent and each Lender, as to the
\nmatters set forth in Exhibit G<\/u> and such other matters concerning the Loan
\nParties and the Loan Documents as the Required Lenders may reasonably request;\n<\/p>\n

(vi) a certificate of a Responsible Officer of the Company either (A)
\nattaching copies of all consents, licenses and approvals required in connection
\nwith the execution, delivery and performance by each Loan Party and the validity
\nagainst each Loan Party of<\/p>\n

68<\/p>\n

\n

the Loan Documents to which each such Loan Party is a party, and such
\nconsents, licenses and approvals shall be in full force and effect, or (B)
\nstating that no such consents, licenses or approvals are so required;<\/p>\n

(vii) a certificate signed by a Responsible Officer of the Company certifying
\n(A) that there has been no event or circumstance since January 28, 2011 that has
\nhad or could be reasonably expected to have, either individually or in the
\naggregate, a Material Adverse Effect and (B) that there is no action, suit,
\ninvestigation or proceeding pending or, to the knowledge of the Company,
\nthreatened in writing in any court or before any arbitrator or governmental
\nauthority that could reasonably be expected to have a Material Adverse Effect.\n<\/p>\n

(viii) evidence that all insurance required to be maintained pursuant to the
\nLoan Documents has been obtained and is in effect; and<\/p>\n

(ix) such other assurances, certificates, documents, consents or opinions as
\nthe Administrative Agent, the L\/C Issuer, the Swing Line Lender or the Required
\nLenders reasonably may require.<\/p>\n

(b) Any fees required to be paid on or before the Closing Date shall have
\nbeen paid.<\/p>\n

(c) Unless waived by the Administrative Agent, the Company shall have paid
\nall fees, charges and disbursements of counsel to the Administrative Agent
\n(directly to such counsel if requested by the Administrative Agent) to the
\nextent invoiced prior to or on the Closing Date.<\/p>\n

Without limiting the generality of the provisions of the last paragraph of
\nSection 9.03<\/u>, for purposes of determining compliance with the conditions
\nspecified in this Section 4.01<\/u>, each Lender that has signed this
\nAgreement shall be deemed to have consented to, approved or accepted or to be
\nsatisfied with, each document or other matter required thereunder to be
\nconsented to or approved by or acceptable or satisfactory to a Lender unless the
\nAdministrative Agent shall have received notice from such Lender prior to the
\nproposed Closing Date specifying its objection thereto.<\/p>\n

4.02 Conditions to all Credit Extensions<\/strong>. The obligation of
\neach Lender to honor any Request for Credit Extension (other than a Committed
\nLoan Notice requesting only a conversion of Committed Loans to the other Type,
\nor a continuation of Eurocurrency Rate Loans) is subject to the following
\nconditions precedent:<\/p>\n

(a) The representations and warranties of the Borrowers and each other Loan
\nParty contained in Article V<\/u> or any other Loan Document, or which are
\ncontained in any document furnished at any time under or in connection herewith
\nor therewith, shall be true and correct on and as of the date of such Credit
\nExtension, except to the extent that such representations and warranties
\nspecifically refer to an earlier date, in which case such representations and
\nwarranties shall be true and correct as of such earlier date, and except that
\nfor purposes of this Section 4.02<\/u>, the representations and warranties
\ncontained in clauses (a)<\/u> and (b)<\/u> of Section 5.05<\/u> shall be
\ndeemed to refer to the most recent statements furnished pursuant to clauses
\n(a)<\/u> and (b)<\/u>, respectively, of Section 6.01<\/u>.<\/p>\n

69<\/p>\n

\n

(b) No Default shall exist, or would result from such proposed Credit
\nExtension or from the application of the proceeds thereof.<\/p>\n

(c) The Administrative Agent and, if applicable, the L\/C Issuer or the Swing
\nLine Lender shall have received a Request for Credit Extension in accordance
\nwith the requirements hereof.<\/p>\n

(d) If the applicable Borrower is a Designated Borrower, then the conditions
\nof Section 2.14<\/u> to the designation of such Borrower as a Designated
\nBorrower shall have been met to the satisfaction of the Administrative Agent.\n<\/p>\n

(e) In the case of a Credit Extension to be denominated in an Alternative
\nCurrency, there shall not have occurred any change in national or international
\nfinancial, political or economic conditions or currency exchange rates or
\nexchange controls which in the reasonable opinion of the Administrative Agent or
\nthe Required Lenders would make it impracticable for such Credit Extension to be
\ndenominated in the relevant Alternative Currency.<\/p>\n

Each Request for Credit Extension (other than a Committed Loan Notice
\nrequesting only a conversion of Committed Loans to the other Type or a
\ncontinuation of Eurocurrency Rate Loans) submitted by the Company shall be
\ndeemed to be a representation and warranty that the conditions specified in
\nSections 4.02(a)<\/u> and (b)<\/u> have been satisfied on and as of the date
\nof the applicable Credit Extension.<\/p>\n

ARTICLE V <\/strong><\/p>\n

REPRESENTATIONS AND WARRANTIES <\/strong><\/p>\n

Each Borrower represents and warrants to the Administrative Agent and the
\nLenders that:<\/p>\n

5.01 Existence, Qualification and Power<\/strong>. Each Loan Party and
\neach Subsidiary thereof (a) is duly organized or formed, validly existing and,
\nas applicable, in good standing under the Laws of the jurisdiction of its
\nincorporation or organization, (b) has all requisite power and authority and all
\nrequisite governmental licenses, authorizations, consents and approvals to (i)
\nown or lease its assets and carry on its business and (ii) execute, deliver and
\nperform its obligations under the Loan Documents to which it is a party, and (c)
\nis duly qualified and is licensed and, as applicable, in good standing under the
\nLaws of each jurisdiction where its ownership, lease or operation of properties
\nor the conduct of its business requires such qualification or license; except in
\nany case to the extent that failure to do so could not reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n

5.02 Authorization; No Contravention<\/strong>. The execution,
\ndelivery and performance by each Loan Party of each Loan Document to which such
\nPerson is party, have been duly authorized by all necessary corporate or other
\norganizational action, and do not and will not (a) contravene the terms of any
\nof such Person153s Organization Documents; (b) conflict with or result in any
\nbreach or contravention of, or the creation of any Lien under, or require any
\npayment to be made under (i) any Contractual Obligation to which such Person is
\na party or affecting such Person or the properties of such Person or any of its
\nSubsidiaries or (ii) any order, injunction, writ or decree of any Governmental
\nAuthority or any arbitral award to which such Person or its property is subject;
\nor (c) violate any Law, except, in each case referred to in clauses (b) and (c),\n<\/p>\n

70<\/p>\n

\n

to the extent that such conflict, breach, contravention, creation, payment or
\nviolation could not reasonably be expected to have a Material Adverse Effect.\n<\/p>\n

5.03 Governmental Authorization; Other Consents<\/strong>. No
\napproval, consent, exemption, authorization, or other action by, or notice to,
\nor filing with, any Governmental Authority or any other Person is necessary or
\nrequired in connection with the execution, delivery or performance by, or
\nenforcement against, any Loan Party of this Agreement or any other Loan Document
\nother than those that have already been obtained and are in full force and
\neffect.<\/p>\n

5.04 Binding Effect<\/strong>. This Agreement has been, and each other
\nLoan Document, when delivered hereunder, will have been, duly executed and
\ndelivered by each Loan Party that is party thereto. This Agreement constitutes,
\nand each other Loan Document when so delivered will constitute, a legal, valid
\nand binding obligation of such Loan Party, enforceable against each Loan Party
\nthat is party thereto in accordance with its terms, except to the extent the
\nenforceability thereof may be limited by Debtor Relief Laws affecting creditors153
\nrights generally and by equitable principles of law (regardless of whether
\nenforcement is sought in equity or at law).<\/p>\n

5.05 Financial Statements; No Material Adverse Effect<\/strong>.<\/p>\n

(a) The Audited Financial Statements (i) were prepared in accordance with
\nGAAP consistently applied throughout the period covered thereby, except as
\notherwise expressly noted therein; (ii) fairly present in all material respects
\nthe financial condition of the Company and its Subsidiaries as of the date
\nthereof and their results of operations for the period covered thereby in
\naccordance with GAAP consistently applied throughout the period covered thereby,
\nexcept as otherwise expressly noted therein; and (iii) show all material
\nindebtedness and other liabilities, direct or contingent, of the Company and its
\nSubsidiaries as of the date thereof, including liabilities for taxes, material
\ncommitments and Indebtedness.<\/p>\n

(b) The unaudited consolidated balance sheet of the Company and its
\nSubsidiaries dated August 31, 2011, and the related consolidated statements of
\nincome or operations, shareholders153 equity and cash flows for the fiscal quarter
\nended on that date (i) were prepared in accordance with GAAP consistently
\napplied throughout the period covered thereby, except as otherwise expressly
\nnoted therein, (ii) fairly present in all material respects the financial
\ncondition of the Company and its Subsidiaries as of the date thereof and their
\nresults of operations for the period covered thereby, subject, in the case of
\nclauses (i)<\/u> and (ii)<\/u>, to the absence of footnotes and to normal
\nyear-end audit adjustments, and (iii) except as set forth on Schedule 5.05 to
\nthe Disclosure Letter, set forth all material indebtedness and other
\nliabilities, direct or contingent, of the Company and its consolidated
\nSubsidiaries as of the date of such financial statements, including liabilities
\nfor taxes, material commitments and Indebtedness.<\/p>\n

(c) Since the date of the Audited Financial Statements, there has been no
\nevent or circumstance, either individually or in the aggregate, that has had or
\ncould reasonably be expected to have a Material Adverse Effect.<\/p>\n

5.06 Litigation<\/strong>. There are no actions, suits, proceedings,
\nclaims or disputes pending or, to the knowledge of a Responsible Officer of the
\nCompany after due and diligent<\/p>\n

71<\/p>\n

\n

investigation, threatened or contemplated, in each case, in writing, at Law,
\nin equity, in arbitration or before any Governmental Authority, by or against
\nthe Company or any of its Subsidiaries or against any of their properties or
\nrevenues that (a) purport to affect or pertain to this Agreement or any other
\nLoan Document, or any of the transactions contemplated hereby, or (b) either
\nindividually or in the aggregate could reasonably be expected to have a Material
\nAdverse Effect.<\/p>\n

5.07 No Default<\/strong>. Neither any Loan Party nor any Subsidiary
\nthereof is in default under or with respect to any Contractual Obligation that
\ncould, either individually or in the aggregate, reasonably be expected to have a
\nMaterial Adverse Effect. No Default has occurred and is continuing or would
\nresult from the consummation of the transactions contemplated by this Agreement
\nor any other Loan Document.<\/p>\n

5.08 Ownership of Property; Liens<\/strong>. Each of the Company and
\neach Subsidiary has good record and marketable title in fee simple to, or valid
\nleasehold interests in, all real property necessary or used in the ordinary
\nconduct of its business, except for such defects in title as could not,
\nindividually or in the aggregate, reasonably be expected to have a Material
\nAdverse Effect. The property of the Company and its Subsidiaries is subject to
\nno Liens, other than Liens permitted by Section 7.01<\/u>.<\/p>\n

5.09 Environmental Compliance<\/strong>. The Company and its
\nSubsidiaries and their respective businesses, operations and properties are in
\ncompliance with, and the Company and its Subsidiaries have no liability under
\nany Environmental Laws, except such Environmental Laws and claims as could not,
\nindividually or in the aggregate, reasonably be expected to have a Material
\nAdverse Effect.<\/p>\n

5.10 Insurance<\/strong>. The properties of the Company and its
\nSubsidiaries are insured with financially sound and reputable insurance
\ncompanies not Affiliates of the Company, in such amounts (after giving effect to
\nany self-insurance compatible with the following standards), with such
\ndeductibles and covering such risks as are customarily carried by companies
\nengaged in similar businesses and owning similar properties in localities where
\nthe Company or the applicable Subsidiary operates.<\/p>\n

5.11 Taxes<\/strong>. The Company and its Subsidiaries have filed all
\nFederal, state and other material tax returns and reports required to be filed,
\nand have paid all Federal, state and other material taxes, assessments, fees and
\nother governmental charges levied or imposed upon them or their properties,
\nincome or assets otherwise due and payable, except those which are being
\ncontested in good faith by appropriate proceedings diligently conducted and for
\nwhich adequate reserves have been provided in accordance with GAAP. There is no
\nproposed tax assessment against the Company or any Subsidiary that would, if
\nmade, have a Material Adverse Effect. No Loan Party is, nor is any Subsidiary
\nthereof, party to any tax sharing agreement.<\/p>\n

5.12 ERISA Compliance. <\/strong><\/p>\n

(a) The Company and each ERISA Affiliate have met all applicable material
\nrequirements under the Pension Funding Rules in respect of each Pension Plan,
\nand no waiver of the minimum funding standards under the Pension Funding Rules
\nhas been applied for or<\/p>\n

72<\/p>\n

\n

obtained. Except to the extent that the following could not reasonably be
\nexpected to materially and adversely affect the Company, as of the most recent
\nvaluation date for any Pension Plan, the funding target attainment percentage
\n(as defined in Section 430(d)(2) of the Code) is 60% or higher and neither the
\nCompany nor any ERISA Affiliate knows of any facts or circumstances that could
\nreasonably be expected to cause the funding target attainment percentage for any
\nsuch plan to drop below 60% as of the most recent valuation date.<\/p>\n

(b) There are no pending or, to the best knowledge of the Company, threatened
\nclaims, actions or lawsuits, or action by any Governmental Authority, with
\nrespect to any Plan that could reasonably be expected to have a Material Adverse
\nEffect. There has been no prohibited transaction or violation of the fiduciary
\nresponsibility rules with respect to any Plan that has resulted or could
\nreasonably be expected to result in a Material Adverse Effect.<\/p>\n

(c)(i) No ERISA Event has occurred, and neither the Company nor any ERISA
\nAffiliate is aware of any fact, event or circumstance that could reasonably be
\nexpected to constitute or result in an ERISA Event with respect to any Pension
\nPlan; (ii) neither the Company nor any ERISA Affiliate has incurred any
\nliability to the PBGC other than for the payment of premiums, and there are no
\npremium payments which have become due that are unpaid; (iii) neither the
\nCompany nor any ERISA Affiliate has engaged in a transaction that could be
\nsubject to Section 4069 or Section 4212(c) of ERISA; and (iv) no Pension Plan
\nhas been terminated by the plan administrator thereof nor by the PBGC, and no
\nevent or circumstance has occurred or exists that could reasonably be expected
\nto cause the PBGC to institute proceedings under Title IV of ERISA to terminate
\nany Pension Plan that, in any of the foregoing cases, has, either individually
\nor in the aggregate, resulted or could reasonably be expected to result in a
\nMaterial Adverse Effect.<\/p>\n

(d) As of the Closing Date, neither the Company or any ERISA Affiliate
\nmaintains or contributes to, or has any unsatisfied obligation to contribute to,
\nor liability under, any active or terminated Pension Plan.<\/p>\n

5.13 Subsidiaries; Equity Interests<\/strong>. As of the Closing Date,
\nthe Company has no (a) Subsidiaries other than those specifically disclosed in
\nPart (a) of Schedule 5.13 to the Disclosure Letter, and (b) equity investments
\nin any other Person other than those specifically disclosed in Part (b) of
\nSchedule 5.13 to the Disclosure Letter. All of the outstanding Equity Interests
\nin (i) the Company have been validly issued and are fully paid and
\nnonassessable, and (ii) each Subsidiary have been validly issued and are fully
\npaid and nonassessable (to the extent applicable), and are owned by a Loan Party
\n(as specified on Part (a) of Schedule 5.13 to the Disclosure Letter, as of the
\nClosing Date and except for directors153 qualifying shares or other nominal
\namounts of shares required to be held by Persons other than a Loan Party and its
\nSubsidiaries under applicable law) free and clear of all Liens.<\/p>\n

5.14 Margin Regulations; Investment Company Act. <\/strong><\/p>\n

(a) No Borrower is engaged and will not engage, principally or as one of its
\nimportant activities, in the business of purchasing or carrying margin stock
\n(within the meaning of Regulation U issued by the FRB), or extending credit for
\nthe purpose of purchasing or carrying margin stock.<\/p>\n

73<\/p>\n

\n

(b) None of the Borrowers, any Person Controlling the Borrowers, or any
\nSubsidiary is or is required to be registered as an “investment company” under
\nthe Investment Company Act of 1940.<\/p>\n

5.15 Disclosure<\/strong>. The Company has disclosed to the
\nAdministrative Agent and the Lenders all agreements, instruments and corporate
\nor other restrictions to which it or any of its Subsidiaries is subject, and all
\nother matters known to it, that, individually or in the aggregate, could
\nreasonably be expected to result in a Material Adverse Effect. No report,
\nfinancial statement, certificate or other information furnished (whether in
\nwriting or orally) by or on behalf of any Loan Party to the Administrative Agent
\nor any Lender in connection with the transactions contemplated hereby and the
\nnegotiation of this Agreement or delivered hereunder or under any other Loan
\nDocument (in each case, as modified or supplemented by other information so
\nfurnished, and when taken together with any disclosures made by the Company in
\nany publicly available filings with the SEC) contains any material misstatement
\nof fact or omits to state any material fact necessary to make the statements
\ntherein, in the light of the circumstances under which they were made, not
\nmisleading; provided<\/u> that with respect to projected financial
\ninformation, the Company represents only that such information was prepared in
\ngood faith based upon assumptions believed to be reasonable at the time.<\/p>\n

5.16 Compliance with Laws<\/strong>. Each Loan Party and each
\nSubsidiary thereof is in compliance in all material respects with the
\nrequirements of all Laws (including Environmental Laws) except in such instances
\nin which (a) such requirement of Law or order, writ, injunction or decree is
\nbeing contested in good faith by appropriate proceedings diligently conducted;
\nor (b) the failure to comply therewith, either individually or in the aggregate,
\ncould not reasonably be expected to have a Material Adverse Effect.<\/p>\n

5.17 Taxpayer Identification Number<\/strong>. Each Borrower153s true
\nand correct U.S. taxpayer identification number, if any, is set forth on
\nSchedule 10.02<\/u> or any applicable Designated Borrower Request and
\nAssumption Agreement.<\/p>\n

5.18 Intellectual Property; Licenses, Etc<\/strong>. The Company and
\nits Subsidiaries own, or possess the right to use, all of the trademarks,
\nservice marks, trade names, copyrights, patents, patent rights, franchises,
\nlicenses and other intellectual property rights (collectively, “IP
\nRights<\/u>“) that are reasonably necessary for the operation of their respective
\nbusinesses, without conflict with the rights of any other Person, except to the
\nextent that (a) the failure to so own or possess, or (b) any such conflict, in
\neither case, could not reasonably be expected to have a Material Adverse Effect.
\nExcept for such infringements that, either individually or in the aggregate,
\ncould not reasonably be expected to have a Material Adverse Effect, no slogan or
\nother advertising device, product, process, method, substance, part or other
\nmaterial now employed, or now contemplated to be employed, by the Company or any
\nSubsidiary infringes upon any rights held by any other Person. No claim or
\nlitigation regarding any of the foregoing is pending or, to the best knowledge
\nof the Company, threatened in writing, which, either individually or in the
\naggregate, could reasonably be expected to have a Material Adverse Effect.<\/p>\n

5.19 Solvency. <\/strong>The Loan Parties are Solvent on a
\nconsolidated basis.<\/p>\n

74<\/p>\n

\n

5.20 Representations as to Foreign Obligors<\/strong>. Each Foreign
\nObligor represents and warrants to the Administrative Agent and the Lenders
\nthat:<\/p>\n

