**TABLE OF CONTENTS**       **Page**      1. DEFINITIONS AND CONSTRUCTION  1 1.1 Definitions  1 1.2 Accounting Terms  1 1.3 Code  1 1.4 Construction  2 1.5 Schedules and Exhibits  2 2. LOANS AND TERMS OF PAYMENT  2 2.1 Revolver Advances  2 2.2 Reserved  3 2.3 Borrowing Procedures and Settlements  3 2.4 Payments; Prepayments  8 2.5 Overadvances  10 2.6 Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations  10 2.7 Crediting Payments  12 2.8 Designated Account  12 2.9 Maintenance of Loan Account; Statements of Obligations  12 2.10 Fees  12 2.11 Letters of Credit  13 2.12 LIBOR Option  16 2.13 Capital Requirements  18 3. CONDITIONS; TERM OF AGREEMENT  19 3.1 Conditions Precedent to the Initial Extension of Credit  19 3.2 Conditions Precedent to all Extensions of Credit  19 3.3 Maturity  19 3.4 Effect of Maturity  19 3.5 Early Termination by Borrower  20 3.6 Conditions Subsequent  20 4. REPRESENTATIONS AND WARRANTIES  20 4.1 Due Organization and Qualification; Subsidiaries  20 4.2 Due Authorization; No Conflict  21 4.3 Governmental Consents  21 4.4 Binding Obligations; Perfected Liens  21 4.5 Title to Assets; No Encumbrances  22 4.6 Jurisdiction of Organization; Location of Chief Executive Office;Organizational Identification Number; Commercial Tort Claims  22 
 
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**TABLE OF CONTENTS**(continued)       **Page**      4.7 Litigation  22 4.8 Compliance with Laws  22 4.9 No Material Adverse Change  23 4.10 Fraudulent Transfer  23 4.11 Employee Benefits  23 4.12 Environmental Condition  23 4.13 Intellectual Property  23 4.14 Leases  23 4.15 Deposit Accounts and Securities Accounts  24 4.16 Complete Disclosure  24 4.17 Material Contracts  24 4.18 Patriot Act  24 4.19 Indebtedness  24 4.20 Payment of Taxes  25 4.21 Margin Stock  25 4.22 Governmental Regulation  25 4.23 OFAC  25 4.24 Employee and Labor Matters  25 4.25 Parent as a Holding Company  25 4.26 Eligible Accounts  26 4.27 Inventory  26 4.28 Equipment  26 4.29 Locations of Inventory and Equipment  26 4.30 Inventory Records  26 4.31 Inactive Obligors  26 4.32 Inactive Subsidiaries  26 5. AFFIRMATIVE COVENANTS  27 5.1 Financial Statements, Reports, Certificates  27 5.2 Collateral Reporting  27 5.3 Existence  27 5.4 Maintenance of Properties  27 5.5 Taxes  27 5.6 Insurance  28 5.7 Inspection  28 
 
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**TABLE OF CONTENTS**(continued)       **Page**      5.8 Compliance with Laws  28 5.9 Environmental  29 5.10 Disclosure Updates  29 5.11 Formation of Subsidiaries  29 5.12 Further Assurances  30 5.13 Lender Meetings  30 5.14 Material Contracts  30 5.15 Location of Inventory and Equipment  31 5.16 Assignable Material Contracts  31 6. NEGATIVE COVENANTS  31 6.1 Indebtedness  31 6.2 Liens  31 6.3 Restrictions on Fundamental Changes  31 6.4 Disposal of Assets  32 6.5 Change Name  32 6.6 Nature of Business  32 6.7 Prepayments and Amendments  32 6.8 Change of Control  33 6.9 Restricted Junior Payments  33 6.10 Accounting Methods  33 6.11 Investments; Controlled Investments  33 6.12 Transactions with Affiliates  34 6.13 Use of Proceeds  34 6.14 Limitation on Issuance of Stock  34 6.15 Parent as Holding Company  34 6.16 Consignments  34 6.17 Inventory and Equipment with Bailees  34 7. FINANCIAL COVENANTS  34 7.1 Fixed Charge Coverage Ratio  34 8. EVENTS OF DEFAULT  35 9. RIGHTS AND REMEDIES  37 9.1 Rights and Remedies  37 9.2 Remedies Cumulative  37 
 
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**TABLE OF CONTENTS**(continued)       **Page**      10. WAIVERS; INDEMNIFICATION  37 10.1 Demand; Protest; etc  37 10.2 The Lender Group’s Liability for Collateral  37 10.3 Indemnification  38 11. NOTICES  39 12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER  40 13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS  41 13.1 Assignments and Participations  41 13.2 Successors  43 14. AMENDMENTS; WAIVERS  43 14.1 Amendments and Waivers  43 14.2 Replacement of Certain Lenders  44 14.3 No Waivers; Cumulative Remedies  45 15. AGENT; THE LENDER GROUP  45 15.1 Appointment and Authorization of Agent  45 15.2 Delegation of Duties  46 15.3 Liability of Agent  46 15.4 Reliance by Agent  46 15.5 Notice of Default or Event of Default  47 15.6 Credit Decision  47 15.7 Costs and Expenses; Indemnification  48 15.8 Agent in Individual Capacity  48 15.9 Successor Agent  48 15.10 Lender in Individual Capacity  49 15.11 Collateral Matters  49 15.12 Restrictions on Actions by Lenders; Sharing of Payments  50 15.13 Agency for Perfection  53 15.14 Payments by Agent to the Lenders  53 15.15 Concerning the Collateral and Related Loan Documents  53 15.16 Audits and Examination Reports; Confidentiality; Disclaimers byLenders; Other Reports and Information  53 15.17 Several Obligations; No Liability  53 16. WITHHOLDING TAXES  55 17. GENERAL PROVISIONS  58 17.1 Effectiveness  58 17.2 Section Headings  58 
 
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**TABLE OF CONTENTS**(continued)       **Page**      17.3 Interpretation  58 17.4 Severability of Provisions  58 17.5 Bank Product Providers  58 17.6 Debtor-Creditor Relationship  59 17.7 Counterparts; Electronic Execution  59 17.8 Revival and Reinstatement of Obligations  59 17.9 Confidentiality  59 17.10 Lender Group Expenses  60 17.11 Survival  60 17.12 Patriot Act  60 17.13 Integration  60 17.14 Judgment Currency  61 17.15 Amendment and Restatement of Original Credit Agreement  61 
 
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**CREDIT AGREEMENT****THIS CREDIT AGREEMENT**(this “Agreement”), is entered into as of July 26, 2011, by andamong the lenders identified on the signature pages hereof (each of such lenders, together withtheir respective successors and permitted assigns, are referred to hereinafter as a“Lender”, as that term is hereinafter further defined), **WELLS FARGO CAPITAL FINANCE, INC.**,a California corporation, as administrative agent for the Lenders (in such capacity, together withits successors and assigns in such capacity, “Agent”), **OCLARO, INC.**, a Delaware corporation(“Parent”), and **OCLARO TECHNOLOGY LIMITED**, a company incorporated under the laws of Englandand Wales (“Borrower”).**WHEREAS**, Agent and the Lenders, on the one hand, and Parent, Borrower and other Subsidiariesof Parent as borrowers, on the other hand, are parties to that certain Credit Agreement, dated asof August 2, 2006 (as amended, supplemented, or otherwise modified from time to time prior to theClosing Date, the “Original Credit Agreement”);**WHEREAS,**Parent and Borrower have requested that the Original Credit Agreement be amended andrestated to, among other things, extend the maturity of the obligations thereunder and removecertain parties as borrowers thereunder.**WHEREAS**, subject to the foregoing, Agent and the Lenders are willing to so amend and restatethe Original Credit Agreement in accordance with the terms and conditions hereof; it beingunderstood that no repayment of the outstanding amounts payable under the Original Credit Agreementas of the Closing Date is being effected hereby but is merely an amendment and restatement inaccordance with the terms hereof.The parties agree as follows:**1. DEFINITIONS AND CONSTRUCTION**.**1.1****Definitions****.**Capitalized terms used in this Agreement shall have the meaningsspecified therefor on Schedule 1.1.**1.2****Accounting Terms****.**All accounting terms not specifically defined herein shall beconstrued in accordance with GAAP; provided, however, that if Borrower notifiesAgent that Borrower requests an amendment to any provision hereof to eliminate the effect of anyAccounting Change occurring after the Closing Date or in the application thereof on the operationof such provision (or if Agent notifies Borrower that the Required Lenders request an amendment toany provision hereof for such purpose), regardless of whether any such notice is given before orafter such Accounting Change or in the application thereof, then Agent and Borrower agree that theywill negotiate in good faith amendments to the provisions of this Agreement that are directlyaffected by such Accounting Change with the intent of having the respective positions of theLenders and Borrower after such Accounting Change conform as nearly as possible to their respectivepositions as of the date of this Agreement and, until any such amendments have been agreed upon andagreed to by the Required Lenders, the provisions in this Agreement shall be calculated as if nosuch Accounting Change had occurred. When used herein, the term “financial statements” shallinclude the notes and schedules thereto. Whenever the term “Borrower” or the term “Parent” is usedin respect of a financial covenant or a related definition, it shall be understood to mean Borrowerand its Subsidiaries or Parent and its Subsidiaries, as applicable, on a consolidated basis, unlessthe context clearly requires otherwise.**1.3****Code**. Any terms used in this Agreement that are defined in the Code shall beconstrued and defined as set forth in the Code unless otherwise defined herein; provided,however, that to the extent that the Code is used to define any term herein and such termis defined differently in different Articles of the Code, the definition of such term contained inArticle 9 of the Code shall govern.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
 

 
**1.4****Construction****.**Unless the context of this Agreement or any other Loan Documentclearly requires otherwise, references to the plural include the singular, references to thesingular include the plural, the terms “includes” and “including” are not limiting, and the term“or” has, except where otherwise indicated, the inclusive meaning represented by the phrase“and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreementor any other Loan Document refer to this Agreement or such other Loan Document, as the case may be,as a whole and not to any particular provision of this Agreement or such other Loan Document, asthe case may be. Section, subsection, clause, schedule, and exhibit references herein are to thisAgreement unless otherwise specified. Any reference in this Agreement or in any other LoanDocument to any agreement, instrument, or document shall include all alterations, amendments,changes, extensions, modifications, renewals, replacements, substitutions, joinders, andsupplements, thereto and thereof, as applicable (subject to any restrictions on such alterations,amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders,and supplements set forth herein). The words “asset” and “property” shall be construed to have thesame meaning and effect and to refer to any and all tangible and intangible assets and properties.Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment infull of the Obligations shall mean the repayment in full in cash or immediately available funds(or, (a) in the case of contingent reimbursement obligations with respect to Letters of Credit,providing Letter of Credit Collateralization, and (b) in the case of obligations with respect toBank Products (other than Hedge Obligations), providing Bank Product Collateralization) of all ofthe Obligations (including the payment of any Lender Group Expenses that have accrued irrespectiveof whether demand has been made therefor and the payment of any termination amount then applicable(or which would or could become applicable as a result of the repayment of the other Obligations)under Hedge Agreements provided by Hedge Providers) other than (i) unasserted contingentindemnification Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that,at such time, are allowed by the applicable Bank Product Provider to remain outstanding withoutbeing required to be repaid or cash collateralized, and (iii) any Hedge Obligations that, at suchtime, are allowed by the applicable Hedge Provider to remain outstanding without being required tobe repaid. Any reference herein to any Person shall be construed to include such Person’ssuccessors and assigns. Any requirement of a writing contained herein or in any other LoanDocument shall be satisfied by the transmission of a Record.**1.5****Schedules and Exhibits****.**All of the schedules and exhibits attached to thisAgreement shall be deemed incorporated herein by reference.**2. LOANS AND TERMS OF PAYMENT**.**2.1****Revolver Advances**.(a) Subject to the terms and conditions of this Agreement, and during the term of thisAgreement, each Lender with a Revolver Commitment agrees (severally, not jointly or jointly andseverally) to make revolving loans (“Advances”) to Borrower in an amount at any one timeoutstanding not to exceed *the lesser of*:(i) such Lender’s Revolver Commitment, or(ii) such Lender’s Pro Rata Share of an amount equal to *the lesser of*:(A) the Maximum Revolver Amount less the sum of (1) the Letter of Credit Usage at such time,*plus*(2) the principal amount of Swing Loans outstanding at such time, and(B) the Borrowing Base at such time less the sum of (1) the Letter of Credit Usage at suchtime, *plus*(2) the principal amount of Swing Loans outstanding at such time.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to theterms and conditions of this Agreement, reborrowed at any time during the term of this Agreement.The outstanding principal amount of the Advances, together with interest accrued and unpaidthereon, shall be due and payable on the Maturity Date or, if earlier, on the date on which theyare declared due and payable pursuant to the terms of this Agreement.(c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have theright (but not the obligation) to establish, increase, reduce, eliminate, or otherwise adjustreserves from time to time against the Borrowing Base or the Maximum Revolver Amount in suchamounts, and with respect to such matters, as Agent in its Permitted Discretion shall deemnecessary or appropriate, including (i) reserves in an amount equal to the Bank Product ReserveAmount, and (ii) reserves with respect to (A) sums that Parent or its Subsidiaries are required topay under this Agreement or any other Loan Document (such as taxes, assessments, insurancepremiums, or, in the case of leased assets, rents or other amounts payable under such leases) andhas failed to pay when due, and (B) amounts owing by Parent or its Subsidiaries to any Person tothe extent secured by a Lien on, or trust over, or preferential claim by operation of law over, orclaim of retention of title to, any of the Collateral (other than a Permitted Lien which is apermitted purchase money Lien or the interest of a lessor under a Capital Lease), which Lien ortrust, in the Permitted Discretion of Agent likely would have a priority superior to Agent’s Liens(such as Liens, preferred claims, claims of retention of title, or trusts in favor of employees,creditors, landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, orLiens or trusts for *ad valorem*, excise, sales, or other taxes where given priority under applicablelaw) in and to such item of the Collateral.**2.2****Reserved**.**2.3****Borrowing Procedures and Settlements**.(a) **Procedure for Borrowing.**Each Borrowing shall be made by a written request by anAuthorized Person delivered to Agent. Unless Swing Lender is not obligated to make a Swing Loanpursuant to Section 2.3(b) below, such notice must be received by Agent no later than 10:00a.m. (California time) on the Business Day that is the requested Funding Date specifying (i) theamount of such Borrowing, and (ii) the requested Funding Date, which shall be a Business Day;provided, however, that if Swing Lender is not obligated to make a Swing Loan as toa requested Borrowing, such notice must be received by Agent no later than 10:00 a.m. (Californiatime) on the Business Day prior to the date that is the requested Funding Date. At Agent’selection, in lieu of delivering the above-described written request, any Authorized Person may giveAgent telephonic notice of such request by the required time. In such circumstances, Borroweragrees that any such telephonic notice will be confirmed in writing within 24 hours of the givingof such telephonic notice, but the failure to provide such written confirmation shall not affectthe validity of the request.(b) **Making of Swing Loans.**In the case of a request for an Advance and so long as either (i)the aggregate amount of Swing Loans made since the last Settlement Date, minus the amount ofCollections or payments applied to Swing Loans since the last Settlement Date, plus the amount ofthe requested Advance does not exceed $4,500,000, or (ii) Swing Lender, in its sole discretion,shall agree to make a Swing Loan notwithstanding the foregoing limitation, Swing Lender shall makean Advance in the amount of such requested Borrowing (any such Advance made solely by Swing Lenderpursuant to this Section 2.3(b) being referred to as a “Swing Loan” and suchAdvances being referred to as “Swing Loans”) available to Borrower on the Funding Dateapplicable thereto by transferring immediately available funds to the Designated Account. Anythingcontained herein to the contrary notwithstanding, the Swing Lender may, but shall not be obligatedto, make Swing Loans at any time that one or more of the Lenders is a Defaulting Lender. EachSwing Loan shall be deemed to be an Advance hereunder and shall be subject to all the terms andconditions (including Section 3) applicable to other Advances, except that all payments on anySwing Loan shall be payable to Swing Lender solely for its own account. Subject to the provisionsof Section 2.3(d)(ii), Swing Lender shall not make and shall not be obligated to make anyConfidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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SwingLoan if Swing Lender has actual knowledge that (i) one or more of the applicable conditions precedent set forth inSection 3 will not be satisfied on the requested Funding Date for the applicable Borrowing,or (ii) the requested Borrowing would exceed the Availability on such Funding Date. Swing Lendershall not otherwise be required to determine whether the applicable conditions precedent set forthin Section 3 have been satisfied on the Funding Date applicable thereto prior to making anySwing Loan. The Swing Loans shall be secured by Agent’s Liens, constitute Advances and Obligationshereunder, and bear interest at the rate applicable from time to time to Advances that are BaseRate Loans. Notwithstanding anything in this Section 2.3(b) to the contrary, at any timethat there is only one Lender, the Swing Lender shall not be obligated to make a Swing Loan andrequested Borrowings shall be made pursuant to Section 2.3(c).(c) **Making of Loans**.(i) In the event that Swing Lender is not obligated to make a Swing Loan, then promptly afterreceipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify theLenders, not later than 1:00 p.m. (California time) on the Business Day immediately preceding theFunding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, ofthe requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of therequested Borrowing available to Agent in immediately available funds, to Agent’s Account, notlater than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent’sreceipt of the proceeds of such Advances, Agent shall make the proceeds thereof available toBorrower on the applicable Funding Date by transferring immediately available funds equal to suchproceeds received by Agent to the Designated Account; provided, however, that,subject to the provisions of Section 2.3(d)(ii), Agent shall not request any Lender to makeany Advance if it has knowledge that, and no Lender shall have the obligation to make any Advance,if (1) one or more of the applicable conditions precedent set forth in Section 3 will notbe satisfied on the requested Funding Date for the applicable Borrowing unless such condition hasbeen waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.(ii) Unless Agent receives notice from a Lender prior to 9:00 a.m. (California time) on thedate of a Borrowing, that such Lender will not make available as and when required hereunder toAgent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Borrowing,Agent may assume that each Lender has made or will make such amount available to Agent inimmediately available funds on the Funding Date and Agent may (but shall not be so required), inreliance upon such assumption, make available to Borrower on such date a corresponding amount. Ifany Lender shall not have made its full amount available to Agent in immediately available fundsand if Agent in such circumstances has made available to Borrower such amount, that Lender shall onthe Business Day following such Funding Date make such amount available to Agent, together withinterest at the Defaulting Lender Rate for each day during such period. A notice submitted byAgent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall beconclusive, absent manifest error. If such amount is so made available, such payment to Agentshall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement.If such amount is not made available to Agent on the Business Day following the Funding Date,Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall paysuch amount to Agent for Agent’s account, together with interest thereon for each day elapsed sincethe date of such Borrowing, at a rate per annum equal to the interest rate applicable at the timeto the Advances composing such Borrowing.(d) **Protective Advances and Optional Overadvances**.(i) Any contrary provision of this Agreement or any other Loan Document notwithstanding, Agenthereby is authorized by Borrower and the Lenders, from time to time in Agent’s sole discretion, (A)after the occurrence and during the continuance of a Default or an Event of Default, or (B) at anytime that any of the other applicable conditions precedent set forth in Section 3 are notsatisfied, to make Advances to, or for the benefit of, Borrower on behalf of the Lenders thatAgent, in its Permitted Discretion deems necessary or desirable (1) to preserve or protect theCollateral, or any portion thereof, or (2) to enhance the likelihood of repayment of theObligations (other than the Bank ProductObligations) (any of the Advances described in this Section 2.3(d)(i) shall bereferred to as “Protective Advances”).Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(ii) Any contrary provision of this Agreement or any other Loan Document notwithstanding, theLenders hereby authorize Agent or Swing Lender, as applicable, and either Agent or Swing Lender, asapplicable, may, but is not obligated to, knowingly and intentionally, continue to make Advances(including Swing Loans) to Borrower notwithstanding that an Overadvance exists or would be createdthereby, so long as (A) after giving effect to such Advances, the outstanding Revolver Usage doesnot exceed the Borrowing Base by more than $4,500,000, and (B) after giving effect to suchAdvances, the outstanding Revolver Usage (except for and excluding amounts charged to the LoanAccount for interest, fees, or Lender Group Expenses) does not exceed the Maximum Revolver Amount.In the event Agent obtains actual knowledge that the Revolver Usage exceeds the amounts permittedby the immediately foregoing provisions, regardless of the amount of, or reason for, such excess,Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional)intentional Overadvances (except for and excluding amounts charged to the Loan Account forinterest, fees, or Lender Group Expenses) unless Agent determines that prior notice would result inimminent harm to the Collateral or its value, in which case Agent may make such Overadvances andprovide notice as promptly as practicable thereafter), and the Lenders with Revolver Commitmentsthereupon shall, together with Agent, jointly determine the terms of arrangements that shall beimplemented with Borrower intended to reduce, within a reasonable time, the outstanding principalamount of the Advances to Borrower to an amount permitted by the preceding sentence. In suchcircumstances, if any Lender with a Revolver Commitment objects to the proposed terms of reductionor repayment of any Overadvance, the terms of reduction or repayment thereof shall be implementedaccording to the determination of the Required Lenders. The foregoing provisions are meant for thebenefit of the Lenders and Agent and are not meant for the benefit of Borrower, which shallcontinue to be bound by the provisions of Section 2.5. Each Lender with a RevolverCommitment shall be obligated to settle with Agent as provided in Section 2.3(e) for theamount of such Lender’s Pro Rata Share of any unintentional Overadvances by Agent reported to suchLender, any intentional Overadvances made as permitted under this Section 2.3(d)(ii), andany Overadvances resulting from the charging to the Loan Account of interest, fees, or Lender GroupExpenses.(iii) Each Protective Advance and each Overadvance shall be deemed to be an Advance hereunder,except that no Protective Advance or Overadvance shall be eligible to be a LIBOR Rate Loan and,prior to Settlement therefor, all payments on the Protective Advances shall be payable to Agentsolely for its own account. The Protective Advances and Overadvances shall be repayable on demand,secured by Agent’s Liens, constitute Obligations hereunder, and bear interest at the rateapplicable from time to time to Advances that are Base Rate Loans. The ability of Agent to makeProtective Advances is separate and distinct from its ability to make Overadvances and its abilityto make Overadvances is separate and distinct from its ability to make Protective Advances. Forthe avoidance of doubt, the limitations on Agent’s ability to make Protective Advances do not applyto Overadvances and the limitations on Agent’s ability to make Overadvances do not apply toProtective Advances. The provisions of this Section 2.3(d) are for the exclusive benefitof Agent, Swing Lender, and the Lenders and are not intended to benefit Borrower in any way.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(e) **Settlement.**It is agreed that each Lender’s funded portion of the Advances is intended bythe Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding Advances. Suchagreement notwithstanding, Agent, Swing Lender, and the other Lenders agree (which agreement shallnot be for the benefit of Borrower) that in order to facilitate the administration of thisAgreement and the other Loan Documents, settlement among the Lenders as to the Advances, the SwingLoans, and the Protective Advances shall take place on a periodic basis in accordance with thefollowing provisions:(i) Agent shall request settlement (“Settlement”) with the Lenders on a weekly basis,or on a more frequent basis if so determined by Agent (1) on behalf of Swing Lender, with respectto the outstanding Swing Loans, (2) for itself, with respect to the outstanding Protective Advancesor Overadvances, and (3) with respect to Borrower’s or its Subsidiaries’ Collections or paymentsreceived, as to each by notifying the Lenders by telecopy, telephone, or other similar form oftransmission, of such requestedSettlement, no later than 2:00 p.m. (California time) on the Business Day immediately prior tothe date of such requested Settlement (the date of such requested Settlement being the“Settlement Date”). Such notice of a Settlement Date shall include a summary statement ofthe amount of outstanding Advances, Swing Loans, Overadvances, and Protective Advances for theperiod since the prior Settlement Date. Subject to the terms and conditions contained herein(including Section 2.3(g)): (y) if the amount of the Advances (including Swing Loans,Overadvances, and Protective Advances) made by a Lender that is not a Defaulting Lender exceedssuch Lender’s Pro Rata Share of the Advances (including Swing Loans, Overadvances, and ProtectiveAdvances) as of a Settlement Date, then Agent shall, by no later than 12:00 p.m. (California time)on the Settlement Date, transfer in immediately available funds to a Deposit Account of such Lender(as such Lender may designate), an amount such that each such Lender shall, upon receipt of suchamount, have as of the Settlement Date, its Pro Rata Share of the Advances (including Swing Loans,Overadvances, and Protective Advances), and (z) if the amount of the Advances (including SwingLoans, Overadvances, and Protective Advances) made by a Lender is less than such Lender’s Pro RataShare of the Advances (including Swing Loans, Overadvances, and Protective Advances) as of aSettlement Date, such Lender shall no later than 12:00 p.m. (California time) on the SettlementDate transfer in immediately available funds to Agent’s Account, an amount such that each suchLender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share ofthe Advances (including Swing Loans, Overadvances, and Protective Advances). Such amounts madeavailable to Agent under clause (z) of the immediately preceding sentence shall be applied againstthe amounts of the applicable Swing Loans, Overadvances, or Protective Advances and, together withthe portion of such Swing Loans, Overadvances, or Protective Advances representing Swing Lender’sPro Rata Share thereof, shall constitute Advances of such Lenders. If any such amount is not madeavailable to Agent by any Lender on the Settlement Date applicable thereto to the extent requiredby the terms hereof, Agent shall be entitled to recover for its account such amount on demand fromsuch Lender together with interest thereon at the Defaulting Lender Rate.(ii) In determining whether a Lender’s balance of the Advances, Swing Loans, Overadvances, andProtective Advances is less than, equal to, or greater than such Lender’s Pro Rata Share of theAdvances, Swing Loans, Overadvances, and Protective Advances as of a Settlement Date, Agent shall,as part of the relevant Settlement, apply to such balance the portion of payments actually receivedin good funds by Agent with respect to principal, interest, fees payable by Borrower and allocableto the Lenders hereunder, and proceeds of Collateral.(iii) Between Settlement Dates, Agent, to the extent Protective Advances, Overadvances, orSwing Loans are outstanding, may pay over to Agent or Swing Lender, as applicable, any Collectionsor payments received by Agent, that in accordance with the terms of this Agreement would be appliedto the reduction of the Advances, for application to the Protective Advances, Overadvances, orSwing Loans. Between Settlement Dates, Agent, to the extent no Protective Advances, Overadvances,or Swing Loans are outstanding, may pay over to Swing Lender any Collections or payments receivedby Agent, that in accordance with the terms of this Agreement would be applied to the reduction ofthe Advances, for application to Swing Lender’s Pro Rata Share of the Advances. If, as of anySettlement Date, Collections or payments of Parent or its Subsidiaries received since the thenimmediately preceding Settlement Date have been applied to Swing Lender’s Pro Rata Share of theAdvances other than to Swing Loans, as provided for in the previous sentence, Swing Lender shallpay to Agent for the accounts of the Lenders, and Agent shall pay to the Lenders (other than aDefaulting Lender if Agent has implemented the provisions of Section 2.3(g)), to be appliedto the outstanding Advances of such Lenders, an amount such that each such Lender shall, uponreceipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the Advances.During the period between Settlement Dates, Swing Lender with respect to Swing Loans, Agent withrespect to Protective Advances and Overadvances, and each Lender with respect to the Advances otherthan Swing Loans, Overadvances, and Protective Advances, shall be entitled to interest at theapplicable rate or rates payable under this Agreement on the daily amount of funds employed bySwing Lender, Agent, or the Lenders, as applicable.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(iv) Anything in this Section 2.3(e) to the contrary notwithstanding, in the eventthat a Lender is a Defaulting Lender, Agent shall be entitled to refrain from remitting settlementamounts to the Defaulting Lender and, instead, shall be entitled to elect to implement theprovisions set forth in Section 2.3(g).(f) **Notation.**Agent, as a non-fiduciary agent for Borrower, shall maintain a register showingthe principal amount of the Advances owing to each Lender, including the Swing Loans owing to SwingLender, and Protective Advances and Overadvances owing to Agent, and the interests therein of eachLender, from time to time and such register shall, absent manifest error, conclusively be presumedto be correct and accurate.(g) **Defaulting Lenders.**Agent shall not be obligated to transfer to a Defaulting Lender anypayments made by Borrower to Agent for the Defaulting Lender’s benefit or any Collections orproceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, inthe absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A)first, to Swing Lender to the extent of any Swing Loans that were made by Swing Lender and thatwere required to be, but were not, paid by the Defaulting Lender, (B) second, to the IssuingLender, to the extent of the portion of a Letter of Credit Disbursement that was required to be,but was not, paid by the Defaulting Lender, (C) third, to each non-Defaulting Lender ratably inaccordance with their Revolver Commitments (but, in each case, only to the extent that suchDefaulting Lender’s portion of an Advance (or other funding obligation) was funded by such othernon-Defaulting Lender), (D) to a suspense account maintained by Agent, the proceeds of which shallbe retained by Agent and may be made available to be re-advanced to or for the benefit of Borroweras if such Defaulting Lender had made its portion of Advances (or other funding obligations)hereunder, and (E) from and after the date on which all other Obligations have been paid in full,to such Defaulting Lender in accordance with tier (L) of Section 2.4(b)(ii). Subject tothe foregoing, Agent may hold and, in its discretion, re-lend to Borrower for the account of suchDefaulting Lender the amount of all such payments received and retained by Agent for the account ofsuch Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect tothe Loan Documents (including the calculation of Pro Rata Share in connection therewith) and forthe purpose of calculating the fee payable under Section 2.10(b), such Defaulting Lendershall be deemed not to be a “Lender” and such Lender’s Revolver Commitment shall be deemed to bezero. The provisions of this Section 2.3(g) shall remain effective with respect to suchDefaulting Lender until the earlier of (y) the date on which all of the non-Defaulting Lenders,Agent, Issuing Lender, and Borrower shall have waived, in writing, the application of thisSection 2.3(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lendermakes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amountsowing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and,if requested by Agent, provides adequate assurance of its ability to perform its future obligationshereunder. The operation of this Section 2.3(g) shall not be construed to increase orotherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance bysuch Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieveor excuse the performance by Borrower of its duties and obligations hereunder to Agent, IssuingLender, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender tofund amounts that it was obligated to fund hereunder shall constitute a material breach by suchDefaulting Lender of this Agreement and shall entitle Borrower, at its option, upon written noticeto Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such DefaultingLender, such substitute Lender to be reasonably acceptable to Agent. In connection with thearrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to bereplaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptancein favor of the substitute Lender (and agrees that it shall be deemed to have executed anddelivered such document if it fails to do so) subject only to being paid its share of theoutstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees,and other amounts that may be due and payable in respect thereof, and (2) an assumption of its ProRata Share of its participation in the Letters of Credit); provided, however, thatany such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed toconstitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any suchDefaulting Lender arising out of or in relation to such failure to fund. In the event of a directconflictbetween the priority provisions of this Section 2.3(g) and any other provisioncontained in this Agreement or any other Loan Document, it is the intention of the parties heretothat such provisions be read together and construed, to the fullest extent possible, to be inconcert with each other. In the event of any actual, irreconcilable conflict that cannot beresolved as aforesaid, the terms and provisions of this Section 2.3(g) shall control andgovern.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(h) **Independent Obligations.**All Advances (other than Swing Loans, Overadvances, andProtective Advances) shall be made by the Lenders contemporaneously and in accordance with theirPro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by anyother Lender to perform its obligation to make any Advance (or other extension of credit)hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a result ofany failure by any other Lender to perform its obligations hereunder, and (ii) no failure by anyLender to perform its obligations hereunder shall excuse any other Lender from its obligationshereunder.**2.4****Payments; Reductions of Commitments; Prepayments**.(a) **Payments by Borrower**.(i) Except as otherwise expressly provided herein, all payments by Borrower shall be made toAgent’s Account for the account of the Lender Group and shall be made in immediately availablefunds, no later than 11:00 a.m. (California time) on the date specified herein. Any paymentreceived by Agent later than 11:00 a.m. (California time) shall be deemed to have been received onthe following Business Day and any applicable interest or fee shall continue to accrue until suchfollowing Business Day.(ii) Unless Agent receives notice from Borrower prior to the date on which any payment is dueto the Lenders that Borrower will not make such payment in full as and when required, Agent mayassume that Borrower has made (or will make) such payment in full to Agent on such date inimmediately available funds and Agent may (but shall not be so required), in reliance upon suchassumption, distribute to each Lender on such due date an amount equal to the amount then due suchLender. If and to the extent Borrower does not make such payment in full to Agent on the date whendue, each Lender severally shall repay to Agent on demand such amount distributed to such Lender,together with interest thereon at the Defaulting Lender Rate for each day from the date such amountis distributed to such Lender until the date repaid.(b) **Apportionment and Application**.(i) So long as no Application Event has occurred and is continuing and except as otherwiseprovided herein with respect to Defaulting Lenders, all principal and interest payments received byAgent shall be apportioned ratably among the Lenders (according to the unpaid principal balance ofthe Obligations to which such payments relate held by each Lender) and all payments of fees andexpenses received by Agent (other than fees or expenses that are for Agent’s separate account orfor the separate account of the Issuing Lender) shall be apportioned ratably among the Lendershaving a Pro Rata Share of the type of Revolver Commitment or Obligation to which a particular feeor expense relates. All payments to be made hereunder by Borrower shall be remitted to Agent andall (subject to Section 2.4(b)(iv) and Section 2.4(b)(ii)) such payments, and allproceeds of Collateral received by Agent, shall be applied, so long as no Application Event hasoccurred and is continuing, to reduce the balance of the Advances outstanding and, thereafter, toBorrower (to be wired to the Designated Account) or such other Person entitled thereto underapplicable law.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(ii) At any time that an Application Event has occurred and is continuing and except asotherwise provided herein with respect to Defaulting Lenders, all payments remitted to Agent andall proceeds of Collateral received by Agent shall be applied as follows:(A) first, to pay any Lender Group Expenses (including cost or expense reimbursements)or indemnities then due to Agent under the Loan Documents, until paid in full,(B) second, to pay any fees or premiums then due to Agent under the Loan Documentsuntil paid in full,(C) third, to pay interest due in respect of all Protective Advances until paid infull,(D) fourth, to pay the principal of all Protective Advances until paid in full,(E) fifth, ratably, to pay any Lender Group Expenses (including cost or expensereimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paidin full,(F) sixth, ratably, to pay any fees or premiums then due to any of the Lenders underthe Loan Documents until paid in full,(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,(H) eighth, to pay the principal of all Swing Loans until paid in full,(I) ninth, ratably, to pay interest accrued in respect of the Advances (other thanProtective Advances) until paid in full,(J) tenth, ratably (i) to pay the principal of all Advances until paid in full, (ii)to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit ofeach of the Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender,a share of each Letter of Credit Disbursement), as cash collateral in an amount up to 105% ofDollar denominated Letters of Credit and 115% of foreign currency denominated Letters of Creditcomprising the Letter of Credit Usage (to the extent permitted by applicable law, such cashcollateral shall be applied to the reimbursement of any Letter of Credit Disbursement as and whensuch disbursement occurs and, if a Letter of Credit expires undrawn, the cash collateral held byAgent in respect of such Letter of Credit shall, to the extent permitted by applicable law, bereapplied pursuant to this Section 2.4(b)(ii), beginning with tier (A) hereof), and (iii)ratably, to the Bank Product Providers based upon amounts then certified by the applicable BankProduct Provider to Agent (in form and substance satisfactory to Agent) to be due and payable tosuch Bank Product Providers on account of Bank Product Obligations,(K) eleventh, to pay any other Obligations other than Obligations owed to DefaultingLenders,(L) twelfth, ratably to pay any Obligations owed to Defaulting Lenders; and(M) thirteenth, to Borrower (to be wired to the Designated Account) or such otherPerson entitled thereto under applicable law.(iii) Agent promptly shall distribute to each Lender, pursuant to the applicable wireinstructions received from each Lender in writing, such funds as it may be entitled to receive,subject to a Settlement delay as provided in Section 2.3(e).Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(iv) In each instance, so long as no Application Event has occurred and is continuing,Section 2.4(b)(i) shall not apply to any payment made by Borrower to Agent and specified byBorrower to be for the payment of specific Obligations then due and payable (or prepayable) underany provision of this Agreement or any other Loan Document.(v) For purposes of Section 2.4(b)(ii), “paid in full” of a type of Obligation meanspayment in cash or immediately available funds of all amounts owing on account of such type ofObligation, including interest accrued after the commencement of any Insolvency Proceeding, defaultinterest, interest on interest, and expense reimbursements, irrespective of whether any of theforegoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.(vi) In the event of a direct conflict between the priority provisions of this Section2.4 and any other provision contained in this Agreement or any other Loan Document, it is theintention of the parties hereto that such provisions be read together and construed, to the fullestextent possible, to be in concert with each other. In the event of any actual, irreconcilableconflict that cannot be resolved as aforesaid, if the conflict relates to the provisions ofSection 2.3(g) and this Section 2.4, then the provisions of Section 2.3(g)shall control and govern, and if otherwise, then the terms and provisions of this Section2.4 shall control and govern.(c) **Reduction of Revolver Commitments**. The Revolver Commitments shall terminate on theMaturity Date. Borrower may reduce the Revolver Commitments to an amount (which may be zero) notless than the sum of (A) the Revolver Usage as of such date, plus (B) the principal amount of allAdvances not yet made as to which a request has been given by Borrower under Section2.3(a), plus (C) the amount of all Letters of Credit not yet issued as to which a request hasbeen given by Borrower pursuant to Section 2.11(a). Each such reduction shall be in anamount which is not less than [***] (unless the Revolver Commitments are being reduced to zero andthe amount of the Revolver Commitments in effect immediately prior to such reduction are less than[***]), shall be made by providing not less than 5 Business Days prior written notice to Agent, andshall be irrevocable. Once reduced, the Revolver Commitments may not be increased. Each suchreduction of the Revolver Commitments shall reduce the Revolver Commitments of each Lenderproportionately in accordance with its ratable share thereof.(d) **Optional Prepayments.**Borrower may prepay the principal of any Advance at any time inwhole or in part.**2.5****Overadvances**. If, at any time or for any reason, the amount of Obligations owedby Borrower to the Lender Group pursuant to Section 2.1 or Section 2.11 is greaterthan any of the limitations set forth in Section 2.1 or Section 2.11, as applicable(an “Overadvance”), Borrower shall immediately (or, with respect to any intentionalOveradvances made by Agent pursuant to Section 2.3(d)(ii), on such other terms as shall beimposed by Agent and Lenders) pay to Agent, in cash, the amount of such excess, which amount shallbe used by Agent to reduce the Obligations in accordance with the priorities set forth inSection 2.4(b).