ex10_1creditagmt.htm


    EXHIBIT
10.1

    


     

     

    $50,000,000
SENIOR SECURED CREDIT FACILITY

     

    CREDIT
AGREEMENT

     

    AMONG

     

    PERFICIENT,
INC.,

     

    AS
BORROWER,

     

    THE
GUARANTORS FROM TIME TO TIME PARTIES HERETO,

     

    AS
GUARANTORS,

     

     

    THE
LENDERS FROM TIME TO TIME PARTIES HERETO,

     

    SILICON
VALLEY BANK,

     

    AS
ADMINISTRATIVE AGENT, CO-LEAD ARRANGER AND ISSUING LENDER,

     

    AND

     

    KEYBANK
NATIONAL ASSOCIATION

     

    AS
CO-LEAD ARRANGER

     

     

    DATED AS
OF MAY 30, 2008

     

     

    


     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    CREDIT
AGREEMENT (this “Agreement”), dated as
of May 30, 2008, among PERFICIENT, INC., a Delaware corporation (the “Borrower”), the
guarantors from time to time parties hereto (each, a “Guarantor” and
collectively, the “Guarantors”), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the “Lenders“), SILICON
VALLEY BANK (“SVB”), as
administrative agent (in such capacity, the “Administrative
Agent”) and Issuing Lender, and KEYBANK NATIONAL ASSOCIATION (“KeyBank”) and SVB, as
co-lead arrangers.

     

    W I T N E S S E T
H:

     

    WHEREAS,
the Lenders have agreed to extend certain credit facilities to the Borrower in
an aggregate amount not to exceed Fifty Million Dollars ($50,000,000), plus any
commitment increase as provided for in Section 2.18, in
aggregate principal amount of Revolving Commitments, and Five Hundred Thousand
Dollars ($500,000) in aggregate principal amount of availability for Letters of
Credit (as a sublimit of the Revolving Commitment);

     

    WHEREAS,
the Borrower has agreed to secure all of its Obligations by granting to the
Administrative Agent, for the benefit of the Secured Parties, a first priority
lien on all of its assets; and

     

    WHEREAS,
each of the Guarantors has agreed to guarantee the Obligations of the Borrower
and to secure their respective Obligations by granting to the Administrative
Agent, for the benefit of the Secured Parties, a first priority lien on
substantially all of their assets.

     

    NOW,
THEREFORE, the parties hereto hereby agree as follows:

     

    SECTION
1.  DEFINITIONS

     

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

     

    “ABR”:  for
any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the Prime Rate in effect on such day.  Any change in the
ABR due to a change in the Prime Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate.

     

    “ABR
Loans”:  Loans bearing interest at a rate determined by
reference to ABR.

     

    “Account
Debtor”:  means any Person who may become obligated to any
Person under, with respect to, or on account of, an Account, chattel paper or
general intangibles (including a payment intangible).

     

    “Accounts”:  means
all “accounts” (as defined in the UCC) of a Person, including, without
limitation, accounts, accounts receivable, monies due or to become due and
obligations in any form (whether arising in connection with contracts, contract
rights, instruments, general intangibles, or chattel paper), in each case
whether arising out of goods sold or services rendered or from any other
transaction and whether or not earned by performance, now or hereafter in
existence, and all documents of title or other documents representing any of the
foregoing, and all collateral security and guaranties of any kind, now or
hereafter in existence, given by any Person with respect to any of the
foregoing.

     

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

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    “Administrative
Agent”:  SVB, together with its affiliates, as the
administrative agent under this Agreement and the other Loan Documents, together
with any of its successors in such capacity.

     

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

     

    “Aggregate
Exposure”:  with respect to any Lender at any time, an amount
equal to the sum of (a) the amount of such Lender’s Revolving Commitment then in
effect or, if the Revolving Commitments have been terminated, the amount of such
Lender’s Revolving Extensions of Credit then outstanding, and (b) the L/C
Commitment of such Lender then in effect (as a sublimit of the Revolving
Commitment).

     

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

     

    “Agreement”:  as
defined in the preamble hereto.

     

    “Applicable
Margin”:  the rate per annum set forth under the relevant
column heading below, and periodically adjusted in accordance with Section
2.11:

     

    


     

    
      	
              Consolidated
      Leverage Ratio

            	
              Eurodollar
      Loans

            	
              ABR
      Loans

            
	
              <
      1.00:1.00

            	
              2.50%

            	
              0.00%

            
	
              ≥ 1.00:1.00
      ≤ 2.50:1.00

            	
              2.75%

            	
              0.25%

            
	
              > 2.50:1.00

            	
              3.00%

            	
              0.50%

            


    

    


     

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

     

    “Approved
Fund”:  as defined in Section
10.6(b).

     

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

     

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

     

    “Available Revolving
Commitment”:  an amount equal to (a) the aggregate Revolving
Commitments of all Lenders, minus (b) the aggregate undrawn amount of all
outstanding Letters of Credit at such time and the aggregate amount of all L/C
Disbursements that have not yet been reimbursed or converted into Revolving
Loans at such time, minus (c) the outstanding principal balance of any Revolving
Loans.

     

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

     


    
      
         


      

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

     

    “Borrower”:  as
defined in the preamble hereto.

     

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

     

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

     

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


     

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

     

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

     

    “Cash
Equivalents”:  as to any Person, (a) marketable direct
obligations issued by, or unconditionally guaranteed by, the United States
Government or issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one year from the date
of acquisition; (b) certificates of deposit, time deposits, eurodollar time
deposits or overnight bank deposits having maturities of six months or less from
the date of acquisition issued by any Lender or by any commercial bank organized
under the laws of the United States or any state thereof having combined capital
and surplus of not less than $250,000,000; (c) commercial paper of an issuer
rated at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days, with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody’s; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) money market mutual or similar funds that invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition; or (h) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended,
(ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets
of at least $5,000,000,000.

     


    
      
         


      

      
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    “Cash Management
Services”:  means cash management services which may include
merchant services, direct deposit of payroll, business credit card, and check
cashing services identified in cash management services agreements entered into
from time to time between Borrower and a Lender (or an affiliate of a
Lender).

     

    “Certificated
Securities”:  as defined in Section
4.19(a).

     

    “Change of
Control”:  means any event, transaction, or occurrence as a
result of which (a) any “person” (as such term is defined in Sections 3(a)(9)
and 13(d)(3) of the Securities Exchange Act of 1934, as an amended (the “Exchange Act”)),
other than a trustee or other fiduciary holding securities under an employee
benefit plan of Borrower, is or becomes a beneficial owner (within the meaning
Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of Borrower, representing twenty-five percent (25%) or more of the
combined voting power of Borrower’s then outstanding securities; or (b) during
any period of twelve consecutive calendar months, individuals who at the
beginning of such period constituted the Board of Directors of Borrower
(together with any new directors whose election by the Board of Directors of
Borrower was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such
period  or whose election or nomination for election was previously so
approved) cease for any reason other than death or disability to constitute a
majority of the directors then in office.

     

    “Closing
Date”:  the date on which the conditions precedent set forth in
Section 5.1
shall have been satisfied, which date is May 30, 2008

     

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

     

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

     

    “Commitment”:  as
to any Lender, the L/C Commitment (which is a sublimit of Revolving Commitment)
and the Revolving Commitment of such Lender.

     

    “Commitment Fee
Percentage”:  means, with respect to Revolving Loans, .30% per
annum.

     

    “Commitment Increase
Notice”:  as defined in Section
2.18(a).

     

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

     

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

     

    “Consolidated Capital
Expenditures”:  for any period, without duplication, with
respect to any Person, the aggregate of all expenditures (whether paid in cash
or other consideration or accrued as a liability and including that portion of
Capital Lease Obligations which is capitalized on the consolidated balance sheet
of such Person and its Subsidiaries) by such Person and its Subsidiaries during
such period for the acquisition or leasing (pursuant to a capital lease) of
fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) that, in

     


    
      
         


      

      
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    conformity
with GAAP, are included in “additions to property, plant or equipment” or
comparable items reflected in the consolidated statement of cash flows of such
Person and its Subsidiaries.

     

    “Consolidated
EBITDA”:  means, for any period, (i) the sum, without
duplication, of the amounts for such period of (a) Consolidated Net Income,
plus (b) Consolidated Interest Expense, plus (c) provisions for taxes based
on income, plus (d) total depreciation expense, plus (e) total
amortization expense, plus (f) stock based compensation and other non-cash
items reducing Consolidated Net Income (excluding any such non-cash item to the
extent that it represents an accrual or reserve for potential cash items in any
future period or amortization of a prepaid cash item that was paid in a prior
period), minus
(ii) the sum, without duplication of the amounts for such period of (a) other
non-cash items increasing Consolidated Net Income for such period (excluding any
such non-cash item to the extent it represents the reversal of an accrual or
reserve for potential cash item in any prior period), plus (b) interest
income.

     

    “Consolidated Fixed Charge
Coverage Ratio”:  for any period, the ratio of (a) Consolidated
EBITDA for such period minus the portion of
taxes based on income actually paid in cash during those fiscal quarters in
which the determination date occurs minus Consolidated
Capital Expenditures (excluding the principal amount funded with the Loans)
incurred in connection with such expenditures) to (b) Consolidated Fixed Charges
for such period.

     

    “Consolidated Fixed
Charges”:  for any period ending on any determination date (the
“determination date”), the sum (without duplication) of (a) Consolidated
Interest Expense for such period, and (b) scheduled payments due under the
Obligations made during those fiscal quarters of the Borrower ending during the
fiscal year in which the determination date occurs on account of principal of
Indebtedness of the Borrower, the Guarantors and their respective
Subsidiaries.

     

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

     

    “Consolidated Leverage
Ratio”:  as at the last day of any period, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for such
period.

     

    “Consolidated Net
Income”:  for any period, the consolidated net income (or loss)
of the Borrower, the Guarantors and their respective Subsidiaries, determined on
a consolidated basis in accordance with GAAP; provided that there
shall be excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary or is merged into or consolidated with the
Borrower, any Guarantor and their respective Subsidiaries, (b) the income (or
deficit) of any Person (other than a Subsidiary of the Borrower or a Guarantor)
in which the Borrower, any Guarantor or their respective Subsidiaries has an
ownership interest, except to the extent that any such income is actually
received by the Borrower, a Guarantor or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower or any Guarantor to the extent that the declaration
or payment of dividends or similar distributions by such Subsidiary is not at
the time permitted by the terms of any Contractual Obligation (other than under
any Loan Document) or Requirement of Law applicable to such
Subsidiary.

     

    “Consolidated
Total Debt”:  at any date, the aggregate principal amount of
all Indebtedness of the Borrower, the Guarantors and their respective
Subsidiaries at such date, determined

     


    
      
         


      

      
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    on a
consolidated basis in accordance with GAAP, but excluding any liabilities
referred to in clause (f) of the definition of “Indebtedness”.

     

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

     

    “Control Investment
Affiliate”:  as to any Person, any other Person that (a)
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person and (b) is organized by such Person primarily for the
purpose of making equity or debt investments in one or more
companies.  For purposes of this definition, “control” of a Person
means the power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether by contract or
otherwise.

     

    “Default”:  any
of the events specified in Section 8, which,
with the giving of notice, the lapse of time, or both would (if not waived or
cured or otherwise remedied during such time) constitute an Event of
Default.

     

    “Defaulting Lender”:
has the meaning set forth in Section
2.12(d).

     

    “Disposition”:  with
respect to any property (including, without limitation, Capital Stock of the
Borrower, any Guarantor or any of their respective Subsidiaries), any sale,
lease, Sale Leaseback Transaction, assignment, conveyance, transfer or other
disposition thereof.  The terms “Dispose” and “Disposed of” shall
have correlative meanings.

     

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

     

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

     

    “Eligible
Assignee”:  any commercial bank, insurance company, investment
or mutual fund or other entity that is an “accredited investor” (as defined in
Regulation D under the Securities Act) and which extends credit or buys loans as
one of its businesses; provided that neither
the Borrower nor any Affiliate of the Borrower shall be an Eligible
Assignee.

     

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

     

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

     

    “ERISA
Affiliate”: any trade or business (whether or not incorporated) that, for the
purpose of Title I and Title IV of ERISA and Section 412 of the Code, would be
deemed at any relevant time to be a single employer with Borrower, pursuant to
Section 414(b), (c), (m) or (o) of the Code or Section 4001 or
ERISA.

     

    “Eurocurrency
Reserve Requirements”:  for any day as applied to a Eurodollar
Loan, the aggregate (without duplication) of the maximum rates (expressed as a
decimal fraction) of reserve 

     


    
      
         


      

      
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    requirements
in effect on such day (including basic, supplemental, marginal and emergency
reserves) under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.

     

    “Eurodollar Base
Rate”:  with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined by reference to
the British Bankers’ Association Interest Settlement Rates for deposits (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period in Dollars, determined as of approximately 11:00 A.M.
(London, England time) two (2) Business Days prior to the beginning of such
Interest Period (as set forth by Bloomberg Information Service or any successor
thereto or any other service selected by the Administrative Agent which has been
nominated by the British Bankers’ Association as an authorized information
vendor for the purpose of displaying such rates).  In the event that
the rate referenced in the preceding sentence is not available, the “Eurodollar Base Rate”
shall be determined by reference to the rate per annum equal to the offered
quotation rate to first class banks in the London interbank market by SVB for
deposits (for delivery on the first day of the relevant Interest Period) in
Dollars of amounts in same day funds comparable to the principal amount of the
applicable Loan of the Administrative Agent, in its capacity as a Lender, for
which the Eurodollar Base Rate is then being determined with maturities
comparable to such period as of approximately 11:00 A.M. (London, England time)
two (2) Business Days prior to the beginning of such Interest
Period.

     

    “Eurodollar
Loans”:  Loans bearing interest at a rate determined by
reference to the Eurodollar Rate.

     

    “Eurodollar
Rate”:  with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula:

     

    
      	
              Eurodollar
      Base Rate

            
	
              1.00
      - Eurocurrency Reserve Requirements

               

            


    

    “Eurodollar
Tranche”:  the collective reference to Eurodollar Loans under
the Revolving Facility the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).

     

    “Event of
Default”:  any of the events specified in Section 8, provided that any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.

     

    “Excluded Foreign
Subsidiary”:  any Foreign Subsidiary in respect of which either
(a) the pledge of all of the Capital Stock of such Subsidiary as Collateral or
(b) the guaranteeing by such Subsidiary of the Obligations, would, in the good
faith judgment of the Borrower and the Guarantors, result in material adverse
tax consequences to the Borrower or any Guarantor.  The Excluded
Foreign Subsidiaries existing as of the Closing Date are as set forth on Schedule
4.15.

     

    “Existing Letters of
Credit”: shall mean each of the letters of credit described by date of
issuance, amount, beneficiary and the date of expiry on Schedule 1.1B
hereto.

     

    “Facility”:  each
of (a) the L/C Facility (which is a subfacility of the Revolving Facility) and
(b) the Revolving Facility.

     


    
      
         


      

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

     

    “Foreign
Currency”:  means lawful money of a country other than the
United States.

     

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

     

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

     

    “Funding
Office”:  the Revolving Loan Funding Office.

     

    “GAAP”:  generally
accepted accounting principles in the United States as in effect from time to
time, except that for purposes of Section 7.1, GAAP
shall be determined on the basis of such principles in effect on the date hereof
and consistent with those used in the preparation of the most recent audited
financial statements referred to in Section
5.1(b).  In the event that any “Accounting Change” (as defined
below) shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this Agreement, then
the Borrower and the Administrative Agent agree to enter into negotiations in
order to amend such provisions of this Agreement so as to reflect equitably such
Accounting Changes with the desired result that the criteria for evaluating the
Borrower’s financial condition shall be the same after such Accounting Changes
as if such Accounting Changes had not been made.  Until such time as
such an amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred.  “Accounting
Changes” refers to changes in accounting principles required by the promulgation
of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.

     

    “Governmental
Approval”:  any consent, authorization, approval, order,
license, franchise, permit, certificate, accreditation, registration, filing or
notice, of, issued by, from or to, or other act by or in respect of, any
Governmental Authority.

     

    “Governmental
Authority”:  any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance
Commissioners).

     

    “Group
Members”:  the collective reference to Borrower, the
Guarantors, and their respective Subsidiaries.

     


    
      
         


      

      
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    “Guarantee and Collateral
Agreement”:  the Guarantee and Collateral Agreement to be
executed and delivered by the Borrower and the Guarantors, substantially in the
form of Exhibit
A.

     

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

     

    “Guarantor”:  has
the meaning in the preamble hereto.

     

    “Guarantors”:  has
the meaning in the preamble hereto.

     

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

     


    
      
         


      

      
        9

        
          

        

      

      
         


      

    


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

     

    “Insolvent”:  pertaining
to a condition of Insolvency.

     

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

     

    “Interest Payment
Date”:  (a) as to any ABR Loan, the first Business Day of each
month to occur while such Loan is outstanding and the final maturity date of
such Loan, (b) as to any Eurodollar Loan having an Interest Period of three
months or less, the last Business Day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each day
that is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period, and (d) as to any Loan
(other than any Revolving Loan that is an ABR Loan), the date of any repayment
or prepayment made in respect thereof.