(a) Such Foreign Obligor is subject to civil and commercial Laws of the
\njurisdiction in which such Foreign Obligor is organized and existing with
\nrespect to its obligations under this Agreement and the other Loan Documents to
\nwhich it is a party (collectively as to such Foreign Obligor, the
\n“Applicable Foreign Obligor Documents<\/u>“), and the execution, delivery and
\nperformance by such Foreign Obligor of the Applicable Foreign Obligor Documents
\nconstitute and will constitute private and commercial acts and not public or
\ngovernmental acts. Neither such Foreign Obligor nor any of its property has any
\nimmunity from jurisdiction of any court or from any legal process (whether
\nthrough service or notice, attachment prior to judgment, attachment in aid of
\nexecution, execution or otherwise) under the laws of the jurisdiction in which
\nsuch Foreign Obligor is organized and existing in respect of its obligations
\nunder the Applicable Foreign Obligor Documents.<\/p>\n

(b) The Applicable Foreign Obligor Documents are in proper legal form under
\nthe Laws of the jurisdiction in which such Foreign Obligor is organized and
\nexisting for the enforcement thereof against such Foreign Obligor under the Laws
\nof such jurisdiction, and to ensure the legality, validity, enforceability,
\npriority or admissibility in evidence of the Applicable Foreign Obligor
\nDocuments. It is not necessary to ensure the legality, validity, enforceability,
\npriority or admissibility in evidence of the Applicable Foreign Obligor
\nDocuments that the Applicable Foreign Obligor Documents be filed, registered or
\nrecorded with, or executed or notarized before, any court or other authority in
\nthe jurisdiction in which such Foreign Obligor is organized and existing or that
\nany registration charge or stamp or similar tax be paid on or in respect of the
\nApplicable Foreign Obligor Documents or any other document, except for (i) any
\nsuch filing, registration, recording, execution or notarization as has been made
\nor is not required to be made until the Applicable Foreign Obligor Document or
\nany other document is sought to be enforced and (ii) any charge or tax as has
\nbeen timely paid.<\/p>\n

(c) There is no tax, levy, impost, duty, fee, assessment or other
\ngovernmental charge, or any deduction or withholding, imposed by any
\nGovernmental Authority in or of the jurisdiction in which such Foreign Obligor
\nis organized and existing either (i) on or by virtue of the execution or
\ndelivery of the Applicable Foreign Obligor Documents or (ii) on any payment to
\nbe made by such Foreign Obligor pursuant to the Applicable Foreign Obligor
\nDocuments, except as has been disclosed to the Administrative Agent.<\/p>\n

(d) The execution, delivery and performance of the Applicable Foreign Obligor
\nDocuments executed by such Foreign Obligor are, under applicable foreign
\nexchange control regulations of the jurisdiction in which such Foreign Obligor
\nis organized and existing, not subject to any notification or authorization
\nexcept (i) such as have been made or obtained or (ii) such as cannot be made or
\nobtained until a later date; provided<\/u> that any notification or
\nauthorization described in clause (ii)<\/u> shall be made or obtained as soon
\nas is reasonably practicable.<\/p>\n

(e) The choice of governing law of the Loan Documents will be recognized and
\nenforced in each jurisdiction in which a Foreign Obligor is organized and
\nexisting and each jurisdiction in which Collateral in respect of a Foreign
\nObligor is located. Any judgment<\/p>\n

75<\/p>\n

\n

obtained in relation to a Loan Document in the jurisdiction of the governing
\nlaw of such Loan Document will be recognized and enforced in each jurisdiction a
\nForeign Obligor is organized and existing and each jurisdiction in which
\nCollateral in respect of a Foreign Obligor is located.<\/p>\n

(f) For the purposes of The Council of the European Union Regulation No.
\n1346\/2000 on Insolvency Proceedings (the “Regulation<\/u>“), each applicable
\nForeign Obligor153s centre of main interest (as that term is used in Article 3(1)
\nof the Regulation) is situated in the jurisdiction set forth on Schedule 5.20 to
\nthe Disclosure Letter, as may be updated upon the designation of additional
\nDesignated Borrowers, and it has no “establishment” (as that term is used in
\nArticle 2(h) of the Regulation) in any other jurisdiction.<\/p>\n

5.21 Pari Passu Ranking<\/strong>. The payment obligations of each
\nForeign Obligor under the Loan Documents rank at least pari passu<\/em> with
\nthe claims of all its other unsecured and unsubordinated creditors, except for
\nobligations mandatorily preferred by applicable Law generally.<\/p>\n

ARTICLE VI <\/strong><\/p>\n

AFFIRMATIVE COVENANTS <\/strong><\/p>\n

So long as any Lender shall have any Commitment hereunder, any Loan or other
\nObligation (other than contingent indemnity obligations in respect of which no
\nclaim has been asserted or any Obligations under any Covered Cash Management
\nAgreement or Covered Hedge Agreement) hereunder shall remain unpaid or
\nunsatisfied, or any Letter of Credit shall remain outstanding, each Borrower
\nshall, and shall (except in the case of the covenants set forth in Sections
\n6.01<\/u>, 6.02<\/u>, and 6.03<\/u>) cause each Subsidiary to:<\/p>\n

6.01 Financial Statements. <\/strong>Deliver to the Administrative
\nAgent and each Lender:<\/p>\n

(a) as soon as available, but in any event within ninety (90) days after the
\nend of each fiscal year of the Company (commencing with the fiscal year ended
\nNovember 30, 2011), a consolidated balance sheet of the Company and its
\nSubsidiaries as at the end of such fiscal year, and the related consolidated
\nstatements of operations, and cash flows for such fiscal year, setting forth in
\neach case in comparative form the figures for the previous fiscal year, all in
\nreasonable detail and prepared in accordance with GAAP, such consolidated
\nstatements to be audited and accompanied by a report and opinion of an
\nindependent certified public accountant of nationally recognized standing
\nreasonably acceptable to the Administrative Agent, which report and opinion
\nshall be prepared in accordance with generally accepted auditing standards and
\nshall not be subject to any “going concern” or like qualification or exception
\nor any qualification or exception as to the scope of such audit; and<\/p>\n

(b) as soon as available, but in any event within forty-five (45) days after
\nthe end of each of the first three (3) fiscal quarters of each fiscal year of
\nthe Company (commencing with the fiscal quarter ended February 28, 2012), a
\nconsolidated balance sheet of the Company and its Subsidiaries as at the end of
\nsuch fiscal quarter, the related consolidated statements of operations for such
\nfiscal quarter and for the portion of the Company153s fiscal year then ended, and
\nthe related consolidated statements of cash flows for the portion of the
\nCompany153s fiscal year then ended, in each case setting forth in comparative
\nform, as applicable, the figures for the<\/p>\n

76<\/p>\n

\n

corresponding fiscal quarter of the previous fiscal year and the
\ncorresponding portion of the previous fiscal year, all in reasonable detail,
\ncertified by the chief executive officer, chief financial officer, treasurer or
\ncontroller of the Company as fairly presenting in all material respects the
\nfinancial condition, results of operations and cash flows of the Company and its
\nSubsidiaries in accordance with GAAP, subject only to normal year-end audit
\nadjustments and the absence of footnotes.<\/p>\n

As to any information contained in materials furnished pursuant to
\nSection 6.02<\/u>(b), the Company shall not be separately required to furnish
\nsuch information under clause (a)<\/u> or (b)<\/u> above, but the foregoing
\nshall not be in derogation of the obligation of the Company to furnish the
\ninformation and materials described in clauses (a)<\/u> and (b)<\/u> above
\nat the times specified therein.<\/p>\n

6.02 Certificates; Other Information<\/strong>. Deliver to the
\nAdministrative Agent and each Lender, in form and detail satisfactory to the
\nAdministrative Agent and the Required Lenders:<\/p>\n

(a) within five (5) Business Days after the delivery of the financial
\nstatements referred to in Sections 6.01(a)<\/u> and (b)<\/u> (commencing
\nwith the delivery of the financial statements for the fiscal year ended November
\n30, 2011), a duly completed Compliance Certificate signed by the chief executive
\nofficer, chief financial officer, treasurer or controller of the Company;<\/p>\n

(b) promptly after the same are available, copies of each annual report,
\nproxy or financial statement or other report or communication sent to the
\nstockholders of the Company, and copies of all annual, regular, periodic and
\nspecial reports and registration statements which the Company may file or be
\nrequired to file with the SEC under Section 13 or 15(d) of the Securities
\nExchange Act of 1934, and not otherwise required to be delivered to the
\nAdministrative Agent pursuant hereto;<\/p>\n

(c) promptly after the furnishing thereof, copies of any statement or report
\nfurnished to any holder of debt securities of any Loan Party or any Subsidiary
\nthereof pursuant to the terms of any indenture, loan or credit or similar
\nagreement and not otherwise required to be furnished to the Lenders pursuant to
\nSection 6.01<\/u> or any other clause of this Section 6.02<\/u>;<\/p>\n

(d) promptly, and in any event within five (5) Business Days after receipt
\nthereof by any Loan Party or any Subsidiary thereof, copies of each notice or
\nother correspondence received from the SEC (or comparable agency in any
\napplicable non-U.S. jurisdiction) concerning any investigation (or possible
\ninvestigation or other inquiry that the Company believes is reasonably likely to
\nlead to an investigation) by such agency regarding financial or other
\noperational results of any Loan Party or any Subsidiary thereof;<\/p>\n

(e) promptly after receipt thereof, copies of any notices of the termination
\nor lapse of any insurance required to be maintained under Section 6.07<\/u>;
\nand<\/p>\n

(f) promptly, such additional information regarding the business, financial
\nor corporate affairs of the Company or any Subsidiary, or compliance with the
\nterms of the Loan Documents, as the Administrative Agent or any Lender may from
\ntime to time reasonably request.<\/p>\n

77<\/p>\n

\n

Documents required to be delivered pursuant to Section 6.01(a)<\/u> or
\n(b)<\/u> or Section 6.02(b)<\/u> (to the extent any such documents are
\nincluded in materials otherwise filed with the SEC) may be delivered
\nelectronically and if so delivered, shall be deemed to have been delivered on
\nthe date (i) on which the Company posts such documents, or provides a link
\nthereto on the Company153s website on the Internet at the website address listed
\non Schedule 10.02<\/u>; or (ii) on which such documents are posted on the
\nCompany153s behalf on an Internet or intranet website, if any, to which each
\nLender and the Administrative Agent have access (whether a commercial,
\nthird-party website or whether sponsored by the Administrative Agent);
\nprovided<\/u> that the Company shall notify the Administrative Agent and each
\nLender (by telecopier or electronic mail) of the posting of any such documents.
\nNotwithstanding anything contained herein, in every instance the Company shall
\nbe required to provide paper copies (including by means of .pdf files showing
\nmanual signatures) of the Compliance Certificates required by Section
\n6.02(a)<\/u> to the Administrative Agent. Except for such Compliance
\nCertificates, the Administrative Agent shall have no obligation to request the
\ndelivery or to maintain copies of the documents referred to above, and in any
\nevent shall have no responsibility to monitor compliance by the Company with any
\nsuch request for delivery, and each Lender shall be solely responsible for
\nmaintaining its copies of such documents.<\/p>\n

Each Borrower hereby acknowledges that (a) the Administrative Agent and\/or
\nthe Arrangers will make available to the Lenders and the L\/C Issuer materials or
\ninformation provided by or on behalf of such Borrower hereunder (collectively,
\n“Borrower Materials<\/u>“) by posting the Borrower Materials on IntraLinks or
\nanother similar electronic system (the “Platform<\/u>“) and (b) certain of the
\nLenders (each, a “Public Lender<\/u>“) may have personnel who do not wish to
\nreceive material non-public information with respect to such Borrower or its
\nAffiliates, or the respective securities of any of the foregoing, and who may be
\nengaged in investment and other market-related activities with respect to such
\nPersons153 securities. Each Borrower hereby agrees that so long as such Borrower
\nis the issuer of any outstanding debt or equity securities that are registered
\nor issued pursuant to a private offering or is actively contemplating issuing
\nany such securities (w) all Borrower Materials that are to be made available to
\nPublic Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
\nminimum, shall mean that the word “PUBLIC” shall appear prominently on the first
\npage thereof; (x) by marking Borrower Materials “PUBLIC,” such Borrower shall be
\ndeemed to have authorized the Administrative Agent, each Arranger, the L\/C
\nIssuer and the Lenders to treat such Borrower Materials as not containing any
\nmaterial non-public information with respect to such Borrower or its securities
\nfor purposes of United States Federal and state securities laws
\n(provided<\/u>, however<\/u>, that to the extent such Borrower Materials
\nconstitute Information, they shall be treated as set forth in Section
\n10.07<\/u>); (y) all Borrower Materials marked “PUBLIC” are permitted to be made
\navailable through a portion of the Platform designated “Public Side
\nInformation;” and (z) the Administrative Agent and each Arranger shall be
\nentitled to treat the Borrower Materials that are not marked “PUBLIC” as being
\nsuitable only for posting on a portion of the Platform that is not designated
\n“Public Side Information.”<\/p>\n

6.03 Notices<\/strong>. Promptly notify the Administrative Agent and
\neach Lender:<\/p>\n

(a) of the occurrence of any Default;<\/p>\n

78<\/p>\n

\n

(b) of the occurrence of any event or matter that has resulted or could
\nreasonably be expected to result in a Material Adverse Effect, including (i)
\nbreach or non-performance of, or any default under, a Contractual Obligation of
\nthe Company or any Subsidiary; (ii) any dispute, litigation, investigation,
\nproceeding or suspension between the Company or any Subsidiary and any
\nGovernmental Authority; (iii) the commencement of, or any material development
\nin, any litigation or proceeding affecting the Company or any Subsidiary,
\nincluding pursuant to any applicable Environmental Laws; (iv) Disposition by the
\nCompany or any Subsidiary; or (v) the incurrence of Indebtedness by the Company
\nor any Subsidiary of the Company;<\/p>\n

(c) of the occurrence of (i) any ERISA Event and (ii) any event pursuant to
\nwhich the Company or any ERISA Affiliate maintains or becomes obligated to
\ncontribute to, or acquires any unsatisfied obligation to contribute to or
\nliability under, any active or terminated Pension Plan; and<\/p>\n

(d) of any material change in accounting policies or financial reporting
\npractices by the Company or any Subsidiary that are not disclosed in the
\nCompany153s SEC Filings, including any determination by the Company referred to in
\nSection 2.10(b)<\/u>.<\/p>\n

Each notice pursuant to this Section 6.03<\/u> shall be accompanied by a
\nstatement of a Responsible Officer of the Company setting forth details of the
\noccurrence referred to therein and stating what action the Company has taken and
\nproposes to take with respect thereto. Each notice pursuant to Section
\n6.03(a)<\/u> shall describe with particularity any and all provisions of this
\nAgreement and any other Loan Document that have been breached.<\/p>\n

6.04 Payment of Obligations<\/strong>. Pay and discharge as the same
\nshall become due and payable, all its material obligations and liabilities,
\nincluding (a) all tax liabilities, assessments and governmental charges or
\nlevies upon it or its properties or assets, unless the same are being contested
\nin good faith by appropriate proceedings diligently conducted and adequate
\nreserves in accordance with GAAP are being maintained by such Borrower or such
\nSubsidiary; (b) all lawful claims which, if unpaid, would by Law become a Lien
\nupon its property; and (c) all material Indebtedness, as and when due and
\npayable, but subject to any subordination provisions contained in any instrument
\nor agreement evidencing such Indebtedness.<\/p>\n

6.05 Preservation of Existence, Etc<\/strong>. (a) Preserve, renew and
\nmaintain in full force and effect its legal existence and good standing under
\nthe Laws of the jurisdiction of its organization except in a transaction
\npermitted by Section 7.04<\/u> or 7.05<\/u>; (b) take all reasonable action
\nto maintain all rights, privileges, permits, licenses and franchises necessary
\nor desirable in the normal conduct of its business, except to the extent that
\nfailure to do so could not reasonably be expected to have a Material Adverse
\nEffect; and (c) preserve or renew all of its registered patents, trademarks,
\ntrade names and service marks, the non-preservation of which could reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n

6.06 Maintenance of Properties<\/strong>. (a) Maintain, preserve and
\nprotect all of its properties and equipment necessary in the operation of its
\nbusiness in good working order and condition, ordinary wear and tear excepted,
\nexcept where the failure to do so could not reasonably be expected to have a
\nMaterial Adverse Effect; (b) make all necessary repairs thereto and renewals and
\nreplacements thereof except where the failure to do so could not reasonably be\n<\/p>\n

79<\/p>\n

\n

expected to have a Material Adverse Effect; and (c) use the standard of care
\ntypical in the industry in the operation and maintenance of its facilities.<\/p>\n

6.07 Maintenance of Insurance<\/strong>. Maintain with insurance
\ncompanies not Affiliates of such Borrower that such Borrower believes (in the
\ngood faith judgment of the management of such Borrower) are financially sound
\nand reputable, insurance with respect to its properties and business against
\nloss or damage of the kinds customarily insured against by Persons engaged in
\nthe same or similar business, of such types and in such amounts (after giving
\neffect to any self-insurance compatible with the following standards) as are
\ncustomarily carried under similar circumstances by such other Persons and
\nproviding for not less than thirty (30) days prior notice to the Administrative
\nAgent of cancellation of such insurance.<\/p>\n

6.08 Compliance with Laws<\/strong>. Comply in all material respects
\nwith the requirements of all Laws (including Environmental Laws) and all orders,
\nwrits, injunctions and decrees applicable to it or to its business or property,
\nexcept in such instances in which (a) such requirement of Law or order, writ,
\ninjunction or decree is being contested in good faith by appropriate proceedings
\ndiligently conducted; or (b) the failure to comply therewith could not
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n

6.09 Books and Records<\/strong>. (a) Maintain proper books of record
\nand account, in which full, true and correct entries in conformity with GAAP
\nconsistently applied shall be made of all financial transactions and matters
\ninvolving the assets and business of such Borrower or such Subsidiary, as the
\ncase may be; and (b) maintain such books of record and account in material
\nconformity with all applicable requirements of any Governmental Authority having
\nregulatory jurisdiction over such Borrower or such Subsidiary, as the case may
\nbe.<\/p>\n

6.10 Inspection Rights<\/strong>. Permit representatives and
\nindependent contractors of the Administrative Agent and each Lender to visit and
\ninspect any of its properties, to examine its corporate, financial and operating
\nrecords, and make copies thereof or abstracts therefrom, and to discuss its
\naffairs, finances and accounts with its directors, officers, and independent
\npublic accountants, all at the expense of such Borrower and at such reasonable
\ntimes during normal business hours and as often as may be reasonably desired,
\nupon reasonable advance notice to the Company; provided<\/u>, that (a) unless
\nan Event of Default has occurred and is continuing at the time such inspection
\ncommences, the Borrowers shall not be required to pay expenses relating to more
\nthan one inspection in any twelve month period, and (b) when an Event of Default
\nexists, the Administrative Agent or any Lender (or any of their respective
\nrepresentatives or independent contractors) may do any of the foregoing at the
\nexpense of such Borrower at any time during normal business hours and without
\nadvance notice. Notwithstanding the foregoing, so long as no Event of Default
\nshall have occurred and be continuing, neither such Borrower nor any Subsidiary
\nshall be required to disclose, permit the inspection, examination, photocopying
\nor making extracts of, or discuss, any document, information or other matter
\nthat (i) constitutes non-financial trade secrets or non-financial proprietary
\ninformation which, in the reasonable opinion of such Borrower, could not
\nreasonably be expected to assist the Administrative Agent or any Lender in its
\nreview of the business, operational or financial condition or results of such
\nBorrower or any Subsidiary, or any such Person153s compliance with the Loan
\nDocuments, (ii) the disclosure of which to the Administrative Agent or any
\nLender is then prohibited by Law or (after giving effect to Section
\n10.07<\/u>) any agreement binding on such Borrower or any Subsidiary<\/p>\n