**2.6****Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations**.(a) **Interest Rates.**Except as provided in Section 2.6(c), all Obligations (except forundrawn Letters of Credit) that have been charged to the Loan Account pursuant to the terms hereofshall bear interest on the Daily Balance thereof as follows:(i) if the relevant Obligation is a LIBOR Rate Loan, at a per annum rate equal to the LIBORRate plus the LIBOR Rate Margin, and(ii) otherwise, at a per annum rate equal to the Base Rate plus the Base Rate Margin.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(b) **Letter of Credit Fee.**Borrower shall pay Agent (for the ratable benefit of the Lenderswith a Revolver Commitment), a Letter of Credit fee (in addition to the charges, commissions, fees,and costs set forth in Section 2.11(f)) which shall accrue at a rate equal to the LIBORRate Margin per annum *times*the Daily Balance of the undrawn amount of all outstanding Letters ofCredit.(c) **Default Rate.**Upon the occurrence and during the continuation of an Event of Default andat the election of the Required Lenders,(i) all Obligations (except for undrawn Letters of Credit) that have been charged to the LoanAccount pursuant to the terms hereof shall bear interest on the Daily Balance thereof at a perannum rate equal to 2 percentage points above the per annum rate otherwise applicable thereunder,and(ii) the Letter of Credit fee provided for in Section 2.6(b) shall be increased to 2percentage points above the per annum rate otherwise applicable hereunder.(d) **Payment.**Except to the extent provided to the contrary in Section 2.10 orSection 2.12(a), all interest, all Letter of Credit fees, all other fees payable hereunderor under any of the other Loan Documents, all costs and expenses payable hereunder or under any ofthe other Loan Documents, and all Lender Group Expenses shall be due and payable, in arrears, onthe first day of each month at any time that Obligations or Revolver Commitments are outstanding.Borrower hereby authorizes Agent, from time to time without prior notice to Borrower, to charge allinterest, Letter of Credit fees, and all other fees payable hereunder or under any of the otherLoan Documents (in each case, as and when due and payable), all costs and expenses payablehereunder or under any of the other Loan Documents (in each case, as and when accrued or incurred),and all Lender Group Expenses (as and when accrued or incurred), all charges, commissions, fees,and costs provided for in Section 2.11(f) (as and when accrued or incurred), all fees andcosts provided for in Section 2.10 (as and when accrued or incurred), and all other paymentobligations as and when due and payable under any Loan Document or any Bank Product Agreement(including any amounts due and payable to the Bank Product Providers in respect of Bank Products)to the Loan Account, which amounts thereafter shall constitute Advances hereunder and, initially,shall accrue interest at the rate then applicable to Advances that are Base Rate Loans. Anyinterest, fees, costs, expenses, Lender Group Expenses, or other amounts payable hereunder or underany other Loan Document or under any Bank Product Agreement that are charged to the Loan Accountshall thereupon constitute Advances hereunder and shall initially accrue interest at the rate thenapplicable to Advances that are Base Rate Loans (unless and until converted into LIBOR Rate Loansin accordance with the terms of this Agreement).(e) **Computation.**All interest and fees chargeable under the Loan Documents shall be computedon the basis of a 360 day year, in each case, for the actual number of days elapsed in the periodduring which the interest or fees accrue. In the event the Base Rate is changed from time to timehereafter, the rates of interest hereunder based upon the Base Rate automatically and immediatelyshall be increased or decreased by an amount equal to such change in the Base Rate.(f) **Intent to Limit Charges to Maximum Lawful Rate.**In no event shall the interest rate orrates payable under this Agreement, plus any other amounts paid in connection herewith, exceed thehighest rate permissible under any law that a court of competent jurisdiction shall, in a finaldetermination, deem applicable. Borrower and the Lender Group, in executing and delivering thisAgreement, intend legally to agree upon the rate or rates of interest and manner of payment statedwithin it; provided, however, that, anything contained herein to the contrarynotwithstanding, if such rate or rates of interest or manner of payment exceeds the maximumallowable under applicable law, then, *ipso facto*, as of the date of this Agreement, Borrower is andshall be liable only for the payment of such maximum amount as is allowed by law, and paymentreceived from Borrower in excess of such legal maximum, whenever received, shall be applied toreduce the principal balance of the Obligations to the extent of such excess.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**2.7****Crediting Payments**. The receipt of any payment item by Agent shall not beconsidered a payment on account unless such payment item is a wire transfer of immediatelyavailable federal funds made to Agent’s Account or unless and until such payment item is honoredwhen presented for payment. Should any payment item not be honored when presented for payment,then Borrower shall be deemed not to have made such payment and interest shall be calculatedaccordingly. Anything to the contrary contained herein notwithstanding, any payment item shall bedeemed received by Agent only if it is received into Agent’s Account on a Business Day on or before11:00 a.m. (California time). If any payment item is received into Agent’s Account on anon-Business Day or after 11:00 a.m. (California time) on a Business Day, it shall be deemed tohave been received by Agent as of the opening of business on the immediately following BusinessDay.**2.8****Designated Account****.**Agent is authorized to make the Advances and Issuing Lenderis authorized to issue the Letters of Credit, under this Agreement based upon telephonic or otherinstructions received from anyone purporting to be an Authorized Person or, without instructions,if pursuant to Section 2.6(d). Borrower agrees to establish and maintain the DesignatedAccount with the Designated Account Bank for the purpose of receiving the proceeds of the Advancesrequested by Borrower and made by Agent or the Lenders hereunder. Unless otherwise agreed by Agentand Borrower, any Advance or Swing Loan requested by Borrower and made by Agent or the Lendershereunder shall be made to the Designated Account.**2.9****Maintenance of Loan Account; Statements of Obligations****.**Agent shall maintain anaccount on its books in the name of Borrower (the “Loan Account”) on which Borrower will becharged with all Advances (including Protective Advances and Swing Loans) made by Agent, SwingLender, or the Lenders to Borrower or for Borrower’s account, the Letters of Credit issued orarranged by Issuing Lender for Borrower’s account, and with all other payment Obligations hereunderor under the other Loan Documents, including, accrued interest, fees and expenses, and Lender GroupExpenses. In accordance with Section 2.7, the Loan Account will be credited with allpayments received by Agent from Borrower or for Borrower’s account. Agent shall render monthlystatements regarding the Loan Account to Borrower, including principal, interest, fees, andincluding an itemization of all charges and expenses constituting Lender Group Expenses owing, andsuch statements, absent manifest error, shall be conclusively presumed to be correct and accurateand constitute an account stated between Borrower and the Lender Group unless, within 30 days afterreceipt thereof by Borrower, Borrower shall deliver to Agent written objection thereto describingthe error or errors contained in any such statements.**2.10****Fees****.**Borrower shall pay to Agent,(a) for the account of Agent, as and when due and payable under the terms of the Fee Letter,the fees set forth in the Fee Letter.(b) for the ratable account of those Lenders with Revolver Commitments, on the first day ofeach month from and after the Closing Date up to the first day of the month prior to the PayoffDate and on the Payoff Date, an unused line fee in an amount equal to (i) 0.50% per annum times theresult of (A) the aggregate amount of the Revolver Commitments, less (B) the average Daily Balanceof the Revolver Usage during the immediately preceding month (or portion thereof) if the result ofclauses (A) and (B) above is greater than or equal to $22,500,000, and (ii) 0.375% per annum timesthe result of (A) the aggregate amount of the Revolver Commitments, less (B) the average DailyBalance of the Revolver Usage during the immediately preceding month (or portion thereof) if theresult of clauses (A) and (B) above is less than $22,500,000.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**2.11****Letters of Credit**.(a) Subject to the terms and conditions of this Agreement, upon the request of Borrower madein accordance herewith, the Issuing Lender agrees to issue, or to cause an Underlying Issuer(including, as Issuing Lender’s agent) to issue, a requested Letter of Credit. If Issuing Lender,at its option,elects to cause an Underlying Issuer to issue a requested Letter of Credit, then IssuingLender agrees that it will enter into arrangements relative to the reimbursement of such UnderlyingIssuer (which may include, among other means, by becoming an applicant with respect to such Letterof Credit or entering into undertakings which provide for reimbursements of such Underlying Issuerwith respect to such Letter of Credit; each such obligation or undertaking, irrespective of whetherin writing, a “Reimbursement Undertaking”) with respect to Letters of Credit issued by suchUnderlying Issuer. By submitting a request to Issuing Lender for the issuance of a Letter ofCredit, Borrower shall be deemed to have requested that Issuing Lender issue or that an UnderlyingIssuer issue the requested Letter of Credit and to have requested Issuing Lender to issue aReimbursement Undertaking with respect to such requested Letter of Credit if it is to be issued byan Underlying Issuer (it being expressly acknowledged and agreed by Borrower that Borrower is andshall be deemed to be an applicant (within the meaning of Section 5-102(a)(2) of the Code) withrespect to each Underlying Letter of Credit). Each request for the issuance of a Letter of Credit,or the amendment, renewal, or extension of any outstanding Letter of Credit, shall be made inwriting by an Authorized Person and delivered to the Issuing Lender via hand delivery,telefacsimile, or other electronic method of transmission reasonably in advance of the requesteddate of issuance, amendment, renewal, or extension. Each such request shall be in form andsubstance reasonably satisfactory to the Issuing Lender and shall specify (i) the amount of suchLetter of Credit, (ii) the date of issuance, amendment, renewal, or extension of such Letter ofCredit, (iii) the proposed expiration date of such Letter of Credit, (iv) the name and address ofthe beneficiary of the Letter of Credit, and (v) such other information (including, the conditionsof drawing, and, in the case of an amendment, renewal, or extension, identification of the Letterof Credit to be so amended, renewed, or extended) as shall be necessary to prepare, amend, renew,or extend such Letter of Credit. Anything contained herein to the contrary notwithstanding, theIssuing Lender may, but shall not be obligated to, issue or cause the issuance of a Letter ofCredit or to issue a Reimbursement Undertaking in respect of an Underlying Letter of Credit, ineither case, that supports the obligations of Parent or its Subsidiaries (1) in respect of (A) alease of real property, or (B) an employment contract, or (2) at any time that one or more of theLenders is a Defaulting Lender. The Issuing Lender shall have no obligation to issue a Letter ofCredit or a Reimbursement Undertaking in respect of an Underlying Letter of Credit, in either case,if any of the following would result after giving effect to the requested issuance:(i) the Letter of Credit Usage would exceed the Borrowing Base less the outstanding amount ofAdvances (inclusive of Swing Loans), or(ii) the Letter of Credit Usage would exceed $10,000,000, or(iii) the Letter of Credit Usage would exceed the Maximum Revolver Amount *less*the outstandingamount of Advances (including Swing Loans).Borrower and the Lender Group hereby acknowledge and agree that all Existing Letters of Creditshall constitute Letters of Credit under this Agreement on and after the Closing Date with the sameeffect as if such Existing Letters of Credit were issued by Issuing Lender or an Underlying Issuerat the request of Borrower on the Closing Date. Each Letter of Credit shall be in form andsubstance reasonably acceptable to the Issuing Lender, including the requirement that the amountspayable thereunder must be payable in Dollars. If Issuing Lender makes a payment under a Letter ofCredit or an Underlying Issuer makes a payment under an Underlying Letter of Credit, Borrower shallpay to Agent an amount equal to the applicable Letter of Credit Disbursement on the date suchLetter of Credit Disbursement is made and, in the absence of such payment, the amount of the Letterof Credit Disbursement immediately and automatically shall be deemed to be an Advance hereunderand, initially, shall bear interest at the rate then applicable to Advances that are Base RateLoans. If a Letter of Credit Disbursement is deemed to be an Advance hereunder (notwithstanding anyfailure to satisfy any condition precedent set forth in Section 3), Borrower’s obligationto pay the amount of such Letter of Credit Disbursement to Issuing Lender shall be automaticallyconverted into an obligation to pay the resulting Advance. Promptly following receipt by Agent ofany payment from Borrower pursuant to this paragraph, Agent shall distribute such payment to theIssuing Lender or, to theextent that Lenders have made payments pursuant to Section 2.11(b) to reimburse theIssuing Lender, then to such Lenders and the Issuing Lender as their interests may appear.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(b) Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant toSection 2.11(a), each Lender with a Revolver Commitment agrees to fund its Pro Rata Shareof any Advance deemed made pursuant to Section 2.11(a) on the same terms and conditions asif Borrower had requested the amount thereof as an Advance and Agent shall promptly pay to IssuingLender the amounts so received by it from the Lenders. By the issuance of a Letter of Credit or aReimbursement Undertaking (or an amendment, renewal, or extension of a Letter of Credit or aReimbursement Undertaking) and without any further action on the part of the Issuing Lender or theLenders with Revolver Commitments, the Issuing Lender shall be deemed to have granted to eachLender with a Revolver Commitment, and each Lender with a Revolver Commitment shall be deemed tohave purchased, a participation in each Letter of Credit issued by Issuing Lender and eachReimbursement Undertaking, in an amount equal to its Pro Rata Share of such Letter of Credit orReimbursement Undertaking, and each such Lender agrees to pay to Agent, for the account of theIssuing Lender, such Lender’s Pro Rata Share of any Letter of Credit Disbursement made by IssuingLender or an Underlying Issuer under the applicable Letter of Credit. In consideration and infurtherance of the foregoing, each Lender with a Revolver Commitment hereby absolutely andunconditionally agrees to pay to Agent, for the account of the Issuing Lender, such Lender’s ProRata Share of each Letter of Credit Disbursement made by Issuing Lender or an Underlying Issuer andnot reimbursed by Borrower on the date due as provided in Section 2.11(a), or of anyreimbursement payment required to be refunded (or that Agent or Issuing Lender elects, based uponthe advice of counsel, to refund) to Borrower for any reason. Each Lender with a RevolverCommitment acknowledges and agrees that its obligation to deliver to Agent, for the account of theIssuing Lender, an amount equal to its respective Pro Rata Share of each Letter of CreditDisbursement pursuant to this Section 2.11(b) shall be absolute and unconditional and suchremittance shall be made notwithstanding the occurrence or continuation of an Event of Default orDefault or the failure to satisfy any condition set forth in Section 3. If any such Lenderfails to make available to Agent the amount of such Lender’s Pro Rata Share of a Letter of CreditDisbursement as provided in this Section, such Lender shall be deemed to be a Defaulting Lender andAgent (for the account of the Issuing Lender) shall be entitled to recover such amount on demandfrom such Lender together with interest thereon at the Defaulting Lender Rate until paid in full.(c) Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group and eachUnderlying Issuer harmless from any damage, loss, cost, expense, or liability (other than Taxes,which shall be governed by Section 16), and reasonable attorneys fees incurred by IssuingLender, any other member of the Lender Group, or any Underlying Issuer arising out of or inconnection with any Reimbursement Undertaking or any Letter of Credit; provided,however, that Borrower shall not be obligated hereunder to indemnify for any loss, cost,expense, or liability that a court of competent jurisdiction finally determines to have resultedfrom the gross negligence or willful misconduct of the Issuing Lender, any other member of theLender Group, or any Underlying Issuer. Borrower agrees to be bound by the Underlying Issuer’sregulations and interpretations of any Letter of Credit or by Issuing Lender’s interpretations ofany Reimbursement Undertaking even though this interpretation may be different from Borrower’s own,and Borrower understands and agrees that none of the Issuing Lender, any other member of the LenderGroup, or any Underlying Issuer shall be liable for any error, negligence, or mistake, whether ofomission or commission, in following Borrower’s instructions or those contained in the Letter ofCredit or any modifications, amendments, or supplements thereto. Borrower understands that theReimbursement Undertakings may require Issuing Lender to indemnify the Underlying Issuer forcertain costs or liabilities arising out of claims by Borrower against such Underlying Issuer.Borrower hereby agrees to indemnify, save, defend, and hold Issuing Lender and the other members ofthe Lender Group harmless with respect to any loss, cost, expense (including reasonable attorneysfees), or liability (other than Taxes, which shall be governed by Section 16) incurred bythem as a result of the Issuing Lender’s indemnification of an Underlying Issuer; provided,however, that Borrower shall not be obligated hereunder to indemnify for any such loss,cost, expense, or liability to the extent that it is caused by the gross negligence or willfulmisconduct of the Issuing Lender or any other member of the Lender Group. Borrower herebyacknowledges and agrees that none of theIssuing Lender, any other member of the Lender Group, or any Underlying Issuer shall beresponsible for delays, errors, or omissions resulting from the malfunction of equipment inconnection with any Letter of Credit.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(d) The obligation of Borrower to reimburse the Issuing Lender for each drawing under eachLetter of Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly inaccordance with the terms of this Agreement under all circumstances, including the following:(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, oranother Loan Document,(ii) the existence of any claim, counterclaim, setoff, defense or other right that Parent orany of its Subsidiaries may have at any time against any beneficiary or any transferee of suchLetter of Credit (or any Person for whom any such beneficiary or any such transferee maybe acting),the Issuing Lender or any other Person, whether in connection with this Agreement, the transactionscontemplated hereby or such Letter of Credit or any agreement or instrument relating thereto, orany unrelated transaction,(iii) any draft, demand, certificate or other document presented under such Letter of Creditproving to be forged, fraudulent, invalid or insufficient in any respect or any statement thereinbeing untrue or inaccurate in any respect, or any loss or delay in the transmission or otherwise ofany document required in order to make a drawing under such Letter of Credit,(iv) any payment by the Issuing Lender under such Letter of Credit against presentation of adraft or certificate that does not substantially or strictly comply with the terms of such Letterof Credit (including, without limitation, any requirement that presentation be made at a particularplace or by a particular time of day), or any payment made by the Issuing Lender under such Letterof Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assigneefor the benefit of creditors, liquidator, receiver or other representative of or successor to anybeneficiary or any transferee of such Letter of Credit,(v) any other circumstance or happening whatsoever, whether or not similar to any of theforegoing, including any other circumstance that might otherwise constitute a defense available to,or discharge of, Borrower or any of its Subsidiaries, or(vi) the fact that any Event of Default shall have occurred and be continuing.(e) Borrower hereby authorizes and directs any Underlying Issuer to deliver to the IssuingLender all instruments, documents, and other writings and property received by such UnderlyingIssuer pursuant to such Underlying Letter of Credit and to accept and rely upon the IssuingLender’s instructions with respect to all matters arising in connection with such Underlying Letterof Credit and the related application.(f) Borrower acknowledges and agrees that any and all issuance charges, usage charges,commissions, fees, and costs incurred by the Issuing Lender relating to Underlying Letters ofCredit shall be Lender Group Expenses for purposes of this Agreement and shall be reimbursableimmediately by Borrower to Agent for the account of the Issuing Lender; it being acknowledged andagreed by Borrower that, as of the Closing Date, the usage charge imposed by the Underlying Issueris .825% per annum times the undrawn amount of each Underlying Letter of Credit, that such usagecharge may be changed from time to time, and that the Underlying Issuer also imposes a schedule ofcharges for amendments, extensions, drawings, and renewals.