     

    “Interest
Period”:  as to any Eurodollar Loan, (a) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending on the numerically corresponding day in the
calendar month that is one, two, three, or six months thereafter, as selected by
the Borrower in its notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not later than 10:00
A.M., Pacific time, on the date that is three (3) Business Days prior to the
last day of the then current Interest Period with respect thereto; provided that all of
the foregoing provisions relating to Interest Periods are subject to the
following:

     

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

     

    (b)           the
Borrower may not select an Interest Period that would extend beyond the
Revolving Termination Date;

     

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

     

    (d)           the
Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such
Loan.

     

    “Interest Rate
Agreement” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedging agreement or
other similar agreement or arrangement, each of which is (i) for the purpose of
hedging the interest rate exposure associated with Borrower’s and its
Subsidiaries’ operations, (ii) reasonably approved by Administrative Agent, and
(iii) not for speculative purposes.

     


    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    “Inventory” means all
“inventory,” as such term is defined in the Code, now owned or hereafter
acquired by any Loan Party, wherever located, and in any event including
inventory, merchandise, goods and other personal property that are held by or on
behalf of any Loan Party for sale or lease or are furnished or are to be
furnished under a contract of service, or that constitute raw materials, work in
process, finished goods, returned goods, or materials or supplies of any kind
used or consumed or to be used or consumed in such Loan Party’s business or in
the processing, production, packaging, promotion, delivery or shipping of the
same, including all supplies and embedded software.

     

    “Investments”:  as
defined in Section
7.7. 

     

    “Issuing
Lender”:  as the context may require, (a) SVB or any affiliate
thereof, in its capacity as issuer of any Letter of Credit (including, without
limitation, each Existing Letter of Credit), and (b) any other Lender that may
become an Issuing Lender pursuant to Section 3.10 or 3.11, with respect to
Letters of Credit issued by such Lender.  The Issuing Lender may, in
its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Lender or other financial institutions, in which case
the term “Issuing Lender” shall include any such Affiliate or other financial
institution with respect to Letters of Credit issued by such Affiliate or other
financial institution.

     

    “Issuing Lender Fees”:
as defined in Section
3.3(a).

     

    “L/C
Commitment”:  as to any L/C Lender, the obligation of such L/C
Lender, if any, to purchase an undivided interest in the Issuing Lenders’
obligations and rights under and in respect of each Letter of Credit (including
to make payments with respect to draws made under any Letter of Credit pursuant
to Section
3.5(b)) in an aggregate principal amount not to exceed the amount set
forth under the heading “L/C Commitment” opposite such L/C Lender’s name on
Schedule 1.1A
or in the Assignment and Assumption pursuant to which such L/C Lender became a
party hereto, as the same may be changed from time to time pursuant to the terms
hereof. The L/C Commitment is a sublimit of the Revolving Commitment and the
aggregate L/C Commitment shall not exceed the Available Revolving Commitment at
any time.

     

    “L/C
Disbursements”:  a payment or disbursement made by the Issuing
Lender pursuant to a Letter of Credit.

     

    “L/C
Exposure”:  at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time and (b) the aggregate
amount of all L/C Disbursements that have not yet been reimbursed or converted
into Revolving Loans at such time.  The L/C Exposure of any L/C Lender
at any time shall equal its Revolving Percentage of the aggregate L/C Exposure
at such time.

     

    “L/C
Facility”:  the L/C Commitments and the extensions of credit
made thereunder.

     

    “L/C Fee Payment
Date”:  as defined in Section
3.3(a).

     

    “L/C
Lender”:  a Lender with an L/C Commitment.

     

    “Lenders”:  as
defined in the preamble hereto.

     

    “Letter of
Credit”:  as defined in Section 3.1(a); provided that such
term shall include each Existing Letter of Credit.

     

    “Letter of Credit
Availability Period”:  the period from and including the
Closing Date to but excluding the Letter of Credit Maturity Date.

     


    
      
         


      

      
        11

        
          

        

      

      
         


      

    


    “Letter of Credit Maturity
Date”:  the Revolving Termination Date.

     

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

     

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

     

    “Loan
Documents”:  this Agreement, the Security Documents, the Notes,
and any amendment, waiver, supplement or other modification to any of the
foregoing.

     

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

     

    “Material Adverse
Effect”: means (A) a material adverse change in, or a material adverse
effect on, the operations, business, assets, properties, liabilities (actual or
contingent), condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries, taken as a whole; (B) a material impairment of (i) the rights
and remedies of the Administrative Agent or any Lender under any Loan Document,
or (ii) the ability of the Borrower or any Guarantor to perform its obligations
under any Loan Document to which it is a party; or (C) a material adverse effect
upon the legality, validity, binding effect or enforceability against the
Borrower or any Guarantor of any Loan Document to which it is a
party.

     

    “Materials of Environmental
Concern”:   any substance, material or waste that is
defined, regulated, governed or otherwise characterized under any Environmental
Law as hazardous or toxic or as a pollutant or contaminant (or by words of
similar meaning and regulatory effect), any petroleum or petroleum products,
asbestos, polychlorinated biphenyls, urea-formaldehyde insulation, molds or
fungus, and radioactivity, radiofrequency radiation at levels known to be
hazardous to human health and safety.

     

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

     

    “Mortgaged
Properties”:  the real properties as to which, pursuant to
Section 6.11(b)
or otherwise, the Administrative Agent, for the benefit of the Secured Parties,
shall be granted a Lien pursuant to the Mortgages.

     

    “Mortgages”:  each
of the mortgages, deeds of trust, deeds to secure debt or such equivalent
documents hereafter entered into and executed and delivered by one or more of
the Loan Parties to the Administrative Agent, in each case, as such documents
may be amended, amended and restated, supplemented or otherwise modified,
renewed or replaced from time to time and in form and substance reasonably
acceptable to the Administrative Agent.

     

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

     

    “New
Lender”:  as defined in Section
2.18(c).

     

    “New Lender
Agreement”:  as defined in Section
2.18(c).

     

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

     


    
      
         


      

      
        12

        
          

        

      

      
         


      

    


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

     

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

     

    “Note”:  a
Revolving Loan Note.

     

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

     

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

     

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

     

    “Patriot
Act”:  the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT)
Act of 2001, Title III of Pub. L. 107-56, signed into law October 26,
2001.

     

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

     

    “Perficient
China”:  Perficient China, Ltd., a company organized under the
laws of the People’s Republic of China.

     

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

     

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

     

    “Prime
Rate”:  the rate of interest per annum announced from time to
time by SVB as its prime rate in effect at its principal office in the State of
California (the Prime Rate not being intended to be the lowest rate of interest
charged by SVB in connection with extensions of credit to debtors).

     


    
      
         


      

      
        13

        
          

        

      

      
         


      

    


    “Projections”:  as
defined in Section
6.2(b).

     

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

     

    “Qualified
Counterparty”:  with respect to any Specified Swap Agreement,
any counterparty thereto that, at the time such Specified Swap Agreement was
entered into or as of the Closing Date, was the Administrative Agent or a Lender
or an Affiliate of the Administrative Agent or a Lender.

     

    “Register”:  the
Revolving Loan Register.

     

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

     

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

     

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

     

    “Reportable
Event”:  any of the events set forth in Section 4043(c) of
ERISA and the regulations issued under such Section, excluding, however, such
events as to which the PBGC by regulation has waived the requirement that it be
notified within 30 days of the occurrence of such event.

     

    “Required
Lenders”:  at any time, holders of more than 66.66% of the
Total Revolving Extensions of Credit (including, without duplication, any L/C
Disbursements that have not yet been reimbursed or converted into Revolving
Loans at such time) (or, prior to any termination of the Revolving Commitments,
the holders of more than 66.66% of the Total Revolving Commitments (including,
without duplication, the L/C Commitments)); provided that so long as there are
fewer than three (3) Revolving Lenders, considering any Revolving Lender and its
Affiliates as a single Revolving Lender, “Required Lenders” shall mean all
Revolving Lenders.

     

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

     

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

     

    “Restricted
Payments”:  as defined in Section
7.6.

     

    “Revolving
Commitment”:  as to any Lender, the obligation of such Lender,
if any, to make Revolving Loans and participate in Revolving Letters of Credit
in an aggregate principal amount not to exceed the amount set forth under the
heading “Revolving Commitment” opposite such Lender’s name on Schedule 1.1A or
in the Assignment and Assumption pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof (including in connection with assignments permitted
hereunder).  The original amount of the Total Revolving Commitments is
Fifty Million Dollars ($50,000,000) subject to increase as set forth in Section
2.18.  The L/C Commitment is a sublimit of the Revolving
Commitments.

     


    
      
         


      

      
        14

        
          

        

      

      
         


      

    


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

     

    “Revolving Extensions of
Credit”:  as to any Revolving Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Loans
held by such Lender then outstanding and (b) the aggregate undrawn amount of all
outstanding Letters of Credit at such time and the aggregate amount of all L/C
Disbursements that have not yet been reimbursed or converted into Revolving
Loans at such time.

     

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

     

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

     

    “Revolving Loan
Conversion”:  as defined in Section
3.5(b).

     

    “Revolving Loan Funding
Office”:  the office of the Administrative Agent specified in
Section 10.2 or
such other office as may be specified from time to time by the Administrative
Agent as its funding office by written notice to the Borrower and the
Lenders.

     

    “Revolving Loan
Note”:  a promissory note in the form of Exhibit H, as it may
be amended, supplemented or otherwise modified from time to time.

     

    “Revolving Loan
Register”:  as defined in Section
10.6(b).

     

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

     

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

     

    “Revolving Termination
Date”:  May 30, 2012.

     

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

     

    “S&P”:  Standard
& Poor’s Ratings Services.

     

    “Sale Leaseback
Transaction”:  any arrangement with any Person or Persons,
whereby in contemporaneous or substantially contemporaneous transactions a Loan
Party sells substantially all of its right, title and interest in any property
and, in connection therewith, acquires, leases or licenses back the right to use
all or a material portion of such property.

     

    “Secured
Parties”:  the collective reference to the Administrative Agent
and the Lenders (including any Issuing Lender in its capacity as Issuing
Lender).

     

    “Securities
Act”:  the Securities Act of 1933, as amended from time to time
and any successor statute.

     


    
      
         


      

      
        15

        
          

        

      

      
         


      

    


    “Security
Documents”:  the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.

     

    “Shareholders’ Equity”
means, as of any date of determination, consolidated shareholders’ equity of the
Borrower and its Subsidiaries as of that date determined in accordance with
GAAP.

     

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

     

    “Solvent”:  when
used with respect to any Person, means that, as of any date of determination,
(a) the amount of the “fair value” of the assets of such Person will, as of such
date, exceed the amount of all “liabilities of such Person, contingent or
otherwise”, as of such date, as such quoted terms are determined in accordance
with applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the “present fair saleable value” of the assets of
such Person will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such debts become
absolute and matured, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the insolvency of
debtors, (c) such Person will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business, and (d) such Person will
be able to pay its debts as they mature.  For purposes of this
definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any
(x) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.

     

    “Specified Swap
Agreement”:   any Swap Agreement entered into by the
Borrower and any Qualified Counterparty (or any Person who was a Qualified
Counterparty as of the Closing Date or as of the date such Swap Agreement was
entered into) in respect of interest rates to the extent permitted under Section
7.11.

     

    “Subordinated
Indebtedness” means any Indebtedness of any Credit Party subordinated to
Administrative Agent on terms and conditions reasonably acceptable to
Administrative Agent.

     

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

     

    “Subsidiary
Guarantor”:  each Subsidiary of the Borrower or a Guarantor
other than any Excluded Foreign Subsidiary.

     

    “SVB”:  as
defined in the preamble hereto.

     


    
      
         


      

      
        16

        
          

        

      

      
         


      

    


    “Swap
Agreement”:  any agreement with respect to any swap, hedge,
forward, future or derivative transaction or option or similar agreement
(including without limitation, any Interest Rate Agreement) involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower, the Guarantors and their respective Subsidiaries shall be a “Swap
Agreement”.

     

    “Synthetic Lease
Obligation”:  the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease or (b) an
agreement for the use of property creating obligations that do not appear on the
balance sheet of such Person but which, upon the insolvency or bankruptcy of
such Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).

     

    “Total L/C
Commitments”:  at any time, the sum of all L/C Commitments at
such time, as the same may be reduced from time to time pursuant to 3.5(b).  The
Total L/C Commitments as of the date hereof is $500,000.

     

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

     

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

     

    “Transferee”:  any
Assignee or Participant.

     

    “Type”:  as
to any Loan, its nature as an ABR Loan or a Eurodollar Loan.

     

    “Uniform Commercial
Code” or “UCC”:  the
Uniform Commercial Code (or any similar or equivalent legislation) as in effect
from time to time in any applicable jurisdiction.

     

    “United
States”:  the United States of America.

     

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

     

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

     

    1.2                      Other Definitional
Provisions.

     

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

     

    (b)           As
used herein and in the other Loan Documents, and any certificate or other
document made or delivered pursuant hereto or thereto, (i) accounting terms
relating to any Group Member not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP,
(ii) the words “include”,

     


    
      
         


      

      
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    “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation”, (iii) the word “incur” shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
“incurred” and “incurrence” shall have correlative meanings), (iv) the words
“asset” and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements (including this
Agreement) or other Contractual Obligations shall, unless otherwise specified,
be deemed to refer to such agreements or Contractual Obligations as amended,
supplemented, restated, amended and restated or otherwise modified from time to
time.

     

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

    

     

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

     

    SECTION
2.  AMOUNT AND TERMS OF COMMITMENTS

     

    2.1                      Revolving
Commitments.

     

    (a)           Subject
to the terms and conditions hereof, each Revolving Lender severally agrees to
make revolving credit loans (“Revolving Loans”) to
the Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to the
aggregate undrawn amount of all outstanding Letters of Credit and the aggregate
amount of all L/C Disbursements that have not yet been reimbursed or converted
into Revolving Loans, incurred on behalf of Borrower and owing to such Lender,
does not exceed the amount of such Lender’s Revolving
Commitment.  During the Revolving Commitment Period the Borrower may
use the Revolving Commitments by borrowing, prepaying the Revolving Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.  The Revolving Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with the terms and provisions
hereof.

     

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

     

    2.2                      Procedure for Revolving Loan
Borrowing.  The Borrower may borrow under the Revolving
Commitments during the Revolving Commitment Period on any Business Day, provided that the
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 10:00 A.M., Pacific time,
(a) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date,
in the case of ABR Loans (in each case, with originals to follow within 30
days)), specifying (i) the amount and Type of Revolving Loans to be borrowed,
(ii) the requested Borrowing Date, (iii) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Period therefor, and (iv) instructions for remittance of the
applicable Loans to be borrowed.  Unless otherwise agreed by the
Administrative Agent in its sole discretion, no Revolving Loan may be made as,
converted into or continued as a Eurodollar Loan having an Interest Period in
excess of one month prior to the date that is 30 days after the Closing
Date.  Each borrowing under the Revolving Commitments shall be in an
amount equal to in the case of ABR Loans, $1,000,000 or a whole multiple of
$500,000 in excess thereof (or, if the then aggregate Available

     


    
      
         


      

      
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    Revolving
Commitments are less than $1,000,000, such lesser amount.  Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Revolving Lender thereof.  Each Revolving Lender
will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
at the Revolving Loan Funding Office prior to 12:00 P.M., Pacific time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent.  Such borrowing will then be made available to
the Borrower by the Administrative Agent crediting such account as is designated
in writing to the Administrative Agent by the Borrower with the aggregate of the
amounts made available to the Administrative Agent by the Revolving Lenders and
in like funds as received by the Administrative Agent.  No Revolving
Loan will be made on the Closing Date.

     

    2.3                      Commitment Fees,
etc.

     

    (a)           (i)
On or prior to the Closing Date, the Borrower agrees to pay to the
Administrative Agent, for the ratable benefit of Lenders, a commitment fee of
$250,000; and (ii) on or prior to the date Borrower requests an increase in the
Revolving Commitments pursuant to Section 2.18, the
Borrower agrees to pay to the Administrative Agent, for the ratable benefit of
lenders which agree to fund such increase, an additional commitment fee equal to
one half of one percent (0.50%) of the amount of such increase so
funded.

     

    (b)           As
additional compensation for the Revolving Commitment, Borrower shall pay the
Administrative Agent for the benefit of Lenders, in arrears, on the first
Business Day of each quarter prior to the Revolving Termination Date and on the
Revolving Termination Date, a fee for Borrower’s non-use of available funds in
an amount equal to the Commitment Fee Percentage for such quarter multiplied by
the difference between (x) the Revolving Commitment (as it may be reduced from
time to time) and (y) the average for the period of the daily closing balance of
the Revolving Loans outstanding (including the sum of the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus the aggregate
amount of all L/C Disbursements that have not yet been reimbursed or converted
into Revolving Loans) during the period for which such fee is due.

     

    2.4                      Termination or Reduction of
Commitments.  The Borrower shall have the right, upon not less
than three Business Days’ notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the
Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Commitments.  Any such reduction shall be in an
amount equal to $5,000,000, or a whole multiple thereof, and shall reduce
permanently the Revolving Commitments then in effect.  The Borrower
shall have the right, upon not less than three Business Days’ notice to the
Administrative Agent, to terminate the L/C Commitments or, from time to time, to
reduce the amount of the L/C Commitments; provided that no such
termination or reduction of L/C Commitments shall be permitted if, after giving
effect thereto, the Total L/C Commitments shall be reduced to an amount that
would result in the aggregate L/C Exposure exceeding the Total L/C Commitments
(as so reduced).  Any such reduction shall be in an amount equal to
$100,000, or a whole multiple thereof, and shall reduce permanently the L/C
Commitments then in effect.