80<\/p>\n

\n

that was not entered into by such Borrower or such Subsidiary for the purpose
\nof concealing information from the Administrative Agent or any Lender or (iii)
\nis subject to attorney-client privilege or attorney work product.<\/p>\n

6.11 Use of Proceeds<\/strong>. Use the proceeds of the Credit
\nExtensions for working capital, capital expenditures, and other general
\ncorporate purposes not in contravention of any Law or of any Loan Document.<\/p>\n

6.12 Additional Guarantors<\/strong>. Notify the Administrative Agent
\nat the time that any Person becomes a Material Subsidiary, and promptly
\nthereafter (and in any event within forty-five (45) days or such longer period
\nas may be agreed to by the Administrative Agent in its sole discretion) cause
\nsuch Person (other than an Excluded Subsidiary) to, at the Company153s expense,
\n(i) become a Guarantor by executing and delivering to the Administrative Agent
\nGuaranty, a counterpart of an applicable Guaranty or such other document as the
\nAdministrative Agent shall deem appropriate for such purpose and (ii) deliver to
\nthe Administrative Agent documents of the types referred to in subsections
\n(iii)<\/u> and (iv)<\/u> of Section 4.01(a)<\/u> and favorable opinions of
\ncounsel to such Subsidiary (which shall cover, among other things, the legality,
\nvalidity, binding effect and enforceability of the documentation referred to in
\nclause (i)<\/u>), all in form, content and scope reasonably satisfactory to
\nthe Administrative Agent; provided<\/u> that, a Material Foreign Subsidiary
\nshall only be required to guaranty the Obligations of a Foreign Obligor.
\nNotwithstanding the foregoing, in the event that a Person becomes a Subsidiary
\nafter the date of this Agreement and such Person is a Material Subsidiary (other
\nthan a Designated Material Subsidiary or an Excluded Subsidiary) as of such
\ndate, such Material Subsidiary shall not be required to become a Guarantor
\nhereunder if the Company has delivered to the Administrative Agent a certificate
\nof a Responsible Officer certifying that (x) the Company is transitioning all or
\nsubstantially all the assets of such Subsidiary to another Loan Party and (y)
\nupon the completion of such transition, which shall occur within 180 days of
\nsuch Person becoming a Subsidiary (such period, the “Material Subsidiary
\nGrace Period<\/u>“), such Subsidiary will not, either individually or when
\naggregated with all other Subsidiaries that are not Material Subsidiaries, be a
\nMaterial Subsidiary; provided<\/u> that if such Subsidiary continues to be a
\nMaterial Subsidiary after the expiration of the Material Subsidiary Grace
\nPeriod, such Material Subsidiary shall become a Guarantor hereunder pursuant to
\nthis Section 6.12<\/u> within ten (10) days of the expiration of the Material
\nSubsidiary Grace Period.<\/p>\n

6.13 Procedures for Information Dissemination<\/strong>. Establish and
\nmaintain adequate policies and procedures to ensure that at least one
\nResponsible Officer is promptly informed of all matters referenced in this
\nAgreement or any other Loan Document for which the Administrative Agent and the
\nLenders are relying on such Responsible Officer153s knowledge, including
\nSection 5.06<\/u> and Section 8.01(c)<\/u>.<\/p>\n

6.14 Approvals and Authorizations<\/strong>. Maintain all
\nauthorizations, consents, approvals and licenses from, exemptions of, and
\nfilings and registrations with, each Governmental Authority of the jurisdiction
\nin which each Foreign Obligor is organized and existing, and all approvals and
\nconsents of each other Person in such jurisdiction, in each case that are
\nrequired in connection with the Loan Documents.<\/p>\n

81<\/p>\n

\n

ARTICLE VII <\/strong><\/p>\n

NEGATIVE COVENANTS <\/strong><\/p>\n

So long as any Lender shall have any Commitment hereunder, any Loan or other
\nObligation (other than contingent indemnity obligations in respect of which no
\nclaim has been asserted or any Obligations under any Covered Cash Management
\nAgreement or Covered Hedge Agreement) hereunder shall remain unpaid or
\nunsatisfied, or any Letter of Credit shall remain outstanding (except to the
\nextent Cash Collateralized), no Borrower shall, nor shall it permit any
\nSubsidiary to, directly or indirectly:<\/p>\n

7.01 Liens<\/strong>. Create, incur, assume or suffer to exist any
\nLien upon any of its property, assets or revenues, whether now owned or
\nhereafter acquired, other than the following:<\/p>\n

(a) Liens pursuant to any Loan Document;<\/p>\n

(b) Liens existing on the date hereof and listed on Schedule 7.01 to the
\nDisclosure Letter and any renewals or extensions thereof, provided<\/u> that
\n(i) the property covered thereby is not changed, (ii) the amount secured or
\nbenefited thereby is not increased except as contemplated by Section
\n7.03(b)<\/u>, (iii) the direct or any contingent obligor with respect thereto is
\nnot changed, and (iv) any renewal or extension of the obligations secured or
\nbenefited thereby is permitted by Section 7.03(b)<\/u>;<\/p>\n

(c) Liens for taxes, assessments or governmental charges or levies not yet
\ndue or which are being contested in good faith and by appropriate proceedings
\ndiligently conducted, if adequate reserves with respect thereto are maintained
\non the books of the applicable Person in accordance with GAAP;<\/p>\n

(d) carriers153, warehousemen153s, mechanics153, materialmen153s, repairmen153s,
\nlandlords153 or other like Liens arising in the ordinary course of business which
\nare not overdue for a period of more than thirty (30) days or which are being
\ncontested in good faith and by appropriate proceedings diligently conducted, if
\nadequate reserves with respect thereto are maintained on the books of the
\napplicable Person in accordance with GAAP;<\/p>\n

(e) pledges or deposits in the ordinary course of business, including, in
\nconnection with workers153 compensation, unemployment insurance, other social
\nsecurity legislation, pledges and deposits securing liability for reimbursement
\nor indemnity arrangements and letter of credit or bank guaranty reimbursement
\narrangements with respect to such obligations, other than any Lien imposed by
\nERISA;<\/p>\n

(f) deposits to secure the performance of bids, trade contracts and leases
\n(other than Indebtedness), statutory obligations, surety and appeal bonds,
\nperformance bonds and other obligations of a like nature incurred in the
\nordinary course of business;<\/p>\n

(g) easements, rights-of-way, restrictions and other similar encumbrances
\naffecting real property which, in the aggregate, are not substantial in amount,
\nand which do not in any case materially detract from the value of the property
\nsubject thereto or materially interfere with the ordinary conduct of the
\nbusiness of the applicable Person;<\/p>\n

82<\/p>\n

\n

(h) Liens securing judgments for the payment of money (or appeal or other
\nsurety bonds relating to such judgments) not constituting an Event of Default
\nunder Section 8.01(h)<\/u>;<\/p>\n

(i) Liens securing Indebtedness permitted under Section 7.03(e)<\/u>;
\nprovided<\/u> that (i) such Liens do not at any time encumber any property or
\nimprovements other than the property or improvements financed by such
\nIndebtedness (other than accessions, additions, replacements and proceeds) and
\nprovided that individual financings of property provided by a single financing
\nentity or syndicate of financing entities may be cross-collateralized to other
\nfinancings of property provided solely by such financing entity or syndicate of
\nfinancing entities and (ii) the Indebtedness secured thereby does not exceed the
\ncost or fair market value, whichever is lower, of the property being acquired on
\nthe date of acquisition;<\/p>\n

(j) Liens securing Indebtedness permitted under clauses (f)<\/u> and
\n(k)<\/u> of Section 7.03<\/u>, collectively, and in an aggregate amount not
\nto exceed $25,000,000 at any one time outstanding;<\/p>\n

(k) leases or subleases and non-exclusive licenses or Permitted Exclusive
\nLicenses or non-exclusive sublicenses granted to others in the ordinary course
\nof business which do not (i) interfere in any material respect with the business
\nof such Borrower or any of its Subsidiaries and (ii) secure any Indebtedness;\n<\/p>\n

(l) any interest or title of a lessor under, and Liens arising from UCC
\nfinancing statements (or equivalent filings, registrations or agreements in
\nforeign jurisdictions) relating to, operating leases permitted by this
\nAgreement;<\/p>\n

(m) Liens arising as a matter of law or created in the ordinary course of
\nbusiness in the nature of (i) normal and customary rights of setoff and banker153s
\nliens upon deposits of cash in favor of banks or other depository institutions
\nand (ii) Liens securing reasonable and customary fees for services in favor of
\nbanks, securities intermediaries or other depository institutions;<\/p>\n

(n) Liens of a collection bank arising under section 4-210 of the Uniform
\nCommercial Code on items in the course of collection; and<\/p>\n

(o) Liens on any assets of any Person at the time such assets are acquired or
\nsuch Person becomes a Subsidiary (in a transaction otherwise permitted
\nhereunder) or is merged, amalgamated or consolidated with or into a Subsidiary
\nand, in each case, not created in contemplation of or in connection with such
\nevent; provided<\/u>, that (i) no such Lien shall extend to or cover any other
\nproperty or assets of any Loan Party or any Subsidiary (including such Person),
\nas the case may be; and (ii) the Indebtedness secured thereby is permitted to be
\nincurred pursuant to Section 7.03(j)<\/u>.<\/p>\n

7.02 Investments<\/strong>. Make any Investments, except:<\/p>\n

(a) Cash Equivalent Investments held by such Borrower or such Subsidiary and
\nother Investments held by such Borrower or such Subsidiary that are permitted
\nunder the Company153s investment policy as in effect on the Closing Date (a copy
\nof which has been provided to the Administrative Agent and the Lenders) and as
\nit may be amended from time to time with the approval of the Required Lenders;\n<\/p>\n

83<\/p>\n

\n

(b) Investments existing as of the Closing Date and set forth on Schedule
\n7.02 to the Disclosure Letter;<\/p>\n

(c) advances to officers, directors and employees of each Borrower and its
\nSubsidiaries made in the ordinary course of business and substantially
\nconsistent with past practice for travel, entertainment, relocation, commission
\nadvances and analogous ordinary business purposes;<\/p>\n

(d) Investments of (i) any Loan Party in another Loan Party, (ii) any
\nSubsidiary that is not a Loan Party in another Subsidiary that is not a Loan
\nParty, (iii) any Subsidiary that is not a Loan Party in any Loan Party, and (iv)
\nany Loan Party in any Subsidiary that is not a Loan Party solely to (x) fund
\noperating expenses of such Subsidiary, (y) facilitate the consummation of any
\nacquisition permitted under clause (g)<\/u> of this Section 7.02<\/u> and
\n(z) otherwise in the ordinary course of business;<\/p>\n

(e) Investments consisting of extensions of credit in the nature of accounts
\nreceivable or notes receivable arising from the grant of trade credit in the
\nordinary course of business, and Investments received in satisfaction or partial
\nsatisfaction thereof from financially troubled account debtors to the extent
\nreasonably necessary in order to prevent or limit loss;<\/p>\n

(f) Guarantees permitted by Section 7.03<\/u>;<\/p>\n

(g) the purchase or other acquisition of all of the Equity Interests in any
\nPerson that, upon the consummation thereof, will be wholly-owned directly by
\nsuch Borrower or one or more of its wholly-owned Subsidiaries (including as a
\nresult of a merger or consolidation), or of all or substantially all of the
\nproperty of any Person; provided<\/u>, with respect to each purchase or other
\nacquisition made pursuant to this Section 7.02(g)<\/u>:<\/p>\n

(i) any such newly-created or acquired Subsidiary shall comply with the
\nrequirements of Section 6.12<\/u>;<\/p>\n

(ii) the lines of business of the Person to be (or the property of which is
\nto be) so purchased or otherwise acquired shall be substantially the same lines
\nof business as, or substantially related to, or incidental to, one or more of
\nthe principal businesses of such Borrower and its Subsidiaries in the ordinary
\ncourse;<\/p>\n

(iii)(A) immediately before and immediately after giving pro forma<\/em>
\neffect to any such purchase or other acquisition, no Default shall have occurred
\nand be continuing, and the Company is otherwise able to satisfy the conditions
\nset forth in Section 4.02(a)<\/u>; (B) immediately after giving pro
\nforma<\/em> effect to any such purchase or other acquisition, the Company and its
\nSubsidiaries shall be in pro forma<\/em> compliance with the covenant set
\nforth in Section 7.11(a)<\/u>, and (C) immediately after giving pro
\nforma<\/em> effect to any such purchase or other acquisition, the Consolidated
\nLeverage Ratio shall be less than 2.50:1.00, such compliance for clause (B) and
\n(C) to be determined on the basis of the financial information most recently
\ndelivered to the Administrative Agent and the Lenders pursuant to Section
\n6.01(a)<\/u> or (b)<\/u> as though such purchase or other acquisition had been
\nconsummated as of the first day of the fiscal period covered thereby; and<\/p>\n

84<\/p>\n

\n

(iv) the Company shall have delivered to the Administrative Agent and each
\nLender, with respect to any such purchase or acquisition with a purchase price
\n(A) greater than $75,000,000, at least five Business Days prior to the date on
\nwhich any such purchase or other acquisition is to be consummated, and (B) less
\nthan or equal to $75,000,000, within a commercially reasonable period of time
\nfollowing the date on which any such purchase or other acquisition is
\nconsummated, a certificate of a Responsible Officer, in form and substance
\nreasonably satisfactory to the Administrative Agent, certifying that all of the
\nrequirements set forth in this Section 7.02(g)<\/u> have been satisfied or
\nwill be satisfied on or prior to the consummation of such purchase or other
\nacquisition;<\/p>\n

(h) Investments arising out of the receipt by such Borrower or any Subsidiary
\nof non-cash consideration for any Disposition permitted by this Agreement;<\/p>\n

(i) Investments of any Person that becomes a Subsidiary after the Closing
\nDate, provided that (i) such Investments exist at the time such Person becomes a
\nSubsidiary and (ii) such Investments were not made in contemplation of or in
\nconnection with such Person becoming a Subsidiary; and<\/p>\n

(j) other Investments not exceeding $25,000,000 in the aggregate for all
\nBorrowers and their Subsidiaries in any fiscal year of the Company.<\/p>\n

7.03 Indebtedness. <\/strong>Create, incur, assume or suffer to exist
\nany Indebtedness, except:<\/p>\n

(a) Indebtedness under the Loan Documents;<\/p>\n

(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03
\nto the Disclosure Letter and any refinancings, refundings, renewals or
\nextensions thereof; provided<\/u> that (i) the amount of such Indebtedness is
\nnot increased at the time of such refinancing, refunding, renewal or extension
\nexcept by an amount equal to a reasonable premium or other reasonable amount
\npaid, and fees and expenses reasonably incurred, in connection with such
\nrefinancing and by an amount equal to any existing commitments unutilized
\nthereunder and (ii) the terms relating to principal amount, amortization,
\nmaturity, collateral (if any) and subordination (if any), and other material
\nterms taken as a whole, of any such refinancing, refunding, renewing or
\nextending Indebtedness, and of any agreement entered into and of any instrument
\nissued in connection therewith, are no less favorable in any material respect to
\nthe Loan Parties or the Lenders than the terms of any agreement or instrument
\ngoverning the Indebtedness being refinanced, refunded, renewed or extended and
\nthe interest rate applicable to any such refinancing, refunding, renewing or
\nextending Indebtedness does not exceed the then applicable market interest rate,
\nin each case, as reasonably determined in the Company153s good faith judgment;\n<\/p>\n

(c) Guarantees of such Borrower or any Guarantor in respect of Indebtedness
\notherwise permitted hereunder;<\/p>\n

(d) obligations (contingent or otherwise) of such Borrower or any Subsidiary
\nexisting or arising under any Swap Contract; provided<\/u> that (i) such
\nobligations are (or were) entered into by such Person in the ordinary course of
\nbusiness for the purpose of directly mitigating risks<\/p>\n

85<\/p>\n

\n

associated with liabilities, commitments, investments, assets, or property
\nheld or reasonably anticipated by such Person, or changes in the value of
\nsecurities issued by such Person, and not for purposes of speculation or taking
\na “market view;” and (ii) such Swap Contract does not contain any provision
\nexonerating the non-defaulting party from its obligation to make payments on
\noutstanding transactions to the defaulting party;<\/p>\n

(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations
\nand purchase money obligations for fixed or capital assets within the
\nlimitations set forth in Section 7.01(i)<\/u>; provided<\/u>,
\nhowever<\/u>, that the aggregate amount of all such Indebtedness at any one
\ntime outstanding shall not exceed $25,000,000;<\/p>\n

(f) Indebtedness of Subsidiaries that are not Loan Parties in an aggregate
\nprincipal amount not to exceed $25,000,000 at any time outstanding;<\/p>\n

(g) Indebtedness permitted by Section 7.02(d)<\/u>;<\/p>\n

(h) Indebtedness arising from the honoring of a check, draft or similar
\ninstrument against insufficient funds or from the endorsement of instruments for
\ncollection in the ordinary course of business;<\/p>\n

(i) Indebtedness with respect to statutory obligations, surety bonds, appeal
\nbonds, indemnity bonds, performance bonds or other similar bonds in the ordinary
\ncourse of business;<\/p>\n

(j) Indebtedness of any Person outstanding prior to the date on which such
\nPerson becomes a Subsidiary (in a transaction otherwise permitted hereunder) or
\nis merged, amalgamated or consolidated with or into a Subsidiary, or with
\nrespect to assets acquired from such Person and, in each case, not created in
\ncontemplation of or in connection with such event; and<\/p>\n

(k) Indebtedness of the Loan Parties without limit, so long as (i)
\nimmediately before and immediately after giving pro forma<\/em> effect to any
\nissuance or incurrence of such Indebtedness, no Default shall have occurred and
\nbe continuing; and (ii) immediately after giving pro forma<\/em> effect to
\nany such issuance or incurrence, the Company and its Subsidiaries shall be in
\npro forma compliance with all of the covenants set forth in Section
\n7.11<\/u>, such compliance to be determined on the basis of the financial
\ninformation most recently delivered to the Administrative Agent and the Lenders
\npursuant to Section 6.01(a)<\/u> or (b)<\/u> as though such issuance or
\nincurrence had been consummated as of the first day of the fiscal period covered
\nthereby.<\/p>\n

7.04 Fundamental Changes<\/strong>. Merge, dissolve, liquidate,
\nconsolidate with or into another Person, or Dispose of (whether in one
\ntransaction or in a series of transactions) all or substantially all of its
\nassets (whether now owned or hereafter acquired) to or in favor of any Person,
\nexcept that, so long as no Default exists or would result therefrom:<\/p>\n

(a) any Subsidiary may merge with (i) the Company; provided<\/u> that the
\nCompany shall be the continuing or surviving Person, (ii) any other Borrower;
\nprovided<\/u> that such Borrower shall be the continuing or surviving Person,
\nor (iii) any one or more other Subsidiaries; provided <\/u>that when any
\nGuarantor is merging with another Subsidiary, another Loan Party shall be the
\ncontinuing or surviving Person;<\/p>\n

86<\/p>\n

\n

(b) any Subsidiary may Dispose of all or substantially all of its assets
\n(upon voluntary liquidation or otherwise) to the Company or to another
\nSubsidiary; provided<\/u> that (i) if the transferor in such a transaction is
\na Borrower, then the transferee must be another Borrower and (ii) if the
\ntransferor in such a transaction is a Guarantor, then the transferee must be
\nanother Loan Party;<\/p>\n