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(g) If by reason of (i) any change after the Closing Date in any applicable law, treaty, rule,or regulation or any change in the interpretation or application thereof by any GovernmentalAuthority, or (ii) compliance by the Issuing Lender, any other member of the Lender Group, orUnderlying Issuer with any direction, request, or requirement (irrespective of whether having theforce of law) of any Governmental Authority or monetary authority including, Regulation D of theFederal Reserve Board as from time to time in effect (and any successor thereto):(i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respectof any Letter of Credit issued or caused to be issued hereunder or hereby, or(ii) there shall be imposed on the Issuing Lender, any other member of the Lender Group, orUnderlying Issuer any other condition regarding any Letter of Credit or Reimbursement Undertaking,and the result of the foregoing is to increase, directly or indirectly, the cost to the IssuingLender, any other member of the Lender Group, or an Underlying Issuer of issuing, making,participating in, or maintaining any Reimbursement Undertaking or Letter of Credit or to reduce theamount receivable in respect thereof, then, and in any such case, Agent may, at any time within areasonable period after the additional cost is incurred or the amount received is reduced, notifyBorrower, and Borrower shall pay within 30 days after demand therefor, such amounts as Agent mayspecify to be necessary to compensate the Issuing Lender, any other member of the Lender Group, oran Underlying Issuer for such additional cost or reduced receipt, together with interest on suchamount from the date of such demand until payment in full thereof at the rate then applicable toBase Rate Loans hereunder; provided, however, that Borrower shall not be requiredto provide any compensation pursuant to this Section 2.11(g) for any such amounts incurredmore than 180 days prior to the date on which the demand for payment of such amounts is first madeto Borrower; providedfurther, however, that if an event or circumstancegiving rise to such amounts is retroactive, then the 180-day period referred to above shall beextended to include the period of retroactive effect thereof. The determination by Agent of anyamount due pursuant to this Section 2.11(g), as set forth in a certificate setting forththe calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrableerror, be final and conclusive and binding on all of the parties hereto.**2.12****LIBOR Option**.(a) **Interest and Interest Payment Dates.**In lieu of having interest charged at the rate basedupon the Base Rate, Borrower shall have the option, subject to Section 2.12(b) below (the“LIBOR Option”) to have interest on all or a portion of the Advances be charged (whether atthe time when made (unless otherwise provided herein), upon conversion from a Base Rate Loan to aLIBOR Rate Loan, or upon continuation of a LIBOR Rate Loan as a LIBOR Rate Loan) at a rate ofinterest based upon the LIBOR Rate. Interest on LIBOR Rate Loans shall be payable on the earliestof (i) the last day of the Interest Period applicable thereto; (ii) the date on which all or anyportion of the Obligations are accelerated pursuant to the terms hereof, or (iii) the date on whichthis Agreement is terminated pursuant to the terms hereof. On the last day of each applicableInterest Period, unless Borrower properly has exercised the LIBOR Option with respect thereto, theinterest rate applicable to such LIBOR Rate Loan automatically shall convert to the rate ofinterest then applicable to Base Rate Loans of the same type hereunder. At any time that an Eventof Default has occurred and is continuing, at the written election of the Required Lenders,Borrower no longer shall have the option to request that Advances bear interest at a rate basedupon the LIBOR Rate.(b) **LIBOR Election**.(i) Borrower may, at any time and from time to time, so long as no Event of Default hasoccurred and is continuing, elect to exercise the LIBOR Option by notifying Agent prior to 11:00a.m. (California time) at least 3 Business Days prior to the commencement of the proposed InterestPeriod (the “LIBOR Deadline”). Notice of Borrower’s election of the LIBOR Option for apermitted portionof the Advances and an Interest Period pursuant to this Section shall be made by delivery toAgent of a LIBOR Notice received by Agent before the LIBOR Deadline, or by telephonic noticereceived by Agent before the LIBOR Deadline (to be confirmed by delivery to Agent of a LIBOR Noticereceived by Agent prior to 5:00 p.m. (California time) on the same day). Promptly upon its receiptof each such LIBOR Notice, Agent shall provide a copy thereof to each of the affected Lenders.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(ii) Each LIBOR Notice shall be irrevocable and binding on Borrower. In connection with eachLIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless againstany loss, cost, or expense actually incurred by Agent or any Lender as a result of (A) the paymentof any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicablethereto (including as a result of an Event of Default), (B) the conversion of any LIBOR Rate Loanother than on the last day of the Interest Period applicable thereto, or (C) the failure to borrow,convert, continue or prepay any LIBOR Rate Loan on the date specified in any LIBOR Notice deliveredpursuant hereto (such losses, costs, or expenses, “Funding Losses”). A certificate ofAgent or a Lender delivered to Borrower setting forth in reasonable detail any amount or amountsthat Agent or such Lender is entitled to receive pursuant to this Section 2.12 shall beconclusive absent manifest error. Borrower shall pay such amount to Agent or the Lender, asapplicable, within 30 days of the date of its receipt of such certificate.(iii) Borrower shall have not more than 5 LIBOR Rate Loans in effect at any given time.Borrower only may exercise the LIBOR Option for proposed LIBOR Rate Loans of at least$1,000,000.(c) **Conversion**. Borrower may convert LIBOR Rate Loans to Base Rate Loans at any time;provided, however, that in the event that LIBOR Rate Loans are converted or prepaidon any date that is not the last day of the Interest Period applicable thereto, including as aresult of any automatic prepayment through the required application by Agent of proceeds ofBorrower’s and its Subsidiaries’ Collections in accordance with Section 2.4(b) or for anyother reason, including early termination of the term of this Agreement or acceleration of all orany portion of the Obligations pursuant to the terms hereof, Borrower shall indemnify, defend, andhold Agent and the Lenders and their Participants harmless against any and all Funding Losses inaccordance with Section 2.12 (b)(ii).(d) **Special Provisions Applicable to LIBOR Rate**.(i) The LIBOR Rate may be adjusted by Agent with respect to any Lender on a prospective basisto take into account any additional or increased costs to such Lender of maintaining or obtainingany eurodollar deposits or increased costs, in each case, due to changes in applicable law (otherthan changes in laws relative to Taxes, which shall be governed by Section 16) occurring subsequentto the commencement of the then applicable Interest Period, including changes in tax laws (except(a) changes of general applicability in corporate income tax laws and (b) changes in the rate oftax on the overall income of the Lender) and changes in the reserve requirements imposed by theBoard of Governors of the Federal Reserve System (or any successor), which additional or increasedcosts would increase the cost of funding or maintaining loans bearing interest at the LIBOR Rate.In any such event, the affected Lender shall give Borrower and Agent notice of such a determinationand adjustment and Agent promptly shall transmit the notice to each other Lender and, upon itsreceipt of the notice from the affected Lender, Borrower may, by notice to such affected Lender(y) require such Lender to furnish to Borrower a statement setting forth the basis for adjustingsuch LIBOR Rate and the method for determining the amount of such adjustment, or (z) repay theLIBOR Rate Loans with respect to which such adjustment is made (together with any amounts due underSection 2.12(b)(ii)).Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(ii) In the event that any change in market conditions or any law, regulation, treaty, ordirective, or any change therein or in the interpretation or application thereof, shall at any timeafter the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical forsuch Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or todetermine orcharge interest rates at the LIBOR Rate, such Lender shall give notice of such changedcircumstances to Agent and Borrower and Agent promptly shall transmit the notice to each otherLender and (y) in the case of any LIBOR Rate Loans of such Lender that are outstanding, the datespecified in such Lender’s notice shall be deemed to be the last day of the Interest Period of suchLIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such Lender thereafter shall accrueinterest at the rate then applicable to Base Rate Loans, and (z) Borrower shall not be entitled toelect the LIBOR Option until such Lender determines that it would no longer be unlawful orimpractical to do so.(e) **No Requirement of Matched Funding.**Anything to the contrary contained hereinnotwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actuallyto acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interestaccrues at the LIBOR Rate.**2.13****Capital Requirements**.(a) If, after the date hereof, any Lender determines that (i) the adoption of or change in anylaw, rule, regulation or guideline regarding capital or reserve requirements for banks or bankholding companies, or any change in the interpretation, implementation, or application thereof byany Governmental Authority charged with the administration thereof, or (ii) compliance by suchLender or its parent bank holding company with any guideline, request or directive of any suchentity regarding capital adequacy (whether or not having the force of law), has the effect ofreducing the return on such Lender’s or such holding company’s capital as a consequence of suchLender’s Revolver Commitments hereunder to a level below that which such Lender or such holdingcompany could have achieved but for such adoption, change, or compliance (taking into considerationsuch Lender’s or such holding company’s then existing policies with respect to capital adequacy andassuming the full utilization of such entity’s capital) by any amount deemed by such Lender to bematerial, then such Lender may notify Borrower and Agent thereof. Following receipt of suchnotice, Borrower agrees to pay such Lender on demand the amount of such reduction of return ofcapital as and when such reduction is determined, payable within 30 days after presentation by suchLender of a statement in the amount and setting forth in reasonable detail such Lender’scalculation thereof and the assumptions upon which such calculation was based (which statementshall be deemed true and correct absent manifest error); provided, however, that Borrower shall notbe required to compensate any Lender pursuant to this Section 2.13(a) for such reduction ofrate of return on capital incurred more than 90 days prior to the date that such Lender deliverssuch statement. In determining such amount, such Lender may use any reasonable averaging andattribution methods. Failure or delay on the part of any Lender to demand compensation pursuant tothis Section shall not constitute a waiver of such Lender’s right to demand such compensation;provided that Borrower shall not be required to compensate a Lender pursuant to thisSection for any reductions in return incurred more than 180 days prior to the date that such Lendernotifies Borrower of such law, rule, regulation or guideline giving rise to such reductions and ofsuch Lender’s intention to claim compensation therefor; providedfurther that ifsuch claim arises by reason of the adoption of or change in any law, rule, regulation or guidelinethat is retroactive, then the 180-day period referred to above shall be extended to include theperiod of retroactive effect thereof.(b) If any Lender requests additional or increased costs referred to in Section2.12(d)(i) or amounts under Section 2.13(a) or sends a notice under Section2.12(d)(ii) relative to changed circumstances (any such Lender, an “Affected Lender”),then such Affected Lender shall use reasonable efforts to promptly designate a different one of itslending offices or to assign its rights and obligations hereunder to another of its offices orbranches, if (i) in the reasonable judgment of such Affected Lender, such designation or assignmentwould eliminate or reduce amounts payable pursuant to Section 2.12(d)(i) or Section2.13(a), as applicable, or would eliminate the illegality or impracticality of funding ormaintaining LIBOR Rate Loans and (ii) in the reasonable judgment of such Affected Lender, suchdesignation or assignment would not subject it to any material unreimbursed cost or expense andwould not otherwise be materially disadvantageous to it. Borrower agrees to pay all reasonableout-of-pocket costs and expenses incurred byConfidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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such Affected Lender in connection with any suchdesignation or assignment. If, after such reasonable efforts, such Affected Lender does not so designate a different one of its lendingoffices or assign its rights to another of its offices or branches so as to eliminate Borrower’sobligation to pay any future amounts to such Affected Lender pursuant to Section 2.12(d)(i)or Section 2.13(a), as applicable, or to enable Borrower to obtain LIBOR Rate Loans, thenBorrower (without prejudice to any amounts then due to such Affected Lender under Section2.12(d)(i) or Section 2.13(a), as applicable) may, unless prior to the effective dateof any such assignment the Affected Lender withdraws its request for such additional amounts underSection 2.12(d)(i) or Section 2.13(a), as applicable, or indicates that it is nolonger unlawful or impractical to fund or maintain LIBOR Rate Loans, seek a substitute Lenderreasonably acceptable to Agent to purchase the Obligations owed to such Affected Lender and suchAffected Lender’s Revolver Commitments hereunder (a “Replacement Lender”), and if suchReplacement Lender agrees to such purchase, such Affected Lender shall assign to the ReplacementLender its Obligations and Revolver Commitments, pursuant to an Assignment and AcceptanceAgreement, and upon such purchase by the Replacement Lender, such Replacement Lender shall bedeemed to be a “Lender” for purposes of this Agreement and such Affected Lender shall cease to be a“Lender” for purposes of this Agreement.**3. CONDITIONS; TERM OF AGREEMENT**.**3.1****Conditions Precedent to the Initial Extension of Credit****.**The obligation of eachLender to make its initial extension of credit provided for hereunder is subject to thefulfillment, to the satisfaction of Agent and each Lender, of each of the conditions precedent setforth on Schedule 3.1 (the making of such initial extension of credit by a Lender beingconclusively deemed to be its satisfaction or waiver of the conditions precedent ).**3.2****Conditions Precedent to all Extensions of Credit****.**The obligation of the LenderGroup (or any member thereof) to make any Advances hereunder (or to extend any other credithereunder) at any time shall be subject to the following conditions precedent:(a) the representations and warranties of Parent or its Subsidiaries contained in thisAgreement or in the other Loan Documents shall be true and correct in all material respects (exceptthat such materiality qualifier shall not be applicable to any representations and warranties thatalready are qualified or modified by materiality in the text thereof) on and as of the date of suchextension of credit, as though made on and as of such date (except to the extent that suchrepresentations and warranties relate solely to an earlier date); and(b) no Default or Event of Default shall have occurred and be continuing on the date of suchextension of credit, nor shall either result from the making thereof.**3.3****Maturity****.**This Agreement shall continue in full force and effect for a termending on August 1, 2014 (the “Maturity Date”). The foregoing notwithstanding, the LenderGroup, upon the election of the Required Lenders, shall have the right to terminate its obligationsunder this Agreement immediately and without notice upon the occurrence and during the continuationof an Event of Default.**3.4****Effect of Maturity****.**On the Maturity Date, all commitments of the Lender Group toprovide additional credit hereunder shall automatically be terminated and all of the Obligationsimmediately shall become due and payable without notice or demand and Borrower shall be required torepay all of the Obligations in full. No termination of the obligations of the Lender Group (otherthan payment in full of the Obligations and termination of the Revolver Commitments) shall relieveor discharge any Loan Party of its duties, obligations, or covenants hereunder or under any otherLoan Document and Agent’s Liens in the Collateral shall continue to secure the Obligations andshall remain in effect until all Obligations have been paid in full and the Revolver Commitmentshave been terminated. When all of the Obligations have been paid in full and the Lender Group’sobligations to provide additional credit under the Loan Documents have been terminated irrevocably,Agent will, at Borrower’s sole expense, execute and deliver any termination statements, lienreleases, discharges of security interests, and other similar discharge or release documents(and, if applicable, in recordable form) as are reasonably necessary to release, as of record,Agent’s Liens and all notices of security interests and liens previously filed by Agent.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**3.5****Early Termination by Borrower****.**Borrower has the option, at any time upon 10Business Days (or a shorter time if agreed by Agent) prior written notice to Agent, to terminatethis Agreement and terminate the Revolver Commitments hereunder by repaying to Agent all of theObligations in full.**3.6****Conditions Subsequent****.**The obligation of the Lender Group (or any member thereof)to continue to make Advances (or otherwise extend credit hereunder) is subject to the fulfillment,on or before the date applicable thereto, of the conditions subsequent set forth on Schedule 3.6(the failure by Borrower to so perform or cause to be performed such conditions subsequent as andwhen required by the terms thereof, shall constitute an Event of Default).**4. REPRESENTATIONS AND WARRANTIES**.In order to induce the Lender Group to enter into this Agreement, each of Parent and Borrower,jointly and severally, makes the following representations and warranties to the Lender Group whichshall be true, correct, and complete, in all material respects (except that such materialityqualifier shall not be applicable to any representations and warranties that already are qualifiedor modified by materiality in the text thereof), as of the Closing Date, and shall be true,correct, and complete, in all material respects (except that such materiality qualifier shall notbe applicable to any representations and warranties that already are qualified or modified bymateriality in the text thereof), as of the date of the making of each Advance (or other extensionof credit) made thereafter, as though made on and as of the date of such Advance (or otherextension of credit) (except to the extent that such representations and warranties relate solelyto an earlier date) and such representations and warranties shall survive the execution anddelivery of this Agreement:**4.1****Due Organization and Qualification; Subsidiaries**.(a) Parent and each of its Subsidiaries (i) is duly organized or incorporated and existing andin good standing under the laws of the jurisdiction of its organization or incorporation, (ii) isqualified to do business in any state where the failure to be so qualified could reasonably beexpected to result in a Material Adverse Change, and (iii) has all requisite power and authority toown and operate its properties, to carry on its business as now conducted and as proposed to beconducted, to enter into the Loan Documents to which it is a party and to carry out thetransactions contemplated thereby.(b) Set forth on Schedule 4.1(b) is a complete and accurate description, as of theClosing Date, of the authorized capital Stock of Parent, by class, and of the number of shares ofeach such class that are issued and outstanding. Other than as described on Schedule4.1(b), as of the Closing Date, there are no subscriptions, options, warrants, or callsrelating to any shares of Parent’s capital Stock, including any right of conversion or exchangeunder any outstanding security or other instrument, except for options, warrants, and restrictedstock granted to employees, management, and directors in the ordinary course of Parent’s businessas in effect on the Closing Date so long as the granting of such options, warrants or restrictedstock (x) does not result in a Change of Control and (y) is not otherwise prohibited hereunder.Parent is not subject to any obligation (contingent or otherwise) to repurchase or otherwiseacquire or retire any shares of its capital Stock or any security convertible into or exchangeablefor any of its capital Stock, except for certain cash payments with respect to the warrants issuedon March 22, 2007, to the investors who purchased the Stock issued by Parent on or about the samedate (the “2007 Warrants”), in connection with a Major Transaction (as such term is definedin the 2007 Warrants). The foregoing sentence is not intended as the Lender Group’s consent to anycash payments with respect to the 2007 Warrants.(c) Set forth on Schedule 4.1(c) (as such Schedule may be updated from time to time toreflect changes resulting from transactions permitted under this Agreement), is a complete andaccurate list of the Parent’s direct and indirect Subsidiaries, showing: (i) the number of sharesof each class of commonand preferred Stock authorized for each of such Subsidiaries, and (ii) the number and thepercentage of the outstanding shares of each such class owned directly or indirectly by Parent.All of the outstanding capital Stock of each such Subsidiary has been validly issued and is fullypaid and non-assessable.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(d) Except as set forth on Schedule 4.1(c), there are no subscriptions, options,warrants, or calls relating to any shares of Parent’s Subsidiaries’ capital Stock, including anyright of conversion or exchange under any outstanding security or other instrument. Except as setforth in Section 6.9(a), neither Parent nor any of its Subsidiaries is subject to anyobligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares ofParent’s Subsidiaries’ capital Stock or any security convertible into or exchangeable for any suchcapital Stock.