     

    2.5                      Optional
Prepayments.  The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent no later than 10:00
A.M., Pacific time, three Business Days prior thereto, in the case of Eurodollar
Loans, and no later than 10:00 A.M., Pacific time, one Business Day prior
thereto, in the case of ABR Loans, which notice shall specify the date and
amount of prepayment; provided, that if a
Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the

     


    
      
         


      

      
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    Borrower
shall also pay any amounts owing pursuant to Section 2.15; provided further that if such
notice of prepayment indicates that such prepayment is to be funded with the
proceeds of a refinancing, such notice of prepayment may be revoked if the
financing is not consummated.  Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender
thereof.  If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with
(except in the case of Revolving Loans that are ABR Loans) accrued interest to
such date on the amount prepaid.  Partial prepayments of Revolving
Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.  

     

    2.6                      Conversion and Continuation
Options.

     

    (a)           The
Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent prior irrevocable notice of such election no
later than 10:00 A.M., Pacific time, on the Business Day preceding the proposed
conversion date, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto.  The Borrower may elect from
time to time to convert ABR Loans to Eurodollar Loans by giving the
Administrative Agent prior irrevocable notice of such election no later than
10:00 A.M., Pacific time, on the third Business Day preceding the proposed
conversion date (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR
Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing.  Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender
thereof.

     

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

     

    2.7                      Limitations on Eurodollar
Tranches.  Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions and continuations of Eurodollar Loans and
all selections of Interest Periods shall be in such amounts and be made pursuant
to such elections so that, (a) after giving effect thereto, the aggregate
principal amount of the Eurodollar Loans comprising each Eurodollar Tranche
shall be equal to $1,000,000 or a whole multiple of $500,000 in excess thereof
and (b) no more than seven Eurodollar Tranches shall be outstanding at any one
time.

     

    2.8
                     Interest Rates and Payment
Dates.

     

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

     

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

     

    (c)           (i) If
all or a portion of the principal amount of any Loan shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), all outstanding
Loans shall bear interest at a rate per annum equal to the rate that would
otherwise be applicable thereto pursuant to the foregoing

     


    
      
         


      

      
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    provisions
of this Section plus 2%, and
(ii) if all or a portion of any interest payable on any Loan or any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then applicable
to ABR Loans plus 2%, in each
case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).

     

    (d)           Interest
shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to Section 2.8(c) shall
be payable from time to time on demand.

     

    2.9                      Computation of Interest and
Fees.

     

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

     

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

     

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

     

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

     

    (b)           Administrative
Agent shall have received notice from the Required Lenders that the Eurodollar
Rate determined or to be determined for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest
Period, the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the relevant Lenders as soon as practicable
thereafter.  If such notice is given (x) any Eurodollar Loans under
the Revolving Facility requested to be made on the first day of such Interest
Period shall be made as ABR Loans, (y) any Loans under the Revolving Facility
that were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be continued as ABR Loans and (z) any outstanding
Eurodollar Loans under the Revolving Facility shall be converted, on the last
day of the then-current Interest Period, to ABR Loans.  Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans under the Revolving Facility shall be made or continued as such, nor shall
the Borrower have the right to convert Loans under the Revolving Facility to
Eurodollar Loans.

     

    
      
        
        

      

      
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        2.11                    Margin
Adjustment. 
Adjustments
to the Applicable Margin, based on the table in the definition
thereof, shall be implemented on a monthly basis as
follows:

     

    (a)           Such
adjustments shall be given prospective effect only, effective as to all Advances
outstanding hereunder, upon the date of delivery of the financial statements
under Sections 6.1(a) and 6.1(b) hereunder and the Compliance Certificate under
Section 6.2(a) hereof, in each case establishing applicability of the
appropriate adjustment and in each case with no retroactivity or claw-back. In
the event Borrower shall fail timely to deliver such financial statements or the
Compliance Certificate and such failure continues for three (3) days, then (but
without affecting the Event of Default resulting therefrom) from the date
delivery of such financial statements and report was required until such
financial statements and report are delivered, the Applicable Margin shall be at
the greatest margin.

     

    (b)           From
the Closing Date until the required date of delivery (or, if earlier, delivery)
of the financial statements under Section 6.1(b) hereof, and the Compliance
Certificate under Section 6.2(a) hereof, for the month ending May 31, 2008, the
Applicable Margin shall be the greatest margin set forth in the definition of
Applicable Margin.  Thereafter, the Applicable Margin shall be based
upon the monthly financial statements and Compliance Certificates, subject to
recalculation as provided in Section 2.11(a) above.

     

    2.12                    Pro Rata Treatment and
Payments.

     

    (a)           Each
borrowing by the Borrower from the Lenders hereunder, each payment by the
Borrower on account of any commitment fee and any reduction of the Commitments
shall be made pro rata according to the
Revolving Percentages of the relevant Lenders.

     

    (b)           Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Revolving Loans shall be made pro rata according to the
Revolving Percentages of the relevant Lenders.

     

    (c)           All
payments (including prepayments) to be made by the Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
setoff or counterclaim and shall be made prior to 10:00 A.M., Pacific time, on
the due date thereof to the Administrative Agent, for the account of the
Lenders, at the applicable Funding Office, in Dollars and in immediately
available funds.  The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as
received.  If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business
Day.  If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.  In the case
of any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.

     

    (d)           Unless
the Administrative Agent shall have been notified in writing by any Lender prior
to the date of any borrowing that such Lender will not make the amount that
would constitute its share of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount.  If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender (a
“Defaulting Lender”) shall pay to the Administrative Agent, on demand, such
amount with interest thereon, at a rate equal to the greater of (i) the
Federal

     


    
      
         


      

      
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    Funds
Effective Rate and (ii) a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, for the period
until such Lender makes such amount immediately available to the Administrative
Agent.  If such Defaulting Lender’s share of such amount is not made
available to the Administrative Agent within three Business Days after such
Borrowing Date, the Administrative Agent will notify the Borrower of such
failure to fund and, upon demand by the Administrative Agent, the Borrower shall
pay such amount to the Administrative Agent for the Administrative Agent’s
account, together with interest thereon for each day elapsed since the date such
Loan(s) were made, at a rate per annum equal to the interest rate per annum
applicable to ABR Loans under the Revolving Facility.

     

    (e)           Unless
the Administrative Agent shall have been notified in writing by the Borrower
prior to the date of any payment due to be made by the Borrower hereunder that
the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares of a
corresponding amount.  If such payment is not made to the
Administrative Agent by the Borrower within three Business Days after such due
date, the Administrative Agent shall be entitled to recover, on demand, from
each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate.  Nothing
herein shall be deemed to limit the rights of Administrative Agent or any Lender
against the Borrower.

     

    (f)           Notwithstanding
anything to the contrary in this Agreement, the Administrative Agent may, in its
discretion at any time or from time to time, without the Borrower’s request and
even if the conditions set forth in Section 5.2 would not
be satisfied, make a Revolving Loan in an amount equal to the portion of the
Obligations constituting interest and fees from time to time due and payable to
itself, and any Revolving Lender, and apply the proceeds of any such Revolving
Loan to those Obligations; provided that, after giving effect to any such
Revolving Loan, the aggregate outstanding Revolving Loans will not exceed the
Total Revolving Commitments.

     

    2.13                    Requirements of
Law.

     

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

     

    (i)           shall
subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application, any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 2.14 and
changes in the rate of tax on the overall net income of such
Lender);

     

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

     

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

     


    
      
         


      

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

     

    (b)           If
any Lender shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof shall have the effect of reducing the rate of return on such
Lender’s or such corporation’s capital as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such corporation for such
reduction.

     

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

     

    2.14                    Taxes.

     

    (a)           All
payments made by the Borrower under this Agreement to the Administrative Agent
or any Lender shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, franchise, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority (“Taxes”), excluding net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such Tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any
other Loan Document).  If any such non-excluded Taxes (“Non-Excluded Taxes”)
or Other Taxes are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to


     


    
      
         


      

      
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    such
Lender’s failure to comply with the requirements of paragraph (d), (e) or (f) of
this Section or (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time such Lender becomes a party to this
Agreement, except to the extent that such Lender’s assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to this
paragraph.

     

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

     

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

     

    (d)           Each
Lender (or Transferee) that is not a “U.S. Person” as defined in Section
7701(a)(30) of the Code (a “Non-U.S. Lender”)
shall deliver to the Borrower and the Administrative Agent (or in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of “portfolio interest”, a statement substantially in the form of
Exhibit E and a
Form W-8BEN, or any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents.  Such
forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related
participation).  In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender.  Each Non-U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the U.S. taxing authorities for such
purpose).  Notwithstanding any other provision of this paragraph, a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
paragraph that such Non-U.S. Lender is not legally able to deliver.

     

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

     

    (f)           Each
Lender (including, for the avoidance of doubt, any Transferee) that is not a
Non-U.S. Lender shall deliver such documentation prescribed by applicable law or
reasonably requested by the Borrower as will enable the Borrower to determine
whether or not such Lender is subject to backup

     


    
      
         


      

      
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    withholding
or information reporting requirements.  Without limiting the
generality of the foregoing, each Lender that is not a Non-U.S. Lender shall
deliver to Borrower (in such number of copies as is reasonably requested by
Borrower) on or prior to the date that such Lender becomes a Lender or
Transferee under this Agreement (and from time to time thereafter upon the
request of the Borrower or upon the expiration or obsolescence of a prior form),
duly completed copies of Internal Revenue Service Form W-9 confirming an
exemption from U.S. federal backup withholding.

     

    (g)           If
the Administrative Agent or any Lender determines, in its sole discretion, that
it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section 2.14, it
shall pay over such refund to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section 2.14 with
respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent or such Lender, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This paragraph shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to the Borrower or any other
Person.

     

    (h)           The
agreements in this Section shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.

     

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

     

    2.16                    Change of Lending
Office.  Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 2.13 or 2.14(a) with respect
to such Lender, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
lending office for any Loans affected by such event with the object of avoiding
the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or


     


    
      
         


      

      
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    regulatory
disadvantage, and provided, further, that nothing
in this Section shall affect or postpone any of the obligations of the Borrower
or the rights of any Lender pursuant to Section 2.13 or 2.14(a).

     

    2.17                    Notes.  If
so requested by any Lender by written notice to the Borrower (with a copy to the
Administrative Agent), the Borrower shall execute and deliver to such Lender
(and/or, if applicable and if so specified in such notice, to any Person who is
an assignee of such Lender pursuant to Section 10.6)
(promptly after the Borrower’s receipt of such notice) a Note or Notes to
evidence such Lender’s Loans.

     

    2.18                    Increase of
Commitments.

     

    (a)           If
no Default or Event of Default shall have occurred and be continuing, the
Borrower may at any time from time to time prior to the Revolving Termination
Date request one or more increases of the Revolving Commitments by notice to the
Administrative Agent in writing of the amount of such proposed increase (each
such notice, a “Commitment Increase
Notice”); provided, however, that, the aggregate amount of the Revolving
Commitments as so increased shall not exceed $75,000,000.  Any such
Commitment Increase Notice delivered with respect to any proposed increase in
the Revolving Commitments may offer one or more Revolving Lenders an opportunity
to subscribe for its Applicable Percentage (with respect to the existing
Revolving Commitments (prior to such increase)) of the increased Revolving
Commitments.  The Administrative Agent shall, within five (5) Business
Days after receipt of a Commitment Increase Notice, notify each Lender of such
request.  Each Lender desiring to increase its Revolving Commitment
shall notify the Administrative Agent in writing no later than ten (10) Business
Days after receipt of notice from the Administrative Agent.  Any
Lender that does not notify the Administrative Agent within the time period
specified above that it will increase its Revolving Commitment will be deemed to
have rejected such offer.  Any agreement by a Lender to increase its
Revolving Commitment shall be irrevocable.

     

    (b)           If
any proposed increase in the Revolving Commitments is not fully subscribed by
the existing Lenders pursuant to the procedure outlined in Section 2.18(a)
preceding, the Borrower may, in its sole discretion, offer to any existing
Lender or to one or more additional banks or financial institutions the
opportunity to participate in all or a portion of such unsubscribed portion of
the increased Revolving Commitments, by notifying the Administrative
Agent.  Promptly and in any event within five (5) Business Days after
receipt of notice from the Borrower of its desire to offer such unsubscribed
commitments to certain existing Lenders or to the additional banks or financial
institutions identified therein, the Administrative Agent shall notify such
proposed lenders of the opportunity to participate in all or a portion of such
unsubscribed portion of the increased Revolving Commitments.

     

    (c)           Any
additional bank or financial institution which is not an existing Lender and
which accepts the Borrower’s offer to participate in the increased Revolving
Commitments shall execute and deliver to the Administrative Agent and the
Borrower a new lender assumption agreement (in form and substance satisfactory
to the Administrative Agent and the Required Lenders) (a “New Lender
Agreement”) setting forth its Revolving Commitment (subject to the
limitations on the amounts thereof set forth herein), and upon the effectiveness
of such New Lender Agreement such bank or financial institution (a “New Lender”) shall
become a Revolving Lender for all purposes and to the same extent as if
originally a party hereto and shall be bound by and entitled to the benefits of
this Agreement, and the signature pages hereof shall be deemed to be amended to
add the name of such New Lender.

     

     Upon any increase in the
Revolving Commitments pursuant to this Section 2.18, the
Commitment Schedule shall be deemed amended to reflect the Revolving Commitment
of each Lender (including any New Lender) as thereby increased.

     

    
      
        
        

      

      
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    SECTION
3.  LETTERS OF CREDIT

     

    3.1                      L/C
Commitment.

     

    (a)           Subject
to the terms and conditions hereof, the Issuing Lender agrees to issue letters
of credit (“Letters of
Credit”) for the account of the Borrower on any Business Day during the
Letter of Credit Availability Period in such form as may be approved from time
to time by the Issuing Lender; provided that the
Issuing Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, the L/C Exposure would exceed either the Total
L/C Commitments or the Available Revolving Commitment at such
time.  Each Letter of Credit shall (i) be denominated in Dollars and
(ii) expire no later than the earlier of (x) the first anniversary of its date
of issuance and (y) the date that is five Business Days prior to the Letter of
Credit Maturity Date, provided that any
Letter of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).

     

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

     

    3.2                      Procedure for Issuance of
Letters of Credit.  The Borrower may from time to time request
that the Issuing Lender issue a Letter of Credit by delivering to the Issuing
Lender at its address for notices specified herein an Application therefor,
completed to the satisfaction of the Issuing Lender, and such other
certificates, documents and other papers and information as the Issuing Lender
may request.  Upon receipt of any Application, the Issuing Lender will
process such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower.  The Issuing Lender shall furnish a
copy of such Letter of Credit to the Borrower promptly following the issuance
thereof.  The Issuing Lender shall promptly furnish to the
Administrative Agent, which shall in turn promptly furnish to the Lenders,
notice of the issuance of each Letter of Credit (including the amount
thereof).

     

    3.3                      Fees and Other
Charges.

     

    (a)           The
Borrower agrees to pay to the Issuing Lender for the ratable benefit of each L/C
Lender, with respect to each outstanding Letter of Credit issued for the account
of (or at the request of) the Borrower a fronting fee of 1.00% per annum on the
drawable amount of such Letter of Credit, payable in advance on the issuance
date of such Letter of Credit and each anniversary thereof, and on the Letter of
Credit Maturity Date (each, an “L/C Fee Payment
Date”); as well as, to the Issuing Lender only, the Issuing Lender’s
standard and reasonable fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit issued for the account of (or at the request
of) the Borrower or processing of drawings thereunder (the fees in this clause
(a), collectively, the “Issuing Lender
Fees”).  All Issuing Lender Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days.

     

    (b)    In addition to the
foregoing fees, the Borrower shall pay or reimburse the Issuing Lender
for such normal and customary costs and expenses as are incurred or charged by
the Issuing

     


    
      
         


      

      
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    Lender in
issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.

     

    3.4                      L/C
Participations.  The Issuing Lender irrevocably agrees to grant
and hereby grants to each L/C Lender, and, to induce the Issuing Lender to issue
Letters of Credit, each L/C Lender irrevocably agrees to accept and purchase and
hereby accepts and purchases from the Issuing Lender, on the terms and
conditions set forth below, for such L/C Lender’s own account and risk an
undivided interest equal to such L/C Lender’s Revolving Percentage in the
Issuing Lender’s obligations and rights under and in respect of each Letter of
Credit and the amount of each draft paid by the Issuing Lender
thereunder.   Each L/C Lender agrees with the Issuing Lender
that, if a draft is paid under any Letter of Credit for which the Issuing Lender
is not reimbursed in full by the Borrower pursuant to Section 3.5(a), such
L/C Lender shall pay to the Issuing Lender upon demand at the Issuing Lender’s
address for notices specified herein an amount equal to such L/C Lender’s
Revolving Percentage of the amount of such draft, or any part thereof, that is
not so reimbursed.  Each L/C Lender’s obligation to pay such amount
shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such L/C Lender may have against the Issuing Lender, the
Borrower or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of
the other conditions specified in Section 5, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower, (iv)
any breach of this Agreement or any other Loan Document by the Borrower, any
other Loan Party or any other L/C Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.

     

    3.5                      Reimbursement.

     

    (a)           If
the Issuing Lender shall make any L/C Disbursement in respect of a Letter of
Credit, the Borrower shall pay or cause to be paid to the Issuing Lender an
amount equal to the entire amount of such L/C Disbursement not later than the
immediately following Business Day.  Each such payment shall be made
to the Issuing Lender at its address for notices referred to herein in Dollars
and in immediately available funds.