(c) in connection with any acquisition permitted under Section
\n7.02(g)<\/u>, any Subsidiary of the Company may merge into or consolidate with
\nany other Person or permit any other Person to merge into or consolidate with
\nit; provided<\/u> that (i) the Person surviving such merger shall be a
\nwholly-owned Subsidiary of the Company, and (ii) in the case of any such merger
\nto which any Loan Party (other than the Company) is a party, such Loan Party is
\nthe surviving Person; and<\/p>\n

(d) any Subsidiary that is not a Guarantor may dissolve, liquidate or wind up
\nits affairs at any time provided that such dissolution, liquidation or winding
\nup, as applicable, could not reasonably be expected to have a Material Adverse
\nEffect.<\/p>\n

7.05 Dispositions<\/strong>. Make any Disposition or enter into any
\nagreement to make any Disposition, except:<\/p>\n

(a) Dispositions of obsolete or worn out property, whether now owned or
\nhereafter acquired, in the ordinary course of business;<\/p>\n

(b) Dispositions of inventory in the ordinary course of business;<\/p>\n

(c) Dispositions of equipment or real property to the extent that (i) such
\nproperty is exchanged for credit against the purchase price of similar
\nreplacement property or (ii) the proceeds of such Disposition are reasonably
\npromptly applied to the purchase price of such replacement property;<\/p>\n

(d) Dispositions of property by any Subsidiary to the Company or to a
\nwholly-owned Subsidiary of the Company; provided<\/u> that (i) if the
\ntransferor of such property is a Borrower, the transferee thereof must be
\nanother Borrower and (ii) if the transferor of such property is a Guarantor, the
\ntransferee thereof must be another Loan Party;<\/p>\n

(e) Dispositions permitted by Section 7.04<\/u>;<\/p>\n

(f) non-exclusive licenses and Permitted Exclusive Licenses of IP Rights in
\nthe ordinary course of business and substantially consistent with past practice;\n<\/p>\n

(g) subject to clause (f)<\/u>, leases or subleases and non-exclusive
\nlicenses or non-exclusive sublicenses granted to others in the ordinary course
\nof business which do not (i) interfere in any material respect with the business
\nof such Borrower or any of its Subsidiaries and (ii) secure any Indebtedness;\n<\/p>\n

(h) Dispositions (without recourse) of accounts receivable arising in the
\nordinary course of business, so long as each such Disposition is consummated in
\na manner consistent with<\/p>\n

87<\/p>\n

\n

past practices and otherwise in connection with the compromise or collection
\nof such accounts receivable;<\/p>\n

(i) any sale and leaseback of property in connection with any Indebtedness
\notherwise permitted pursuant to Section 7.03(e)<\/u>;<\/p>\n

(j) to the extent constituting a Disposition, (i) the making of Investments
\npermitted under Section 7.02<\/u> and (ii) the creation, incurrence or
\nassumption of any Lien permitted under Section 7.01<\/u>; and<\/p>\n

(k) Dispositions by such Borrower and its Subsidiaries not otherwise
\npermitted under this Section 7.05<\/u>; provided<\/u> that (i) at the time
\nof such Disposition, no Default shall exist or would result from such
\nDisposition and (ii) the aggregate book value of all property Disposed of in
\nreliance on this clause (k)<\/u> over the term of this Agreement shall not
\nexceed either (A) 15% of the Consolidated Tangible Assets or (B) 10% of
\nConsolidated EBITDA for the applicable four fiscal quarters (in each case,
\nmeasured as of the applicable date of the financial information most recently
\ndelivered to the Administrative Agent and the Lenders pursuant to Section
\n6.01(a)<\/u> or (b)<\/u>); provided<\/u>, that any Disposition which at the
\ntime made was in compliance with this clause (k)<\/u> shall not result in a
\nDefault hereunder as of a later date solely as a result of any change as of such
\nlater date in the Consolidated Tangible Assets or Consolidated EBITDA;<\/p>\n

provided<\/u>, however<\/u>, that any Disposition pursuant to this
\nSection 7.05<\/u> shall be for fair market value.<\/p>\n

7.06 Restricted Payments<\/strong>. Declare or make, directly or
\nindirectly, any Restricted Payment, or incur any obligation (contingent or
\notherwise) to do so, except that, so long as no Default shall have occurred and
\nbe continuing at the time of any action described below or would result
\ntherefrom:<\/p>\n

(a) each Subsidiary may make Restricted Payments to any Loan Party and any
\nother Person that owns an Equity Interest in such Subsidiary, ratably according
\nto their respective holdings of the type of Equity Interest in respect of which
\nsuch Restricted Payment is being made;<\/p>\n

(b) each Borrower and each Subsidiary may declare and make dividend payments
\nor other distributions payable solely in the common stock or other common Equity
\nInterests of such Person;<\/p>\n

(c) each Borrower and each Subsidiary may purchase, redeem or otherwise
\nacquire Equity Interests issued by it with the proceeds received from the
\nsubstantially concurrent issue of new shares of its common stock or other common
\nEquity Interests;<\/p>\n

(d) each Borrower may (i) make Restricted Payments with respect to the
\nrepurchase, redemption or other acquisition or retirement for value of any
\nEquity Interests of such Borrower or any Subsidiary held by any past, present or
\nfuture employee, director or officer of such Borrower (or any of its
\nSubsidiaries) pursuant to any equity subscription agreement, stock option
\nagreement or similar agreement or plan; or (ii) distribute rights pursuant to a
\nstockholder rights plan or redeem such rights in accordance with the terms of
\nsuch plan; provided<\/u> that the aggregate<\/p>\n

88<\/p>\n

\n

price paid for all such repurchased, redeemed, acquired, or retired Equity
\nInterests may not exceed $5,000,000 in the aggregate during the term of this
\nAgreement;<\/p>\n

(e) each Borrower may, in the ordinary course of business and substantially
\nconsistent with past practice, repurchase fractional shares of its Equity
\nInterests arising out of stock dividends, splits or combinations, business
\ncombinations or conversion of convertible securities;<\/p>\n

(f) each Borrower may, in the ordinary course of business and substantially
\nconsistent with past practice, declare and make Restricted Payments in
\nconnection with retention of Equity Interests in payment of withholding taxes in
\nconnection with equity-based compensation plans; and<\/p>\n

(g) each Borrower may (i) declare or pay cash dividends to its stockholders
\nand (ii) purchase, redeem, retire or otherwise acquire for cash Equity Interests
\nissued by it, so long as immediately before and immediately after giving pro
\nforma effect to any such dividend, purchase, redemption, retirement or other
\nacquisition (as applicable), (A) no Default shall have occurred and be
\ncontinuing, and (B) the Consolidated Leverage Ratio shall be less than
\n2.25:1.00.<\/p>\n

7.07 Change in Nature of Business<\/strong>. Engage in any material
\nline of business substantially different from those lines of business conducted
\nby such Borrower and its Subsidiaries on the date hereof or any business
\nsubstantially related or incidental thereto.<\/p>\n

7.08 Transactions with Affiliates<\/strong>. Enter into any
\ntransaction of any kind with any Affiliate of any Borrower, whether or not in
\nthe ordinary course of business, other than (a) on fair and reasonable terms
\nsubstantially as favorable to any such Borrower or such Subsidiary as would be
\nobtainable by such Borrower or such Subsidiary at the time in a comparable arm153s
\nlength transaction with a Person other than an Affiliate, (b)(i) customary fees
\nto, and indemnifications of, directors of the Loan Parties and their respective
\nSubsidiaries in the ordinary course of business and (ii) compensation, bonuses
\nand indemnification arrangements and benefit plans for officers, directors and
\nemployees of the Loan Parties and their respective Subsidiaries in the ordinary
\ncourse of business, (c) Restricted Payments permitted under Section
\n7.06<\/u>, or (d) transactions between or among (i) any Borrower and its
\nSubsidiaries or (ii) any Subsidiaries, in each case, that are not otherwise
\nprohibited by the terms of this Agreement.<\/p>\n

7.09 Burdensome Agreements<\/strong>. Enter into any Contractual
\nObligation (other than (x) this Agreement or any other Loan Document, or (y) any
\nPermitted Restrictions that could not, individually or together with all
\nPermitted Restrictions, reasonably be expected to cause a Material Adverse
\nEffect) that (a) limits the ability (i) of any Subsidiary to make Restricted
\nPayments to such Borrower or any Guarantor or to otherwise transfer property to
\nsuch Borrower or any Guarantor, (ii) of any Subsidiary to Guarantee the
\nIndebtedness of such Borrower or (iii) of such Borrower or any Subsidiary to
\ncreate, incur, assume or suffer to exist Liens on property of such Person; or
\n(b) requires the grant of a Lien to secure an obligation of such Person if a
\nLien is granted to secure another obligation of such Person.<\/p>\n

89<\/p>\n

\n

7.10 Use of Proceeds<\/strong>. Use the proceeds of any Credit
\nExtension, whether directly or indirectly, and whether immediately, incidentally
\nor ultimately, to purchase or carry margin stock (within the meaning of
\nRegulation U of the FRB) or to extend credit to others for the purpose of
\npurchasing or carrying margin stock or to refund indebtedness originally
\nincurred for such purpose.<\/p>\n

7.11 Financial Covenants. <\/strong><\/p>\n

(a) Consolidated Interest Coverage Ratio<\/u>. Permit the Consolidated
\nInterest Coverage Ratio as of the end of any fiscal quarter of the Company to be
\nless than 3.50:1.00.<\/p>\n

(b) Consolidated Leverage Ratio<\/u>. Permit the Consolidated Leverage
\nRatio as of the end of any fiscal quarter of the Company to be greater than
\n2.50:1.00.<\/p>\n

ARTICLE VIII <\/strong><\/p>\n

EVENTS OF DEFAULT AND REMEDIES <\/strong><\/p>\n

8.01 Events of Default<\/strong>. Any of the following shall
\nconstitute an Event of Default:<\/p>\n

(a) Non-Payment<\/u>. Any Borrower or any other Loan Party fails to pay (i)
\nwhen and as required to be paid herein, any amount of principal of any Loan or
\nany L\/C Obligation, or (ii) within three (3) Business Days after the same
\nbecomes due, any interest on any Loan or on any L\/C Obligation, or any fee due
\nhereunder, or (iii) within five (5) Business Days after the same becomes due,
\nany other amount payable hereunder or under any other Loan Document; or<\/p>\n

(b) Specific Covenants<\/u>. Any Borrower fails to perform or observe any
\nterm, covenant or agreement contained in any of Section 6.01<\/u>,
\n6.02<\/u>, 6.03(a)<\/u>, 6.03(b)<\/u>, 6.05(a)<\/u>, 6.10<\/u>,
\n6.11<\/u> or 6.12<\/u> or Article VII<\/u>, or any Guarantor fails to
\nperform or observe any of the foregoing terms, covenants or agreements specified
\nin this clause (b)<\/u> pursuant to its obligation under Article IV<\/u> of
\nthe Guaranty;<\/p>\n

(c) Other Defaults<\/u>. Any Loan Party fails to perform or observe any
\nother covenant or agreement (not specified in clauses (a)<\/u> or (b)<\/u>
\nabove) contained in any Loan Document on its part to be performed or observed
\nand such failure continues for thirty (30) days after the earlier of (i) notice
\nthereof from the Administrative Agent or (ii) the date that a Responsible
\nOfficer knows (or should have known) of such failure;<\/p>\n

(d) Representations and Warranties<\/u>. Any representation, warranty,
\ncertification or statement of fact made or deemed made by or on behalf of any
\nBorrower or any other Loan Party herein, in any other Loan Document, or in any
\ndocument delivered in connection herewith or therewith shall be incorrect or
\nmisleading when made or deemed made; or<\/p>\n

(e) Cross-Default<\/u>. (i) Any Borrower or any Subsidiary (A) fails to
\nmake any payment when due (whether by scheduled maturity, required prepayment,
\nacceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
\n(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
\nan aggregate principal amount (including undrawn committed or available amounts
\nand including amounts owing to all creditors under any combined or syndicated
\ncredit arrangement) of more than the Threshold Amount, or (B) fails to<\/p>\n

90<\/p>\n

\n

observe or perform any other agreement or condition relating to any such
\nIndebtedness or Guarantee or contained in any instrument or agreement
\nevidencing, securing or relating thereto, or any other similar event occurs, the
\neffect of which default or other event is to cause, or to permit the holder or
\nholders of such Indebtedness or the beneficiary or beneficiaries of such
\nGuarantee (or a trustee or agent on behalf of such holder or holders or
\nbeneficiary or beneficiaries) to cause, with the giving of notice if required,
\nsuch Indebtedness to be demanded or to become due or to be repurchased, prepaid,
\ndefeased or redeemed (automatically or otherwise), or an offer to repurchase,
\nprepay, defease or redeem such Indebtedness to be made, prior to its stated
\nmaturity, or such Guarantee to become payable or cash collateral in respect
\nthereof to be demanded; or (ii) there occurs under any Swap Contract an Early
\nTermination Date (as defined in such Swap Contract) resulting from (A) any event
\nof default under such Swap Contract as to which any Borrower or any Subsidiary
\nis the Defaulting Party (as defined in such Swap Contract) or (B) any
\nTermination Event (as so defined) under such Swap Contract as to which any
\nBorrower or any Subsidiary is an Affected Party (as so defined) and, in either
\nevent, the Swap Termination Value owed by any Borrower or such Subsidiary as a
\nresult thereof is greater than the Threshold Amount; or<\/p>\n

(f) Insolvency Proceedings, Etc.<\/u> Any Loan Party or any of its Material
\nSubsidiaries institutes or consents to the institution of any proceeding under
\nany Debtor Relief Law, or makes an assignment for the benefit of creditors; or
\napplies for or consents to the appointment of any receiver, trustee, custodian,
\nconservator, liquidator, rehabilitator or similar officer for it or for all or
\nany material part of its property; or any receiver, trustee, custodian,
\nconservator, liquidator, rehabilitator or similar officer is appointed without
\nthe application or consent of such Person and the appointment continues
\nundischarged or unstayed for sixty (60) calendar days (or thirty (30) calendar
\ndays with respect to any Foreign Obligor organized under the laws of the
\nNetherlands); or any proceeding under any Debtor Relief Law relating to any such
\nPerson or to all or any material part of its property is instituted without the
\nconsent of such Person and continues undismissed or unstayed for sixty (60)
\ncalendar days (or thirty (30) calendar days with respect to any Foreign Obligor
\norganized under the laws of the Netherlands), or an order for relief is entered
\nin any such proceeding; or<\/p>\n

(g) Inability to Pay Debts; Attachment<\/u>. (i) Any Loan Party or any
\nMaterial Subsidiary becomes unable or admits in writing its inability or fails
\ngenerally to pay its debts as they become due, or (ii) any writ or warrant of
\nattachment or execution or similar process is issued or levied against all or
\nany material part of the property of any such Person and is not released,
\nvacated or fully bonded within thirty (30) days after its issue or levy; or<\/p>\n

(h) Judgments<\/u>. There is entered against any Borrower or any Subsidiary
\n(i) one or more final judgments or orders for the payment of money in an
\naggregate amount (as to all such judgments or orders) exceeding the Threshold
\nAmount (to the extent not covered by independent third-party insurance as to
\nwhich the insurer does not dispute coverage), or (ii) any one or more
\nnon-monetary final judgments that have, or could reasonably be expected to have,
\nindividually or in the aggregate, a Material Adverse Effect and, in either case,
\n(A) enforcement proceedings are commenced by any creditor upon such judgment or
\norder, or (B) there is a period of ten (10) consecutive days during which a stay
\nof enforcement of such judgment, by reason of a pending appeal or otherwise, is
\nnot in effect; or<\/p>\n

91<\/p>\n

\n

(i) ERISA<\/u>. (i) An ERISA Event occurs with respect to a Pension Plan or
\nMultiemployer Plan under Title IV of ERISA to the Pension Plan, Multiemployer
\nPlan or the PBGC, or (ii) the Company or any ERISA Affiliate fails to pay when
\ndue, after the expiration of any applicable grace period, any installment
\npayment with respect to its withdrawal liability under Section 4201 of ERISA
\nunder a Multiemployer Plan that, in either case, has resulted, or could
\nreasonably be expected to result, in a Material Adverse Effect; or<\/p>\n

(j) Invalidity of Loan Documents<\/u>. Any provision of any Loan Document,
\nat any time after its execution and delivery and for any reason other than as
\nexpressly permitted hereunder or thereunder or satisfaction in full of all the
\nObligations, ceases to be in full force and effect; or any Loan Party or any
\nother Person contests in any manner the validity or enforceability of any
\nprovision of any Loan Document; or any Loan Party denies that it has any or
\nfurther liability or obligation under any Loan Document, or purports to revoke,
\nterminate or rescind any provision of any Loan Document; or<\/p>\n

(k) Change of Control<\/u>. There occurs any Change of Control.<\/p>\n

8.02 Remedies Upon Event of Default<\/strong>. If any Event of Default
\noccurs and is continuing, the Administrative Agent shall, at the request of, or
\nmay, with the consent of, the Required Lenders, take any or all of the following
\nactions:<\/p>\n

(a) declare the commitment of each Lender to make Loans and any obligation of
\nthe L\/C Issuer to make L\/C Credit Extensions to be terminated, whereupon such
\ncommitments and obligation shall be terminated;<\/p>\n

(b) declare the unpaid principal amount of all outstanding Loans, all
\ninterest accrued and unpaid thereon, and all other amounts owing or payable
\nhereunder or under any other Loan Document to be immediately due and payable,
\nwithout presentment, demand, protest or other notice of any kind, all of which
\nare hereby expressly waived by each Borrower;<\/p>\n

(c) require that the Company Cash Collateralize the L\/C Obligations (in an
\namount equal to the then Outstanding Amount thereof); and<\/p>\n

(d) exercise on behalf of itself, the Lenders and the L\/C Issuer all rights
\nand remedies available to it, the Lenders and the L\/C Issuer under the Loan
\nDocuments;<\/p>\n

provided<\/u>, however<\/u>, that upon the occurrence of an actual or
\ndeemed entry of an order for relief with respect to any Borrower under any
\nDebtor Relief Law, the obligation of each Lender to make Loans and any
\nobligation of the L\/C Issuer to make L\/C Credit Extensions shall automatically
\nterminate, the unpaid principal amount of all outstanding Loans and all interest
\nand other amounts as aforesaid shall automatically become due and payable, and
\nthe obligation of the Company to Cash Collateralize the L\/C Obligations as
\naforesaid shall automatically become effective, in each case without further act
\nof the Administrative Agent or any Lender.<\/p>\n

8.03 Application of Funds<\/strong>. After the exercise of remedies
\nprovided for in Section 8.02<\/u> (or after the Loans have automatically
\nbecome immediately due and payable and the L\/C Obligations have automatically
\nbeen required to be Cash Collateralized as set forth in the proviso to
\nSection 8.02<\/u>), any amounts received on account of the Obligations shall,
\nsubject to the<\/p>\n

92<\/p>\n

\n

provisions of Sections 2.15<\/u> and 2.16<\/u>, be applied by the
\nAdministrative Agent in the following order:<\/p>\n

(a) First<\/u>, to payment of that portion of the Obligations constituting
\nfees, indemnities, expenses and other amounts (including fees, charges and
\ndisbursements of counsel to the Administrative Agent and amounts payable under
\nArticle III<\/u>) payable to the Administrative Agent in its capacity as such;\n<\/p>\n

(b) Second<\/u>, to payment of that portion of the Obligations constituting
\nfees, indemnities and other amounts (other than principal, interest and Letter
\nof Credit Fees) payable to the Lenders and the L\/C Issuer (including fees,
\ncharges and disbursements of counsel to the respective Lenders and the L\/C
\nIssuer (including fees and time charges for attorneys who may be employees of
\nany Lender or the L\/C Issuer) and amounts payable under Article III<\/u>),
\nratably among them in proportion to the respective amounts described in this
\nclause (b)<\/u> payable to them;<\/p>\n