**4.2****Due Authorization; No Conflict**.(a) As to each Loan Party, the execution, delivery, and performance by such Loan Party of theLoan Documents to which it is a party have been duly authorized by all necessary action on the partof such Loan Party.(b) As to each Loan Party, the execution, delivery, and performance by such Loan Party of theLoan Documents to which each, individually or collectively, is a party do not and will not (i)violate any material provision of any foreign or domestic federal, state, or local law orregulation applicable to any Loan Party or its Subsidiaries, the Governing Documents of any LoanParty or its Subsidiaries, or any order, judgment, or decree of any court or other GovernmentalAuthority binding on any Loan Party or its Subsidiaries, (ii) conflict with, result in a breach of,or constitute (with due notice or lapse of time or both) a default under any Material Contract ofany Loan Party or its Subsidiaries except to the extent that any such conflict, breach or defaultcould not individually or in the aggregate reasonably be expected to have a Material AdverseChange, (iii) result in or require the creation or imposition of any Lien of any nature whatsoeverupon any assets of any Loan Party, other than Permitted Liens, or (iv) require any approval of anyLoan Party’s interestholders or any approval or consent of any Person under any Material Contractof any Loan Party, other than consents or approvals that have been obtained and that are still inforce and effect and except, in the case of Material Contracts, for consents or approvals, thefailure to obtain which could not individually or in the aggregate reasonably be expected to causea Material Adverse Change.**4.3****Governmental Consents****.**The execution, delivery, and performance by each LoanParty of the Loan Documents to which such Loan Party is a party and the consummation of thetransactions contemplated by the Loan Documents do not and will not require any registration with,consent, or approval of, or notice to, or other action with or by, any Governmental Authority,other than registrations, consents, approvals, notices, or other actions that have been obtainedand that are still in force and effect and except for filings and recordings with respect to theCollateral to be made, or otherwise delivered to Agent for filing or recordation, as of the ClosingDate.**4.4****Binding Obligations; Perfected Liens**.(a) Each Loan Document has been duly executed and delivered by each Loan Party that is a partythereto and is the legally valid and binding obligation of such Loan Party, enforceable againstsuch Loan Party in accordance with its respective terms, except as enforcement may be limited byequitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar lawsrelating to or limiting creditors’ rights generally.(b) Agent’s Liens are validly created, perfected (other than (i) in respect of motor vehiclesthat are subject to a certificate of title and as to which Agent has not caused its Lien to benoted on the applicable certificate of title and (ii) any Deposit Accounts and Securities Accountsnot subject to a Control Agreement as permitted by Section 6.11, and subject only to thefiling of financing statements andother foreign perfection filings, in each case, in the appropriate filing offices), and firstpriority Liens, subject only to Permitted Liens.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**4.5****Title to Assets; No Encumbrances****.**Each of Parent and its Subsidiaries has (a)good, sufficient and legal title to (in the case of fee interests or freehold interest, asapplicable, in Real Property), (b) valid leasehold interests in (in the case of leasehold interestsin real or personal property), and (c) good and marketable title to (in the case of all otherpersonal property), all of their respective assets reflected in their most recent financialstatements delivered pursuant to Section 5.1, in each case except for assets disposed ofsince the date of such financial statements to the extent permitted hereby. All of such assets arefree and clear of Liens except for Permitted Liens.**4.6****Jurisdiction of Organization; Location of Chief Executive Office; OrganizationalIdentification Number; Commercial Tort Claims**.(a) The name of (within the meaning of Section 9-503 of the Code) and jurisdiction oforganization of Parent and each of its Subsidiaries is set forth on Schedule 4.6(a) (assuch Schedule may be updated from time to time to reflect changes resulting from transactionspermitted under this Agreement).(b) The chief executive office of Parent and each of its Subsidiaries is located at theaddress indicated on Schedule 4.6(b) (as such Schedule may be updated from time to time toreflect changes resulting from transactions permitted under this Agreement).(c) Parent’s and each of its Subsidiaries’ tax identification numbers and organizationalidentification numbers, if any, are identified on Schedule 4.6(c) (as such Schedule may beupdated from time to time to reflect changes resulting from transactions permitted under thisAgreement).(d) As of the Closing Date, neither Parent nor any of its Subsidiaries holds any commercialtort claims having a value in excess of $100,000, except as set forth on Schedule 4.6(d).**4.7****Litigation**.(a) Except as disclosed on Schedule 4.7(a), there are no actions, suits, orproceedings pending or, to the knowledge of Parent, after due inquiry, threatened in writingagainst Parent or any of its Subsidiaries that either individually or in the aggregate couldreasonably be expected to result in a Material Adverse Change.(b) Schedule 4.7(b) sets forth a complete and accurate description, with respect toeach of the actions, suits, or proceedings that, as of the Closing Date, is pending or, to theknowledge of Parent, after due inquiry, threatened against Parent or any of its Subsidiaries, thatindividually if determined adversely to Parent or any of its Subsidiaries could reasonably beexpected to result in a liability in excess of $1,000,000, of (i) the parties to such actions,suits, or proceedings, (ii) the nature of the dispute that is the subject of such actions, suits,or proceedings, (iii) the status, as of the Closing Date, with respect to such actions, suits, orproceedings, and (iv) whether any liability of Parent’s and its Subsidiaries in connection withsuch actions, suits, or proceedings is covered by insurance.**4.8****Compliance with Laws****.**Neither Parent nor any of its Subsidiaries (a) is inviolation of any applicable laws, rules, regulations, executive orders, or codes (includingEnvironmental Laws) that, individually or in the aggregate, could reasonably be expected to resultin a Material Adverse Change, or (b) is subject to or in default with respect to any finaljudgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state,municipal or other governmental department, commission, board, bureau, agency or instrumentality,domestic or foreign, that, individually or in the aggregate, could reasonably be expected to resultin a Material Adverse Change.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**4.9****No Material Adverse Change****.**All financial statements relating to Parent and itsSubsidiaries that have been delivered by Parent to Agent in connection with the execution hereof atany time after the Closing Date have been prepared in accordance with GAAP (except, in the case ofunaudited financial statements, for the lack of footnotes and being subject to year-end auditadjustments) and present fairly in all material respects, Parent’s and its Subsidiaries’consolidated financial condition as of the date thereof and results of operations for the periodthen ended. Since April 2, 2011, except for a goodwill impairment charge recorded by parent inJune 2011 which has been disclosed by Parent to Agent prior to the Closing Date, no event,circumstance, or change has occurred that has or could reasonably be expected to result in aMaterial Adverse Change with respect to the Parent and its Subsidiaries.**4.10****Fraudulent Transfer**.(a) Each Loan Party is Solvent.(b) No transfer of property is being made by any Loan Party and no obligation is beingincurred by any Loan Party in connection with the transactions contemplated by this Agreement orthe other Loan Documents with the intent to hinder, delay, or defraud either present or futurecreditors of such Loan Party.**4.11****Employee Benefits****.**Except as set forth on Schedule 4.11, neither Parentnor any of its Subsidiaries, nor any of their ERISA Affiliates maintains or contributes to anyBenefit Plan.**4.12****Environmental Condition****.**Except as set forth on Schedule 4.12, (a) toParent’s knowledge, after due inquiry, neither Parent nor any of its Subsidiaries’ properties orassets has ever been used by Parent, its Subsidiaries, or by previous owners or operators in thedisposal of, or to produce, store, handle, treat, release, or transport, any Hazardous Materials,where such disposal, production, storage, handling, treatment, release or transport was inviolation, in any material respect, of any applicable Environmental Law and expected to involveliabilities in an aggregate amount in excess of $1,000,000, (b) to Parent’s knowledge, neitherParent nor any of its Subsidiaries’ properties or assets has ever been designated or identified inany manner pursuant to any environmental protection statute as a Hazardous Materials disposal sitewhich designation or identification could be expected to result in liabilities in an aggregateamount in excess of $1,000,000, (c) neither Parent nor any of its Subsidiaries has received noticethat a Lien arising under any Environmental Law involving an aggregate amount in excess of$1,000,000 has attached to any revenues or to any Real Property owned or operated by Parent or itsSubsidiaries, and (d) neither Parent nor any of its Subsidiaries nor any of their respectivefacilities or operations is subject to any outstanding written order, consent decree, or settlementagreement with any Person relating to any Environmental Law or Environmental Liability that,individually or in the aggregate, could reasonably be expected to result in a Material AdverseChange.**4.13****Intellectual Property****.**To the knowledge of Parent and Borrower, each of Parentand its Subsidiaries own, or hold licenses in, all trademarks, trade names, copyrights, patents,and licenses that are necessary to the conduct of its business as currently conducted, and attachedhereto as Schedule 4.13 (as updated from time to time) is a true, correct, and completelisting of all material trademarks, trade names, copyrights, patents, and licenses as to whichParent or one of its Subsidiaries is the owner or is an exclusive licensee; provided,however, that Borrower may amend Schedule 4.13 to add additional materialintellectual property so long as such amendment occurs by written notice to Agent at the time thatParent provides its Compliance Certificate pursuant to Section 5.1.**4.14****Leases****.**Each of Parent and its Subsidiaries enjoy peaceful and undisturbedpossession under all leases material to their business and to which they are parties or under whichthey are operating, and, subject to Permitted Protests, all of such material leases are valid andsubsisting and no material default by the Parent or its Subsidiaries exists under any of them.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**4.15****Deposit Accounts and Securities Accounts****.**Set forth on Schedule 4.15 (asupdated pursuant to the provisions of the Security Agreement from time to time) is a listing of allof Parent’s and its Subsidiaries’ Deposit Accounts and Securities Accounts, including, with respectto each bank or securities intermediary (a) the name and address of such Person, and (b) theaccount numbers of the Deposit Accounts or Securities Accounts maintained with such Person.**4.16****Complete Disclosure****.**All factual information taken as a whole (other thanforward-looking information and projections and information of a general economic nature andgeneral information about Parent’s industry) furnished by or on behalf of Parent or itsSubsidiaries in writing to Agent or any Lender (including all information contained in theSchedules hereto or in the other Loan Documents) for purposes of or in connection with thisAgreement or the other Loan Documents, and all other such factual information taken as a whole(other than forward-looking information and projections and information of a general economicnature and general information about Parent’s industry) hereafter furnished by or on behalf ofParent or its Subsidiaries in writing to Agent or any Lender will be, true and accurate, in allmaterial respects, on the date as of which such information is dated or certified and notincomplete by omitting to state any fact necessary to make such information (taken as a whole) notmisleading in any material respect at such time in light of the circumstances under which suchinformation was provided. The Projections delivered to Agent on June 30, 2011 represent, and as ofthe date on which any other Projections are delivered to Agent, such additional Projectionsrepresent, Parent’s good faith estimate, on the date such Projections are delivered, of the Parentand its Subsidiaries’ future performance for the periods covered thereby based upon assumptionsbelieved by Parent to be reasonable at the time of the delivery thereof to Agent (it beingunderstood that such Projections are subject to uncertainties and contingencies, many of which arebeyond the control of Parent and its Subsidiaries, that no assurances can be given that suchProjections will be realized, and that actual results may differ in a material manner from suchProjections).**4.17****Material Contracts****.**Set forth on Schedule 4.17 (as such Schedule may beupdated from time to time in accordance herewith) is a reasonably detailed description of theMaterial Contracts of Parent and its Subsidiaries as of the most recent date on which Parentprovided its Compliance Certificate pursuant to Section 5.1; provided,however, that Borrower may amend Schedule 4.17 to add additional Material Contractsso long as such amendment occurs by written notice to Agent on the date that Parent provides itsCompliance Certificate. Except for matters which, either individually or in the aggregate, couldnot reasonably be expected to result in a Material Adverse Change, each Material Contract (otherthan those that have expired at the end of their normal terms) (a) is in full force and effect andis binding upon and enforceable against Parent or its Subsidiary and, to Parent and Borrower’sknowledge, after due inquiry, each other Person that is a party thereto in accordance with itsterms, (b) has not been otherwise amended or modified (other than amendments or modificationspermitted by Section 6.7(b)), and (c) is not in default due to the action or inaction ofParent or its Subsidiary.**4.18****Patriot Act****.**To the extent applicable, each Loan Party is in compliance, in allmaterial respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreignassets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V,as amended) and any other enabling legislation or executive order relating thereto, and (b) Unitingand Strengthening America by Providing Appropriate Tools Required to Intercept and ObstructTerrorism (USA Patriot Act of 2001) (the “Patriot Act”). No part of the proceeds of theloans made hereunder will be used by Parent or any of its Affiliates, directly or indirectly, forany payments to any governmental official or employee, political party, official of a politicalparty, candidate for political office, or anyone else acting in an official capacity, in order toobtain, retain or direct business or obtain any improper advantage, in violation of the UnitedStates Foreign Corrupt Practices Act of 1977, as amended.**4.19****Indebtedness****.**Set forth on Schedule 4.19 is a true and complete list ofall Indebtedness of Parent and each of its Subsidiaries outstanding immediately prior to theClosing Date that is to remain outstanding immediately after giving effect to the closing hereunderon the Closing Date and such Schedule accurately sets forth the aggregate principal amount of suchIndebtedness as of the Closing Date.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**4.20****Payment of Taxes****.**Except as otherwise permitted under Section 5.5, alltax returns and reports of Parent and its Subsidiaries required to be filed by any of them havebeen timely filed, and all taxes shown on such tax returns to be due and payable and allassessments, fees and other governmental charges upon Parent and its Subsidiaries and upon theirrespective assets, income, businesses and franchises that are due and payable have been paid whendue and payable. Parent and each of its Subsidiaries have made adequate provision in accordancewith GAAP for all taxes not yet due and payable. Neither Parent nor Borrower knows of any proposedtax assessment against Parent or any of its Subsidiaries that is not being actively contested byParent or such Subsidiary diligently, in good faith, and by appropriate proceedings;provided such reserves or other appropriate provisions, if any, as shall be required inconformity with GAAP shall have been made or provided therefor.**4.21****Margin Stock****.**Neither Parent nor any of its Subsidiaries is engaged principally,or as one of its important activities, in the business of extending credit for the purpose ofpurchasing or carrying any Margin Stock. No part of the proceeds of the loans made to Borrowerwill be used to purchase or carry any such Margin Stock or to extend credit to others for thepurpose of purchasing or carrying any such margin stock or for any purpose that violates theprovisions of Regulation T, U or X of the Board of Governors of the United States Federal Reserve.**4.22****Governmental Regulation****.**Neither Parent nor any of its Subsidiaries is subjectto regulation under the Federal Power Act or the Investment Company Act of 1940 or under any otherfederal or state statute or regulation which may limit its ability to incur Indebtedness or whichmay otherwise render all or any portion of the Obligations unenforceable. Neither Parent nor anyof its Subsidiaries is a “registered investment company” or a company “controlled” by a “registeredinvestment company” or a “principal underwriter” of a “registered investment company” as such termsare defined in the Investment Company Act of 1940.**4.23****OFAC****.**Neither Parent nor any of its Subsidiaries is in violation of any of thecountry or list based economic and trade sanctions administered and enforced by OFAC. NeitherParent nor any of its Subsidiaries (a) is a Sanctioned Person or a Sanctioned Entity, (b) has itsassets located in Sanctioned Entities, or (c) derives revenues from investments in, or transactionswith Sanctioned Persons or Sanctioned Entities. No proceeds of any loan made hereunder will beused to fund any operations in, finance any investments or activities in, or make any payments to,a Sanctioned Person or a Sanctioned Entity.**4.24****Employee and Labor Matters****.**There is (i) no unfair labor practice complaintpending or, to the knowledge of Parent and Borrower, threatened against Parent or its Subsidiariesbefore any Governmental Authority and no grievance or arbitration proceeding pending or threatenedagainst Parent or its Subsidiaries which arises out of or under any collective bargaining agreementand that could reasonably be expected to result in a material liability, (ii) no strike, labordispute, slowdown, stoppage or similar action or grievance pending or threatened in writing againstParent or its Subsidiaries that could reasonably be expected to result in a material liability, or(iii) to the knowledge of Parent or Borrower, after due inquiry, no union representation questionexisting with respect to the employees of Parent or its Subsidiaries and no union organizingactivity taking place with respect to any of the employees of Parent or its Subsidiaries. None ofParent or its Subsidiaries has incurred any liability or obligation under the Worker Adjustment andRetraining Notification Act or similar state law, which remains unpaid or unsatisfied. The hoursworked and payments made to employees of Parent or its Subsidiaries have not been in violation ofthe Fair Labor Standards Act or any other applicable legal requirements, except to the extent suchviolations could not, individually or in the aggregate, reasonably be expected to result in aMaterial Adverse Change. All material payments due from Parent or its Subsidiaries on account ofwages and employee health and welfare insurance and other benefits have been paid or accrued as aliability on the books of Parent, except where the failure to do so could not, individually or inthe aggregate, reasonably be expected to result in a Material Adverse Change.**4.25****Reserved****.**Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**4.26****Eligible Accounts****.**As to each Account that is identified by Borrower as anEligible Account in a Borrowing Base Certificate submitted to Agent, such Account is (a) a bonafide existing payment obligation of the applicable Account Debtor created by the sale and deliveryof Inventory or the rendition of services to such Account Debtor in the ordinary course ofBorrower’s business, (b) at the time so identified, owed to Borrower without any known defenses,disputes, offsets, counterclaims, or rights of return or cancellation, and (c) at the time soidentified, not excluded as ineligible by virtue of one or more of the excluding criteria (otherthan Agent-discretionary criteria) set forth in the definition of Eligible Accounts.**4.27****Inventory**. Inventory of Loan Parties is, in all material respects, of good andmerchantable quality, free from known defects.**4.28****Equipment**. Each material item of Equipment of Loan Parties is used or held foruse in their business and is, in all material respects, in good working order, ordinary wear andtear and damage by casualty excepted.**4.29****Locations of Inventory and Equipment****.**Except as disclosed on Schedule4.29, the Inventory and Equipment (other than vehicles or Equipment out for repair andInventory on consignment subject to the limitations set forth in Section 6.16) of LoanParties with an aggregate fair market value in excess of $100,000 at any one location or $250,000in the aggregate for all such locations are not stored with a bailee, warehouseman, or similarparty and are located only at, or in-transit between or to, the locations identified onSchedule 4.29 (as such Schedule may be updated pursuant to Section 5.15).**4.30****Inventory Records****.**Each Loan Party keeps correct and accurate records itemizingand describing the type, quality, and quantity of its and its Subsidiaries’ Inventory and the bookvalue thereof.