     

    (b)           If
the Issuing Lender shall not have received from the Borrower the payment that it
is required to make pursuant to Section 3.5(a) with
respect to a Letter of Credit within the time specified in such Section, the
Issuing Lender will promptly notify the Administrative Agent of the L/C
Disbursement and the Administrative Agent will promptly notify each L/C Lender
of such L/C Disbursement and its Revolving Percentage thereof, and each L/C
Lender shall pay to the Issuing Lender upon demand at the Issuing Lender’s
address for notices specified herein an amount equal to such L/C Lender’s
Revolving Percentage of such L/C Disbursement; upon such payment pursuant to
this paragraph to reimburse the Issuing Lender for any L/C Disbursement, the
Borrower shall be required to reimburse the L/C Lenders for such payments
(including interest accrued thereon from the date of such payment until the date
of such reimbursement at the rate applicable to ABR Loans plus 2% per annum) on
demand; provided that if at the time of and after giving effect to such payment
by the L/C Lenders, the conditions to borrowings and Revolving Loan Conversions
set forth in Section
5.2 are satisfied, the Borrower may, by written notice to the
Administrative Agent certifying that such conditions are satisfied and that all
interest owing under this paragraph has been paid, request that such payments by
the L/C Lenders be converted into Revolving Loans (a “Revolving Loan
Conversion”), in which case, if such conditions are in fact satisfied,
the L/C Lenders shall be deemed to have extended, and the Borrower shall be
deemed to have accepted, a Revolving Loan in the aggregate principal amount of
such payment without further action on the part of any party, and the Total L/C
Commitments shall be permanently reduced by such amount; any amount so paid
pursuant to this paragraph shall, on and after the payment date thereof, be
deemed to be Revolving Loans for all purposes hereunder; provided however, the
Issuing Lender, at its 

     


    
      
         


      

      
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    option,
may effectuate a Revolving Loan Conversion regardless of whether the conditions
to borrowings and Revolving Loan Conversions set forth in Section 5.2 are
satisfied.

     

    3.6                      Obligations
Absolute.  The Borrower’s obligations under this Section 3 shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment that the Borrower may have or
have had against the Issuing Lender, any beneficiary of a Letter of Credit or
any other Person.  The Borrower also agrees with the Issuing Lender
that the Issuing Lender shall not be responsible for, and the Borrower’s
obligations hereunder shall not be affected by, among other things, the validity
or genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee.  The Issuing Lender shall not be liable
for any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit, except for errors or omissions found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Issuing
Lender.  The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender to the Borrower.

     

    In
addition to amounts payable as elsewhere provided in the Agreement, Borrower
hereby agrees to pay and to protect, indemnify, and save Issuing Lender harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys’ fees and allocated
costs of internal counsel) that Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of Credit, or
(B) the failure of Issuing Lender or of any L/C Lender to honor a demand for
payment under any Letter of Credit thereof as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or Governmental Authority, in each case other than to the extent
solely as a result of the gross negligence or willful misconduct of Issuing
Lender or such L/C Lender (as finally determined by a court of competent
jurisdiction).

     

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

     

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

     

    3.9                      Interim
Interest.  If the Issuing Lender shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless either the Borrower
shall reimburse such L/C Disbursement in full within the time period specified
in Section
3.5(a) or the L/C Lenders shall reimburse such L/C Disbursement in full
on such date as provided in Section 3.5(b), in
each case the unpaid amount thereof shall bear interest for the account of the
Issuing Lender, for each day from and including the date of such L/C
Disbursement to but excluding the earlier of the date of payment by the
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    annum
that would apply to such amount if such amount were a Revolving Loan that is an
ABR Loan; provided that the provisions of Section 2.8(c) shall
be applicable to any such amounts not paid when due.

     

    3.10                    Additional Issuing
Lenders.  The Borrower may, at any time and from time to time
with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional Lenders
to act as an issuing bank under the terms of this Agreement.  Any
Lender designated as an issuing bank pursuant to this paragraph shall be deemed
to be an “Issuing Lender” (in addition to being a Lender) in respect of Letters
of Credit issued or to be issued by such Lender, and, with respect to such
Letters of Credit, such term shall thereafter apply to the other Issuing Lender
and such Lender.

     

    3.11                    Resignation of the Issuing
Lender.  The Issuing Lender may resign at any time by giving at
least 30 days’ prior written notice to the Administrative Agent, the Lenders and
the Borrower.  Subject to the terms of this Section 3.11, upon
the acceptance of any appointment as the Issuing Lender hereunder by a Lender
that shall agree to serve as successor Issuing Lender, such successor shall
succeed to and become vested with all the interests, rights and obligations of
the retiring Issuing Lender and the retiring Issuing Lender shall be discharged
from its obligations to issue additional Letters of Credit hereunder without
affecting its rights and obligations with respect to Letters of Credit
previously issued by it.  At the time such resignation shall become
effective, the Borrower shall pay all accrued and unpaid fees pursuant to Section
3.3.  The acceptance of any appointment as the Issuing Lender
hereunder by a successor Lender shall be evidenced by an agreement entered into
by such successor, in a form satisfactory to the Borrower and the Administrative
Agent, and, from and after the effective date of such agreement, (i) such
successor Lender shall have all the rights and obligations of the previous
Issuing Lender under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term “Issuing Lender”
shall be deemed to refer to such successor or to any previous Issuing Lender, or
to such successor and all previous Issuing Lenders, as the context shall
require.  After the resignation of the Issuing Lender hereunder, the
retiring Issuing Lender shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Lender under this Agreement and the
other Loan Documents with respect to Letters of Credit issued by it prior to
such resignation, but shall not be required to issue additional Letters of
Credit.

     

    SECTION
4.  REPRESENTATIONS AND WARRANTIES

     

    To induce
the Administrative Agent and the Lenders to enter into this Agreement and to
make the Loans and issue the Letters of Credit, the Guarantors and the Borrower
hereby jointly and severally represent and warrant to the Administrative Agent
and each Lender that:

     

    4.1                      Financial
Condition.  The audited consolidated balance sheets of the
Borrower as of (i) December 31, 2005 and December 31, 2006, and (ii) December
31, 2007, and in each case, the related consolidated statements of income and of
cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from, with respect to (i) BDO Seidman, LLP
and with respect to (ii) KPMG, present fairly in all material respects the
consolidated financial condition of the Borrower, the Guarantors and their
respective Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended.  The unaudited consolidated balance sheet of the Borrower as at
April 30, 2008, and the related unaudited consolidated statements of income and
cash flows for the three-month period ended on such date, present fairly in all
material respects the consolidated financial condition of the Borrower as at
such date, and the consolidated results of its operations and its consolidated
cash flows for the three-month period then ended (subject to normal year-end
audit adjustments and the absence of footnotes).  All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
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    firm of
accountants and disclosed therein).  No Group Member has, as of the
Closing Date, any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any long-term leases or unusual forward or long-term
commitments, including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this
paragraph.  During the period from May 30, 2007 to and including the
date hereof there has been no Disposition by any Group Member of any material
part of its business or property.

     

    4.2                      No
Change.  Since December 31, 2007, there has been no development
or event that has had or could reasonably be expected to have a Material Adverse
Effect.

     

    4.3                      Existence; Compliance with
Law.  Each Group Member (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has the power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or other organization and in good standing under the laws of each
jurisdiction where the failure to be so qualified could reasonably be expected
to have a Material Adverse Effect; provided that Borrower shall be qualified and
in good standing in Illinois, Minnesota, North Dakota and Georgia within 20
days of the Closing Date; and (d) is in material compliance with all
Requirements of Law.

     

    4.4                      Power, Authorization;
Enforceable Obligations.  Each Loan Party has the power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and, in the case of the Borrower, to obtain extensions of
credit hereunder.  Each Loan Party has taken all necessary
organizational action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the extensions of credit on the terms and conditions of this
Agreement.  No Governmental Approval or consent or authorization of,
filing with, notice to or other act by or in respect of, any other Person is
required in connection with the extensions of credit hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except (i) Governmental Approvals, consents,
authorizations, filings and notices described in Schedule 4.4, which
Governmental Approvals, consents, authorizations, filings and notices have been
obtained or made and are in full force and effect, (ii) the filings referred to
in Section 4.19
and (iii) Governmental Approvals described in Schedule
4.5.  Each Loan Document has been duly executed and delivered
on behalf of each Loan Party party thereto.  This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).

     

    4.5                      No Legal
Bar.  The execution, delivery and performance of this Agreement
and the other Loan Documents, the issuance of Letters of Credit, the borrowings
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law (except as set forth in Schedule 4.5) or any
material Contractual Obligation of any Group Member and will not result in, or
require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents
and Liens permitted by Section 7.3 of this
Agreement).  The absence of obtaining the Governmental Approvals
described in Schedule
4.5 and the violations of Requirements of Law referenced in Schedule 4.5 shall
not have a Material Adverse Effect.

     

    4.6      
Litigation.  No
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of any Guarantor or the
Borrower, threatened 

     


    
      
         


      

      
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    by or
against any Group Member or against any of their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect.

     

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

     

    4.8                      Ownership of Property;
Liens.  Each Group Member has title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, and none of such property
is subject to any Lien except as permitted by Section
7.3.

     

    4.9                      Intellectual
Property.  Each Group Member owns, or is licensed to use, all
Intellectual Property necessary for the conduct of its business as currently
conducted.  No claim has been asserted and is pending by any Person
challenging or questioning any Group Member’s use of any Intellectual Property
or the validity or effectiveness of any Group Member’s Intellectual Property,
nor does any Guarantor or the Borrower know of any valid basis for any such
claim, except for those claims that could not reasonably be expected to have a
Material Adverse Effect.  The use of Intellectual Property by each
Group Member, and the conduct of such Group Member’s business, as currently
conducted, does not infringe on or otherwise violate the rights of any Person,
except to the extent such infringement could not reasonably be expected to have
a Material Adverse Effect, and there are no claims pending or, to the knowledge
of any Guarantor or the Borrower, threatened to such effect.

     

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

     

    4.11                    Federal
Regulations.  No part of the proceeds of any Loans, and no
other extensions of credit hereunder, will be used (a) for “buying” or
“carrying” any “margin stock” within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in effect
for any purpose that violates the provisions of the Regulations of the Board or
(b) for any purpose that violates the provisions of the Regulations of the
Board.  If requested by any Lender OR the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each Lender a statement to
the foregoing effect in conformity with the requirements of FR Form G-3 or FR
Form U-1, as applicable, referred to in Regulation U.

     

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

     

    4.13                    ERISA.  To
the knowledge of the borrower, neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or
Section 302 of 

        



    
      
         


      

      
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    ERISA)
has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and, to the
knowledge of the Borrower, each Plan is in compliance in all material respects
with the applicable provisions of ERISA and the Code.  To the
knowledge of Borrower, no termination of a Single Employer Plan has occurred,
and no material Lien exists on the property of Borrower of an ERISA Affiliate
pursuant to Section 4068 of ERISA.  The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by a material
amount.  Neither the Borrower nor any ERISA Affiliate nor any
predecessor thereof sponsors, maintains or contributes to, or has in the past
sponsored, maintained or contributed to, any Plan subject to Title IV of ERISA
or Section 412 of the Code, or any Multiemployer Plan.  Neither the
Borrower nor any ERISA Affiliate has had a complete or partial withdrawal from
any Multiemployer Plan that has resulted or could reasonably be expected to
result in a material liability under the Multiemployer Pension Plan Amendments
Act of 1980, and neither the Borrower nor any ERISA Affiliate would become
subject to any material liability under the Multiemployer Pension Plan Amendment
Act of 1980, if the Borrower or any such ERISA Affiliate were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed
made.  No such Multiemployer Plan is in Reorganization or
Insolvent.

     

    4.14                    Investment Company Act;
Other Regulations.  No Loan Party is an “investment company”,
or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended.  Except as set forth in
Schedule 4.4,
no Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur
Indebtedness.  No Loan Party is subject to regulation under the Public
Utility Holding Company Act of 2005 or the Federal Power Act or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.

     

    4.15                    Subsidiaries.  Except
as disclosed to the Administrative Agent by the Borrower and the Guarantors in
writing from time to time after the Closing Date, (a) Schedule 4.15 sets
forth the name and jurisdiction of organization of each Subsidiary, including
each Excluded Foreign Subsidiary, and, as to each such Subsidiary, the
percentage of each class of Capital Stock owned by any Loan Party, and (b) there
are no outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options granted to employees or
directors and directors’ qualifying shares) of any nature relating to any
Capital Stock of the Borrower, any Guarantor or any Subsidiary, except as
created by the Loan Documents.

     

    4.16                    Use of
Proceeds.  The proceeds of the Revolving Loans and the Letters
of Credit shall be used for general corporate purposes including, at the
Borrower’s discretion, the Borrower’s repurchase of shares of its Capital Stock
permitted pursuant to this Agreement.

     

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

     

    (a)          
 the facilities and properties owned, leased or operated by any Group
Member (the “Properties”) do not
contain, and, to Borrower’s knowledge, have not previously contained, any
Materials of Environmental Concern in amounts or concentrations or under
circumstances that constitute or constituted a violation of, or could give rise
to liability under, any Environmental Law;

     

    (b)    no Group
Member has received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with

     


    
      
         


      

      
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     Environmental
Laws with regard to any of the Properties or the business operated by any Group
Member (the “Business”), nor does
any Guarantor or the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened;

     

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

     

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

     

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

     

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

     

    (g)           no
Group Member has assumed any liability of any other Person under Environmental
Laws.

     

    4.18                    Accuracy of Information,
etc.  No statement or information contained in this Agreement,
any other Loan Document or any other document, certificate or statement
furnished by or on behalf of any Loan Party to the Administrative Agent or the
Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, contained as of the
date such statement, information, document or certificate was so furnished, any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements contained herein or therein not
misleading.  The projections and pro forma financial
information contained in the materials referenced above are based upon good
faith estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount.  There is no fact known to any Loan Party that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents or in any other
documents, certificates and statements furnished to the Administrative Agent and
the Lenders for use in connection with the transactions contemplated hereby and
by the other Loan Documents.

     

    4.19                    Security
Documents.

         

    (a)           The
Guarantee and Collateral Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security 

     

     

    
      
        
        

      

      
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    interest
in the Collateral described therein and proceeds thereof.  In the case
of the Pledged Stock described in the Guarantee and Collateral Agreement that
are securities represented by stock certificates or otherwise constituting
certificated securities within the meaning of Section 8-102(a)(15) of the New
York UCC or the corresponding code or statute of any other applicable
jurisdiction (“Certificated
Securities”), when certificates representing such Pledged Stock are
delivered to the Administrative Agent, and in the case of the other Collateral
constituting personal property described in the Guarantee and Collateral
Agreement, when financing statements and other filings specified on Schedule 4.19(a) in
appropriate form are filed in the offices specified on Schedule 4.19(a), the
Administrative Agent, for the benefit of the Secured Parties, shall have a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for
the Obligations, in each case prior and superior in right to any other Person
(except, in the case of Collateral other than Pledged Stock, Liens permitted by
Section
7.3).  As of the Closing Date, none of the Capital Stock of any
Guarantor that is a limited liability company or partnership is a Certificated
Security.

     

    (b)           Each
of the Mortgages delivered after the Closing Date will be, upon execution,
effective to create in favor of the Administrative Agent, for the benefit of the
Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Properties
described therein and proceeds thereof, and when the Mortgages are filed in the
offices for the applicable jurisdictions in which the Mortgaged Properties are
located, each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior and superior in right
to any other Person.

     

    4.20                    Solvency.  Each
Loan Party is, and immediately after giving effect to the incurrence of all
Indebtedness and obligations being incurred in connection herewith will be and
will continue to be, Solvent.

     

    4.21                    Regulation
H.  No Mortgage encumbers improved real property that is
located in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards and in which flood
insurance has not been made available under the National Flood Insurance Act of
1968.

     

    SECTION
5.  CONDITIONS PRECEDENT

     

    5.1                      Conditions to Initial
Extension of Credit.  The agreement of each Lender to make the
initial extension of credit requested to be made by it is subject to the
satisfaction, prior to or concurrently with the making of such extension of
credit on the Closing Date, of the following conditions precedent:

     

    (a)           
Loan
Documents.  The Administrative Agent shall have received (i)
this Agreement or, in the case of the Lenders (other than SVB and KeyBank), an
Addendum, executed and delivered by the Administrative Agent, each Guarantor,
the Borrower and each Person listed on Schedule 1.1A, (ii)
the Guarantee and Collateral Agreement, executed and delivered by the Borrower
and each Guarantor, and (iii) an Acknowledgement and Consent in the form
attached to the Guarantee and Collateral Agreement, executed and delivered by
each Issuer (as defined therein), if any, that is not a Loan Party.

     

    (b)    Financial
Statements; Projections.  The Lenders shall have
received (i) audited consolidated financial statements of the Borrower and the
Guarantors as of December 31, 2005, 2006 and 2007, and (ii) unaudited interim
consolidated financial statements of the Borrower and the Guarantors for the
fiscal month ended April 30, 2008.  The Administrative Agent shall
have received a budget of the 


    
      
         


      

      
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    Borrower
and the Guarantors and their respective Subsidiaries for the 2008 fiscal year,
in form and substance reasonably satisfactory to the Administrative
Agent.