(c) Third<\/u>, to payment of that portion of the Obligations constituting
\naccrued and unpaid Letter of Credit Fees and interest on the Loans, L\/C
\nBorrowings and other Obligations, ratably among the Lenders and the L\/C Issuer
\nin proportion to the respective amounts described in this clause (c)<\/u>
\npayable to them;<\/p>\n

(d) Fourth<\/u>, to payment of that portion of the Obligations constituting
\nunpaid principal of the Loans and L\/C Borrowings, ratably among the Lenders and
\nthe L\/C Issuer in proportion to the respective amounts described in this
\nclause (d)<\/u> held by them;<\/p>\n

(e) Fifth<\/u>, to the Administrative Agent for the account of the L\/C
\nIssuer, to Cash Collateralize that portion of L\/C Obligations comprised of the
\naggregate undrawn amount of Letters of Credit to the extent not otherwise Cash
\nCollateralized by the Company pursuant to Sections 2.03<\/u> and 2.15<\/u>;
\nand<\/p>\n

(f) Last<\/u>, the balance, if any, after all of the Obligations have been
\nindefeasibly paid in full, to the Company (on behalf of the Borrowers) or as
\notherwise required by Law.<\/p>\n

Subject to Section 2.03(c)<\/u>, amounts used to Cash Collateralize the
\naggregate undrawn amount of Letters of Credit pursuant to clause (e)<\/u>
\nabove shall be applied to satisfy drawings under such Letters of Credit as they
\noccur. If any amount remains on deposit as Cash Collateral after all Letters of
\nCredit have either been fully drawn or expired, such remaining amount shall be
\napplied to the other Obligations, if any, in the order set forth above.<\/p>\n

8.04 Collateral Allocation Mechanism<\/strong>. On the CAM Exchange
\nDate, (a) the Lenders shall automatically and without further act be deemed to
\nhave exchanged interests in the Designated Obligations such that, in lieu of the
\ninterests of each Lender in the Designated Obligations under each Loan in which
\nit shall participate as of such date, such Lender shall own an interest equal to
\nsuch Lender153s CAM Percentage in the Designated Obligations under each of the
\nLoans and (b) simultaneously with the deemed exchange of interests pursuant to
\nclause (a) above, the interests in the Designated Obligations to be received in
\nsuch deemed exchange shall, automatically and with no further action required,
\nbe converted into the Dollar Equivalent of such amounts, determined using the
\nSpot Rate calculated as of such date, of such amount and on and after such date
\nall amounts accruing and owed to the Lenders in respect of such Designated<\/p>\n

93<\/p>\n

\n

Obligations shall accrue and be payable in Dollars at the rate otherwise
\napplicable hereunder. Each Lender, each Person acquiring a participation from
\nany Lender as contemplated by Section 10.06 and each Borrower hereby consents
\nand agrees to the CAM Exchange. Each of the Borrowers and the Lenders agrees
\nfrom time to time to execute and deliver to the Administrative Agent all such
\npromissory notes and other instruments and documents as the Administrative Agent
\nshall reasonably request to evidence and confirm the respective interests and
\nobligations of the Lenders after giving effect to the CAM Exchange, and each
\nLender agrees to surrender any promissory notes originally received by it in
\nconnection with its Loans hereunder to the Administrative Agent against delivery
\nof any promissory notes so executed and delivered; provided that the failure of
\nany Borrower to execute or deliver or of any Lender to accept any such
\npromissory note, instrument or document shall not affect the validity or
\neffectiveness of the CAM Exchange. As a result of the CAM Exchange, on and after
\nthe CAM Exchange Date, each payment received by the Administrative Agent
\npursuant to any Loan Document in respect of the Designated Obligations shall be
\ndistributed to the Lenders pro rata in accordance with their respective CAM
\nPercentages (to be redetermined as of each such date of payment).<\/p>\n

ARTICLE IX <\/strong><\/p>\n

ADMINISTRATIVE AGENT <\/strong><\/p>\n

9.01 Appointment and Authority<\/strong>. Each of the Lenders and the
\nL\/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as
\nthe Administrative Agent hereunder and under the other Loan Documents and
\nauthorizes the Administrative Agent to take such actions on its behalf and to
\nexercise such powers as are delegated to the Administrative Agent by the terms
\nhereof or thereof, together with such actions and powers as are reasonably
\nincidental thereto. The provisions of this Article are solely for the benefit of
\nthe Administrative Agent, the Lenders and the L\/C Issuer, and neither any
\nBorrower nor any other Loan Party shall have rights as a third party beneficiary
\nof any of such provisions.<\/p>\n

9.02 Rights as a Lender<\/strong>. The Person serving as the
\nAdministrative Agent hereunder shall have the same rights and powers in its
\ncapacity as a Lender as any other Lender and may exercise the same as though it
\nwere not the Administrative Agent and the term “Lender” or “Lenders” shall,
\nunless otherwise expressly indicated or unless the context otherwise requires,
\ninclude the Person serving as the Administrative Agent hereunder in its
\nindividual capacity. Such Person and its Affiliates may accept deposits from,
\nlend money to, act as the financial advisor or in any other advisory capacity
\nfor and generally engage in any kind of business with any Borrower or any
\nSubsidiary or other Affiliate thereof as if such Person were not the
\nAdministrative Agent hereunder and without any duty to account therefor to the
\nLenders.<\/p>\n

9.03 Exculpatory Provisions<\/strong>. The Administrative Agent shall
\nnot have any duties or obligations except those expressly set forth herein and
\nin the other Loan Documents. Without limiting the generality of the foregoing,
\nthe Administrative Agent:<\/p>\n

(a) shall not be subject to any fiduciary or other implied duties, regardless
\nof whether a Default has occurred and is continuing;<\/p>\n

(b) shall not have any duty to take any discretionary action or exercise any
\ndiscretionary powers, except discretionary rights and powers expressly
\ncontemplated hereby or<\/p>\n

94<\/p>\n

\n

by the other Loan Documents that the Administrative Agent is required to
\nexercise as directed in writing by the Required Lenders (or such other number or
\npercentage of the Lenders as shall be expressly provided for herein or in the
\nother Loan Documents), provided<\/u> that the Administrative Agent shall not
\nbe required to take any action that, in its opinion or the opinion of its
\ncounsel, may expose the Administrative Agent to liability or that is contrary to
\nany Loan Document or applicable Law; and<\/p>\n

(c) shall not, except as expressly set forth herein and in the other Loan
\nDocuments, have any duty to disclose, and shall not be liable for the failure to
\ndisclose, any information relating to any Borrower or any of its Affiliates that
\nis communicated to or obtained by the Person serving as the Administrative Agent
\nor any of its Affiliates in any capacity.<\/p>\n

The Administrative Agent shall not be liable for any action taken or not
\ntaken by it (i) with the consent or at the request of the Required Lenders (or
\nsuch other number or percentage of the Lenders as shall be necessary, or as the
\nAdministrative Agent shall believe in good faith shall be necessary, under the
\ncircumstances as provided in Sections 10.01<\/u> and 8.02<\/u>) or (ii) in
\nthe absence of its own gross negligence or willful misconduct. The
\nAdministrative Agent shall be deemed not to have knowledge of any Default unless
\nand until notice describing such Default is given to the Administrative Agent by
\nthe Company, a Lender or the L\/C Issuer.<\/p>\n

The Administrative Agent shall not be responsible for or have any duty to
\nascertain or inquire into (i) any statement, warranty or representation made in
\nor in connection with this Agreement or any other Loan Document, (ii) the
\ncontents of any certificate, report or other document delivered hereunder or
\nthereunder or in connection herewith or therewith, (iii) the performance or
\nobservance of any of the covenants, agreements or other terms or conditions set
\nforth herein or therein or the occurrence of any Default, (iv) the validity,
\nenforceability, effectiveness or genuineness of this Agreement, any other Loan
\nDocument or any other agreement, instrument or document or (v) the satisfaction
\nof any condition set forth in Article IV<\/u> or elsewhere herein, other than
\nto confirm receipt of items expressly required to be delivered to the
\nAdministrative Agent.<\/p>\n

9.04 Reliance by Administrative Agent<\/strong>. The Administrative
\nAgent shall be entitled to rely upon, and shall not incur any liability for
\nrelying upon, any notice, request, certificate, consent, statement, instrument,
\ndocument or other writing (including any electronic message, Internet or
\nintranet website posting or other distribution) believed by it to be genuine and
\nto have been signed, sent or otherwise authenticated by the proper Person. The
\nAdministrative Agent also may rely upon any statement made to it orally or by
\ntelephone and believed by it to have been made by the proper Person, and shall
\nnot incur any liability for relying thereon. In determining compliance with any
\ncondition hereunder to the making of a Loan, or the issuance of a Letter of
\nCredit, that by its terms must be fulfilled to the satisfaction of a Lender or
\nthe L\/C Issuer, the Administrative Agent may presume that such condition is
\nsatisfactory to such Lender or the L\/C Issuer unless the Administrative Agent
\nshall have received notice to the contrary from such Lender or the L\/C Issuer
\nprior to the making of such Loan or the issuance of such Letter of Credit. The
\nAdministrative Agent may consult with legal counsel (who may be counsel for the
\nBorrowers), independent accountants and other experts selected by it, and shall
\nnot be liable for any action taken or not taken by it in accordance with the
\nadvice of any such counsel, accountants or experts.<\/p>\n

95<\/p>\n

\n

9.05 Delegation of Duties<\/strong>. The Administrative Agent may
\nperform any and all of its duties and exercise its rights and powers hereunder
\nor under any other Loan Document by or through any one or more sub-agents
\nappointed by the Administrative Agent. The Administrative Agent and any such
\nsub-agent may perform any and all of its duties and exercise its rights and
\npowers by or through their respective Related Parties. The exculpatory
\nprovisions of this Article shall apply to any such sub-agent and to the Related
\nParties of the Administrative Agent and any such sub-agent, and shall apply to
\ntheir respective activities in connection with the syndication of the credit
\nfacilities provided for herein as well as activities as Administrative Agent.\n<\/p>\n

9.06 Resignation of Administrative Agent<\/strong>. The Administrative
\nAgent may at any time give notice of its resignation to the Lenders, the L\/C
\nIssuer and the Company. Upon receipt of any such notice of resignation, the
\nRequired Lenders shall have the right, in consultation with the Company, to
\nappoint a successor, which shall be a bank with an office in the United States,
\nor an Affiliate of any such bank with an office in the United States. If no such
\nsuccessor shall have been so appointed by the Required Lenders and shall have
\naccepted such appointment within thirty (30) days after the retiring
\nAdministrative Agent gives notice of its resignation, then the retiring
\nAdministrative Agent may on behalf of the Lenders and the L\/C Issuer, appoint a
\nsuccessor Administrative Agent meeting the qualifications set forth above;
\nprovided<\/u> that if the Administrative Agent shall notify the Company and
\nthe Lenders that no qualifying Person has accepted such appointment, then such
\nresignation shall nonetheless become effective in accordance with such notice
\nand (1) the retiring Administrative Agent shall be discharged from its duties
\nand obligations hereunder and under the other Loan Documents and (2) all
\npayments, communications and determinations provided to be made by, to or
\nthrough the Administrative Agent shall instead be made by or to each Lender and
\nthe L\/C Issuer directly, until such time as the Required Lenders appoint a
\nsuccessor Administrative Agent as provided for above in this Section. Upon the
\nacceptance of a successor153s appointment as Administrative Agent hereunder, such
\nsuccessor shall succeed to and become vested with all of the rights, powers,
\nprivileges and duties of the retiring (or retired) Administrative Agent, and the
\nretiring Administrative Agent shall be discharged from all of its duties and
\nobligations hereunder or under the other Loan Documents (if not already
\ndischarged therefrom as provided above in this Section). The fees payable by the
\nCompany to a successor Administrative Agent shall be the same as those payable
\nto its predecessor unless otherwise agreed between the Company and such
\nsuccessor. After the retiring Administrative Agent153s resignation hereunder and
\nunder the other Loan Documents, the provisions of this Article and Section
\n10.04<\/u> shall continue in effect for the benefit of such retiring
\nAdministrative Agent, its sub-agents and their respective Related Parties in
\nrespect of any actions taken or omitted to be taken by any of them while the
\nretiring Administrative Agent was acting as Administrative Agent.<\/p>\n

Any resignation by Bank of America as Administrative Agent pursuant to this
\nSection shall also constitute its resignation as L\/C Issuer and Swing Line
\nLender. Upon the acceptance of a successor153s appointment as Administrative Agent
\nhereunder, (a) such successor shall succeed to and become vested with all of the
\nrights, powers, privileges and duties of the retiring L\/C Issuer and Swing Line
\nLender, (b) the retiring L\/C Issuer and Swing Line Lender shall be discharged
\nfrom all of their respective duties and obligations hereunder or under the other
\nLoan Documents, and (c) the successor L\/C Issuer shall issue letters of credit
\nin substitution for the Letters of Credit, if any, outstanding at the time of
\nsuch succession or make other arrangements<\/p>\n

96<\/p>\n

\n

satisfactory to the retiring L\/C Issuer to effectively assume the obligations
\nof the retiring L\/C Issuer with respect to such Letters of Credit.<\/p>\n

9.07 Non-Reliance on Administrative Agent and Other
\nLenders<\/strong>. Each Lender and the L\/C Issuer acknowledges that it has,
\nindependently and without reliance upon the Administrative Agent or any other
\nLender or any of their Related Parties and based on such documents and
\ninformation as it has deemed appropriate, made its own credit analysis and
\ndecision to enter into this Agreement. Each Lender and the L\/C Issuer also
\nacknowledges that it will, independently and without reliance upon the
\nAdministrative Agent or any other Lender or any of their Related Parties and
\nbased on such documents and information as it shall from time to time deem
\nappropriate, continue to make its own decisions in taking or not taking action
\nunder or based upon this Agreement, any other Loan Document or any related
\nagreement or any document furnished hereunder or thereunder.<\/p>\n

9.08 No Other Duties, Etc<\/strong>. Anything herein to the contrary
\nnotwithstanding, none of the Bookrunners or Arrangers listed on the cover page
\nhereof shall have any powers, duties or responsibilities under this Agreement or
\nany of the other Loan Documents, except in its capacity, as applicable, as the
\nAdministrative Agent, a Lender or the L\/C Issuer hereunder.<\/p>\n

9.09 Administrative Agent May File Proofs of Claim<\/strong>. In case
\nof the pendency of any proceeding under any Debtor Relief Law or any other
\njudicial proceeding relative to any Loan Party, the Administrative Agent
\n(irrespective of whether the principal of any Loan or L\/C Obligation shall then
\nbe due and payable as herein expressed or by declaration or otherwise and
\nirrespective of whether the Administrative Agent shall have made any demand on
\nany Borrower) shall be entitled and empowered, by intervention in such
\nproceeding or otherwise<\/p>\n

(a) to file and prove a claim for the whole amount of the principal and
\ninterest owing and unpaid in respect of the Loans, L\/C Obligations and all other
\nObligations that are owing and unpaid and to file such other documents as may be
\nnecessary or advisable in order to have the claims of the Lenders, the L\/C
\nIssuer and the Administrative Agent (including any claim for the reasonable
\ncompensation, expenses, disbursements and advances of the Lenders, the L\/C
\nIssuer and the Administrative Agent and their respective agents and counsel and
\nall other amounts due the Lenders, the L\/C Issuer and the Administrative Agent
\nunder Sections 2.03(i)<\/u> and (j)<\/u>, 2.09<\/u> and 10.04<\/u>)
\nallowed in such judicial proceeding; and<\/p>\n

(b) to collect and receive any monies or other property payable or
\ndeliverable on any such claims and to distribute the same;<\/p>\n

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
\nother similar official in any such judicial proceeding is hereby authorized by
\neach Lender and the L\/C Issuer to make such payments to the Administrative Agent
\nand, in the event that the Administrative Agent shall consent to the making of
\nsuch payments directly to the Lenders and the L\/C Issuer, to pay to the
\nAdministrative Agent any amount due for the reasonable compensation, expenses,
\ndisbursements and advances of the Administrative Agent and its agents and
\ncounsel, and any other amounts due the Administrative Agent under Sections
\n2.09<\/u> and 10.04<\/u>.<\/p>\n

97<\/p>\n

\n

Nothing contained herein shall be deemed to authorize the Administrative
\nAgent to authorize or consent to or accept or adopt on behalf of any Lender or
\nthe L\/C Issuer any plan of reorganization, arrangement, adjustment or
\ncomposition affecting the Obligations or the rights of any Lender or the L\/C
\nIssuer to authorize the Administrative Agent to vote in respect of the claim of
\nany Lender or the L\/C Issuer in any such proceeding.<\/p>\n

9.10 Guaranty Matters<\/strong>. The Lenders and the L\/C Issuer
\nirrevocably authorize the Administrative Agent, at its option and in its
\ndiscretion, to release any Guarantor from its obligations under the Guaranty if
\nsuch Person ceases to be a Material Subsidiary. Upon request by the
\nAdministrative Agent at any time, the Required Lenders will confirm in writing
\nthe Administrative Agent153s authority to release any Guarantor from its
\nobligations under the Guaranty pursuant to this Section 9.10<\/u>.<\/p>\n

ARTICLE X <\/strong><\/p>\n

MISCELLANEOUS <\/strong><\/p>\n

10.01 Amendments, Etc<\/strong>. No amendment or waiver of any
\nprovision of this Agreement or any other Loan Document, and no consent to any
\ndeparture by any Borrower or any other Loan Party therefrom, shall be effective
\nunless in writing signed by the Required Lenders and the applicable Borrower or
\nthe applicable Loan Party, as the case may be, and acknowledged by the
\nAdministrative Agent, and each such waiver or consent shall be effective only in
\nthe specific instance and for the specific purpose for which given;
\nprovided<\/u>, however<\/u>, that no such amendment, waiver or consent
\nshall:<\/p>\n

(a) waive any condition set forth in Section 4.01(a)<\/u> without the
\nwritten consent of each Lender;<\/p>\n

(b) extend or increase the Commitment of any Lender (or reinstate any
\nCommitment terminated pursuant to Section 8.02<\/u>) without the written
\nconsent of such Lender;<\/p>\n

(c) postpone any date fixed by this Agreement or any other Loan Document for
\nany payment or mandatory prepayment of principal, interest, fees or other
\namounts due to the Lenders (or any of them) hereunder or under any other Loan
\nDocument without the written consent of each Lender directly affected thereby;\n<\/p>\n

(d) reduce the principal of, or the rate of interest specified herein on, any
\nLoan or L\/C Borrowing, or (subject to clause (iv)<\/u> of the second proviso
\nto this Section 10.01<\/u>) any fees or other amounts payable hereunder or
\nunder any other Loan Document without the written consent of each Lender
\ndirectly affected thereby; provided<\/u>, however<\/u>, that only the
\nconsent of the Required Lenders shall be necessary (i) to amend the definition
\nof “Default Rate” or to waive any obligation of any Borrower to pay interest or
\nLetter of Credit Fees at the Default Rate or (ii) to amend any financial
\ncovenant hereunder (or any defined term used therein) even if the effect of such
\namendment would be to reduce the rate of interest on any Loan or L\/C Borrowing
\nor to reduce any fee payable hereunder;<\/p>\n

(e) amend Section 2.14<\/u> (or waiver of any condition set forth in
\nSection 2.14<\/u>) without the written consent of each Lender adversely
\naffected thereby;<\/p>\n

98<\/p>\n

\n

(f) change Section 2.13<\/u> or Section 8.03<\/u> in a manner that would
\nalter the pro rata sharing of payments required thereby without the written
\nconsent of each Lender;<\/p>\n