**4.31****Inactive Subsidiaries**. Each of the Inactive Subsidiaries is inactive and doesnot conduct any business operations, except as may be related to the dissolution of such InactiveSubsidiary or the consolidation or merger of such Inactive Subsidiary with one or more Loan Partiesas permitted under the terms of this Agreement.**4.32****Registration of UK establishment**. No Loan Party is an “overseas company that isregistered” within the meaning of Part 3 of The Overseas Companies (Execution of Documents andRegistration of Charges) Regulations 2009 (England & Wales legislation).**4.33****Pensions**. The Borrower is not, nor has it at any time been:(a) an employer (for purposes of sections 38 to 51 of the Pensions Act 2004 (England & Waleslegislation)) of an occupational pension scheme which is not a money purchase scheme (both terms asdefined in the Pensions Schemes Act 1993 (England & Wales legislation)); and(b) “connected” with or an “associate” (as those terms are used in sections 38 and 43 of thePensions Act 2004 (England & Wales legislation)) of such an employer.**4.34****No Filing or Stamp Taxes**. Under the law of each Loan Party’s jurisdiction ofincorporation it is not necessary that any Loan Documents be filed, recorded or enrolled with anycourt or other authority in that jurisdiction or that any stamp, registration or similar tax bepaid on or in relation to the Loan Documents or the transactions contemplated by the LoanDocuments, except:(a) registration of particulars of the UK Collateral Documents at the Companies RegistrationOffice in England and Wales in accordance with Part 25 (*Company Charges*) of the Companies Act 2006(England & Wales legislation) or any regulations relating to the registration of charges madeunder, or applying the provisions of, the Companies Act 2006 (England & Wales legislation) andpayment of associated fees;Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(b) registration of particulars of the UK Collateral Documents (to the extent that theyinclude a lien over trade marks and/or patents) at the Trade Marks Registry at the Patent Office inEngland and Wales and payment of associated fees;(c) registration of the UK Collateral Documents (to the extent that include a lien over RealProperty) at the Land Registry or Land Charges Registry in England and Wales and payment ofassociated fees;which registrations, filings, taxes and fees (if not already made and paid at the date of thisAgreement) will be made and paid promptly after the date of the relevant Loan Document.**5.****AFFIRMATIVE COVENANTS**.Each of Parent and Borrower covenants and agrees that, until termination of all of theRevolver Commitments and payment in full of the Obligations, Parent shall and shall cause each oftheir Subsidiaries to comply with each of the following:**5.1****Financial Statements, Reports, Certificates****.**Deliver to Agent, with copies toeach Lender, each of the financial statements, reports, and other items set forth on Schedule5.1 no later than the times specified therein. In addition, Parent agrees that none of itsSubsidiaries will have a fiscal year different from that of Parent. In addition, Parent agrees tomaintain a system of accounting that enables Parent to produce financial statements in accordancewith GAAP.**5.2****Collateral Reporting****.**Provide Agent (and if so requested by Agent, with copiesfor each Lender) with each of the reports set forth on Schedule 5.2 at the times specifiedtherein. In addition, Borrower agrees to use commercially reasonable efforts in cooperation withAgent to facilitate and implement a system of electronic collateral reporting in order to provideelectronic reporting of each of the items set forth on such Schedule.**5.3****Existence****.**Except as otherwise permitted under Section 6.3 or Section6.4 or in connection with a Permitted Restructuring Transaction, at all times maintain andpreserve in full force and effect its existence (including being in good standing in itsjurisdiction of organization) and all rights and franchises, licenses and permits material to itsbusiness.**5.4****Maintenance of Properties**. Maintain and preserve all of its assets that arenecessary or useful in the proper conduct of its business in good working order and condition,ordinary wear, tear, and casualty excepted, and Permitted Dispositions excepted, and comply withthe material provisions of all material leases to which it is a party as lessee, so as to preventthe loss or forfeiture thereof, unless such provisions are the subject of a Permitted Protest.**5.5****Taxes**. Cause all assessments and taxes imposed, levied, or assessed againstParent or its Subsidiaries, or any of their respective assets or in respect of any of its income,businesses, or franchises to be paid in full, before delinquency or before the expiration of anyextension period, except to the extent that the validity of such assessment or tax shall be thesubject of a Permitted Protest and so long as, in the case of an assessment or tax that has or maybecome a Lien against any of the Collateral, such contest proceedings conclusively operate to staythe sale of any portion of the Collateral to satisfy such assessment or tax.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**5.6****Insurance**.(a) At Borrower’s expense, maintain insurance respecting each of Parent’s and itsSubsidiaries’ assets wherever located, covering loss or damage by fire, theft, explosion, and allother hazards and risks as ordinarily are insured against by other Persons engaged in the same orsimilar businesses. Parent and its Subsidiaries also shall maintain (with respect to each of Parentand its Subsidiaries) businessinterruption, general liability, product liability insurance, director’s and officer’sliability insurance, fiduciary liability insurance, and employment practices liability insurance,as well as insurance against larceny, embezzlement, and criminal misappropriation. All suchpolicies of insurance shall be with responsible and reputable insurance companies acceptable toAgent and in such amounts as is carried generally in accordance with sound business practice bycompanies in similar businesses similarly situated and located and in any event in amount, adequacyand scope reasonably satisfactory to Agent. All property insurance policies covering the Collateralare to be made payable to Agent for the benefit of Agent and the Lenders, as their interests mayappear, in case of loss, pursuant to a standard loss payable endorsement with a standard noncontributory “lender” or “secured party” clause and are to contain such other provisions as Agentmay reasonably require to fully protect the Lenders’ interest in the Collateral and to any paymentsto be made under such policies. All certificates of property and general liability insurance areto be delivered to Agent, with the loss payable (but only in respect of Collateral) and additionalinsured endorsements in favor of Agent and shall provide for not less than 30 days (10 days in thecase of non-payment) prior written notice to Agent of the exercise of any right of cancellation.If Parent and its Subsidiaries fail to maintain such insurance, Agent may arrange for suchinsurance, but at Borrower’s expense and without any responsibility on Agent’s part for obtainingthe insurance, the solvency of the insurance companies, the adequacy of the coverage, or thecollection of claims. Borrower shall give Agent prompt notice of any loss exceeding $250,000covered by its casualty or business interruption insurance. Upon the occurrence and during thecontinuance of an Event of Default, Agent shall have the sole right to file claims under anyproperty and general liability insurance policies in respect of the Collateral, to receive, receiptand give acquittance for any payments that may be payable thereunder, and to execute any and allendorsements, receipts, releases, assignments, reassignments or other documents that may benecessary to effect the collection, compromise or settlement of any claims under any such insurancepolicies.(b) Any monies received as payment for any loss under any insurance policy mentioned above(other than liability insurance policies or casualty policies respecting assets that are notCollateral) or as payment of any award or compensation for condemnation or taking by eminent domainwith respect to Collateral, shall be paid over to Agent to be applied at the option of the RequiredLenders either to the prepayment of the Obligations (provided that any such prepayment shall notresult in a permanent reduction of the Commitments) or to be disbursed to Borrower under stagedpayment terms reasonably satisfactory to the Required Lenders for application to the cost ofrepairs, replacements, or restorations; provided, however, that, with respect to any such monies inan aggregate amount during any 12 consecutive month period not in excess of $1,000,000, so long as(A) no Default or Event of Default shall have occurred and is continuing, (B) Borrower shall havegiven Agent prior written notice of Parent’s or its respective Subsidiaries’ intention to applysuch monies to the cost of repair, replacement, or restoration of the property which is the subjectof the loss, destruction, or taking by condemnation, (C) the monies are held in Borrower’s DepositAccount subject to a Control Agreement, and (D) Parent or its Subsidiaries complete such repairs,replacements, or restorations within 180 days after the initial receipt of such monies, Parent orsuch Subsidiaries shall have the option to apply such monies to the cost of repair, replacement, orrestoration of the property which is the subject of the loss, destruction, or taking bycondemnation unless and to the extent that such applicable period shall have expired or an Event ofDefault shall have occurred without such repair, replacement, or restoration being made, in whichcase, any amounts remaining in the cash collateral account shall be applied to the Obligations inaccordance with Section 2.4(b)(ii).**5.7****Inspection**. Permit Agent and each of its duly authorized representatives oragents to visit any of its properties and inspect any of its assets or books and records, toconduct appraisals and valuations, to examine and make copies of its books and records, and todiscuss its affairs, finances, and accounts with, and to be advised as to the same by, its officersand employees at such reasonable times and intervals as Agent may designate and, so long as noDefault or Event of Default exists, with reasonable prior notice to Borrower.**5.8****Compliance with Laws**. Comply with the requirements of all applicable laws, rules,regulations, and orders of any Governmental Authority, other than laws, rules, regulations, andorders the non-compliance with which, individually or in the aggregate, could not reasonably be expected toresult in a Material Adverse Change.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**5.9****Environmental**.(a) Keep any property either owned or operated by Parent or its Subsidiaries free of anyEnvironmental Liens involving an aggregate amount in excess of $1,000,000 or post bonds or otherfinancial assurances sufficient to satisfy the obligations or liability evidenced by suchEnvironmental Liens,(b) Comply, in all material respects, with Environmental Laws and provide to Agentdocumentation of such compliance which Agent reasonably requests, where the failure to comply couldbe expected to involve potential liabilities in excess of $1,000,000 in the aggregate,(c) Promptly notify Agent of any release of which Borrower has knowledge of a HazardousMaterial in any reportable quantity from or onto property owned or operated by Parent or itsSubsidiaries and take any Remedial Actions required to abate said release or otherwise to come intocompliance, in all material respects, with applicable Environmental Law, and(d) Promptly, but in any event within 5 Business Days of its receipt thereof, provide Agentwith written notice of any of the following: (i) notice that an Environmental Lien involving anaggregate amount in excess of $1,000,000 has been filed against any of the real or personalproperty of Parent or its Subsidiaries, (ii) commencement of any Environmental Action or writtennotice that an Environmental Action will be filed against Parent or its Subsidiaries which couldreasonably be expected to involve potential liabilities in excess of $1,000,000 in the aggregate,and (iii) written notice of a material violation, citation, or other administrative order from aGovernmental Authority.**5.10****Disclosure Updates**. Promptly and in no event later than 5 Business Days afterobtaining knowledge thereof, notify Agent if any written information, exhibit, or report furnishedto Agent or the Lenders contained, at the time it was furnished, any untrue statement of a materialfact or omitted to state any material fact necessary to make the statements contained therein notmisleading in light of the circumstances in which made. The foregoing to the contrarynotwithstanding, any notification pursuant to the foregoing provision will not cure or remedy theeffect of the prior untrue statement of a material fact or omission of any material fact nor shallany such notification have the effect of amending or modifying this Agreement or any of theSchedules hereto.**5.11****Formation of Subsidiaries**. At the time that any Loan Party forms any direct orindirect Subsidiary or acquires any direct or indirect Subsidiary after the Closing Date, such LoanParty shall (a) within 30 days of such formation or acquisition (90 days with respect to suchformation or acquisition in connection with a Permitted Acquisition or in any event such later dateas permitted by Agent in its sole discretion) cause any such new Subsidiary to provide to Agent ajoinder to the Guaranty and the Security Agreement, together with such other security documents(including mortgages with respect to any Real Property owned in fee of such new Subsidiary with afair market value of at least $500,000), (or its equivalent in any other currency), as well asappropriate financing statements (and with respect to all property subject to a mortgage, fixturefilings), all in form and substance reasonably satisfactory to Agent (including being sufficient togrant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newlyformed or acquired Subsidiary); provided that the Guaranty, the Security Agreement, andsuch other security documents shall not be required to be provided to Agent with respect to anySubsidiary of Parent if such Subsidiary is organized in any jurisdiction other than the UnitedStates of America (or a state thereof) or the United Kingdom or perfecting the security interestscreated thereby are unreasonably excessive (as determined by Agent in consultation with Borrower)in relation to the benefits of Agent and the Lenders of the security or guarantee afforded thereby,(b) within 30 days of such formation or acquisition (90 days with respect to such formation oracquisition in connection with a Permitted Acquisition or in any event such later date as permittedby Agent in its sole discretion)Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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provide to Agent a pledge agreement (or an addendum to theSecurity Agreement) and appropriate certificates and powers or financing statements, pledging all ofthe direct or beneficial ownership interest in such new Subsidiary reasonably satisfactory toAgent; provided that only 65% of the total outstanding voting Stock of any first tierSubsidiary of Parent or other Loan Party that is a CFC (and none of the Stock of any Subsidiary ofsuch CFC) shall be required to be pledged if pledging a greater amount would result in adverse taxconsequences or the costs to the Loan Parties of providing such pledge or perfecting the securityinterests created thereby are unreasonably excessive (as determined by Agent in consultation withBorrower) in relation to the benefits of Agent and the Lenders of the security or guaranteeafforded thereby (which pledge, if reasonably requested by Agent, shall be governed by the laws ofthe jurisdiction of such Subsidiary), and (c) within 30 days of such formation or acquisition (90days with respect to such formation or acquisition in connection with a Permitted Acquisition or inany event such later date as permitted by Agent in its sole discretion) provide to Agent all otherdocumentation, including one or more opinions of counsel reasonably satisfactory to Agent, which inits opinion is appropriate with respect to the execution and delivery of the applicabledocumentation referred to above (including policies of title insurance or other documentation withrespect to all Real Property owned in fee and subject to a mortgage and supplements to theschedules to the Loan Documents supplementing the then existing schedules with information relatedto the formed or acquired subsidiary). Any document, agreement, or instrument executed or issuedpursuant to this Section 5.11 shall be a Loan Document.**5.12****Further Assurances**. At any time upon the reasonable request of Agent, execute ordeliver to Agent any and all financing statements, fixture filings, security agreements, pledges,assignments, endorsements of certificates of title, mortgages, deeds of trust, opinions of counsel,and all other documents (the “Additional Documents”) that Agent may reasonably request inform and substance reasonably satisfactory to Agent, to create, perfect, and continue perfected orto better perfect Agent’s Liens in all of the assets of the Loan Parties (whether now owned orhereafter arising or acquired, tangible or intangible, real or personal), to create and perfectLiens in favor of Agent in any Real Property acquired by the Loan Parties after the Closing Datewith a fair market value in excess of $500,000 (or its equivalent in any other currency), and inorder to fully consummate all of the transactions contemplated hereby and under the other LoanDocuments; provided that the foregoing shall not apply to any Subsidiary of Parent that isa CFC if providing such documents would result in adverse tax consequences or the costs to the LoanParties of providing such documents are unreasonably excessive (as determined by Agent inconsultation with Borrower) in relation to the benefits of Agent and the Lenders of the benefitsafforded thereby. To the maximum extent permitted by applicable law, if Parent refuses or failsto execute or deliver any reasonably requested Additional Documents within a reasonable period oftime following the request to do so, Parent hereby authorizes Agent to execute any such AdditionalDocuments in the applicable Loan Party’s or its Subsidiary’s name, as applicable, and authorizesAgent to file such executed Additional Documents in any appropriate filing office. In furtheranceand not in limitation of the foregoing, each Loan Party shall take such actions as Agent mayreasonably request from time to time to ensure that the Obligations are guarantied by theGuarantors and are secured by substantially all of the assets of the Loan Parties and all of theoutstanding capital Stock of Loan Parties’ Subsidiaries (subject to exceptions and limitationscontained in the Loan Documents with respect to CFCs).**5.13****Lender Meetings**. Within 90 days after the close of each fiscal year of Parent,at the request of Agent or of the Required Lenders and upon reasonable prior notice, hold a meeting(at a mutually agreeable location and time or, at the option of Agent, by conference call) with allLenders who choose to attend such meeting at which meeting shall be reviewed the financial resultsof the previous fiscal year and the financial condition of Parent and its Subsidiaries and theprojections presented for the current fiscal year of Parent.**5.14****Material Contracts**. Contemporaneously with the delivery of each ComplianceCertificate pursuant to Section 5.1, provide Agent with copies of (a) each MaterialContract entered into since the delivery of the previous Compliance Certificate, and (b) eachmaterial amendment or modification of any Material Contract entered into since the delivery of theprevious Compliance Certificate.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**5.15****Location of Inventory and Equipment**. Keep each Loan Party’s Inventory andEquipment (other than vehicles or Equipment out for repair and Inventory on consignment subject tothe limitations set forth in Section 6.16) only at the locations identified on Schedule4.29 and their chief executive offices only at the locations identified on Schedule4.6(b); provided, however, that Borrower may amend Schedule 4.29 or Schedule4.6(b) so long as such amendment occurs by written notice to Agent not less than 10 days priorto the date on which such Inventory or Equipment is moved to such new location or such chiefexecutive office is relocated and so long as such new location is within the continental UnitedStates, Canada or United Kingdom and so long as, at the time of such written notification, Borrowerprovides Agent a Collateral Access Agreement with respect with respect to such locations at whichInventory or Equipment with an aggregate fair market value in excess of $100,000 at any onelocation or $250,000 for all such locations is located (it being understood that in the event aLoan Party is unable to obtain any such Collateral Access Agreement, Agent may establish suchreserves against Availability as it deems necessary in its Permitted Discretion with respect tosuch Inventory or Equipment), and (y) except as otherwise expressly permitted hereunder, at thetime any such Inventory or Equipment is moved or transferred, Agent’s Liens on such Inventory andEquipment are not adversely affected.**5.16****Reserved****.****5.17****Accounts Receivables**. Each Loan Party shall collect and realise its Accounts andother monies and receipts and, save to the extent that the Agent otherwise agrees in writing or asset forth in Section 6.11, pay the proceeds of the Accounts into a Deposit Account whichis either subject to a Controlled Account Agreement or is subject to a fixed charge under a UKCollateral Document.**5.18****Center of Main Interests**. Each UK Loan party shall maintain its centre of maininterests in England and Wales for the purposes of the Council Regulation (EC) No.1346/2000 of 29May 2000 on Insolvency Proceedings.**5.19****Pensions**. Except in relation to the defined benefit scheme operated orcontributed by Oclaro (Switzerland) AG, the Parent and each of its Subsidiaries shall ensure thatit is not, nor has been at any time an employer (for the purposes of sections 38 to 51 of thePensions Act 2004 (England & Wales legislation)) of an occupational pension scheme which is not amoney purchase scheme (both terms as defined in the Pensions Schemes Act 1993 (England & Waleslegislation)) or “connected” with or an “associate” of (as those terms are defined in sections 38or 43 of the Pension Act 2004 (England & Wales legislation)) such an employer.