     

    (c)           Approvals.  Except
for the Governmental Approvals described in Schedule 4.5, all
Governmental Approvals and consents and approvals of, or notices to, any other
Person, the execution and performance of the Loan Documents, and the other
transactions contemplated hereby shall have been obtained and be in full force
and effect, and all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority that could
reasonably be expected to restrain, prevent or otherwise impose burdensome
conditions on the financing contemplated hereby.  The absence of
obtaining the Governmental Approvals described in Schedule 4.5 shall
not have a Material Adverse Effect.

     

    (d)           Lien
Searches.  The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where assets of the
Loan Parties are located, and such search shall reveal no liens on any of the
assets of the Loan Parties except for liens permitted by Section 7.3 or
discharged on or prior to the Closing Date pursuant to documentation
satisfactory to the Administrative Agent.

     

    (e)           Fees.  The
Lenders, the Administrative Agent shall have received all fees required to be
paid, and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel), on or before the Closing
Date.  All such amounts will be paid with proceeds of Loans made on
the Closing Date and will be reflected in the funding instructions given by the
Borrower to the Administrative Agent on or before the Closing Date.

     

    (f)           
Closing Certificate;
Certified Certificate of Organization; Good Standing
Certificates.  The Administrative Agent shall have received (i)
a certificate of each Loan Party, dated the Closing Date, substantially in the
form of Exhibit
C, with appropriate insertions and attachments, including the certificate
of incorporation or other similar organizational document of each Loan Party
certified by the relevant authority of the jurisdiction of organization of such
Loan Party and the bylaws or other similar organizational document of each Loan
Party, and (ii) a good standing certificate for each Loan Party from its
jurisdiction of organization.

     

    (g)           Legal
Opinions.  The Administrative Agent shall have received the
executed legal opinions of Vinson & Elkins LLP, counsel to Borrower, the
Guarantors and their Subsidiaries, in a form reasonably satisfactory to the
Administrative Agent.  Such legal opinions shall cover such matters
incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.

     

    (h)           Pledged Stock; Stock Powers;
Pledged Notes.  The Administrative Agent shall have received
(i) the certificates representing the shares of Capital Stock pledged pursuant
to the Guarantee and Collateral Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer of the
pledgor thereof, and (ii) each promissory note (if any) pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement,
endorsed (without recourse) in blank (or accompanied by an executed transfer
form in blank) by the pledgor thereof.

     

    (i)    Filings, Registrations and
Recordings.  Each document (including any Uniform Commercial
Code financing statement) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Secured Parties, a perfected Lien on the Collateral described


     

    
      
        
        

      

      
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    therein,
prior and superior in right to any other Person (other than with respect to
Liens expressly permitted by Section 7.3), shall
be in proper form for filing, registration or recordation.

     

    (j)           
Solvency
Certificate.  The Administrative Agent shall have received a
solvency certificate from the chief financial officer or treasurer of Borrower
certifying that each of the Loan Parties, after giving effect to the
transactions contemplated hereby, is solvent.

     

    (k)           Patriot
Act.  The Administrative Agent shall have received, prior to
the Closing Date, all documentation and other information required by
Governmental Authorities under applicable “know your customer” and
anti-money-laundering rules and regulations, including the Patriot
Act.

     

    (l)           
Insurance.  The
Administrative Agent shall have received insurance certificates satisfying the
requirements of Section 5.2(b) of the Guarantee and Collateral
Agreement.

     

    5.2                      Conditions to Each Extension
of Credit.  The agreement of each Lender to make any extension
of credit requested to be made by it on any date (including its initial
extension of credit) is subject to the satisfaction of the following conditions
precedent:

     

    (a)           Representations and
Warranties.  Each of the representations and warranties made by
any Loan Party in or pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on and as of such date,
except to the extent such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties shall have been
true and correct in all material respects as of such earlier date.

     

    (b)           No
Default.  No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.

     

    Each
borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder and each Revolving Loan Conversion shall constitute a representation
and warranty by the Borrower as of the date of such extension of credit and each
Revolving Loan Conversion that the conditions contained in this Section 5.2 have been
satisfied.

     

    SECTION
6.  AFFIRMATIVE COVENANTS

     

    The
Guarantors and the Borrower hereby jointly and severally agree that, until all
Commitments have been terminated and the principal of and interest on each Loan,
all fees and all other expenses or amounts payable under any Loan Document shall
have been paid in full and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in full, each of
the Borrower and the Guarantors shall and shall cause each of its Subsidiaries
to:

     

    6.1                      Financial
Statements.  Furnish to the Administrative Agent, for
distribution to each Lender:

     

    (a)           as
soon as available, but in any event within 150 days after the end of each fiscal
year of the Borrower, a copy of the audited consolidated balance sheet of the
Borrower, the Guarantors and their consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements
of income and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, together with an unqualified
opinion thereon, by KPMG or other independent certified public accountants of
nationally recognized standing; and

     


    
      
         


      

      
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    (b)    as soon
as available, but in any event not later than 30 days after the end of each
month occurring during each fiscal year of the Borrower, the unaudited
consolidated balance sheets of the Borrower, the Guarantors and their
Subsidiaries as at the end of such month and the related unaudited consolidated
statements of income and of cash flows for such month and the portion of the
fiscal year through the end of such month, setting forth in each case in
comparative form the figures for the previous year, certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments).

     

    All such
financial statements shall be complete and correct in all material respects and
shall be prepared in reasonable detail and in accordance with GAAP applied
(except as approved by such accountants or officer, as the case may be, and
disclosed in reasonable detail therein) consistently throughout the periods
reflected therein and with prior periods.

     

    6.2                      Certificates; Other
Information.  Furnish (or, in the case of clause (a), use best
efforts to furnish) to the Administrative Agent, for distribution to each Lender
(or, in the case of clause (g), to the relevant Lender):

     

    (a)           concurrently
with the delivery of any financial statements pursuant to Section 6.1, (i) a
certificate of a Responsible Officer stating that, to the best of each such
Responsible Officer’s knowledge, each Loan Party during such period has observed
or performed all of its covenants and other agreements, and satisfied every
condition contained in this Agreement and the other Loan Documents to which it
is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) in the case of monthly or
annual financial statements, (x) a Compliance Certificate containing all
information and calculations necessary for determining compliance by each Group
Member with the provisions of this Agreement referred to therein as of the last
day of the month, fiscal quarter or fiscal year of the Borrower, as the case may
be, and (y) to the extent not previously disclosed to the Administrative Agent,
a description of any change in the jurisdiction of organization of any Loan
Party and a list of any Intellectual Property acquired by any Loan Party since
the date of the most recent report delivered pursuant to this clause (y) (or, in
the case of the first such report so delivered, since the Closing
Date);

     

    (b)           as
soon as available, and in any event no later than 30 days after the end of each
fiscal year of the Borrower, a detailed consolidated budget for the following
fiscal year (including a projected consolidated balance sheet of the Borrower,
the Guarantors and their respective Subsidiaries as of the end of each fiscal
quarter of such fiscal year, the related consolidated statements of projected
cash flow, projected changes in financial position and projected income and a
description of the underlying assumptions applicable thereto), and, as soon as
available, significant revisions, if any, of such budget and projections with
respect to such fiscal year (collectively, the “Projections”), which
Projections shall in each case be accompanied by a certificate of a Responsible
Officer stating that such Projections are based on reasonable estimates,
information and assumptions and that such Responsible Officer has no reason to
believe that such Projections are incorrect or misleading in any material
respect;

     

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

     

    (d)    upon request by the
Administrative Agent, within five days after the same are sent or
received, copies of all correspondence, reports, documents and other filings
with any Governmental Authority regarding compliance with or maintenance of
Governmental Approvals or


    
      
         


      

      
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     Requirements
of Law or that could reasonably be expected to have a material effect on any of
the Governmental Approvals or otherwise on the operations of the Group Members;
and

     

    (e)           promptly,
such additional financial and other information as any Lender may from time to
time reasonably request.

     

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

     

    6.4                      Maintenance of Existence;
Compliance.  (a) (i)  Preserve, renew and keep in
full force and effect its organizational existence and (ii) take all reasonable
action to maintain or obtain all Governmental Approvals and all other rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except, in each case, as otherwise permitted by Section 7.4 and
except, in the case of clause (ii) above, to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; (b) comply
with all Contractual Obligations and Requirements of Law except to the extent
that failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect; (c) comply with all Governmental
Approvals, and any term, condition, rule, filing or fee obligation, or other
requirement related thereto, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.

     

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

     

    6.6                      Inspection of Property;
Books and Records; Discussions.  (a)  Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records during normal
business hours and upon reasonable prior notice to Borrower, as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Group Members with officers and employees
of the Group Members and with their independent certified public
accountants.

     

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

     

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

     

    (b)           any
(i) default or event of default under any Contractual Obligation of any Group
Member or (ii) litigation, investigation or proceeding that may exist at any
time between any Group Member and any Governmental Authority, that in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;

     


    
      
         


      

      
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    (c)    any
litigation or proceeding affecting any Group Member (i) in which the amount
involved is $250,000 or more and not covered by insurance, (ii) in which
injunctive or similar relief is sought or (iii) which relates to any Loan
Document;

     

    (d)           the
following events, within a reasonable time after the Borrower knows or has
reason to know thereof:  (i) the occurrence of any Reportable Event
with respect to any Plan, a failure to make any required contribution to a Plan,
the creation of any material Lien on the property of Borrower or any ERISA
Affiliate pursuant to Section 4068 of ERISA, or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan (ii) the
institution of proceedings or the taking of any other action by the PBGC or the
Borrower or any ERISA Affiliate or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of, any Plan,
or (iii) the sponsorship or agreement to participate in any Plan subject to
Title IV of ERISA or Section 412 of the Code, or any Multiemployer Plan;
and

     

    (e)           any
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.

     

    Each
notice pursuant to this Section 6.7 shall be
accompanied by a statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the relevant Group Member
proposes to take with respect thereto.

     

    6.8                      Environmental
Laws.

     

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

     

    (b)           Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws.

     

    6.9                      Operating
Accounts.  Maintain Borrower’s, Guarantors’ and their
Subsidiaries’ primary depository, operating and securities accounts with SVB and
SVB’s Affiliates.  

     

    6.10                    Audits.  At
reasonable times, upon reasonable prior notice to Borrower (at least three (3)
Business Days’ notice) (provided no notice is required if an Event of Default
has occurred and is continuing), the Administrative Agent, or its agents, shall
have the right to inspect the Collateral and the right to audit and copy any and
all of any Loan Party’s books and records including ledgers, federal and state
tax returns, records regarding assets or liabilities, the Collateral, business
operations or financial condition, and all computer programs or storage or any
equipment containing such information.  The foregoing inspections and
audits shall be at Borrower’s expense, and the charge therefor shall be $750 per
person per day (or such higher amount as shall represent the Administrative
Agent’s then-current standard charge for the same), plus reasonable
out-of-pocket expenses.  Such inspections and audits shall not exceed
once per year, unless an Event of Default has occurred and is
continuing.

     

     

    
      
        
        

      

      
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    6.11                    Additional
Collateral, etc.

     

    (a)           With
respect to any property (to the extent included in the definition of Collateral)
acquired after the Closing Date by any Loan Party (other than (x) any property
described in paragraph (b), (c) or (d) below, and (y) any property subject to a
Lien expressly permitted by Section 7.3(g)) as to
which the Administrative Agent, for the benefit of the Secured Parties, does not
have a perfected Lien, promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Secured Parties, a security
interest in such property and (ii) take all actions necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority (except as expressly permitted by Section 7.3) security
interest in such property, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative
Agent.

     

    (b)           With
respect to any fee interest in any real property having a value (together with
improvements thereof) of at least $250,000 acquired after the Closing Date by
any Loan Party (other than any such real property subject to a Lien expressly
permitted by Section
7.3(g)), promptly (i) execute and deliver a first priority Mortgage, in
favor of the Administrative Agent, for the benefit of the Secured Parties,
covering such real property, (ii) if requested by the Administrative Agent,
provide the Lenders with (x) title and extended coverage insurance covering such
real property in an amount at least equal to the purchase price of such real
property (or such other amount as shall be reasonably specified by the
Administrative Agent) as well as a current ALTA survey thereof, together with a
surveyor’s certificate, and (y) any consents or estoppels reasonably deemed
necessary or advisable by the Administrative Agent in connection with such
Mortgage, each of the foregoing in form and substance reasonably satisfactory to
the Administrative Agent and (iii) if reasonably requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.

     

    (c)           With
respect to any new Subsidiary (other than an Excluded Foreign Subsidiary)
created or acquired after the Closing Date by any Group Member (which, for the
purposes of this Section 6.11(c),
shall include any existing Subsidiary that ceases to be an Excluded Foreign
Subsidiary), promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative Agent
deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in
the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii)
deliver to the Administrative Agent the certificates representing such Capital
Stock, together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the relevant Group Member, (iii) cause such new
Subsidiary (a) to become a party to the Guarantee and Collateral Agreement, (b)
to take such actions necessary or advisable to grant to the Administrative Agent
for the benefit of the Secured Parties a perfected first priority security
interest in the Collateral described in the Guarantee and Collateral Agreement,
with respect to such new Subsidiary, including the filing of Uniform Commercial
Code financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent and (c) to deliver to the Administrative Agent a
certificate of the officers of such Subsidiary, in a from reasonably
satisfactory to the Administrative Agent, with appropriate insertions and
attachments, and (iv) if reasonably requested by the Administrative Agent or the
Required Lenders, deliver to the Administrative Agent legal opinions relating to
the matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.

     

    
      
        
        

      

      
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    (d)   With
respect to any new Excluded Foreign Subsidiary created or acquired after the
Closing Date by any Loan Party, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement,
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in the Capital Stock of such new Subsidiary that is
owned by any such Group Member (provided that in no event shall more than 66% of
the total outstanding voting Capital Stock of any such new Subsidiary be
required to be so pledged), (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
relevant Group Member, and take such other action as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the Administrative
Agent’s security interest therein, and (iii) if reasonably requested by the
Administrative Agent or Required Lenders, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.

     

    (e)           If
requested by Administrative Agent, each Loan Party shall use commercially
reasonable efforts to obtain a landlord’s agreement or bailee letter, as
applicable, from the lessor of each leased property or bailee with respect to
any warehouse, processor or converter facility or other location where
Collateral is stored or located, which agreement or letter shall contain a
waiver or subordination of all Liens or claims that the landlord or bailee may
assert against the Collateral at that location, and shall otherwise be
reasonably satisfactory in form and substance to the Administrative
Agent.  Each Loan Party shall timely and fully pay and perform its
obligations under all leases and other agreements with respect to each leased
location or public warehouse where any Collateral is or may be
located.

     

    SECTION
7.  NEGATIVE COVENANTS

     

    The
Guarantors and the Borrower hereby jointly and severally agree that, until all
Commitments have been terminated and the principal of and interest on each Loan,
all fees and all other expenses or amounts payable under any Loan Document shall
have been paid in full and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in full, neither
Borrower nor any Guarantor shall, nor permit any of its Subsidiaries to,
directly or indirectly:

     

    7.1                      Financial Condition
Covenants.

     

    (a)           Consolidated Fixed Charge
Coverage Ratio.  Permit the Consolidated Fixed Charge Coverage
Ratio as at the last day of any period of twelve consecutive months of the
Borrower, measured quarterly, to be less than 2.00 to 1.00.

     

    (b)           Consolidated Leverage
Ratio.  Permit the Consolidated Leverage Ratio as at the last
day of any period of twelve consecutive months of the Borrower, measured
monthly, to exceed 2.75 to 1.00.

     

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

     

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

     

    (b)           Indebtedness
of (i) Borrower or any Guarantor to any other Loan Party (ii) any Subsidiary
(which is not a Subsidiary Guarantor) to any other Subsidiary (which is not a
Subsidiary Guarantor) or (iii) Excluded Foreign Subsidiaries in an amount not to
exceed $250,000 in the aggregate;

     

    
      
        
        

      

      
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    (c)    Guarantee
Obligations incurred in the ordinary course of business by the Borrower, the
Guarantors and their respective Subsidiaries of obligations of any Wholly Owned
Subsidiary Guarantor, not to exceed $250,000 at any one time;

     

    (d)           Indebtedness
outstanding on the date hereof and listed on Schedule 7.2(d) and
any refinancings, refundings, renewals or extensions thereof (without shortening
the maturity thereof or increasing the principal amount thereof);

     

    (e)           
Indebtedness (including, without limitation, Capital Lease Obligations) secured
by Liens permitted by Section 7.3(g) in an
aggregate principal amount not to exceed $250,000 at any one time outstanding
and any refinancings, refundings, renewals or extensions thereof (without
shortening the maturity thereof or increasing the principal amount thereof);
and

     

    (f)           General
unsecured Indebtedness in an aggregate principal amount not to exceed $250,000
at any one time outstanding.