(g) amend Section 1.06<\/u> or the definition of “Alternative
\nCurrency<\/u>” without the written consent of each Lender;<\/p>\n

(h) change any provision of this Section or the definition of “Required
\nLenders” or any other provision hereof specifying the number or percentage of
\nLenders required to amend, waive or otherwise modify any rights hereunder or
\nmake any determination or grant any consent hereunder without the written
\nconsent of each Lender; or<\/p>\n

(i) release all or substantially all of the value of the Guaranty without the
\nwritten consent of each Lender, except to the extent the release of any
\nGuarantor is permitted pursuant to Section 9.10<\/u> (in which case such
\nrelease may be made by the Administrative Agent acting alone);<\/p>\n

and, provided<\/u> further<\/u>, that (i) no amendment, waiver or consent
\nshall, unless in writing and signed by the L\/C Issuer in addition to the Lenders
\nrequired above, affect the rights or duties of the L\/C Issuer under this
\nAgreement or any Issuer Document relating to any Letter of Credit issued or to
\nbe issued by it; (ii) no amendment, waiver or consent shall, unless in writing
\nand signed by the Swing Line Lender in addition to the Lenders required above,
\naffect the rights or duties of the Swing Line Lender under this Agreement; (iii)
\nno amendment, waiver or consent shall, unless in writing and signed by the
\nAdministrative Agent in addition to the Lenders required above, affect the
\nrights or duties of the Administrative Agent under this Agreement or any other
\nLoan Document; and (iv) the Fee Letter may be amended, or rights or privileges
\nthereunder waived, in a writing executed only by the parties thereto.
\nNotwithstanding anything to the contrary herein, no Defaulting Lender shall have
\nany right to approve or disapprove any amendment, waiver or consent hereunder,
\n(and any amendment, waiver or consent which by its terms requires the consent of
\nall Lenders or each affected Lender may be effected with the consent of the
\napplicable Lenders other than Defaulting Lenders), except that (x) the
\nCommitment of any Defaulting Lender may not be increased or extended without the
\nconsent of such Lender and (y) any waiver, amendment or modification requiring
\nthe consent of all Lenders or each affected Lender that by its terms affects any
\nDefaulting Lender more adversely than other affected Lenders shall require the
\nconsent of such Defaulting Lender. Further, notwithstanding anything to the
\ncontrary contained in this Section, if the Administrative Agent and the
\nBorrowers shall have jointly identified an obvious error or any error or
\nomission of an immaterial nature, in each case in any provision of the Loan
\nDocuments, then the Administrative Agent and the Borrowers shall be permitted to
\namend such provision and such amendment shall become effective without any
\nfurther action or consent of any other party to any Loan Document if the same is
\nnot objected to in writing by the Required Lenders within ten (10) Business Days
\nfollowing receipt of notice thereof.<\/p>\n

Notwithstanding any provision herein to the contrary, this Agreement may be
\namended with the written consent of the Required Lenders, the Administrative
\nAgent and the Company (i) to add one or more additional revolving credit or term
\nloan facilities to this Agreement, in each case subject to the limitations in
\nSection 2.15<\/u>, and to permit the extensions of credit and all related
\nobligations and liabilities arising in connection therewith from time to time
\noutstanding to<\/p>\n

99<\/p>\n

\n

share ratably (or on a basis subordinated to the existing facilities
\nhereunder) in the benefits of this Agreement and the other Loan Documents with
\nthe obligations and liabilities from time to time outstanding in respect of the
\nexisting facilities hereunder, and (ii) in connection with the foregoing, to
\npermit, as deemed appropriate by the Administrative Agent and approved by the
\nRequired Lenders, the Lenders providing such additional credit facilities to
\nparticipate in any required vote or action required to be approved by the
\nRequired Lenders or by any other number, percentage or class of Lenders
\nhereunder.<\/p>\n

10.02 Notices; Effectiveness; Electronic Communication <\/strong><\/p>\n

(a) Notices Generally<\/u>. Except in the case of notices and other
\ncommunications expressly permitted to be given by telephone (and except as
\nprovided in clause (b)<\/u> below), all notices and other communications
\nprovided for herein shall be in writing and shall be delivered by hand or
\novernight courier service, mailed by certified or registered mail or sent by
\ntelecopier as follows, and all notices and other communications expressly
\npermitted hereunder to be given by telephone shall be made to the applicable
\ntelephone number, as follows:<\/p>\n

(i) if to any Borrower, the Administrative Agent, the L\/C Issuer or the Swing
\nLine Lender, to the address, telecopier number, electronic mail address or
\ntelephone number specified for such Person on Schedule 10.02<\/u>; and<\/p>\n

(ii) if to any other Lender, to the address, telecopier number, electronic
\nmail address or telephone number specified in its Administrative Questionnaire
\n(including, as appropriate, notices delivered solely to the Person designated by
\na Lender on its Administrative Questionnaire then in effect for the delivery of
\nnotices that may contain material non-public information relating to the
\nBorrowers).<\/p>\n

Notices and other communications sent by hand or overnight courier service,
\nor mailed by certified or registered mail, shall be deemed to have been given
\nwhen received; notices and other communications sent by telecopier shall be
\ndeemed to have been given when sent (except that, if not given during normal
\nbusiness hours for the recipient, shall be deemed to have been given at the
\nopening of business on the next business day for the recipient). Notices and
\nother communications delivered through electronic communications to the extent
\nprovided in clause (b)<\/u> below, shall be effective as provided in such
\nclause (b)<\/u>.<\/p>\n

(b) Electronic Communications<\/u>. Notices and other communications to the
\nLenders and the L\/C Issuer hereunder may be delivered or furnished by electronic
\ncommunication (including e-mail and Internet or intranet websites) pursuant to
\nprocedures approved by the Administrative Agent, provided<\/u> that the
\nforegoing shall not apply to notices to any Lender or the L\/C Issuer pursuant to
\nArticle II<\/u> if such Lender or the L\/C Issuer, as applicable, has notified
\nthe Administrative Agent that it is incapable of receiving notices under such
\nArticle by electronic communication. The Administrative Agent or any Borrower
\nmay, in its discretion, agree to accept notices and other communications to it
\nhereunder by electronic communications pursuant to procedures approved by it;
\nprovided<\/u> that approval of such procedures may be limited to particular
\nnotices or communications.<\/p>\n

100<\/p>\n

\n

Unless the Administrative Agent otherwise prescribes, (i) notices and other
\ncommunications sent to an e-mail address shall be deemed received upon the
\nsender153s receipt of an acknowledgement from the intended recipient (such as by
\nthe “return receipt requested” function, as available, return e-mail or other
\nwritten acknowledgement), provided<\/u> that if such notice or other
\ncommunication is not sent during the normal business hours of the recipient,
\nsuch notice or communication shall be deemed to have been sent at the opening of
\nbusiness on the next business day for the recipient, and (ii) notices or
\ncommunications posted to an Internet or intranet website shall be deemed
\nreceived upon the deemed receipt by the intended recipient at its e-mail address
\nas described in the foregoing clause (i)<\/u> of notification that such notice
\nor communication is available and identifying the website address therefor.<\/p>\n

(c) The Platform<\/u>. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”
\nTHE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
\nOF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
\nDISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO
\nWARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
\nPARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
\nPARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
\nshall the Administrative Agent or any of its Related Parties (collectively, the
\n“Agent Parties<\/u>“) have any liability to any Borrower, any Lender, the L\/C
\nIssuer or any other Person for losses, claims, damages, liabilities or expenses
\nof any kind (whether in tort, contract or otherwise) arising out of any
\nBorrower153s or the Administrative Agent153s transmission of Borrower Materials
\nthrough the Internet, except to the extent that such losses, claims, damages,
\nliabilities or expenses are determined by a court of competent jurisdiction by a
\nfinal and nonappealable judgment to have resulted from the gross negligence or
\nwillful misconduct of such Agent Party; provided<\/u>, however<\/u>, that in
\nno event shall any Agent Party have any liability to any Borrower, any Lender,
\nthe L\/C Issuer or any other Person for indirect, special, incidental,
\nconsequential or punitive damages (as opposed to direct or actual damages).<\/p>\n

(d) Change of Address, Etc<\/u>. Each of the Borrowers, the Administrative
\nAgent, the L\/C Issuer and the Swing Line Lender may change its address,
\ntelecopier or telephone number for notices and other communications hereunder by
\nnotice to the other parties hereto. Each other Lender may change its address,
\ntelecopier or telephone number for notices and other communications hereunder by
\nnotice to the Company, the Administrative Agent, the L\/C Issuer and the Swing
\nLine Lender. In addition, each Lender agrees to notify the Administrative Agent
\nfrom time to time to ensure that the Administrative Agent has on record (i) an
\neffective address, contact name, telephone number, telecopier number and
\nelectronic mail address to which notices and other communications may be sent
\nand (ii) accurate wire instructions for such Lender. Furthermore, each Public
\nLender agrees to cause at least one individual at or on behalf of such Public
\nLender to at all times have selected the “Private Side Information” or similar
\ndesignation on the content declaration screen of the Platform in order to enable
\nsuch Public Lender or its delegate, in accordance with such Public Lender153s
\ncompliance procedures and applicable Law, including United States Federal and
\nstate securities Laws, to make reference to Borrower Materials that are not made
\navailable through the “Public Side Information” portion of the<\/p>\n

101<\/p>\n

\n

Platform and that may contain material non-public information with respect to
\nany Borrower or its securities for purposes of United States Federal or state
\nsecurities laws.<\/p>\n

(e) Reliance by Administrative Agent, L\/C Issuer and Lenders<\/u>. The
\nAdministrative Agent, the L\/C Issuer and the Lenders shall be entitled to rely
\nand act upon any notices (including telephonic Committed Loan Notices and Swing
\nLine Loan Notices) purportedly given by or on behalf of the Borrower even if (i)
\nsuch notices were not made in a manner specified herein, were incomplete or were
\nnot preceded or followed by any other form of notice specified herein, or (ii)
\nthe terms thereof, as understood by the recipient, varied from any confirmation
\nthereof. Each Borrower shall indemnify the Administrative Agent, the L\/C Issuer,
\neach Lender and the Related Parties of each of them from all losses, costs,
\nexpenses and liabilities resulting from the reliance by such Person on each
\nnotice purportedly given by or on behalf of such Borrower. All telephonic
\nnotices to and other telephonic communications with the Administrative Agent may
\nbe recorded by the Administrative Agent, and each of the parties hereto hereby
\nconsents to such recording.<\/p>\n

10.03 No Waiver; Cumulative Remedies; Enforcement<\/strong>. No
\nfailure by any Lender, the L\/C Issuer or the Administrative Agent to exercise,
\nand no delay by any such Person in exercising, any right, remedy, power or
\nprivilege hereunder shall operate as a waiver thereof; nor shall any single or
\npartial exercise of any right, remedy, power or privilege hereunder preclude any
\nother or further exercise thereof or the exercise of any other right, remedy,
\npower or privilege. The rights, remedies, powers and privileges herein provided
\nare cumulative and not exclusive of any rights, remedies, powers and privileges
\nprovided by Law.<\/p>\n

Notwithstanding anything to the contrary contained herein or in any other
\nLoan Document, the authority to enforce rights and remedies hereunder and under
\nthe other Loan Documents against the Loan Parties or any of them shall be vested
\nexclusively in, and all actions and proceedings at Law in connection with such
\nenforcement shall be instituted and maintained exclusively by, the
\nAdministrative Agent in accordance with Section 8.02<\/u> for the benefit of
\nall the Lenders and the L\/C Issuer; provided<\/u>, however<\/u>, that the
\nforegoing shall not prohibit (a) the Administrative Agent from exercising on its
\nown behalf the rights and remedies that inure to its benefit (solely in its
\ncapacity as Administrative Agent) hereunder and under the other Loan Documents,
\n(b) the L\/C Issuer or the Swing Line Lender from exercising the rights and
\nremedies that inure to its benefit (solely in its capacity as L\/C Issuer or
\nSwing Line Lender, as the case may be) hereunder and under the other Loan
\nDocuments, (c) any Lender from exercising setoff rights in accordance with
\nSection 10.08<\/u> (subject to the terms of Section 2.13<\/u>), or (d) any
\nLender from filing proofs of claim or appearing and filing pleadings on its own
\nbehalf during the pendency of a proceeding relative to any Loan Party under any
\nDebtor Relief Law; and provided<\/u>, further<\/u>, that if at any time
\nthere is no Person acting as Administrative Agent hereunder and under the other
\nLoan Documents, then (i) the Required Lenders shall have the rights otherwise
\nascribed to the Administrative Agent pursuant to Section 8.02<\/u> and (ii) in
\naddition to the matters set forth in clauses (b)<\/u>, (c)<\/u> and
\n(d)<\/u> of the preceding proviso and subject to Section 2.13<\/u>, any
\nLender may, with the consent of the Required Lenders, enforce any rights and
\nremedies available to it and as authorized by the Required Lenders.<\/p>\n

102<\/p>\n

\n

10.04 Expenses; Indemnity; Damage Waiver. <\/strong><\/p>\n

(a) Costs and Expenses<\/u>. The Borrowers shall pay (i) all reasonable
\nout-of-pocket expenses incurred by the Administrative Agent and its Affiliates
\n(including, but subject to the terms of the Fee Letter, the reasonable fees,
\ncharges and disbursements of counsel for the Administrative Agent), in
\nconnection with the syndication of the credit facilities provided for herein,
\nthe preparation, negotiation, execution, delivery and administration of this
\nAgreement and the other Loan Documents or any amendments, modifications or
\nwaivers of the provisions hereof or thereof (whether or not the transactions
\ncontemplated hereby or thereby shall be consummated), (ii) all reasonable
\nout-of-pocket expenses incurred by the L\/C Issuer in connection with the
\nissuance, amendment, renewal or extension of any Letter of Credit or any demand
\nfor payment thereunder and (iii) all out-of-pocket expenses incurred by the
\nAdministrative Agent, any Lender or the L\/C Issuer (including the fees, charges
\nand disbursements of any counsel for the Administrative Agent, any Lender or the
\nL\/C Issuer), and shall pay all fees and time charges for attorneys who may be
\nemployees of the Administrative Agent, any Lender or the L\/C Issuer, in
\nconnection with the enforcement or protection of its rights (A) in connection
\nwith this Agreement and the other Loan Documents, including its rights under
\nthis Section, or (B) in connection with the Loans made or Letters of Credit
\nissued hereunder, including all such out-of-pocket expenses incurred during any
\nworkout, restructuring or negotiations in respect of such Loans or Letters of
\nCredit.<\/p>\n

(b) Indemnification by the Borrowers<\/u>. Each Borrower shall indemnify
\nthe Administrative Agent (and any sub-agent thereof), each Lender and the L\/C
\nIssuer, and each Related Party of any of the foregoing Persons (each such Person
\nbeing called an “Indemnitee<\/u>“) against, and hold each Indemnitee harmless
\nfrom, any and all losses, claims, damages, liabilities and related expenses
\n(including the fees, charges and disbursements of any counsel for any
\nIndemnitee), and shall indemnify and hold harmless each Indemnitee from all fees
\nand time charges and disbursements for attorneys who may be employees of any
\nIndemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any
\nthird party or by such Borrower or any other Loan Party arising out of, in
\nconnection with, or as a result of (i) the execution or delivery of this
\nAgreement, any other Loan Document or any agreement or instrument contemplated
\nhereby or thereby, the performance by the parties hereto of their respective
\nobligations hereunder or thereunder, the consummation of the transactions
\ncontemplated hereby or thereby, or, in the case of the Administrative Agent (and
\nany sub-agent thereof) and its Related Parties only, the administration of this
\nAgreement and the other Loan Documents (including in respect of any matters
\naddressed in Section 3.01<\/u>), (ii) any Loan or Letter of Credit or the use
\nor proposed use of the proceeds therefrom (including any refusal by the L\/C
\nIssuer to honor a demand for payment under a Letter of Credit if the documents
\npresented in connection with such demand do not strictly comply with the terms
\nof such Letter of Credit), (iii) any actual or alleged presence or release of
\nHazardous Materials on or from any property owned or operated by any Borrower or
\nany of its Subsidiaries, or any Environmental Liability related in any way to
\nany Borrower or any of its Subsidiaries, or (iv) any actual or prospective
\nclaim, litigation, investigation or proceeding relating to any of the foregoing,
\nwhether based on contract, tort or any other theory, whether brought by a third
\nparty or by any Borrower or any other Loan Party, and regardless of whether any
\nIndemnitee is a party thereto; provided<\/u> that such indemnity shall not, as
\nto any Indemnitee, be available to the extent that such losses, claims, damages,
\nliabilities or related expenses (x) are determined by a court of competent
\njurisdiction by final and nonappealable judgment to have<\/p>\n

103<\/p>\n

\n

resulted from the gross negligence or willful misconduct of such Indemnitee
\nor (y) result from a claim brought by any Borrower or any other Loan Party
\nagainst an Indemnitee for breach in bad faith of such Indemnitee153s obligations
\nhereunder or under any other Loan Document, if such Borrower or such other Loan
\nParty has obtained a final and nonappealable judgment in its favor on such claim
\nas determined by a court of competent jurisdiction.<\/p>\n

(c) Reimbursement by Lenders<\/u>. To the extent that any Borrower for any
\nreason fails to indefeasibly pay any amount required under clause (a)<\/u> or
\n(b)<\/u> of this Section to be paid by it to the Administrative Agent (or any
\nsub-agent thereof), the L\/C Issuer or any Related Party of any of the foregoing,
\neach Lender severally agrees to pay to the Administrative Agent (or any such
\nsub-agent), the L\/C Issuer or such Related Party, as the case may be, such
\nLender153s Applicable Percentage (determined as of the time that the applicable
\nunreimbursed expense or indemnity payment is sought) of such unpaid amount,
\nprovided<\/u> that the unreimbursed expense or indemnified loss, claim,
\ndamage, liability or related expense, as the case may be, was incurred by or
\nasserted against the Administrative Agent (or any such sub-agent) or the L\/C
\nIssuer in its capacity as such, or against any Related Party of any of the
\nforegoing acting for the Administrative Agent (or any such sub-agent) or L\/C
\nIssuer in connection with such capacity. The obligations of the Lenders under
\nthis clause (c)<\/u> are subject to the provisions of Section 2.12(d)<\/u>.\n<\/p>\n

(d) Waiver of Consequential Damages, Etc<\/u>. To the fullest extent
\npermitted by applicable Law, no Borrower shall assert, and each Borrower hereby
\nwaives, any claim against any Indemnitee, on any theory of liability, for
\nspecial, indirect, consequential or punitive damages (as opposed to direct or
\nactual damages) arising out of, in connection with, or as a result of, this
\nAgreement, any other Loan Document or any agreement or instrument contemplated
\nhereby, the transactions contemplated hereby or thereby, any Loan or Letter of
\nCredit or the use of the proceeds thereof. No Indemnitee referred to in
\nclause (b)<\/u> above shall be liable for any damages arising from the use by
\nunintended recipients of any information or other materials distributed to such
\nunintended recipients by such Indemnitee through telecommunications, electronic
\nor other information transmission systems in connection with this Agreement or
\nthe other Loan Documents or the transactions contemplated hereby or thereby
\nother than for direct or actual damages resulting from the gross negligence or
\nwillful misconduct of such Indemnitee as determined by a final and nonappealable
\njudgment of a court of competent jurisdiction.<\/p>\n

(e) Payments<\/u>. All amounts due under this Section shall be payable not
\nlater than ten (10) Business Days after written demand therefor.<\/p>\n

(f) Survival<\/u>. The agreements in this Section shall survive the
\nresignation of the Administrative Agent, the L\/C Issuer and the Swing Line
\nLender, the replacement of any Lender, the termination of the Aggregate
\nCommitments and the repayment, satisfaction or discharge of all the other
\nObligations.<\/p>\n