**6. NEGATIVE COVENANTS**.Each of Parent and Borrower, jointly and severally, covenants and agrees that, untiltermination of all of the Revolver Commitments and payment in full of the Obligations, such Personwill not and will not permit any of its Subsidiaries to do any of the following:**6.1****Indebtedness**. Create, incur, assume, suffer to exist, guarantee, or otherwisebecome or remain, directly or indirectly, liable with respect to any Indebtedness, except forPermitted Indebtedness.**6.2****Liens**. Create, incur, assume, or suffer to exist, directly or indirectly, anyLien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired,or any income or profits therefrom, except for Permitted Liens.**6.3****Restrictions on Fundamental Changes**.(a) Other than in order to consummate a Permitted Acquisition or Permitted RestructuringTransaction, enter into any merger, consolidation, reorganization, or recapitalization, orreclassify its Stock, except for (i) any merger between Loan Parties, provided that Borrower mustbe thesurviving entity of any such merger to which it is a party, (ii) any merger between a LoanParty and Subsidiaries of such Loan Party that are not Loan Parties so long as such Loan Party isthe surviving entity of any such merger, and (iii) any merger between Subsidiaries of Parent thatare not Loan Parties,Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(b) Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), exceptfor (i) the liquidation or dissolution of non-operating Subsidiaries of Parent with nominal assetsand nominal liabilities, (ii) the liquidation or dissolution of a Loan Party (other than Parent orBorrower) or any of its wholly-owned Subsidiaries so long as all of the assets (including anyinterest in any Stock) of such liquidating or dissolving Loan Party or Subsidiary are transferredto a Loan Party that is not liquidating or dissolving, (iii) the liquidation or dissolution of aSubsidiary of Parent that is not a Loan Party (other than any such Subsidiary the Stock of which(or any portion thereof) is subject to a Lien in favor of Agent) or the liquidation or dissolutionof an Inactive Subsidiary, so long as, in each case, all of the assets of such liquidating ordissolving Subsidiary are transferred to a Subsidiary of Parent that is not liquidating ordissolving, or(c) Suspend or go out of a substantial portion of its or their business, except as permittedpursuant to clauses (a) or (b) above or in connection with the transactions permitted pursuant toSection 6.4.**6.4****Disposal of Assets**. Other than Permitted Dispositions or transactions expresslypermitted by Sections 6.3 or 6.11, convey, sell, lease, license, assign, transfer,or otherwise dispose of (or enter into an agreement to convey, sell, lease, license, assign,transfer, or otherwise dispose of) any of Parent’s or its Subsidiaries’ assets.**6.5****Change Name**. Change Parent’s or any of its Subsidiaries’ name, organizationalidentification number, state of organization or organizational identity; provided, however, thatParent or any of its Subsidiaries may change its name upon at least 15 days prior written notice toAgent of such change.**6.6****Nature of Business**. Make any change in the nature of its or their business asdescribed in Schedule 6.6 or acquire any properties or assets that are not reasonablyrelated to the conduct of such business activities; provided, however, that the foregoing shall notprevent Parent and its Subsidiaries from engaging in any business that is reasonably related orancillary to its or their business.**6.7****Prepayments and Amendments**.(a) Except in connection with Refinancing Indebtedness permitted by Section 6.1,(i) optionally prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness ofParent or its Subsidiaries, other than (A) the Obligations in accordance with this Agreement, and(B) Permitted Intercompany Advances so long as such prepayment, redemption, defeasance or purchaseis permitted under the terms of the Intercompany Subordination Agreement, or(ii) make any payment on account of Indebtedness that has been contractually subordinated inright of payment to the Obligations if such payment is not permitted at such time under thesubordination terms and conditions, or(iii) convert into Stock of Parent any Permitted Indebtedness of Parent which by its terms isconvertible into the Stock of Parent, orConfidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(b) Directly or indirectly, amend, modify, or change any of the terms or provisions of(i) any agreement, instrument, document, indenture, or other writing evidencing or concerningPermitted Indebtedness other than (A) the Obligations in accordance with this Agreement, (B)Permitted Intercompany Advances, and (C) Indebtedness permitted under clauses (c), (h), (j) and (k)of the definition of Permitted Indebtedness,(ii) any Material Contract except to the extent that such amendment, modification, or changecould not, individually or in the aggregate, reasonably be expected to be materially adverse to theinterests of the Lenders, or(iii) the Governing Documents of Parent or any of its Subsidiaries if the effect thereof,either individually or in the aggregate, could reasonably be expected to be materially adverse tothe interests of the Lenders.**6.8****Change of Control**. Cause, permit, or suffer, directly or indirectly, any Changeof Control.**6.9****Restricted Junior Payments**. Make any Restricted Junior Payment; provided,however, that, so long as it is permitted by law, and so long as no Default or Event of Defaultshall have occurred and be continuing or would result therefrom,(a) Parent may make distributions to former employees, officers, or directors of Parent (orany spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Stock ofParent held by such Persons, provided, however, that the aggregate amount of such redemptions madeby Parent during the term of this Agreement does not exceed $100,000 in the aggregate,(b) Parent may make distributions to former employees, officers, or directors of Parent (orany spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness ofIndebtedness of such Persons owing to Parent on account of repurchases of the Stock of Parent heldby such Persons; provided that such Indebtedness was incurred by such Persons solely toacquire Stock of Parent, and(c) a Loan Party may make cash distributions or declare and make dividend payments to anotherLoan Party, and a Subsidiary of Parent which is not a Loan Party may make cash distributions ordeclare and make dividend payments to any Subsidiary of Parent.**6.10****Accounting Methods**. Modify or change its fiscal year or its method of accounting(other than as may be required to conform to GAAP).**6.11****Investments; Controlled Investments**.(a) Except for Permitted Investments, directly or indirectly, make or acquire any Investmentor incur any liabilities (including contingent obligations) for or in connection with anyInvestment.(b) Other than (i) an aggregate amount of not more than $25,000 at any one time, in the caseof Loan Parties, (ii) amounts deposited into Deposit Accounts specially and exclusively used forpayroll, payroll taxes and other employee wage and benefit payments to or for Parent’s or itsSubsidiaries’ employees, (iii) in the case of Subsidiaries of Parent that are not Loan Parties andthe San Donato Accounts, an aggregate amount of not more than $15,000,000 at any one time (in eachcase, calculated at current exchange rates), and (iv) the Excluded Accounts; make, acquire, orpermit to exist Permitted Investments consisting of cash, Cash Equivalents, or amounts credited toDeposit Accounts or Securities Accounts unless Parent or its Subsidiary, as applicable, and theapplicable bank or securities intermediary have entered into Control Agreements with Agentgoverning such Permitted Investments in order to perfect (and further establish) Agent’s Liens insuch Permitted Investments.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**6.12****Transactions with Affiliates**. Directly or indirectly enter into or permit toexist any transaction with any Affiliate of Parent or any of its Subsidiaries except for:(a) Permitted Intercompany Transactions, Permitted Intercompany Advances, PermittedDispositions and Permitted Investments,(b) so long as it has been approved by Parent’s or its applicable Subsidiary’s board ofdirectors (or comparable governing body) in accordance with applicable law, any indemnity providedfor the benefit of directors (or comparable managers) of Parent or its applicable Subsidiary,(c) so long as it has been approved by Parent’s or its applicable Subsidiary’s board ofdirectors (or comparable governing body) in accordance with applicable law, the payment ofreasonable compensation, severance, or employee benefit arrangements to employees, officers, andoutside directors of Parent and its Subsidiaries in the ordinary course of business and consistentwith industry practice, and(d) transactions permitted by Section 6.3 or Section 6.9.**6.13****Use of Proceeds**. Use the proceeds of any loan made hereunder for any purposeother than: (i) on the Closing Date, to pay transactional fees, costs, and expenses incurred inconnection with this Agreement, the other Loan Documents, and the transactions contemplated herebyand thereby, and (ii) thereafter, consistent with the terms and conditions hereof, for their lawfuland permitted purposes (including that no part of the proceeds of the loans made to Borrower willbe used to purchase or carry any such Margin Stock or to extend credit to others for the purpose ofpurchasing or carrying any such margin stock or for any purpose that violates the provisions ofRegulation T, U or X of the Board of Governors of the United States Federal Reserve).**6.14****Limitation on Issuance of Stock**. Except for the issuance or sale of common stockor Permitted Preferred Stock by Parent or issuance of Stock by a Subsidiary of Parent in connectionwith the transfer of the ownership interest of one Subsidiary of Parent to Parent or anotherSubsidiary of Parent so long as such transfer is a Permitted Disposition, issue or sell or enterinto any agreement or arrangement for the issuance and sale of any of its Stock.**6.15****Reserved****6.16****Consignments**. Except as set forth on Schedule 4.29 and as permitted bySection 5.15, with respect to Inventory having a value in excess of [***], consign any ofits or their Inventory or sell any of its or their Inventory on bill and hold, sale or return, saleon approval, or other conditional terms of sale.**6.17****Inventory and Equipment with Bailees**. Except as set forth on Schedule4.29 and as permitted by Section 5.15, store the inventory or Equipment of Parent orits Subsidiaries that are Loan Parties at any time now or hereafter with a bailee, warehouseman, orsimilar party unless such bailee, warehouseman, or similar party has first provided Agent with aCollateral Access Agreement.**7. FINANCIAL COVENANTS**.Each of Parent and Borrower covenants and agrees that, until termination of all of theRevolver Commitments and payment in full of the Obligations, Parent will:**7.1****Fixed Charge Coverage Ratio**. Maintain a Fixed Charge Coverage Ratio, measured ona fiscal quarter-end basis, not less than 1.10 to 1.00, for any measurement date occurringimmediately before the occurrence or at any time during the existence of a Triggering Period.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**8. EVENTS OF DEFAULT**.Any one or more of the following events shall constitute an event of default (each, an“Event of Default”) under this Agreement:**8.1**If any Loan Party fails to pay when due and payable, or when declared due and payable, (a)all or any portion of the Obligations consisting of interest, fees, or charges due the LenderGroup, reimbursement of Lender Group Expenses, or other amounts (other than any portion thereofconstituting principal) constituting Obligations (including any portion thereof that accrues afterthe commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in wholeor in part as a claim in any such Insolvency Proceeding), and such failure continues for a periodof 3 Business Days, or (b) all or any portion of the principal of the Obligations;**8.2**If Parent or any of its Subsidiaries:(a) fails to perform or observe any covenant or other agreement contained in any of (i)Sections 3.6, 5.1, 5.2, 5.3 (solely if Loan Party is not in good standing in its jurisdiction oforganization or incorporation, as appropriate), 5.6, 5.7 (solely if Loan Party refuses to allowAgent or its representatives or agents to visit Loan Party’s properties, inspect its assets orbooks or records, examine and make copies of its books and records, or discuss Loan Party’saffairs, finances, and accounts with officers and employees of that Loan Party), 5.10, 5.11, 5.13,5.14, or 5.15 of this Agreement, (ii) Sections 6.1 through 6.16 of thisAgreement, (iii) Section 7 of this Agreement, or (iv) Section 6 of the Security Agreement;(b) fails to perform or observe any covenant or other agreement contained in any ofSections 5.3 (other than if a Loan Party is not in good standing in its jurisdiction oforganization), 5.4, 5.5, 5.8, and 5.12 of this Agreement and such failure continuesfor a period of 10 days after the earlier of (i) the date on which such failure shall first becomeknown to any officer of Borrower or (ii) the date on which written notice thereof is given toBorrower by Agent; or(c) fails to perform or observe any covenant or other agreement contained in this Agreement,or in any of the other Loan Documents, in each case, other than any such covenant or agreement thatis the subject of another provision of this Section 8 (in which event such other provisionof this Section 8 shall govern), and such failure continues for a period of 30 days afterthe earlier of (i) the date on which such failure shall first become known to any officer ofBorrower or (ii) the date on which written notice thereof is given to Borrower by Agent;**8.3**If one or more judgments, orders, or awards for the payment of money involving anaggregate amount of $2,000,000, (or its equivalent in any other currency) or more (except to theextent fully covered (other than to the extent of customary deductibles) by insurance pursuant towhich the insurer has not denied coverage) or any analogous process in any jurisdiction is enteredor filed against Parent or any of its Subsidiaries, or with respect to any of their respectiveassets, and either (a) there is a period of 30 consecutive days at any time after the entry of anysuch judgment, order, award or any analogous process in any jurisdiction during which (1) the sameis not discharged, satisfied, vacated, or bonded pending appeal, or (2) a stay of enforcementthereof is not in effect, or (b) enforcement proceedings are commenced upon such judgment, order,or award;**8.4**If an Insolvency Proceeding is commenced by Parent or any of its Subsidiaries;**8.5**If an Insolvency Proceeding is commenced against Parent or of its Subsidiaries (other thanBorrower) and any of the following events occur: (a) Parent or such Subsidiary consents to theinstitution of such Insolvency Proceeding against it, (b) the petition commencing the InsolvencyProceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is notdismissed within 60 calendar days of the date of the filing thereof with respect to a Parent or anyof its Subsidiaries that are organized under thelaws of the United States of America or any of its states and within 7 days for all otherSubsidiaries of Parent, (d) an interim trustee, liquidator, supervisor, receiver, administrator,administrative receiver, compulsory manager or other similar officer is appointed to takepossession of all or any substantial portion of the properties or assets of, or to operate all orany substantial portion of the business of, Parent or its Subsidiary, or (e) an order for reliefshall have been issued or entered therein;Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**8.6**If an Insolvency Proceeding is commenced against the Borrower, unless such InsolvencyProceeding is frivolous or vexatious and is discharged, stayed or dismissed within 3 days ofcommencement;**8.7**If any UK Loan Party is unable or admits inability to pay its debts as they fall due or isdeemed or declared to be unable to pay its debts under applicable law, suspends or threatens tosuspend making payments on any of its debts or, by reason of actual or anticipated financialdifficulties, commences negotiations with one or more of its creditors with a view to reschedulingany of its Indebtedness, or if the value of the assets of any UK Loan Party is less than itsliabilities (taking into account contingent and prospective liabilities) (this Section 8.7 shall begoverned by and construed in accordance with the laws of England and Wales);**8.8**If Parent, any Loan Party, Oclaro China or Oclaro Switzerland is enjoined, restrained, orin any way prevented by court order from continuing to conduct all or any material part of thebusiness affairs of Parent and its Subsidiaries, taken as a whole;**8.9**If there is (a) a default in one or more agreements to which Parent or any of itsSubsidiaries is a party with one or more third Persons relative to Parent’s or any of itsSubsidiaries’ Indebtedness involving an aggregate amount of $2,000,000 (or its equivalent in anyother currency) or more, and such default (i) occurs at the final maturity of the obligationsthereunder, or (ii) results in a right by such third Person, irrespective of whether exercised, toaccelerate the maturity of Parent’s or its Subsidiary’s obligations thereunder, or (b) a default inor an involuntary early termination of one or more Hedge Agreements to which Parent or any of itsSubsidiaries is a party;**8.10**If any warranty, representation, certificate, statement, or Record made herein or in anyother Loan Document or delivered in writing to Agent or any Lender in connection with thisAgreement or any other Loan Document proves to be untrue in any material respect (except that suchmateriality qualifier shall not be applicable to any representations and warranties that alreadyare qualified or modified by materiality in the text thereof) as of the date of issuance or makingor deemed making thereof;**8.11**If the obligation of any Guarantor under the Guaranty is limited or terminated byoperation of law or by such Guarantor (other than in accordance with the terms of this Agreement);**8.12**If the Security Agreement, UK Collateral Documents or any other Loan Document thatpurports to create a Lien, shall, for any reason, fail or cease to create a valid and perfectedand, except to the extent of Permitted Liens, first priority Lien on the Collateral coveredthereby, except (a) as a result of a disposition of the applicable Collateral in a transactionpermitted under this Agreement, or (b) as the result of an action or failure to act on the part ofAgent; or**8.13**The validity or enforceability of any Loan Document shall at any time for any reason(other than solely as the result of an action or failure to act on the part of Agent) be declaredto be null and void, or a proceeding shall be commenced by Parent or its Subsidiaries, or by anyGovernmental Authority having jurisdiction over Parent or its Subsidiaries, seeking to establishthe invalidity or unenforceability thereof, or Parent or its Subsidiaries shall deny that Parent orits Subsidiaries has any liability or obligation purported to be created under any Loan Document.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**9. RIGHTS AND REMEDIES**.**9.1****Rights and Remedies**. Upon the occurrence and during the continuation of an Eventof Default, Agent may, and, at the instruction of the Required Lenders, shall (in each case underclauses (a) or (b) by written notice to Borrower), in addition to any other rights or remediesprovided for hereunder or under any other Loan Document or by applicable law, do any one or more ofthe following:(a) declare the Obligations (other than the Bank Product Obligations), whether evidenced bythis Agreement or by any of the other Loan Documents immediately due and payable, whereupon thesame shall become and be immediately due and payable and Borrower shall be obligated to repay allof such Obligations in full, without presentment, demand, protest, or further notice or otherrequirements of any kind, all of which are hereby expressly waived by Borrower;(b) declare the Revolver Commitments terminated, whereupon the Revolver Commitments shallimmediately be terminated together with (i) any obligation of any Lender hereunder to makeAdvances, (ii) the obligation of the Swing Lender to make Swing Loans, and (iii) the obligation ofthe Issuing Lender to issue Letters of Credit; and(c) exercise all other rights and remedies available to Agent or the Lenders under the LoanDocuments or applicable law.The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Defaultdescribed in Section 8.4 or Section 8.5, in addition to the remedies set forthabove, without any notice to Borrower or any other Person or any act by the Lender Group, theRevolver Commitments shall automatically terminate and the Obligations (other than the Bank ProductObligations), inclusive of all accrued and unpaid interest thereon and all fees and all otheramounts owing under this Agreement or under any of the other Loan Documents, shall automaticallyand immediately become due and payable and Borrower shall be obligated to repay all of suchObligations in full, without presentment, demand, protest, or notice of any kind, all of which areexpressly waived by Parent and Borrower.**9.2****Remedies Cumulative**. The rights and remedies of the Lender Group under thisAgreement, the other Loan Documents, and all other agreements shall be cumulative. The LenderGroup shall have all other rights and remedies not inconsistent herewith as provided under theCode, by law, or in equity. No exercise by the Lender Group of one right or remedy shall be deemedan election, and no waiver by the Lender Group of any Event of Default shall be deemed a continuingwaiver. No delay by the Lender Group shall constitute a waiver, election, or acquiescence by it.**10. WAIVERS; INDEMNIFICATION**.**10.1****Demand; Protest; etc**. Borrower waives demand, protest, notice of protest, noticeof default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release,compromise, settlement, extension, or renewal of documents, instruments, chattel paper, andguarantees at any time held by the Lender Group on which Borrower may in any way be liable.**10.2****The Lender Group’s Liability for Collateral**. Borrower hereby agrees that: (a)so long as Agent complies with its obligations, if any, under the Code, the Lender Group shall notin any way or manner be liable or responsible for: (i) the safekeeping of the Collateral, (ii) anyloss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) anydiminution in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee,forwarding agency, or other Person, and (b) all risk of loss, damage, or destruction of theCollateral shall be borne by Borrower.