     

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

     

    (a)           Liens
for taxes not yet due or that are being contested in good faith by appropriate
proceedings, provided that
adequate reserves with respect thereto are maintained on the books of the
Borrower, the Guarantors or their respective Subsidiaries, as the case may be,
in conformity with GAAP;

     

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

     

    (c)           pledges
or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation;

     

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

     

    (e)           leases,
subleases, easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate, are not
substantial in amount and that do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower, the Guarantors or their respective
Subsidiaries;

     

    (f)           Liens
in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by Section 7.2(d), provided that no such
Lien is spread to cover any additional property after the Closing Date and that
the amount of Indebtedness secured thereby is not increased;

     

    (g)          Liens
securing Indebtedness of the Borrower, any Guarantor or any other Subsidiary
incurred pursuant to Section 7.2(e) to
finance the acquisition of fixed or capital assets, provided that (i)
such Liens shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (iii) the
amount of Indebtedness secured thereby is not increased;

     


    
      
         


      

      
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    (h)   Liens
created pursuant to the Security Documents;

     

    (i)           any
interest or title of a lessor under any lease entered into by the Borrower, any
Guarantor or any other Subsidiary in the ordinary course of its business and
covering only the assets so leased;

     

    (j)           judgment
Liens that do not constitute a Default or Event of Default under Section 8(h) of this
Agreement;

     

    (k)           Liens
not otherwise permitted by this Section so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the
aggregate fair market value (determined as of the date such Lien is incurred) of
the assets subject thereto exceeds (as to the Borrower, the Guarantors and all
Subsidiaries) $250,000 at any one time; and

     

    (l)           Extensions,
renewals and refinancing of Liens permitted by Section 7.3(k),
provided that any such extension, renewal or replacement Lien shall be limited
to the property encumbered by the existing Lien and the principal amount of the
indebtedness being extended, renewed or refinanced does not
increase.

     

    7.4                      Fundamental
Changes.  Enter into any merger, consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or Dispose of all or substantially all of its property or
business, except that:

     

    (a)           Borrower
or any Subsidiary may acquire all or substantially all of the capital stock or
property of another Person where (i) for any such transaction during the term of
this Agreement (x) cash consideration is less than or equal to $15,000,000, and
(y) total consideration including cash and the value of any non-cash
consideration, does not in the aggregate exceed $25,000,000; (ii) no
Default or Event of Default has occurred and is continuing or would exist after
giving effect to the transactions; and (iii) Borrower is the surviving legal
entity;

     

    (b)           any
Subsidiary of the Borrower or any Guarantor may be merged or consolidated with
or into the Borrower or another Guarantor (provided that the
Borrower or such Guarantor shall be the continuing or surviving
corporation);

     

    (c)           any
Subsidiary of the Borrower or a Guarantor may Dispose of any or all of its
assets (i) to the Borrower or another Guarantor (upon voluntary liquidation or
otherwise) or (ii) pursuant to a Disposition permitted by Section 7.5;
and

     

    (d)           any
Investment expressly permitted by Section 7.7 may be
structured as a merger, consolidation or amalgamation.

     

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

     

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

     

    (b)           the
sale of inventory in the ordinary course of business;

     

    (c)           Dispositions
permitted by clause (i) of Section
7.4(c);

     


    
      
         


      

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

     

    (e)           Dispositions
to Excluded Foreign Subsidiaries, in the ordinary course of business, not to
exceed $100,000 in the aggregate;

     

    (f)           
the use or transfer of money or Cash Equivalents in a manner that is not
prohibited by the terms of this Agreement or the other Loan
Documents;

     

    (g)           the
licensing of patents, trademarks, copyrights, and other intellectual property
rights in the ordinary course of business; and

     

    (h)           the
Disposition of other property having a fair market value not to exceed $250,000
in the aggregate (for Borrower and all Guarantors) for any fiscal year of the
Borrower.

     

    7.6                      Restricted
Payments.  Make any payment or prepayment of principal of,
premium, if any, or interest on, or redemption, purchase, retirement, defeasance
(including in-substance or legal defeasance), sinking fund or similar payment
with respect to, any Subordinated Indebtedness, make any payment to an Affiliate
with respect to management or consulting fees (it being understood that the term
consulting fees shall not include any fees payable for consulting services
provided by any Group Member (including any Excluded Foreign Subsidiary) to a
third party or any Group Member and invoiced to any other Group Member and
permitted by Section
7.9), declare or pay any dividend (other than dividends payable solely in
common stock of the Person making such dividend) on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of any Group Member, whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of any Group Member (collectively,
“Restricted
Payments”), except that:

     

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

     

    (b)           so
long as no Default or Event of Default shall have occurred and be continuing,
the (i) Borrower or a Guarantor may purchase or repurchase common stock of any
Group Member including repurchases of Capital Stock issued pursuant to any stock
incentive plans and (ii) Borrower may  repurchase from time to time,
in one or more transactions, outstanding shares of Capital Stock pursuant to
open-mark purchases or otherwise; in each case of (i) and (ii) not to exceed
$50,000,000 in the aggregate; and

     

    (c)           the
Borrower may pay dividends to a Guarantor to permit such Guarantor to (i) pay
corporate overhead expenses incurred in the ordinary course of business not to
exceed $250,000 in any fiscal year and (ii) pay any taxes that are due and
payable by such Guarantor and the Borrower as part of a consolidated
group.

     

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

     

    (a)           extensions
of trade credit in the ordinary course of business;

     

    
      
        
        

      

      
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    (b)   Investments
in cash and Cash Equivalents;

     

    (c)           Guarantee
Obligations permitted by Section
7.2;

     

    (d)           intercompany
Investments by any Group Member in the Borrower or any Guarantor;

     

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

     

    (f)           
Investments by the Borrower or any Guarantor in (i) Excluded Foreign
Subsidiaries, excluding Perficient China, in the ordinary course of business,
not to exceed $250,000 in the aggregate per year, and (ii) Perficient China, in
the ordinary course of business, not to exceed $1,000,000 at any time
outstanding; and

     

    (g)           Investments
received in settlement of amounts due to the Borrower, any Guarantor or any of
their respective Subsidiaries effected in the ordinary course of business or
owing to the Borrower, any Guarantor or any of their respective Subsidiaries as
a result of Insolvency proceedings involving an account debtor or upon the
foreclosure or enforcement of any Lien in favor of the Borrower, any Guarantor
or their respective Subsidiaries.

     

    7.8                      Optional Payments and
Modifications of Certain Debt Instruments.  Amend, modify,
waive or otherwise change, or consent or agree to any amendment, modification,
waiver or other change to, any of the terms of any Indebtedness permitted by
Section 7.2
(other than Indebtedness pursuant to any Loan Document) that would shorten the
maturity or increase the amount of any payment of principal thereof or the rate
of interest thereon or shorten any date for payment of interest thereon or that
would be otherwise materially adverse to any Lender or any other Secured
Party.

     

    7.9                      Transactions with
Affiliates.  Enter into any transaction, including any
purchase, sale, lease or exchange of property, the rendering of any service or
the payment of any management, advisory or similar fees, with any Affiliate
(other than the Borrower or any Guarantor) unless such transaction is (a)
otherwise permitted under this Agreement, (b) in the ordinary course of business
of the relevant Group Member (including with any Excluded Foreign Subsidiary),
and (c) upon fair and reasonable terms no less favorable to the relevant Group
Member than it would obtain in a comparable arm’s length transaction with a
Person that is not an Affiliate.  

     

    7.10                    Sale Leaseback
Transactions.  Enter into any Sale Leaseback
Transaction.

     

    7.11                    Swap
Agreements.  Enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Borrower, any
Guarantor or any Subsidiary has actual exposure (other than those in respect of
Capital Stock) and (b) Swap Agreements entered into in order to effectively cap,
collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower, any Guarantor or any
Subsidiary.

     

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

     

    7.13                    Negative Pledge
Clauses.  Enter into or suffer to exist or become effective any
agreement that prohibits or limits the ability of any Group Member to create,
incur, assume or suffer to exist any Lien upon any of its property or revenues,
whether now owned or hereafter acquired, to secure

     


    
      
         


      

      
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    its
obligations under the Loan Documents to which it is a party other than (a) this
Agreement and the other Loan Documents, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the
assets financed thereby) and (c) customary restrictions on the assignment of
leases, licenses and other agreements.

     

    7.14                    Clauses Restricting
Subsidiary Distributions.  Enter into or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of any
Subsidiary of the Borrower or any Guarantor to (a) make Restricted Payments in
respect of any capital stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower, any Guarantor or any other Subsidiary of the Borrower or
a Guarantor, (b) make loans or advances to, or other Investments in, the
Borrower, any Guarantor or any other Subsidiary of the Borrower or a Guarantor
or (c) transfer any of its assets to the Borrower, any Guarantor or any other
Subsidiary of the Borrower or a Guarantor, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under
the Loan Documents, (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the capital stock or assets of such
Subsidiary, (iii) customary restrictions on the assignment of leases, licenses
and other agreements, and (iv) restrictions of the nature referred to in clause
(c) above under agreements governing purchase money liens or Capital Lease
Obligations otherwise permitted hereby which restrictions are only effective
against the assets financed thereby.

     

    7.15                    Lines of
Business.  Enter into any business, either directly or through
any Subsidiary, except for those businesses in which the Borrower, the
Guarantors and their respective Subsidiaries are engaged on the date of this
Agreement or that are reasonably related thereto.

     

    7.16                    Amendments to Organizational
Agreements and Material Contracts.  No Loan Party shall (a)
amend or permit any amendments to any Loan Party's organizational documents; or
(b) amend or permit any amendments to, or terminate or waive any provision of,
any material Contractual Obligation if such amendment, termination, or waiver
could reasonably be expected to result in a Material Adverse
Effect.

     

    SECTION
8.  EVENTS OF DEFAULT

     

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

     

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

     

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

     

    (c)           (i) any
Loan Party shall default in the observance or performance of any agreement
contained in clause (i) or (ii) of Section 6.4(a) (with
respect to any Guarantor and the Borrower only), Section 6.7(a) or
Section 7 of
this Agreement or (ii) an “Event of Default” under and as defined in any
Mortgage shall have occurred and be continuing; or

     


    
      
         


      

      
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    (d)   any Loan
Party shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided
in paragraphs (a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days thereafter; or

     

    (e)           any
Group Member shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but excluding the Loans) on
the scheduled or original due date with respect thereto; or (ii) default in
making any payment of any interest on any such Indebtedness beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (iii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to (x) cause, or to permit the holder or beneficiary of
such Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such Indebtedness
to become due prior to its stated maturity or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable or (y) to
cause, with the giving of notice if required, any Group Member to purchase or
redeem or make an offer to purchase or redeem such Indebtedness prior to its
stated maturity; provided, that a
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $250,000; or

     

    (f)           (i) any
Group Member shall commence any case, proceeding or other action (a) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (b) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Group Member shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Group Member any case, proceeding or other action of a nature
referred to in clause (i) above that (a) results in the entry of an order for
relief or any such adjudication or appointment or (b) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against any Group Member any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
any Group Member shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) any Group Member shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they
become due; or

     

    (g)           (i) any
Person shall engage in any non-exempt “prohibited transaction” (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any
“accumulated funding deficiency” (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan, or any material Lien shall
arise on the assets of the Borrower or any ERISA Affiliate, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is likely to result in the termination
of such Plan for purposes of Title IV of ERISA, or (iv) any Group Member or any
ERISA Affiliate shall incur any liability in connection with a withdrawal from,
or the Insolvency or Reorganization of, a

     


    
      
         


      

      
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    Multiemployer
Plan, except where any liability related to such action would not reasonably be
expected to have a Material Adverse Effect; or

     

    (h)           one
or more judgments or decrees shall be entered against any Group Member involving
in the aggregate a liability (not paid or fully covered by insurance as to which
the relevant insurance company has acknowledged coverage) of $250,000 or more,
and all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof;
or

     

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

     

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

     

    (k)           a
Change of Control shall occur; or

     

    (l)           
any of the Governmental Approvals shall have been (i) revoked, rescinded,
suspended, modified in a materially adverse manner or not renewed in the
ordinary course for a full term or (ii) subject to any decision by a
Governmental Authority that designates a hearing with respect to any
applications for renewal of any of the Governmental Approvals or that could
result in the Governmental Authority taking any of the actions described in
clause (i) above, and such decision or such revocation, rescission, suspension,
modification or nonrenewal (A) has, or could reasonably be expected to have, a
Material Adverse Effect, or (B) adversely affects the legal qualifications of
any Group Member to hold any of the Governmental Approvals in any applicable
jurisdiction and such revocation, rescission, suspension, modification or
nonrenewal could reasonably be expected to affect the status of or legal
qualifications of any Group Member to hold any of the Governmental Approvals in
any other jurisdiction; or

     

    (m)           a
Material Adverse Effect occurs;

     

    then, and
in any such event, (a) if such event is an Event of Default specified in
paragraph (f) above with respect to the Borrower, the Commitments shall
immediately terminate automatically and the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents shall automatically immediately become due and payable, and (b) if
such event is any other Event of Default, either or both of the following
actions may be taken:  (i) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving
Commitments to be terminated forthwith, whereupon the Revolving Commitments
shall immediately terminate; and (ii) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents to be due and payable forthwith, whereupon the same
shall immediately become due and payable.  With respect to all Letters
of Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit.  Amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the

     


    
      
         


      

      
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    unused
portion thereof after all such Letters of Credit shall have expired or been
fully drawn upon, if any, shall be applied to repay other obligations of the
Borrower hereunder and under the other Loan Documents.  After all such
Letters of Credit shall have expired or been fully drawn upon and all amounts
drawn thereunder have been reimbursed in full and all other obligations of the
Borrower hereunder and under the other Loan Documents shall have been paid in
full, the balance, if any, in such cash collateral account shall be returned to
the Borrower (or such other Person as may be lawfully entitled
thereto).  Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower.

     

    SECTION
9.  THE ADMINISTRATIVE AGENT

     

    9.1                      Appointment and
Authority.

     

    (a)           Each
of the Lenders hereby irrevocably appoints SVB to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto.

     

    (b)           The
provisions of Section
9 are solely for the benefit of the Administrative Agent, the Lenders and
the Issuing Lender, and neither the Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such
provisions.  Notwithstanding any provision to the contrary elsewhere
in this Agreement, the Administrative Agent shall not have any duties or
responsibilities to any Lender or any other Person, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent.

     

    9.2                      Delegation of
Duties.  The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the
Administrative Agent.  The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties.  The exculpatory provisions
of this Section shall apply to any such sub-agent and to the Related Parties of
the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as the Administrative
Agent.

     

    9.3                      Exculpatory
Provisions.  The Administrative Agent shall have no duties or
obligations except those expressly set forth herein and in the other Loan
Documents.  Without limiting the generality of the foregoing, the
Administrative Agent shall not:

     

    (a)           be
subject to any fiduciary or other implied duties, regardless of whether any
Default or any Event of Default has occurred and is continuing;

     

    (b)           have
any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the
other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan
Documents), as applicable, provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan
Document or applicable law; and

     


    
      
         


      

      
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    (c)    except as
expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and the Administrative Agent shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by any Person serving as the Administrative Agent
or any of its Affiliates in any capacity.

     

    The
Administrative Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Section 10.1) or (ii)
in the absence of its own gross negligence or willful misconduct.

     

    The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default or Event of Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Section 5 or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.

     

    9.4                      Reliance by Administrative
Agent.  The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person.  The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such
Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan or the issuance of
such Letter of Credit.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.  The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent.  The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or such other number or percentage of Lenders as shall be
provided for herein or in the other Loan Documents) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.  The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or such other number or percentage of Lenders as shall be
provided for herein or in the other Loan Documents), and such request and any
action taken or failure to act pursuant thereto shall be binding upon the
Lenders and all future holders of the Loans.

     

    9.5                      Notice of
Default.  The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
the Administrative Agent has received notice from a Lender, a Guarantor or the
Borrower referring to this Agreement, describing

     


    
      
         


      

      
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    such
Default or Event of Default and stating that such notice is a “notice of
default”.  In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the
Lenders.  The Administrative Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by the
Required Lenders (or, if so specified by this Agreement, all Lenders); provided that unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action or
refrain from taking such action with respect to such Default or Event of Default
as it shall deem advisable in the best interests of the Lenders.

     

    9.6                      Non-Reliance on
Administrative Agent and Other Lenders.  Each Lender expressly
acknowledges that neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys in fact or affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of a Group Member or any
affiliate of a Group Member, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender.  Each Lender
represents to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Group Members and their affiliates
and made its own decision to make its Loans hereunder and enter into this
Agreement.  Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Group Members and their affiliates.  Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall have no duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Group Member or
any affiliate of a Group Member that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys in fact or affiliates.

     

    9.7                      Indemnification.  Each
of the Lenders agrees to indemnify the Administrative Agent in its capacity as
such (to the extent not reimbursed by a Guarantor, the Borrower or any other
Loan Party and without limiting the obligation of the Guarantors, the Borrower
or any other Loan Party to do so, according to its Aggregate Exposure Percentage
in effect on the date on which indemnification is sought under this Section 9.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, in accordance with its
Aggregate Exposure Percentage immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time (whether before or after the payment of the Loans) be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the Administrative
Agent’s gross negligence or willful misconduct.  The agreements in
this Section shall survive the payment of the Loans and all other amounts
payable hereunder.

     


    
      
         


      

      
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    9.8       Agent in Its Individual
Capacity.  The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include each such
Person serving as the Administrative Agent hereunder in its individual
capacity.  Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower, any
Guarantor or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.

     

    9.9
                      Successor Administrative
Agent.  The Administrative Agent may at any time give notice of
its resignation to the Lenders and the Borrower.  Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor, which shall be a bank
with an office in the State of California, or an Affiliate of any such bank with
an office in the State of California.  If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Agent may on behalf of the Lenders,
appoint a successor Administrative Agent meeting the qualifications set forth
above provided that if the retiring Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on
behalf of the Secured Parties under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed and such collateral
security is assigned to such successor Administrative Agent) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this paragraph.  Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this paragraph).  The fees
payable by the Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring Agent’s resignation hereunder and under
the other Loan Documents, the provisions of Section 9 and Section 10.5 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as the Administrative Agent.