10.05 Payments Set Aside<\/strong>. To the extent that any payment by
\nor on behalf of any Borrower is made to the Administrative Agent, the L\/C Issuer
\nor any Lender, or the Administrative Agent, the L\/C Issuer or any Lender
\nexercises its right of setoff, and such payment or the proceeds of such setoff
\nor any part thereof is subsequently invalidated, declared to be fraudulent or
\npreferential, set aside or required (including pursuant to any settlement<\/p>\n

104<\/p>\n

\n

entered into by the Administrative Agent, the L\/C Issuer or such Lender in
\nits discretion) to be repaid to a trustee, receiver or any other party, in
\nconnection with any proceeding under any Debtor Relief Law or otherwise, then
\n(a) to the extent of such recovery, the obligation or part thereof originally
\nintended to be satisfied shall be revived and continued in full force and effect
\nas if such payment had not been made or such setoff had not occurred, and (b)
\neach Lender and the L\/C Issuer severally agrees to pay to the Administrative
\nAgent upon demand its applicable share (without duplication) of any amount so
\nrecovered from or repaid by the Administrative Agent, plus interest thereon from
\nthe date of such demand to the date such payment is made at a rate per annum
\nequal to applicable Overnight Rate from time to time in effect, in the
\napplicable currency of such recovery or payment. The obligations of the Lenders
\nand the L\/C Issuer under clause (b)<\/u> of the preceding sentence shall
\nsurvive the payment in full of the Obligations and the termination of this
\nAgreement.<\/p>\n

10.06 Successors and Assigns. <\/strong><\/p>\n

(a) Successors and Assigns Generally<\/u>. The provisions of this Agreement
\nshall be binding upon and inure to the benefit of the parties hereto and their
\nrespective successors and assigns permitted hereby, except that neither any
\nBorrower nor any other Loan Party may assign or otherwise transfer any of its
\nrights or obligations hereunder without the prior written consent of the
\nAdministrative Agent and each Lender and no Lender may assign or otherwise
\ntransfer any of its rights or obligations hereunder except (i) to an assignee in
\naccordance with the provisions of clause (b)<\/u> of this Section, (ii) by way
\nof participation in accordance with the provisions of clause (d)<\/u> of this
\nSection, or (iii) by way of pledge or assignment of a security interest subject
\nto the restrictions of clause (f)<\/u> of this Section (and any other
\nattempted assignment or transfer by any party hereto shall be null and void).
\nNothing in this Agreement, expressed or implied, shall be construed to confer
\nupon any Person (other than the parties hereto, their respective successors and
\nassigns permitted hereby, Participants to the extent provided in clause
\n(d)<\/u> of this Section and, to the extent expressly contemplated hereby, the
\nRelated Parties of each of the Administrative Agent, the L\/C Issuer and the
\nLenders) any legal or equitable right, remedy or claim under or by reason of
\nthis Agreement.<\/p>\n

(b) Assignments by Lenders<\/u>. Any Lender may at any time assign to one
\nor more assignees all or a portion of its rights and obligations under this
\nAgreement (including all or a portion of its Commitment and the Loans (including
\nfor purposes of this clause (b)<\/u>, participations in L\/C Obligations and in
\nSwing Line Loans) at the time owing to it); provided<\/u> that in connection
\nwith any assignment of all or a portion of a Lender153s U.S. Revolving Credit
\nCommitment, an assignee may elect to convert all of such Commitment being
\nassigned to a Global Revolving Credit Commitment; provided<\/u> further<\/u>
\nthat any such assignment shall be subject to the following conditions:<\/p>\n

(i) Minimum Amounts<\/u>.<\/p>\n

(A) in the case of an assignment of the entire remaining amount of the
\nassigning Lender153s Commitment and the Loans at the time owing to it or in the
\ncase of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
\nno minimum amount need be assigned; provided<\/u> that, if such amount is less
\nthan EUR100,000 (or its equivalent in another currency), then such assignee (if
\nsuch<\/p>\n

105<\/p>\n

\n

assignee is not a Lender) shall confirm in writing to any Designated Borrower
\nthat is organized under the laws of the Netherlands that such assignee is a
\nprofessional market party within the meaning of the Dutch Financial Supervision
\nAct; and<\/p>\n

(B) in any case not described in clause (b)(i)(A)<\/u> of this Section, the
\naggregate amount of the Commitment (which for this purpose includes Loans
\noutstanding thereunder) or, if the Commitment is not then in effect, the
\nprincipal outstanding balance of the Loans of the assigning Lender subject to
\neach such assignment, determined as of the date the Assignment and Assumption
\nwith respect to such assignment is delivered to the Administrative Agent or, if
\n“Trade Date” is specified in the Assignment and Assumption, as of the Trade
\nDate, shall not be less than $5,000,000 unless each of the Administrative Agent
\nand, so long as no Event of Default has occurred and is continuing, the Company
\notherwise consents (each such consent not to be unreasonably withheld or
\ndelayed); provided<\/u>, however<\/u>, that concurrent assignments to
\nmembers of an Assignee Group and concurrent assignments from members of an
\nAssignee Group to a single Eligible Assignee (or to an Eligible Assignee and
\nmembers of its Assignee Group) will be treated as a single assignment for
\npurposes of determining whether such minimum amount has been met.<\/p>\n

(ii) Proportionate Amounts<\/u>. Each partial assignment shall be made as
\nan assignment of a proportionate part of all the assigning Lender153s rights and
\nobligations under this Agreement with respect to the Loans or the Commitment
\nassigned, except that this clause (ii)<\/u> shall not apply to the Swing Line
\nLender153s rights and obligations in respect of Swing Line Loans;<\/p>\n

(iii) Required Consents<\/u>. No consent shall be required for any
\nassignment except to the extent required by clause (b)(i)(B)<\/u> of this
\nSection and, in addition:<\/p>\n

(A) the consent of the Company (such consent not to be unreasonably withheld
\nor delayed) shall be required unless (1) an Event of Default has occurred and is
\ncontinuing at the time of such assignment or (2) such assignment is to a Lender,
\nan Affiliate of a Lender or an Approved Fund; provided<\/u> that the Company
\nshall be deemed to have consented to any such assignment unless it shall object
\nthereto by written notice to the Administrative Agent within ten (10) Business
\nDays after having received notice thereof;<\/p>\n

(B) the consent of the Administrative Agent (such consent not to be
\nunreasonably withheld or delayed) shall be required if such assignment is to a
\nPerson that is not a Lender, an Affiliate of such Lender or an Approved Fund
\nwith respect to such Lender;<\/p>\n

(C) the consent of the L\/C Issuer (such consent not to be unreasonably
\nwithheld or delayed) shall be required for any assignment that increases the
\nobligation of the assignee to participate in exposure under one or more Letters
\nof Credit (whether or not then outstanding); and<\/p>\n

106<\/p>\n

\n

(D) the consent of the Swing Line Lender (such consent not to be unreasonably
\nwithheld or delayed) shall be required for any assignment.<\/p>\n

(iv) Assignment and Assumption<\/u>. The parties to each assignment shall
\nexecute and deliver to the Administrative Agent an Assignment and Assumption,
\ntogether with a processing and recordation fee in the amount of $3,500;
\nprovided<\/u>, however<\/u>, that the Administrative Agent may, in its sole
\ndiscretion, elect to waive such processing and recordation fee in the case of
\nany assignment. The assignee, if it is not a Lender, shall deliver to the
\nAdministrative Agent an Administrative Questionnaire.<\/p>\n

(v) No Assignment to Certain Persons<\/u>. No such assignment shall be made
\n(A) to any Borrower or any of such Borrower153s Affiliates or Subsidiaries, or (B)
\nto any Defaulting Lender or any of its Subsidiaries, or any Person who, upon
\nbecoming a Lender hereunder, would constitute any of the foregoing Persons
\ndescribed in this clause (B), or (C) to a natural person.<\/p>\n

(vi) Certain Additional Payments<\/u>. In connection with any assignment of
\nrights and obligations of any Defaulting Lender hereunder, no such assignment
\nshall be effective unless and until, in addition to the other conditions thereto
\nset forth herein, the parties to the assignment shall make such additional
\npayments to the Administrative Agent in an aggregate amount sufficient, upon
\ndistribution thereof as appropriate (which may be outright payment, purchases by
\nthe assignee of participations or subparticipations, or other compensating
\nactions, including funding, with the consent of the Company and the
\nAdministrative Agent, the applicable pro rata share of Loans previously
\nrequested but not funded by the Defaulting Lender, to each of which the
\napplicable assignee and assignor hereby irrevocably consent), to (x) pay and
\nsatisfy in full all payment liabilities then owed by such Defaulting Lender to
\nthe Administrative Agent or any Lender hereunder (and interest accrued thereon)
\nand (y) acquire (and fund as appropriate) its full pro rata share of all Loans
\nand participations in Letters of Credit and Swing Line Loans in accordance with
\nits Applicable Percentage. Notwithstanding the foregoing, in the event that any
\nassignment of rights and obligations of any Defaulting Lender hereunder shall
\nbecome effective under applicable Law without compliance with the provisions of
\nthis paragraph, then the assignee of such interest shall be deemed to be a
\nDefaulting Lender for all purposes of this Agreement until such compliance
\noccurs.<\/p>\n

Subject to acceptance and recording thereof by the Administrative Agent
\npursuant to clause (c)<\/u> of this Section, from and after the effective date
\nspecified in each Assignment and Assumption, the assignee thereunder shall be a
\nparty to this Agreement and, to the extent of the interest assigned by such
\nAssignment and Assumption, have the rights and obligations of a Lender under
\nthis Agreement, and the assigning Lender thereunder shall, to the extent of the
\ninterest assigned by such Assignment and Assumption, be released from its
\nobligations under this Agreement (and, in the case of an Assignment and
\nAssumption covering all of the assigning Lender153s rights and obligations under
\nthis Agreement, such Lender shall cease to be a party hereto) but shall continue
\nto be entitled to the benefits of Sections 3.01<\/u>, 3.04<\/u>,
\n3.05<\/u>, and 10.04<\/u> with respect to facts and circumstances occurring
\nprior to the effective date of such assignment. Upon request, each Borrower (at
\nits expense) shall execute and deliver a Note to the assignee Lender. Any<\/p>\n

107<\/p>\n

\n

assignment or transfer by a Lender of rights or obligations under this
\nAgreement that does not comply with this clause shall be treated for purposes of
\nthis Agreement as a sale by such Lender of a participation in such rights and
\nobligations in accordance with clause (d)<\/u> of this Section.<\/p>\n

(c) Register<\/u>. The Administrative Agent, acting solely for this purpose
\nas an agent of the Company (and such agency being solely for tax purposes),
\nshall maintain at the Administrative Agent153s Office a copy of each Assignment
\nand Assumption delivered to it and a register for the recordation of the names
\nand addresses of the Lenders, and the Commitments of, and principal amounts of
\nthe Loans and L\/C Obligations owing to, each Lender pursuant to the terms hereof
\nfrom time to time (the “Register<\/u>“). The entries in the Register shall be
\nconclusive, and the Company, the Administrative Agent and the Lenders may treat
\neach Person whose name is recorded in the Register pursuant to the terms hereof
\nas a Lender hereunder for all purposes of this Agreement, notwithstanding notice
\nto the contrary. In addition, the Administrative Agent shall maintain on the
\nRegister information regarding the designation, and revocation of designation,
\nof any Lender as a Defaulting Lender. The Register shall be available for
\ninspection by the Company and any Lender, at any reasonable time and from time
\nto time upon reasonable prior notice.<\/p>\n

(d) Participations<\/u>. Any Lender may at any time, without the consent
\nof, or notice to, any Borrower or the Administrative Agent, sell participations
\nto any Person (other than a natural person, a Defaulting Lender or any Borrower
\nor any of such Borrower153s Affiliates or Subsidiaries) (each, a
\n“Participant<\/u>“) in all or a portion of such Lender153s rights and\/or
\nobligations under this Agreement (including all or a portion of its Commitment
\nand\/or the Loans (including such Lender153s participations in L\/C Obligations
\nand\/or Swing Line Loans) owing to it); provided<\/u> that (i) such Lender153s
\nobligations under this Agreement shall remain unchanged, (ii) such Lender shall
\nremain solely responsible to the other parties hereto for the performance of
\nsuch obligations and (iii) each Borrower, the Administrative Agent, the Lenders
\nand the L\/C Issuer shall continue to deal solely and directly with such Lender
\nin connection with such Lender153s rights and obligations under this Agreement.\n<\/p>\n

Any agreement or instrument pursuant to which a Lender sells such a
\nparticipation shall provide that such Lender shall retain the sole right to
\nenforce this Agreement and to approve any amendment, modification or waiver of
\nany provision of this Agreement; provided<\/u> that such agreement or
\ninstrument may provide that such Lender will not, without the consent of the
\nParticipant, agree to any amendment, waiver or other modification described in
\nthe first proviso to Section 10.01<\/u> that affects such Participant. Subject
\nto clause (e)<\/u> of this Section, each Borrower agrees that each Participant
\nshall be entitled to the benefits of Sections 3.01<\/u>, 3.04<\/u> and
\n3.05 <\/u>to the same extent as if it were a Lender and had acquired its
\ninterest by assignment pursuant to clause (b)<\/u> of this Section. To the
\nextent permitted by Law, each Participant also shall be entitled to the benefits
\nof Section 10.08 <\/u>as though it were a Lender, provided<\/u> such
\nParticipant agrees to be subject to Section 2.13<\/u> as though it were a
\nLender. Each Lender that sells a participating interest in any Loan, Commitment
\nor other interest to a Participant shall, as agent of the Borrower solely for
\nthe purpose of this Section 10.06(d)<\/u>, record in book entries maintained
\nby such Lender the name and the amount of the participating interest of each
\nParticipant entitled to receive payments in respect of such participating
\ninterests.<\/p>\n

108<\/p>\n

\n

(e) Limitations upon Participant Rights<\/u>. A Participant shall not be
\nentitled to receive any greater payment under Section 3.01<\/u> or 3.04
\n<\/u>than the applicable Lender would have been entitled to receive with respect
\nto the participation sold to such Participant, unless the sale of the
\nparticipation to such Participant is made with the Company153s prior written
\nconsent. A Participant that would be a Foreign Lender if it were a Lender shall
\nnot be entitled to the benefits of Section 3.01<\/u> unless the Company is
\nnotified of the participation sold to such Participant and such Participant
\nagrees, for the benefit of a Borrower, to comply with Section 3.01(e)<\/u> as
\nthough it were a Lender.<\/p>\n

(f) Certain Pledges<\/u>. Any Lender may at any time pledge or assign a
\nsecurity interest in all or any portion of its rights under this Agreement
\n(including under its Note, if any) to secure obligations of such Lender,
\nincluding any pledge or assignment to secure obligations to a Federal Reserve
\nBank; provided<\/u> that no such pledge or assignment shall release such
\nLender from any of its obligations hereunder or substitute any such pledgee or
\nassignee for such Lender as a party hereto.<\/p>\n

(g) Resignation as L\/C Issuer or Swing Line Lender after Assignment<\/u>.
\nNotwithstanding anything to the contrary contained herein, if at any time Bank
\nof America assigns all of its Commitment and Loans pursuant to clause (b)<\/u>
\nabove, Bank of America may, (i) upon thirty (30) days notice to the Company and
\nthe Lenders, resign as L\/C Issuer and\/or (ii) upon thirty (30) days notice to
\nthe Company, resign as Swing Line Lender. In the event of any such resignation
\nas L\/C Issuer or Swing Line Lender, the Company shall be entitled to appoint
\nfrom among the Lenders a successor L\/C Issuer or Swing Line Lender hereunder;
\nprovided<\/u>, however<\/u>, that no failure by the Company to appoint any
\nsuch successor shall affect the resignation of Bank of America as L\/C Issuer or
\nSwing Line Lender, as the case may be. If Bank of America resigns as L\/C Issuer,
\nit shall retain all the rights, powers, privileges and duties of the L\/C Issuer
\nhereunder with respect to all Letters of Credit outstanding as of the effective
\ndate of its resignation as L\/C Issuer and all L\/C Obligations with respect
\nthereto (including the right to require the Lenders to make Base Rate Committed
\nLoans or fund risk participations in Unreimbursed Amounts pursuant to
\nSection 2.03(c)<\/u>). If Bank of America resigns as Swing Line Lender, it
\nshall retain all the rights of the Swing Line Lender provided for hereunder with
\nrespect to Swing Line Loans made by it and outstanding as of the effective date
\nof such resignation, including the right to require the Lenders to make Base
\nRate Committed Loans or fund risk participations in outstanding Swing Line Loans
\npursuant to Section 2.04(c)<\/u>. Upon the appointment of a successor L\/C
\nIssuer and\/or Swing Line Lender, (a) such successor shall succeed to and become
\nvested with all of the rights, powers, privileges and duties of the retiring L\/C
\nIssuer or Swing Line Lender, as the case may be, and (b) the successor L\/C
\nIssuer shall issue letters of credit in substitution for the Letters of Credit,
\nif any, outstanding at the time of such succession or make other arrangements
\nsatisfactory to Bank of America to effectively assume the obligations of Bank of
\nAmerica with respect to such Letters of Credit.<\/p>\n

10.07 Treatment of Certain Information; Confidentiality<\/strong>.
\nEach of the Administrative Agent, the Lenders and the L\/C Issuer agrees to
\nmaintain the confidentiality of the Information (as defined below), except that
\nInformation may be disclosed (a) to its Affiliates and to its and its
\nAffiliates153 respective partners, directors, officers, employees, agents,
\ntrustees, advisors and representatives (it being understood that the Persons to
\nwhom such disclosure is made will be informed of the confidential nature of such
\nInformation and instructed to keep such<\/p>\n

109<\/p>\n

\n

Information confidential), (b) to the extent requested by any regulatory
\nauthority purporting to have jurisdiction over it (including any self-regulatory
\nauthority, such as the National Association of Insurance Commissioners), (c) to
\nthe extent required by applicable Laws or regulations or by any subpoena or
\nsimilar legal process, (d) to any other party hereto, (e) in connection with the
\nexercise of any remedies hereunder or under any other Loan Document or any
\naction or proceeding relating to this Agreement or any other Loan Document or
\nthe enforcement of rights hereunder or thereunder, (f) subject to an agreement
\ncontaining provisions substantially the same as those of this Section, to (i)
\nany assignee of or Participant in, or any prospective assignee of or Participant
\nin, any of its rights or obligations under this Agreement or (ii) any actual or
\nprospective counterparty (or its advisors) to any swap or derivative transaction
\nrelating to any Borrower and its obligations, (g) with the consent of any
\nBorrower or (h) to the extent such Information (i) becomes publicly available
\nother than as a result of a breach of this Section or (ii) becomes available to
\nthe Administrative Agent, any Lender, the L\/C Issuer or any of their respective
\nAffiliates on a nonconfidential basis from a source other than a Borrower who is
\nnot then known by the recipient to be breaching any confidentiality agreement
\nwith such Borrower by making such Information available.<\/p>\n

For purposes of this Section, “Information<\/u>” means all information
\nreceived from a Borrower or any Subsidiary relating to any Borrower or any
\nSubsidiary or any of their respective businesses, other than any such
\ninformation that is available to the Administrative Agent, any Lender or the L\/C
\nIssuer on a nonconfidential basis prior to disclosure by any Borrower or any
\nSubsidiary, provided<\/u> that in the case of information received from any
\nBorrower or any Subsidiary after the date hereof, such information is clearly
\nidentified at the time of delivery as confidential. Any Person required to
\nmaintain the confidentiality of Information as provided in this Section shall be
\nconsidered to have complied with its obligation to do so if such Person has
\nexercised the same degree of care to maintain the confidentiality of such
\nInformation as such Person would accord to its own confidential information.\n<\/p>\n