     

    SECTION
10.  MISCELLANEOUS

     

    10.1                     Amendments and
Waivers.

     

    (a)           Neither
this Agreement, any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the provisions of
this Section 10.1.  The Required Lenders and each Loan Party party to
the relevant Loan Document may, or, with the written consent of the Required
Lenders, the Administrative Agent and each Loan Party party to the relevant Loan
Document may, from time to time, (i) enter into written amendments, supplements
or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing
in any manner the rights of the Lenders or of the

     


    
      
         


      

      
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    Loan
Parties hereunder or thereunder or (ii) waive, on such terms and conditions as
the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such
waiver and no such amendment, supplement or modification shall (A) forgive the
principal amount or extend the final scheduled date of maturity of any Loan,
reduce the stated rate of any interest or fee payable hereunder (except that any
amendment or modification of defined terms used in the financial covenants in
this Agreement shall not constitute a reduction in the rate of interest or fees
for purposes of this clause (A)) or extend the scheduled date of any payment
thereof, or increase the amount or extend the expiration date of any Lender’s
Revolving Commitment, in each case without the written consent of each Lender
directly affected thereby; (B) eliminate or reduce the voting rights of any
Lender under this Section 10.1 without
the written consent of such Lender; (C) reduce any percentage specified in the
definition of Required Lenders, consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents, release a material amount of the Collateral or release all or
substantially all of the Guarantors from their obligations under the Guarantee
and Collateral Agreement, in each case without the written consent of all
Lenders; (D) amend, modify or waive the pro rata requirements of Section 2.12 in a
manner that adversely affects Revolving Lenders without the written consent of
the Required Lenders; (E) reduce the percentage specified in the definition of
Required Lenders without the written consent of all Revolving Lenders; (F)
amend, modify or waive any provision of Section 9 without the
written consent of the affected Agent; or (G) amend, modify or waive any
provision of Section
3 without the written consent of the Issuing Lender.  Any such
waiver and any such amendment, supplement or modification shall apply equally to
each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans.  In the case
of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing during the period such waiver is effective; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.

     

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

     

    10.2                     Notices.  All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered, or three Business Days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed as follows
in the case of Guarantors, the Borrower and the Administrative Agent, and as set
forth in an administrative questionnaire delivered to the Administrative Agent
in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:

    

      
        	
                Borrower:

              	
                Perficient,
      Inc.

                520
      Maryville Center Drive, Suite 400

                St.
      Louis, Missouri  63141

                Attention:  Chief
      Financial Officer

                Facsimile
      No.:

                 

                 

              


      



    
      
        
        

      

      
        55

        
          

        

      

      
        
        

      

    

     

    
      	
               

            	
              
              

              with
      a copy to:

              Vinson
      & Elkins LLP

              The
      Terrace 7

              2801
      Via Fortuna, Suite 100

              Austin,
      Texas 78746

              Attention:  J.
      Nixon Fox III, Esq.

              Phone:
      (512) 542-8427

              Facsimile:  (512)
      236-3216

               

            
	
              Guarantors:

            	
              c/o
      Perficient, Inc.

              520
      Maryville Center Drive, Suite 400

              St.
      Louis, Missouri 63141

              Attention:  Chief
      Financial Officer

              Facsimile
      No.:

               

            
	
              Administrative
      Agent:

            	
              Silicon
      Valley Bank

              7000
      N. MoPac Expressway

              Austin,
      TX  78731

              Attention:
      Phillip Wright

              Facsimile
      No.: (512) 794-0855

               

              with
      a copy to:

              Silicon
      Valley Bank

              3003
      Tasman Drive

              Santa
      Clara, California 95054

              Attention:  Loan
      Services

              Facsimile
      No.:  (408) 496-2429

            


    

    


     

    provided that any
notice, request or demand to or upon the Administrative Agent or the Lenders
shall not be effective until received.

     

    Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable
Lender.  The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.  Unless the Administrative Agent otherwise prescribes,
(a) notices and other communications sent to an email address shall be deemed
received upon the sender’s receipt of an acknowledgment from the intended
recipient (such as by the “return receipt requested” function, as available,
return email or other written acknowledgment), provided that if such notice or
other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next Business Day for the recipient, and (b) notices
or communications posted to an Internet or intranet website shall be
deemed

     


    
      
         


      

      
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    received
upon the deemed receipt by the intended recipient at its email address as
described in the foregoing clause (a) of notification that such notice or
communication is available and identifying the website address
therefor.

     

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

     

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

     

    10.5                     Payment of Expenses and
Taxes.  The Borrower agrees (a) to pay or reimburse the
Administrative Agent and KeyBank for all their reasonable and documented
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of counsel to the Administrative Agent and to KeyBank and filing
and recording fees and expenses, with statements with respect to the foregoing
to be submitted to the Borrower prior to the Closing Date (in the case of
amounts to be paid on the Closing Date) and from time to time thereafter on a
quarterly basis or such other periodic basis as the applicable Agent shall deem
appropriate, (b) to pay or reimburse each Lender and the Administrative Agent
for all its reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents, including the fees and disbursements of
counsel (including the reasonable allocated fees and expenses of in-house
counsel) to each Lender and of counsel to the Administrative Agent, (c) to pay,
indemnify, and hold each Lender and the Administrative Agent harmless from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other taxes excluding
net income taxes and franchise taxes (imposed in lieu of net income taxes) which
do not constitute Non-Excluded Taxes, if any, that may be payable or determined
to be payable in connection with the execution and delivery of, or consummation
or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, agents and controlling
persons (each, an “Indemnitee”) harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to or arising out of or in connection
with the execution, delivery, enforcement, performance and administration of
this Agreement, the other Loan Documents and any such other documents
(regardless of whether any Indemnitee is a party hereto and regardless or
whether any such matter is initiated by a third party, the Borrower, any other
Loan Party or any other Person), including any of the foregoing relating to the
use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of any Group
Member or any of the Properties and the reasonable fees and expenses of legal
counsel in connection with claims, actions or proceedings by any Indemnitee
against any Loan Party under any Loan Document (all the foregoing in this clause
(d), collectively, the “Indemnified
Liabilities”), provided, that the
Borrower shall have no obligation hereunder to any

     


    
      
         


      

      
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    Indemnitee
with respect to Indemnified Liabilities to the extent such Indemnified
Liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee.  Without limiting the foregoing, and to
the extent permitted by applicable law, the Borrower and the Guarantors each
agree not to assert and to cause their respective Subsidiaries not to assert,
and hereby waives and agrees to cause their respective Subsidiaries to waive,
all rights for contribution or any other rights of recovery with respect to all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any
Indemnitee.  All amounts due under this Section 10.5 shall be
payable not later than 10 days after written demand
therefor.  Statements payable by the Borrower or any Guarantor
pursuant to this Section 10.5 shall be
submitted to Borrower, at the address of the Borrower set forth in Section 10.2, or to
such other Person or address as may be hereafter designated by the Borrower or a
Guarantor in a written notice to the Administrative Agent.  The
agreements in this Section 10.5 shall
survive repayment of the Loans and all other amounts payable
hereunder.

     

    10.6                     Successors and Assigns;
Participations and Assignments.

     

    (a)           The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of the Issuing Lender that issues any Letter of
Credit), except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void).

     

    (b)           (i)           Subject
to the conditions set forth below in Section 10.6(b)(ii),
any Lender may assign to one or more banks, mutual funds or financials
institutions or entities (each, an “Assignee”) all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it) with the prior
written consent of:

     

    (A)           the
Administrative Agent (such consent not to be unreasonably withheld or delayed);
and

     

    (B)           with
respect to any proposed assignment of all or a portion of the L/C Commitment,
the Issuing Lender.

     

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

     

    (A)           except
in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans under any Facility, the amount of the Commitments
or Loans of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000 (provided that
simultaneous assignments to or by two or more Approved Funds shall be aggregated
for purposes of determining such amount), unless each of the Borrower and the
Administrative Agent otherwise consent, provided that no such
consent of the Borrower shall be required if an Event of Default has occurred
and is continuing, and such consent shall not be unreasonably
withheld;

     

    (B)           the
parties to each assignment of all or a portion of any Revolving Commitment shall
(1) electronically execute and deliver to the Administrative

     


    
      
         


      

      
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    Agent an
Assignment and Assumption via an electronic settlement system acceptable to the
Administrative Agent or (2) manually execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500, payable by the assigning or assignee Lender as they shall
mutually agree; and

     

    (C)           the
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an administrative questionnaire.

     

    For the
purposes of this Section 10.6, the
term “Approved
Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of
credit in the ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.

     

    (iii)           Subject
to acceptance and recording thereof pursuant to Section 10.6(b)(iv)
below, from and after the effective date specified in each Assignment and
Assumption the Assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.10, 2.14, 2.15 and 10.5).  Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 10.6 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section
10.6(c).

     

    (iv)           The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of
the Revolving Lenders, and the Revolving Commitments of, and principal amount of
the Revolving Loans owing to, each Revolving Lender pursuant to the terms hereof
from time to time, and the names and addresses of the L/C Lenders, and the L/C
Commitments of, and principal amounts owing to, each L/C Lender pursuant to the
terms hereof from time to time (the “Revolving Loan
Register”).  The entries in the Revolving Loan Register shall
be conclusive, and the Borrower, the Administrative Agent, the Issuing Lender
and the Lenders may treat each Person whose name is recorded in the Revolving
Loan Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the
contrary.  The Revolving Loan Register shall be available for
inspection by the Borrower, the Issuing Lender, the Administrative Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.

     

    (v)           Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in Section 10.6(b) and
any written consent to such assignment required by Section 10.6(b) (in
each case to the extent required), the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
applicable Register.  No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the applicable Register as
provided in this paragraph.

     

    (c)           (i)           Any
Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its 

     


    
      
         


      

      
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    Commitments
and the Loans owing to it); provided that (A)
such Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative Agent,
the Issuing Lender and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any agreement pursuant to which a
Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to
the second sentence of Section 10.1 and (2)
directly affects such Participant.  Subject to Section 10.6(c)(ii),
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.13,
2.14 and 2.15 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section
10.6(b).  To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.7(b) as
though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as
though it were a Lender.

     

    (ii)           A
Participant shall not be entitled to receive any greater payment under Section 2.14 or 2.15 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written
consent.  Any Participant that is a Non-U.S. Lender shall not be
entitled to the benefits of Section 2.14 unless
such Participant complies with Section
2.14(d).

     

    (d)           Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or assignment of a
security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or Assignee for such
Lender as a party hereto.

     

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

     

    (f)           
Each Lender, upon execution and delivery hereof or upon succeeding to an
interest in the Commitments or Loans, as the case may be, represents and
warrants as of the Closing Date or as of the effective date of the applicable
Assignment and Assumption that (i) it is an Eligible Assignee; (ii) it has
experience and expertise in the making of or investing in commitments, loans or
investments such as the Commitments and Loans; and (iii) it will make or invest
in its Commitments and Loans for its own account in the ordinary course of its
business and without a view to distribution of such Commitments and Loans within
the meaning of the Securities Act or the Securities Exchange Act of 1934, or
other federal securities laws (it being understood that, subject to the
provisions of this Section 10.6, the
disposition of such Commitments and Loans or any interests therein shall at all
times remain within its exclusive control).

     

    10.7                     Adjustments;
Set-off.

     

    (a)           Except
to the extent that this Agreement expressly provides for payments to be
allocated to a particular Lender or to the Lenders under the Revolving Facility,
if any Lender (a “Benefitted Lender”)
shall, at any time after the Loans and other amounts payable hereunder shall
immediately become due and payable pursuant to Section 8, receive
any payment of all or part of the Obligations owing to it, or receive any
collateral in respect thereof (whether voluntarily or involuntarily,


     


    
      
         


      

      
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    by
set-off, pursuant to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of the Obligations owing to
each such other Lender, or shall provide such other Lenders with the benefits of
any such collateral, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral ratably with each of the
Lenders; provided, however, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without
interest.

     

    (b)           In
addition to any rights and remedies of the Lenders provided by law, each Lender
shall have the right, without prior notice to any Guarantor or the Borrower, any
such notice being expressly waived by each Guarantor and the Borrower to the
extent permitted by applicable law, upon any amount becoming due and payable by
a Guarantor or the Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of a Guarantor or the
Borrower, as the case may be.  Each Lender agrees promptly to notify
the Borrower and the Administrative Agent after any such setoff and application
made by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.

     

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

     

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

     

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

     

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

     

    10.12                   Submission To Jurisdiction;
Waivers.  Each of the Guarantors and the Borrower hereby
irrevocably and unconditionally:

     


    
      
         


      

      
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    (a)    submit to
the exclusive jurisdiction of the State and Federal courts in the Northern
District of the State of California; provided, however, that nothing in this
Agreement shall be deemed to operate to preclude Administrative Agent or any
Lender from bringing suit or taking other legal action in any other jurisdiction
to realize on the Collateral or any other security for the Obligations, or to
enforce a judgment or other court order in favor of Administrative Agent or such
Lender.  Borrower and each Guarantor expressly submit and consent in
advance to such jurisdiction in any action or suit commenced in any such court,
and Borrower and each Guarantor hereby waive any objection that they may have
based upon lack of personal jurisdiction, improper venue, or forum non
conveniens and hereby consents to the granting of such legal or equitable relief
as is deemed appropriate by such court.  Borrower and each Guarantor
hereby waive personal service of the summons, complaints, and other process
issued in such action or suit and agree that service of such summons,
complaints, and other process may be made by registered or certified mail
addressed to Borrower or a Guarantor at the addresses set forth in Section 10.2 of this
Agreement and that service so made shall be deemed completed upon the earlier to
occur of Borrower’s or a Guarantor’s, as applicable, actual receipt thereof or
three (3) days after deposit in the U.S. mails, proper postage
prepaid;

     

    (b)           TO THE EXTENT PERMITTED BY APPLICABLE
LAW, WAIVES THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING
OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY
CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS
AGREEMENT.  EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL;
and

     

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

     

    10.13                   Acknowledgements.  Each
of the Guarantors and the Borrower hereby acknowledges that:

     

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

     

    (b)           none
of the Administrative Agent nor any Lender has any fiduciary relationship with
or duty to any Guarantor or the Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Administrative Agent and Lenders, on one hand, and the Guarantors and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and

     

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

     

    10.14                   Releases of Guarantees and
Liens.

     

    (a)           Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section
10.1) to take any action requested by the Borrower having the effect of
releasing any Collateral or guarantee obligations (1) to the extent necessary to
permit consummation of any transaction not prohibited by any

     


    
      
         


      

      
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    Loan
Document or that has been consented to in accordance with Section 10.1 or (2)
under the circumstances described in Section 10.14(b)
below.

     

    (b)           At
such time as the Loans and the other obligations under the Loan Documents (other
than obligations under or in respect of Swap Agreements, to the extent no
default or termination event shall have occurred and be continuing thereunder)
shall have been paid in full, the Commitments have been terminated and no
Letters of Credit shall be outstanding, the Collateral shall be released from
the Liens created by the Security Documents, and the Security Documents and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Loan Party under the Security Documents shall
terminate, all without delivery of any instrument or performance of any act by
any Person.

     

    10.15                   Confidentiality.  The
Administrative Agent and each Lender agrees to keep confidential all non-public
information provided to it by any Loan Party, the Administrative Agent or any
Lender pursuant to or in connection with this Agreement that is designated by
the provider thereof as confidential; provided that nothing
herein shall prevent the Administrative Agent or any Lender from disclosing any
such information (a) to the Administrative Agent, any other Lender or any
affiliate thereof, (b) subject to an agreement to comply with the provisions of
this Section, to any actual or prospective Transferee or any direct or indirect
counterparty to any Swap Agreement (or any professional advisor to such
counterparty), (c) to its employees, directors, agents, attorneys, accountants
and other professional advisors or those of any of its affiliates, (d) upon the
request or demand of any Governmental Authority, (e) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (f) if requested or required to do so in
connection with any litigation or similar proceeding, (g) that has been publicly
disclosed, (h) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about a Lender’s investment portfolio in connection with
ratings issued with respect to such Lender, or (i) in connection with the
exercise of any remedy hereunder or under any other Loan
Document.  Notwithstanding anything herein to the contrary, any party
to this Agreement (and any employee, representative, or other agent of any party
to this Agreement) may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure of the transactions contemplated
by this Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure.  However, any such information relating to the tax
treatment or tax structure is required to be kept confidential to the extent
necessary to comply with any applicable federal or state securities
laws.

     

    10.16                   Patriot
Act.  Each Lender and the Administrative Agent (for itself and
not on behalf of any other party) hereby notifies each Guarantor and the
Borrower that, pursuant to the requirements of the Patriot Act, it is required
to obtain, verify and record information that identifies the Guarantors and the
Borrower, which information includes the names and addresses and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Guarantors and the Borrower in accordance with the
Patriot Act.  The Borrower and the Guarantors will, and will cause
each of their respective Subsidiaries to, provide, to the extent commercially
reasonable or required by any Requirement of Law, such information and take such
actions as are reasonably requested by the Administrative Agent or any Lender to
assist the Administrative Agent and the Lenders in maintaining compliance with
the Patriot Act. 

     

    10.17                   Effect
of Agreement.  This Agreement is intended to and does
completely replace that certain Amended and Restated Loan and Security
Agreement dated as of June 3, 2005, as amended from time to time, by and
among Borrower, certain of the Guarantors, the Lenders and the Administrative
Agent. 

     

    



    
      
         


      

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

     

    BORROWER

     

    PERFICIENT,
INC.

     

    


     

    By:           /s/ Paul E.
Martin                                                      

     

    Name:      Paul E.
Martin                                                      

     

    Title:        Chief Financial
Officer

     

    


     

    


     

    


     

    


     

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Agreement]

     

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    GUARANTORS

     

    PERFICIENT E-TECH, LLC

     

    By: Perficient, Inc., its sole
member

    


     

    By:           /s/ Paul E.
Martin                                                      

     

    Name:      Paul E.
Martin

     

    Title:       
Chief Financial
Officer

     

    


     

    BOLDTECH INTERNATIONAL,
LLC

     

    By: Perficient, Inc., its sole
member

    


    By:           /s/ Paul E.
Martin

                                                          

    Name:      Paul E.
Martin

     

    Title:        Chief Financial
Officer

    


    


     

    


     

     

     

    


     

    


     

    


     

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    SILICON
VALLEY BANK,

    as
Administrative Agent, Co-Lead Arranger, Issuing Lender and as a
Lender

     

    


     

    By:           /s/ Phillip A.
Wright                                                      

     

    Name:      Phillip A.
Wright                                                      

     

    Title:        Relationship
Manager                                                      

     

    
      	
               
      

            	 


    

    


    


    


    


     

     

    


     

    


     

    


     

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    KEYBANK
NATIONAL ASSOCIATION,

    as
Co-Lead Arranger and as a Lender

     

    


     

    By:           /s/ Thomas A.
Crandell                                                      

     

    Name:   Thomas A. Crandell

     

    Title:   Senior Vice President

     

     

     

    


    


    


    


     

    [Signature Page to Credit
Agreement]

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    SCHEDULES

     

    1.1A           Commitments

    


    Schedule
1.1A

    Revolving
Commitment Percentages/Amounts

    L/C
Commitment Percentages/Amounts

     

    


     

    
      	
              Institution

            	
              Revolving
      

              Commitment
      

              Amount

            	
              Revolving

              Commitment

              Percentage

            	
              L/C

              Commitment

            
	 
      	 
      	 
      	 
      
	
              Silicon
      Valley Bank

            	
              $25,000,000

            	
              50%

            	
              $250,000

            
	
              Key
      Bank, N.A.

            	
              $25,000,000

            	
              50%

            	
              $250,000

            
	 
      	 
      	 
      	 
      
	
              TOTAL

            	
              $50,000,000

            	
              100%

            	
              $500,000

            


    

    


    


     

     

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    1.1B           Existing
Letters of Credit

    


    


    Schedule
1.1B

     

    Existing
Letters of Credit

     

    


     

    
      	
              Date
      of

              Issuance

            	
              Amount

            	
              Beneficiary

            	
              Date
      of

              Expiry

            
	
              3/23/08

            	
              $100,000

            	
              I&G
      DIRECT REAL ESTATE 18, LP

              C/O
      COLLIERS TURLEY MARTIN TUCKER

              622
      EMERSON ROAD, SUITE 320

              CREVE
      COEUR, MO 63141

            	
              October
      31, 2009

            


    

     

     

     

     

     

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    4.4           Consents,
Authorizations, Filings and Notices

    


    


    None.

     

     

     

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    4.5           No
Legal Bar

    


    


    None.

     

     

     

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    4.15           Subsidiaries

    


    


    
      	
              Subsidiary

            	
              Jurisdiction
      of Organization

            	
              Percentage
      Holder of Capital Stock

            
	
              Perficient
      Canada Corp.

            	
              Ontario,
      Canada

            	
              Perficient,
      Inc. - 100%

            
	
              Perficient
      E-Tech, LLC

            	
              Delaware

            	
              Perficient,
      Inc. - 100%

            
	
              BoldTech
      International, LLC

            	
              Colorado

            	
              Perficient,
      Inc. - 100%

            
	
              Perficient
      China, Ltd.

            	
              People’s
      Republic of China

            	
              BoldTech
      International, LLC - 100%

            
	
              ePairs
      India Private Limited

            	
              India

            	
              Perficient,
      Inc. - 80%

            


    

    


    


    The
following entities are Excluded Foreign Subsidiaries:

     

    Perficient
Canada Corp.

    Perficient
China, Ltd.

    ePairs
India Private Limited


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    4.19(a)                      UCC
Filing Jurisdictions

    


    


    Delaware

    


    


    Colorado

     

     

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    7.2(d)                      Existing
Indebtedness

    


    


    None,
other than the Existing Letters of Credit set forth on Schedule
1.1B.

     

     

     

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    7.3(f)                      Existing
Liens

    


    UCC-1,
File No. 60350710, Creditor: Color Art Integrated Interiors,
LLC.  This UCC has been filed in connection with certain office
furnishings manufactured by Affordable Interior Services, per color art order
number 143223 and related orders.

    


    UCC-1,
File No. 81198496, Creditor: IBM Credit, LLC; provided that this lien shall be
released or “carved back” to the specific equipment financed, in Administrative
Agent’s reasonable discretion, within twenty (20) days of the Closing
Date.

    


     

     

    
 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    
      
        	 
      	 
      	
                TABLE
      OF CONTENTS

              	 
      
	 
      	 
      	 
      	
                Page

              
	 
      	 
      	 
      	 
      
	
                SECTION 1.

              	
                DEFINITIONS

              	
                1

              
	 
      	
                1.1

              	
                Defined
      Terms

              	
                1

              
	 
      	
                1.2

              	
                Other
      Definitional Provisions

              	
                17

              
	
                SECTION
      2.

              	
                AMOUNT
      AND TERMS OF COMMITMENTS

              	
                18

              
	 
      	
                2.1

              	
                Revolving
      Commitments

              	
                18

              
	 
      	
                2.2

              	
                Procedure
      for Revolving Loan Borrowing

              	
                18

              
	 
      	
                2.3

              	
                Commitment
      Fees, etc

              	
                19

              
	 
      	
                2.4

              	
                Termination
      or Reduction of Commitments

              	
                19

              
	 
      	
                2.5

              	
                Optional
      Prepayments

              	
                19

              
	 
      	
                2.6

              	
                Conversion
      and Continuation Options

              	
                20

              
	 
      	
                2.7

              	
                Limitations
      on Eurodollar Tranches

              	
                20

              
	 
      	
                2.8

              	
                Interest
      Rates and Payment Dates

              	
                20

              
	 
      	
                2.9

              	
                Computation
      of Interest and Fees

              	
                21

              
	 
      	
                2.10

              	
                Inability
      to Determine Interest Rate

              	
                21

              
	 
      	
                2.11

              	
                Margin
      Adjustment

              	
                22

              
	 
      	
                2.12

              	
                Pro
      Rata Treatment and Payments

              	
                22

              
	 
      	
                2.13

              	
                Requirements
      of Law

              	
                23

              
	 
      	
                2.14

              	
                Taxes

              	
                24

              
	 
      	
                2.15

              	
                Indemnity

              	
                26

              
	 
      	
                2.16

              	
                Change
      of Lending Office

              	
                26

              
	 
      	
                2.17

              	
                Notes

              	
                27

              
	 
      	
                2.18

              	
                Increase
      of Commitments

              	
                27

              
	
                SECTION
      3.

              	
                Letters
      of Credit

              	
                28

              
	 
      	
                3.1

              	
                L/C
      Commitment

              	
                28

              
	 
      	
                3.2

              	
                Procedure
      for Issuance of Letters of Credit

              	
                28

              
	 
      	
                3.3

              	
                Fees
      and Other Charges

              	
                28

              
	 
      	
                3.4

              	
                L/C
      Participations

              	
                29

              
	 
      	
                3.5

              	
                Reimbursement

              	
                29

              
	 
      	
                3.6

              	
                Obligations
      Absolute

              	
                30

              
	 
      	
                3.7

              	
                Letter
      of Credit Payments

              	
                30

              
	 
      	
                3.8

              	
                Applications

              	
                30

              
	 
      	
                3.9

              	
                Interim
      Interest

              	
                30

              
	 
      	
                3.10

              	
                Additional
      Issuing Lenders

              	
                31

              


      

      




      
        
           


        

        
          i

          
            

          

        

        
           


        

      


      
        	 
      	 
      	
                TABLE
      OF CONTENTS

              	 
      
	 
      	 
      	
                (continued)

              	
                Page

              
	 
      	 
      	 
      	 
      
	 
      	
                3.11

              	
                Resignation
      of the Issuing Lender

              	
                31

              
	
                SECTION
      4.

              	
                REPRESENTATIONS
      AND WARRANTIES

              	
                31

              
	 
      	
                4.1

              	
                Financial
      Condition

              	
                31

              
	 
      	
                4.2

              	
                No
      Change

              	
                32

              
	 
      	
                4.3

              	
                Existence;
      Compliance with Law

              	
                32

              
	 
      	
                4.4

              	
                Power,
      Authorization; Enforceable Obligations

              	
                32

              
	 
      	
                4.5

              	
                No
      Legal Bar

              	
                32

              
	 
      	
                4.6

              	
                Litigation

              	
                32

              
	 
      	
                4.7

              	
                No
      Default

              	
                33

              
	 
      	
                4.8

              	
                Ownership
      of Property; Liens

              	
                33

              
	 
      	
                4.9

              	
                Intellectual
      Property

              	
                33

              
	 
      	
                4.10

              	
                Taxes

              	
                33

              
	 
      	
                4.11

              	
                Federal
      Regulations

              	
                33

              
	 
      	
                4.12

              	
                Labor
      Matters

              	
                33

              
	 
      	
                4.13

              	
                ERISA

              	
                33

              
	 
      	
                4.14

              	
                Investment
      Company Act; Other Regulations

              	
                34

              
	 
      	
                4.15

              	
                Subsidiaries

              	
                34

              
	 
      	
                4.16

              	
                Use
      of Proceeds

              	
                34

              
	 
      	
                4.17

              	
                Environmental
      Matters

              	
                34

              
	 
      	
                4.18

              	
                Accuracy
      of Information, etc

              	
                35

              
	 
      	
                4.19

              	
                Security
      Documents

              	
                35

              
	 
      	
                4.20

              	
                Solvency

              	
                36

              
	 
      	
                4.21

              	
                Regulation
      H

              	
                36

              
	
                SECTION
      5.

              	
                CONDITIONS
      PRECEDENT

              	
                36

              
	 
      	
                5.1

              	
                Conditions
      to Initial Extension of Credit

              	
                36

              
	 
      	
                5.2

              	
                Conditions
      to Each Extension of Credit

              	
                38

              
	
                SECTION
      6.

              	
                AFFIRMATIVE
      COVENANTS

              	
                38

              
	 
      	
                6.1

              	
                Financial
      Statements

              	
                38

              
	 
      	
                6.2

              	
                Certificates;
      Other Information

              	
                39

              
	 
      	
                6.3

              	
                Payment
      of Obligations

              	
                40

              
	 
      	
                6.4

              	
                Maintenance
      of Existence; Compliance

              	
                40

              
	 
      	
                6.5

              	
                Maintenance
      of Property; Insurance

              	
                40

              
	 
      	
                6.6

              	
                Inspection
      of Property; Books and Records; Discussions

              	
                40

              


      


      
        
           


        

        
          ii

          
            

          

        

        
           


        

      



      
        	 
      	 
      	
                TABLE
      OF CONTENTS

              	 
      
	 
      	 
      	
                (continued)

              	
                Page

              
	 
      	 
      	 
      	 
      
	 
      	
                6.7

              	
                Notices

              	
                40

              
	 
      	
                6.8

              	
                Environmental
      Laws

              	
                41

              
	 
      	
                6.9

              	
                Operating
      Accounts

              	
                41

              
	 
      	
                6.10

              	
                Audits

              	
                41

              
	 
      	
                6.11

              	
                Additional
      Collateral, etc

              	
                42

              
	
                SECTION
      7.

              	
                NEGATIVE
      COVENANTS

              	
                43

              
	 
      	
                7.1

              	
                Financial
      Condition Covenants

              	
                43

              
	 
      	
                7.2

              	
                Indebtedness

              	
                43

              
	 
      	
                7.3

              	
                Liens

              	
                44

              
	 
      	
                7.4

              	
                Fundamental
      Changes

              	
                45

              
	 
      	
                7.5

              	
                Disposition
      of Property

              	
                45

              
	 
      	
                7.6

              	
                Restricted
      Payments

              	
                46

              
	 
      	
                7.7

              	
                Investments

              	
                46

              
	 
      	
                7.8

              	
                Optional
      Payments and Modifications of Certain Debt Instruments

              	
                47

              
	 
      	
                7.9

              	
                Transactions
      with Affiliates

              	
                47

              
	 
      	
                7.10

              	
                Sale
      Leaseback Transactions

              	
                47

              
	 
      	
                7.11

              	
                Swap
      Agreements

              	
                47

              
	 
      	
                7.12

              	
                Changes
      in Fiscal Periods

              	
                47

              
	 
      	
                7.13

              	
                Negative
      Pledge Clauses

              	
                47

              
	 
      	
                7.14

              	
                Clauses
      Restricting Subsidiary Distributions

              	
                48

              
	 
      	
                7.15

              	
                Lines
      of Business

              	
                48

              
	 
      	
                7.16

              	
                Amendments
      to Organizational Agreements and Material Contracts

              	
                48

              
	
                SECTION
      8.

              	
                EVENTS
      OF DEFAULT

              	
                48

              
	
                SECTION
      9.

              	
                THE
      ADMINISTRATIVE AGENT

              	
                51

              
	 
      	
                9.1

              	
                Appointment
      and Authority

              	
                51

              
	 
      	
                9.2

              	
                Delegation
      of Duties

              	
                51

              
	 
      	
                9.3

              	
                Exculpatory
      Provisions

              	
                51

              
	 
      	
                9.4

              	
                Reliance
      by Administrative Agent

              	
                52

              
	 
      	
                9.5

              	
                Notice
      of Default

              	
                52

              
	 
      	
                9.6

              	
                Non-Reliance
      on Administrative Agent and Other Lenders

              	
                53

              
	 
      	
                9.7

              	
                Indemnification

              	
                53

              
	 
      	
                9.8

              	
                Agent
      in Its Individual Capacity

              	
                54

              
	 
      	
                9.9

              	
                Successor
      Administrative Agent

              	
                54

              


      


      
        
           


        

        
          iii

          
            

          

        

        
           


        

      



      
        	 
      	 
      	
                TABLE
      OF CONTENTS

              	 
      
	 
      	 
      	
                (continued)

              	
                Page

              
	 
      	 
      	 
      	 
      
	
                SECTION
      10.

              	
                MISCELLANEOUS

              	
                54

              
	 
      	
                10.1

              	
                Amendments
      and Waivers

              	
                54

              
	 
      	
                10.2

              	
                Notices

              	
                55

              
	 
      	
                10.3

              	
                No
      Waiver; Cumulative Remedies

              	
                57

              
	 
      	
                10.4

              	
                Survival
      of Representations and Warranties

              	
                57

              
	 
      	
                10.5

              	
                Payment
      of Expenses and Taxes

              	
                57

              
	 
      	
                10.6

              	
                Successors
      and Assigns; Participations and Assignments

              	
                58

              
	 
      	
                10.7

              	
                Adjustments;
      Set-off

              	
                60

              
	 
      	
                10.8

              	
                Counterparts

              	
                61

              
	 
      	
                10.9

              	
                Severability

              	
                61

              
	 
      	
                10.10

              	
                Integration

              	
                61

              
	 
      	
                10.11

              	
                GOVERNING
      LAW

              	
                61

              
	 
      	
                10.12

              	
                Submission
      To Jurisdiction; Waivers

              	
                61

              
	 
      	
                10.13

              	
                Acknowledgements

              	
                62

              
	 
      	
                10.14

              	
                Releases
      of Guarantees and Liens

              	
                62

              
	 
      	
                10.15

              	
                Confidentiality

              	
                63

              
	 
      	
                10.16

              	
                Patriot
      Act

              	
                63

              
	 
      	
                10.17

              	
                Effect
      of Agreement

              	
                63

              
	 
      	 
      	 
      	 
      


      




     

     

     

    
 

    
      
         


      

      
        iv

        
          

        

      

      
         


      

    

     

    
 

    
      
        	
                SCHEDULES:

              
	
                1.1A

              	
                Commitments

              
	
                1.1B

              	
                Existing
      Letters of Credit

              
	
                4.4

              	
                Consents,
      Authorizations, Filings and Notices

              
	
                4.5

              	
                No
      Legal Bar

              
	
                4.15

              	
                Subsidiaries

              
	
                4.19(a)

              	
                UCC
      Filing Jurisdictions

              
	
                7.2(d)

              	
                Existing
      Indebtedness

              
	
                7.3(f)

              	
                Existing
      Liens

              
	 
      	 
      
	
                EXHIBITS:

              
	
                A

              	
                Form
      of Guarantee and Collateral Agreement

              
	
                B

              	
                Form
      of Compliance Certificate

              
	
                C

              	
                Form
      of Closing Certificate

              
	
                D

              	
                Form
      of Assignment and Assumption

              
	
                E

              	
                Form
      of Exemption Certificate

              
	
                F

              	
                Form
      of Addendum

              
	
                G

              	
                Form
      of Solvency Certificate

              
	
                H

              	
                Form
      of Revolving Loan Note