Each of the Administrative Agent, the Lenders and the L\/C Issuer acknowledges
\nthat (a) the Information may include material non-public information concerning
\na Borrower or a Subsidiary, as the case may be, (b) it has developed compliance
\nprocedures regarding the use of material non-public information and (c) it will
\nhandle such material non-public information in accordance with applicable Law,
\nincluding United States Federal and state securities Laws.<\/p>\n

10.08 Right of Setoff<\/strong>. If an Event of Default shall have
\noccurred and be continuing, each Lender, the L\/C Issuer and each of their
\nrespective Affiliates is hereby authorized at any time and from time to time to
\nthe fullest extent permitted by applicable Law, to set off and apply any and all
\ndeposits (general or special, time or demand, provisional or final, in whatever
\ncurrency) at any time held and other obligations (in whatever currency) at any
\ntime owing by such Lender, the L\/C Issuer or any such Affiliate to or for the
\ncredit or the account of any Borrower or any other Loan Party against any and
\nall of the obligations of such Borrower or such Loan Party now or hereafter
\nexisting under this Agreement or any other Loan Document to such Lender or the
\nL\/C Issuer, irrespective of whether or not such Lender or the L\/C Issuer shall
\nhave made any demand under this Agreement or any other Loan Document and
\nalthough such obligations of such Borrower or such Loan Party may be contingent
\nor unmatured or are owed to a branch or office of such Lender or the L\/C Issuer
\ndifferent from the branch or office holding such deposit or obligated on such
\nindebtedness; provided<\/u>, that in the event that any Defaulting<\/p>\n

110<\/p>\n

\n

Lender shall exercise any such right of setoff, (x) all amounts so set off
\nshall be paid over immediately to the Administrative Agent for further
\napplication in accordance with the provisions of Section 2.17<\/u> and,
\npending such payment, shall be segregated by such Defaulting Lender from its
\nother funds and deemed held in trust for the benefit of the Administrative Agent
\nand the Lenders, and (y) the Defaulting Lender shall provide promptly to the
\nAdministrative Agent a statement describing in reasonable detail the Obligations
\nowing to such Defaulting Lender as to which it exercised such right of setoff.
\nThe rights of each Lender, the L\/C Issuer and their respective Affiliates under
\nthis Section are in addition to other rights and remedies (including other
\nrights of setoff) that such Lender, the L\/C Issuer or their respective
\nAffiliates may have. Each Lender and the L\/C Issuer agrees to notify the Company
\nand the Administrative Agent promptly after any such setoff and application,
\nprovided<\/u> that the failure to give such notice shall not affect the
\nvalidity of such setoff and application.<\/p>\n

10.09 Interest Rate Limitation<\/strong>. Notwithstanding anything to
\nthe contrary contained in any Loan Document, the interest paid or agreed to be
\npaid under the Loan Documents shall not exceed the maximum rate of non-usurious
\ninterest permitted by applicable Law (the “Maximum Rate<\/u>“). If the
\nAdministrative Agent or any Lender shall receive interest in an amount that
\nexceeds the Maximum Rate, the excess interest shall be applied to the principal
\nof the Loans or, if it exceeds such unpaid principal, refunded to the Company
\n(for the benefit of the applicable Borrower). In determining whether the
\ninterest contracted for, charged, or received by the Administrative Agent or a
\nLender exceeds the Maximum Rate, such Person may, to the extent permitted by
\napplicable Law, (a) characterize any payment that is not principal as an
\nexpense, fee, or premium rather than interest, (b) exclude voluntary prepayments
\nand the effects thereof, and (c) amortize, prorate, allocate, and spread in
\nequal or unequal parts the total amount of interest throughout the contemplated
\nterm of the Obligations hereunder.<\/p>\n

10.10 Counterparts; Integration; Effectiveness<\/strong>. This
\nAgreement may be executed in counterparts (and by different parties hereto in
\ndifferent counterparts), each of which shall constitute an original, but all of
\nwhich when taken together shall constitute a single contract. This Agreement and
\nthe other Loan Documents constitute the entire contract among the parties
\nrelating to the subject matter hereof and supersede any and all previous
\nagreements and understandings, oral or written, relating to the subject matter
\nhereof. Except as provided in Section 4.01<\/u>, this Agreement shall become
\neffective when it shall have been executed by the Administrative Agent and when
\nthe Administrative Agent shall have received counterparts hereof that, when
\ntaken together, bear the signatures of each of the other parties hereto.
\nDelivery of an executed counterpart of a signature page of this Agreement by
\ntelecopy or other electronic imaging means shall be effective as delivery of a
\nmanually executed counterpart of this Agreement.<\/p>\n

10.11 Survival of Representations and Warranties<\/strong>. All
\nrepresentations and warranties made hereunder and in any other Loan Document or
\nother document delivered pursuant hereto or thereto or in connection herewith or
\ntherewith shall survive the execution and delivery hereof and thereof. Such
\nrepresentations and warranties have been or will be relied upon by the
\nAdministrative Agent and each Lender, regardless of any investigation made by
\nthe Administrative Agent or any Lender or on their behalf and notwithstanding
\nthat the Administrative Agent or any Lender may have had notice or knowledge of
\nany Default at the time of any Credit Extension, and shall continue in full
\nforce and effect as long as any Loan or<\/p>\n

111<\/p>\n

\n

any other Obligation hereunder shall remain unpaid or unsatisfied or any
\nLetter of Credit shall remain outstanding.<\/p>\n

10.12 Severability<\/strong>. If any provision of this Agreement or
\nthe other Loan Documents is held to be illegal, invalid or unenforceable, (a)
\nthe legality, validity and enforceability of the remaining provisions of this
\nAgreement and the other Loan Documents shall not be affected or impaired thereby
\nand (b) the parties shall endeavor in good faith negotiations to replace the
\nillegal, invalid or unenforceable provisions with valid provisions the economic
\neffect of which comes as close as possible to that of the illegal, invalid or
\nunenforceable provisions. The invalidity of a provision in a particular
\njurisdiction shall not invalidate or render unenforceable such provision in any
\nother jurisdiction. Without limiting the foregoing provisions of this
\nSection 10.12<\/u>, if and to the extent that the enforceability of any
\nprovisions in this Agreement relating to Defaulting Lenders shall be limited by
\nDebtor Relief Laws, as determined in good faith by the Administrative Agent, the
\nL\/C Issuer or the Swing Line Lender, as applicable, then such provisions shall
\nbe deemed to be in effect only to the extent not so limited.<\/p>\n

10.13 Replacement of Lenders<\/strong>. If any Lender requests
\ncompensation under Section 3.04<\/u>, or if any Borrower is required to pay
\nany additional amount to any Lender or any Governmental Authority for the
\naccount of any Lender pursuant to Section 3.01<\/u>, or if any Lender is a
\nDefaulting Lender, then the Company may, at its sole expense and effort, upon
\nnotice to such Lender and the Administrative Agent, require such Lender to
\nassign and delegate, without recourse (in accordance with and subject to the
\nrestrictions contained in, and consents required by, Section 10.06<\/u>), all
\nof its interests, rights and obligations under this Agreement and the related
\nLoan Documents to an assignee that shall assume such obligations (which assignee
\nmay be another Lender, if a Lender accepts such assignment), provided<\/u>
\nthat:<\/p>\n

(a) the Company shall have paid (or caused a Designated Borrower to pay) to
\nthe Administrative Agent the assignment fee specified in Section
\n10.06(b)<\/u>;<\/p>\n

(b) such Lender shall have received payment of an amount equal to 100% of the
\noutstanding principal of its Loans and L\/C Advances, accrued interest thereon,
\naccrued fees and all other amounts payable to it hereunder and under the other
\nLoan Documents (including any amounts under Section 3.05<\/u>) from the
\nassignee (to the extent of such outstanding principal and accrued interest and
\nfees) or any Borrower (in the case of all other amounts);<\/p>\n

(c) in the case of any such assignment resulting from a claim for
\ncompensation under Section 3.04<\/u> or payments required to be made pursuant
\nto Section 3.01<\/u>, such assignment will result in a reduction in such
\ncompensation or payments thereafter; and<\/p>\n

(d) such assignment does not conflict with applicable Laws.<\/p>\n

A Lender shall not be required to make any such assignment or delegation if,
\nprior thereto, as a result of a waiver by such Lender or otherwise, the
\ncircumstances entitling the Company to require such assignment and delegation
\ncease to apply.<\/p>\n

10.14 Governing Law; Jurisdiction; Etc<\/strong>. (a) GOVERNING
\nLAW<\/u>. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
\nTHE LAW OF THE STATE OF NEW YORK.<\/p>\n

112<\/p>\n

\n

(b) SUBMISSION TO JURISDICTION<\/u>. EACH BORROWER AND EACH OTHER LOAN
\nPARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
\nTHE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN
\nNEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT
\nOF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
\nPROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
\nDOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
\nPARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
\nOF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
\nSTATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
\nFEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
\nSUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
\nJURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
\nNOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
\nTHAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L\/C ISSUER MAY OTHERWISE HAVE
\nTO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
\nDOCUMENT AGAINST ANY BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE
\nCOURTS OF ANY JURISDICTION.<\/p>\n

(c) WAIVER OF VENUE<\/u>. EACH BORROWER AND EACH OTHER LOAN PARTY
\nIRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
\nAPPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
\nVENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
\nOR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
\nSECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
\nEXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
\nMAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.<\/p>\n

(d) SERVICE OF PROCESS<\/u>. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
\nSERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02<\/u>.
\nNOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
\nPROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.<\/p>\n

(e) APPOINTMENT OF REFEREE<\/u>. IF ANY ACTION OR PROCEEDING IS FILED IN A
\nCOURT OF THE STATE OF CALIFORNIA BY OR AGAINST ANY PARTY HERETO IN CONNECTION
\nWITH ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (I) THE COURT
\nSHALL, AND IS HEREBY DIRECTED TO, MAKE A GENERAL REFERENCE PURSUANT TO
\nCALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 TO A REFEREE (WHO SHALL BE A
\nSINGLE ACTIVE OR RETIRED JUDGE) TO HEAR AND DETERMINE ALL OF THE ISSUES IN SUCH
\nACTION OR PROCEEDING (WHETHER OF FACT OR OF LAW) AND TO REPORT A<\/p>\n

113<\/p>\n

\n

STATEMENT OF DECISION; PROVIDED<\/u> THAT, AT THE OPTION OF ANY PARTY TO
\nSUCH PROCEEDING, ANY SUCH ISSUES PERTAINING TO A “PROVISIONAL REMEDY” (AS
\nDEFINED IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1281.8) SHALL BE HEARD AND
\nDETERMINED BY THE COURT; AND (II) WITHOUT LIMITING THE GENERALITY OF ANY OTHER
\nPROVISIONS HEREIN, EACH BORROWER SHALL BE SOLELY RESPONSIBLE TO PAY ALL FEES AND
\nEXPENSES OF ANY REFEREE APPOINTED IN SUCH ACTION OR PROCEEDING.<\/p>\n

10.15 Waiver of Jury Trial<\/strong>. EACH PARTY HERETO HEREBY
\nIRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
\nIT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
\nARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
\nTRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
\nANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
\nOR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
\nSUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
\nFOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
\nBEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
\nOTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.<\/p>\n

10.16 No Advisory or Fiduciary Responsibility<\/strong>. In connection
\nwith all aspects of each transaction contemplated hereby (including in
\nconnection with any amendment, waiver or other modification hereof or of any
\nother Loan Document), each Borrower acknowledges and agrees, and acknowledges
\nits Affiliates153 understanding, that: (i) (A) the arranging and other services
\nregarding this Agreement provided by the Administrative Agent and the Arrangers
\nare arm153s-length commercial transactions between each Borrower, each other Loan
\nParty and their respective Affiliates, on the one hand, and the Administrative
\nAgent and the Arrangers, on the other hand, (B) each Borrower has consulted its
\nown legal, accounting, regulatory and tax advisors to the extent it has deemed
\nappropriate, and (C) each Borrower is capable of evaluating, and understands and
\naccepts, the terms, risks and conditions of the transactions contemplated hereby
\nand by the other Loan Documents; (ii) (A) the Administrative Agent and the
\nArrangers each is and has been acting solely as a principal and, except as
\nexpressly agreed in writing by the relevant parties, has not been, is not, and
\nwill not be acting as an advisor, agent or fiduciary for any Borrower, any other
\nLoan Party or any of their respective Affiliates, or any other Person and (B)
\nneither the Administrative Agent nor either Arranger has any obligation to any
\nBorrower, any other Loan Party or any of their respective Affiliates with
\nrespect to the transactions contemplated hereby except those obligations
\nexpressly set forth herein and in the other Loan Documents; and (iii) the
\nAdministrative Agent and the Arrangers and their respective Affiliates may be
\nengaged in a broad range of transactions that involve interests that differ from
\nthose of the Borrowers, the other Loan Parties and their respective Affiliates,
\nand neither the Administrative Agent nor either Arranger has any obligation to
\ndisclose any of such interests to any Borrower, any other Loan Party or any of
\ntheir respective Affiliates. To the fullest extent permitted by Law, each
\nBorrower hereby waives and releases any claims that it may have against<\/p>\n

114<\/p>\n

\n

the Administrative Agent and the Arrangers with respect to any breach or
\nalleged breach of agency or fiduciary duty in connection with any aspect of any
\ntransaction contemplated hereby.<\/p>\n

10.17 Electronic Execution of Assignments and Certain Other
\nDocuments<\/strong>. The words “execution,” “signed,” “signature,” and words of
\nlike import in any Assignment and Assumption or in any amendment or other
\nmodification hereof (including waivers and consents) shall be deemed to include
\nelectronic signatures or the keeping of records in electronic form, each of
\nwhich shall be of the same legal effect, validity or enforceability as a
\nmanually executed signature or the use of a paper-based recordkeeping system, as
\nthe case may be, to the extent and as provided for in any applicable Law,
\nincluding the Federal Electronic Signatures in Global and National Commerce Act,
\nthe New York State Electronic Signatures and Records Act, or any other similar
\nstate laws based on the Uniform Electronic Transactions Act.<\/p>\n

10.18 USA PATRIOT Act<\/strong>. Each Lender that is subject to the
\nAct (as hereinafter defined) and the Administrative Agent (for itself and not on
\nbehalf of any Lender) hereby notifies each Borrower that pursuant to the
\nrequirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
\nlaw October 26, 2001)) (the “Act<\/u>“), it is required to obtain, verify and
\nrecord information that identifies such Borrower, which information includes the
\nname and address of such Borrower and other information that will allow such
\nLender or the Administrative Agent, as applicable, to identify such Borrower in
\naccordance with the Act. Each Borrower shall, promptly following a request by
\nthe Administrative Agent or any Lender, provide all documentation and other
\ninformation that the Administrative Agent or such Lender requests in order to
\ncomply with its ongoing obligations under applicable “know your customer” and
\nanti-money laundering rules and regulations, including the Act.<\/p>\n

10.19 Judgment Currency.<\/strong> If, for the purposes of obtaining
\njudgment in any court, it is necessary to convert a sum due hereunder or any
\nother Loan Document in one currency into another currency, the rate of exchange
\nused shall be that at which in accordance with normal banking
\nprocedures<\/strong> the Administrative Agent would purchase the first
\ncurrency with such other currency on the Business Day preceding that on which
\nfinal judgment is given. The obligation of each Borrower in respect of any such
\nsum due from it to the Administrative Agent or any Lender hereunder or under the
\nother Loan Documents shall, notwithstanding any judgment in a currency (the
\n“Judgment Currency<\/u>“) other than that in which such sum is denominated in
\naccordance with the applicable provisions of this Agreement (the “Agreement
\nCurrency<\/u>“), be discharged only to the extent that on the Business Day
\nfollowing receipt by the Administrative Agent or such Lender, as the case may
\nbe, of any sum adjudged to be so due in the Judgment Currency, the
\nAdministrative Agent or such Lender, as the case may be, may in accordance with
\nnormal banking procedures purchase the Agreement Currency with the Judgment
\nCurrency. If the amount of the Agreement Currency so purchased is less than the
\nsum originally due to the Administrative Agent or any Lender from any Borrower
\nin the Agreement Currency, such Borrower agrees, as a separate obligation and
\nnotwithstanding any such judgment, to indemnify the Administrative Agent or such
\nLender, as the case may be, against such loss. If the amount of the Agreement
\nCurrency so purchased is greater than the sum originally due to the
\nAdministrative Agent or any Lender in such currency, the Administrative Agent or
\nsuch Lender, as the case may be, agrees to return the amount of any excess to
\nsuch Borrower (or to any other Person who may be entitled thereto under
\napplicable Law).<\/p>\n

115<\/p>\n

\n

10.20 Effect of Amendment and Restatement of the Existing Agreement
\n.<\/strong> On the Closing Date, the Existing Agreement shall be amended and
\nrestated in its entirety. The parties hereto acknowledge and agree that this
\nAgreement and the other Loan Documents, whether executed and delivered in
\nconnection herewith or otherwise, do not constitute a novation or termination of
\nthe Obligations (as defined in the Existing Agreement) under the Existing
\nAgreement as in effect immediately prior to the Closing Date and which remain
\noutstanding.<\/p>\n

116<\/p>\n

\n

IN WITNESS WHEREOF, <\/em>the parties hereto have caused this Agreement to
\nbe duly executed as of the date first above written.<\/p>\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

TIBCO SOFTWARE INC.<\/strong><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ William R. Hughes<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name:William R. Hughes<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: EVP, General Counsel & Secretary<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Signed for and on behalf of TIBCO INTERNATIONAL HOLDINGS
\nB.V.,<\/strong> acting by Intertrust (Netherlands) B.V.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ P.M. Blote<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Name:<\/p>\n<\/td>\n

<\/td>\n\n

P.M. Blote<\/p>\n<\/td>\n<\/tr>\n

\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

Proxyholder<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n
\n

Signed for and on behalf of TIBCO INTERNATIONAL HOLDINGS
\nB.V.,<\/strong> acting by Intertrust (Netherlands) B.V.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ J.E. Hardeveld<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Name:<\/p>\n<\/td>\n

<\/td>\n\n

J.E. Hardeveld<\/p>\n<\/td>\n<\/tr>\n

\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

Proxyholder<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

BANK OF AMERICA, N.A.,<\/strong><\/p>\n

as Administrative Agent<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Kelly Weaver<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Kelly Weaver<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: Assistant Vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

BANK OF AMERICA, N.A.,<\/strong><\/p>\n

as a Lender, L\/C Issuer and Swing Line Lender<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Jeffrey P. Mills<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Jeffrey P. Mills<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: A.V.P.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

CITIBANK, N.A.,<\/strong> as a Lender<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Susan M. Olsen<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Susan M. Olsen<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: Vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

U.S. BANK NATIONAL ASSOCIATION,<\/strong> as a Lender<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Richard J. Ameny, Jr.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Richard J. Ameny, Jr.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: Vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

UNION BANK, N.A.,<\/strong> as a Lender<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Carlos Cruz<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Carlos Cruz<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: Assistant vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

COMERICA BANK,<\/strong> as a Lender<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Steve Clear<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Steve Clear<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: Vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

BANK OF THE WEST,<\/strong> as a Lender<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Kathy Rosner-Galitz<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Kathy Rosner-Galitz<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: SVP & Regional Manager San Jose NBO<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

CALIFORNIA BANK AND TRUST,<\/strong> as a Lender<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Sanjay Sinha<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Sanjay Sinha<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: Vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

CHINATRUST BANK (U.S.A.),<\/strong> as a Lender<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Johnny Lee<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Johnny Lee<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: EVP & Group Head, C&I<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

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