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**10.3****Indemnification**. Borrower shall pay, indemnify, defend, and hold theAgent-Related Persons, the Lender-Related Persons, and each Participant (each, an “IndemnifiedPerson”) harmless(to the fullest extent permitted by law) from and against any and all claims, demands, suits,actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and allreasonable fees and disbursements of attorneys, experts, or consultants and all other costs andexpenses actually incurred in connection therewith or in connection with the enforcement of thisindemnification (as and when they are incurred and irrespective of whether suit is brought), at anytime asserted against, imposed upon, or incurred by any of them (a) in connection with or as aresult of or related to the execution and delivery (provided that Borrower shall not be liable forcosts and expenses (including attorneys fees) of any Lender (other than WFCF) incurred in advising,structuring, drafting, reviewing, administering or syndicating the Loan Documents), enforcement,performance, or administration (including any restructuring or workout with respect hereto) of thisAgreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby orthe monitoring of Parent’s and its Subsidiaries’ compliance with the terms of the Loan Documents(provided, however, that the indemnification in this clause (a) shall not extend to (i) disputessolely between or among the Lenders, (ii) disputes solely between or among the Lenders and theirrespective Affiliates; it being understood and agreed that the indemnification in this clause (a)shall extend to Agent (but not the Lenders) relative to disputes between or among Agent on the onehand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iii) anyTaxes or any costs attributable to Taxes, which shall be governed by Section 16), (b) with respectto any investigation, litigation, or proceeding related to this Agreement, any other Loan Document,or the use of the proceeds of the credit provided hereunder (irrespective of whether anyIndemnified Person is a party thereto), or any act, omission, event, or circumstance in any mannerrelated thereto, and (c) in connection with or arising out of any presence or release of HazardousMaterials at, on, under, to or from any assets or properties owned, leased or operated by Borroweror any of its Subsidiaries or any Environmental Actions, Environmental Liabilities or RemedialActions related in any way to any such assets or properties of Borrower or any of its Subsidiaries(each and all of the foregoing, the “Indemnified Liabilities”). The foregoing to thecontrary notwithstanding, Borrower shall have no obligation to any Indemnified Person under thisSection 10.3 with respect to any Indemnified Liability that a court of competentjurisdiction finally determines to have resulted from the gross negligence or willful misconduct ofsuch Indemnified Person or its officers, directors, employees, attorneys, or agents. Thisprovision shall survive the termination of this Agreement and the repayment of the Obligations. Ifany Indemnified Person makes any payment to any other Indemnified Person with respect to anIndemnified Liability as to which Borrower was required to indemnify the Indemnified Personreceiving such payment, the Indemnified Person making such payment is entitled to be indemnifiedand reimbursed by Borrower with respect thereto. **WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALLAPPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PARTARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANYOTHER PERSON**.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**11. NOTICES**.Unless otherwise provided in this Agreement, all notices or demands relating to this Agreementor any other Loan Document shall be in writing and (except for financial statements and otherinformational documents which may be sent by first-class mail, postage prepaid) shall be personallydelivered or sent by registered or certified mail (postage prepaid, return receipt requested),overnight courier, electronic mail (at such email addresses as a party may designate in accordanceherewith), or telefacsimile. In the case of notices or demands to Parent or Agent, as the case maybe, they shall be sent to the respective address set forth below:   If to Parent: OCLARO INC.  2560 Junction Avenue  San Jose, California  95134  Attn: Topher Croddy, Corporate Controller  Fax No.: __.__.____  e-mail: _____with copies to: WILMER CUTLER PICKERING HALE AND DORR LLP  60 State Street  Boston, Massachusetts 02109  Attn: Mitchel Appelbaum, Esq.  Fax No.: __.__.____  e-mail: _____If to Borrower: OCLARO TECHNOLOGY LIMITED  2560 Junction Avenue  San Jose, California  95134  Attn: Topher Croddy, Corporate Controller  Fax No.: __.__.____  e-mail: _____with copies to: WILMER HALE  60 State Street  Boston, Massachusetts 02109  Attn: Mitchel Appelbaum, Esq.  Fax No.: __.__.____  e-mail: _____If to Agent: WELLS FARGO CAPITAL FINANCE, INC.  2450 Colorado Avenue  Suite 3000 West  Santa Monica, California  90404  Attn:  Business Finance Division Manager  Fax No.:  __.__.____with copies to: BUCHALTER NEMER  1000 Wilshire Boulevard, Suite 1500  Los Angeles, CA  90017-2457  Attn:  Robert J. Davidson, Esq.  Fax No.:  __.__.____Any party hereto may change the address at which they are to receive notices hereunder, bynotice in writing in the foregoing manner given to the other party. All notices or demands sent inaccordance with this Section 11, shall be deemed received on the earlier of the date ofactual receipt or 3 Business Days after the deposit thereof in the mail; provided, that (a)notices sent by overnight courier service shall be deemed to have been given when received, (b)notices by facsimile shall be deemed to have been given when sent (except that, if not given duringnormal business hours for the recipient, shall be deemed to have been given at the opening ofbusiness on the next Business Day for the recipient) and (c) notices by electronic mail shall bedeemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such asby the function, as available, return email or other written acknowledgment).Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.**(a) **THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TOTHE CONTRARY IN THIS AGREEMENT OR IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH PROVISION OF THISAGREEMENT OR SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOFAND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISINGHEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, ANDCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.**(b) **THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THISAGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THEEXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OFCALIFORNIA; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHERPROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TOBRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF PARENT ANDBORROWER AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THEEXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS****SECTION 12(b)****.**(c) **TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF PARENT AND BORROWER AND EACHMEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM ORCAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONSCONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHERCOMMON LAW OR STATUTORY CLAIMS. EACH OF PARENT AND BORROWER AND EACH MEMBER OF THE LENDER GROUPREPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURYTRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THISAGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.**(d) **EACH OF PARENT AND BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THEEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES ANDTHE STATE OF CALIFORNIA, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOANDOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREESTHAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED INOTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING INTHIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TOBRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANYLOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.**Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS**.**13.1****Assignments and Participations**.(a) With the prior written consent of Borrower, which consent of Borrower shall not beunreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Defaulthas occurred and is continuing, or (2) in connection with an assignment to a Person that is aLender or an Affiliate (other than individuals) of a Lender; provided that Borrower shall be deemedto have consented to a proposed assignment unless it objects thereto by written notice to Agentwithin 5 Business Days after having received written notice thereof, and with the prior writtenconsent of Agent, which consent of Agent shall not be unreasonably withheld, delayed orconditioned, and shall not be required in connection with an assignment to a Person that is aLender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate toone or more assignees so long as such prospective assignee is an Eligible Transferee (each, an“Assignee”; provided, however, that no Loan Party, or Affiliate of a Loan Party, shall bepermitted to become an Assignee) all or any portion of the Obligations, the Revolver Commitmentsand the other rights and obligations of such Lender hereunder and under the other Loan Documents,in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall notapply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of anyLender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fundof such new Lender to the extent that the aggregate amount to be assigned to all such new Lendersis at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely anddirectly with such Lender in connection with the interest so assigned to an Assignee until (i)written notice of such assignment, together with payment instructions, addresses, and relatedinformation with respect to the Assignee, have been given to Borrower and Agent by such Lender andthe Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignmentand Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordancewith Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assigneehas paid to Agent for Agent’s separate account a processing fee in the amount of $3,500.(b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower)that it has received an executed Assignment and Acceptance and, if applicable, payment of therequired processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extentthat rights and obligations hereunder have been assigned to it pursuant to such Assignment andAcceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under theLoan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligationshereunder and under the other Loan Documents have been assigned by it pursuant to such Assignmentand Acceptance, relinquish its rights (except with respect to Section 10.3) and be releasedfrom any future obligations under this Agreement (and in the case of an Assignment and Acceptancecovering all or the remaining portion of an assigning Lender’s rights and obligations under thisAgreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto);provided, however, that nothing contained herein shall release any assigning Lender fromobligations that survive the termination of this Agreement, including such assigning Lender’sobligations under Section 15 and Section 17.9(a).(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunderand the Assignee thereunder confirm to and agree with each other and the other parties hereto asfollows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makesno representation or warranty and assumes no responsibility with respect to any statements,warranties or representations made in or in connection with this Agreement or the execution,legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or anyother Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representationor warranty and assumes no responsibility with respect to the financial condition of Borrower orthe performance or observance by Borrower of any of its obligations under this Agreement or anyother Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received acopy of this Agreement, together with such other documents and information as it has deemedappropriate to make its own credit analysis and decision to enter into such Assignment andAcceptance, (iv) such Assignee will, independently and without reliance upon Agent, suchassigning Lender or any other Lender, and based on such documents and information as it shall deemappropriate at the time, continue to make its own credit decisions in taking or not taking actionunder this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and toexercise such powers under this Agreement and the other Loan Documents as are delegated to Agent,by the terms hereof and thereof, together with such powers as are reasonably incidental thereto,and (vi) such Assignee agrees that it will perform all of the obligations which by the terms ofthis Agreement are required to be performed by it as a Lender.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(d) Immediately upon Agent’s receipt of the required processing fee, if applicable, anddelivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreementshall be deemed to be amended to the extent, but only to the extent, necessary to reflect theaddition of the Assignee and the resulting adjustment of the Revolver Commitments arisingtherefrom. The Revolver Commitment allocated to each Assignee shall reduce such RevolverCommitments of the assigning Lender *pro tanto*.(e) Any Lender may at any time sell to one or more commercial banks, financial institutions,or other Persons (a “Participant”) participating interests in all or any portion of itsObligations, its Revolver Commitment, and the other rights and interests of that Lender (the“Originating Lender”) hereunder and under the other Loan Documents; provided, however, that(i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the otherLoan Documents and the Participant receiving the participating interest in the Obligations, theRevolver Commitments, and the other rights and interests of the Originating Lender hereunder shallnot constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’sobligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remainsolely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lendersshall continue to deal solely and directly with the Originating Lender in connection with theOriginating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv)no Lender shall transfer or grant any participating interest under which the Participant has theright to approve any amendment to, or any consent or waiver with respect to, this Agreement or anyother Loan Document, except to the extent such amendment to, or consent or waiver with respect tothis Agreement or of any other Loan Document would (A) extend the final maturity date of theObligations hereunder in which such Participant is participating, (B) reduce the interest rateapplicable to the Obligations hereunder in which such Participant is participating, (C) release allor substantially all of the Collateral or guaranties (except to the extent expressly providedherein or in any of the Loan Documents) supporting the Obligations hereunder in which suchParticipant is participating, (D) postpone the payment of, or reduce the amount of, the interest orfees payable to such Participant through such Lender (other than a waiver of default interest), or(E) decrease the amount or postpone the due dates of scheduled principal repayments or prepaymentsor premiums payable to such Participant through such Lender, and (v) all amounts payable byBorrower hereunder shall be determined as if such Lender had not sold such participation, exceptthat, if amounts outstanding under this Agreement are due and unpaid, or shall have been declaredor shall have become due and payable upon the occurrence of an Event of Default, each Participantshall be deemed to have the right of set off in respect of its participating interest in amountsowing under this Agreement to the same extent as if the amount of its participating interest wereowing directly to it as a Lender under this Agreement. The rights of any Participant only shall bederivative through the Originating Lender with whom such Participant participates and noParticipant shall have any rights under this Agreement or the other Loan Documents or any directrights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries,the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right toparticipate directly in the making of decisions by the Lenders among themselves.(f) In connection with any such assignment or participation or proposed assignment orparticipation or any grant of a security interest in, or pledge of, its rights under and interestin this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose alldocuments and information which it now or hereafter may have relating to Parent and itsSubsidiaries and their respective businesses.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create asecurity interest in, or pledge, all or any portion of its rights under and interest in thisAgreement in favor of any Federal Reserve Bank in accordance with Regulation A of the FederalReserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforcesuch pledge or security interest in any manner permitted under applicable law.**13.2****Successors**. This Agreement shall bind and inure to the benefit of the respectivesuccessors and assigns of each of the parties; provided, however, that Borrower may not assign thisAgreement or any rights or duties hereunder without the Lenders’ prior written consent and anyprohibited assignment shall be absolutely void *ab initio*. No consent to assignment by the Lendersshall release Borrower from its Obligations. A Lender may assign this Agreement and the other LoanDocuments and its rights and duties hereunder and thereunder pursuant to Section 13.1 and,except as expressly required pursuant to Section 13.1, no consent or approval by Borroweris required in connection with any such assignment.**14. AMENDMENTS; WAIVERS**.**14.1****Amendments and Waivers**.(a) No amendment, waiver or other modification of any provision of this Agreement or any otherLoan Document (other than Bank Product Agreements or the Fee Letter), and no consent with respectto any departure by Parent or Borrower therefrom, shall be effective unless the same shall be inwriting and signed by the Required Lenders (or by Agent at the written request of the RequiredLenders) and the Loan Parties that are party thereto and then any such waiver or consent shall beeffective, but only in the specific instance and for the specific purpose for which given;provided, however, that no such waiver, amendment, or consent shall, unless in writing and signedby all of the Lenders directly affected thereby and all of the Loan Parties that are party thereto,do any of the following:(i) increase the amount of or extend the expiration date of any Revolver Commitment of anyLender or amend, modify, or eliminate the last sentence of Section 2.4(b)(i),(ii) postpone or delay any date fixed by this Agreement or any other Loan Document for anypayment of principal, interest, fees, or other amounts due hereunder or under any other LoanDocument,(iii) reduce the principal of, or the rate of interest on, any loan or other extension ofcredit hereunder, or reduce any fees or other amounts payable hereunder or under any other LoanDocument (except in connection with the waiver of applicability of Section 2.6(c) (whichwaiver shall be effective with the written consent of the Required Lenders)),(iv) amend, modify, or eliminate this Section or any provision of this Agreement providing forconsent or other action by all Lenders,(v) amend, modify, or eliminate Section 15.11,(vi) other than as permitted by Section 15.11, release Agent’s Lien in and to any ofthe Collateral,(vii) amend, modify, or eliminate the definition of “Required Lenders” or “Pro Rata Share”,(viii) contractually subordinate any of Agent’s Liens,Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(ix) other than in connection with a merger, liquidation, dissolution or sale of such Personexpressly permitted by the terms hereof or the other Loan Documents, release Borrower or anyGuarantor from any obligation for the payment of money or consent to the assignment or transfer byBorrower or any Guarantor of any of its rights or duties under this Agreement or the other LoanDocuments,(x) amend, modify, or eliminate any of the provisions of Section 2.4(b)(i),(xi) amend, modify, or eliminate any of the provisions of Section 13.1(a) to permit aLoan Party, or an Affiliate of a Loan Party to be permitted to become an Assignee, or(xii) amend, modify, or eliminate the definition of Borrowing Base or any of the defined terms(including the definition of Eligible Accounts) that are used in such definition to the extent thatany such change results in more credit being made available to Borrower based upon the BorrowingBase, but not otherwise, or the definitions of Maximum Revolver Amount,(b) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive(i) the definition of, or any of the terms or provisions of, the Fee Letter, without the writtenconsent of Agent and Borrower (and shall not require the written consent of any of the Lenders),and (ii) any provision of Section 15 pertaining to Agent, or any other rights or duties of Agentunder this Agreement or the other Loan Documents, without the written consent of Agent, Borrower,and the Required Lenders,(c) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waiveany provision of this Agreement or the other Loan Documents pertaining to Issuing Lender, or anyother rights or duties of Issuing Lender under this Agreement or the other Loan Documents, withoutthe written consent of Issuing Lender, Agent, Borrower, and the Required Lenders,(d) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waiveany provision of this Agreement or the other Loan Documents pertaining to Swing Lender, or anyother rights or duties of Swing Lender under this Agreement or the other Loan Documents, withoutthe written consent of Swing Lender, Agent, Borrower, and the Required Lenders,(e) Anything in this Section 14.1 to the contrary notwithstanding, (i) any amendment,modification, elimination, waiver, consent, termination, or release of, or with respect to, anyprovision of this Agreement or any other Loan Document that relates only to the relationship of theLender Group among themselves, and that does not affect the rights or obligations of Parent orBorrower, shall not require consent by or the agreement of any Loan Party, and (ii) any amendment,waiver, modification, elimination, or consent of or with respect to any provision of this Agreementor any other Loan Document may be entered into without the consent of, or over the objection of,any Defaulting Lender.**14.2****Replacement of Certain Lenders**.(a) If (i) any action to be taken by the Lender Group or Agent hereunder requires the consent,authorization, or agreement of all Lenders or all Lenders affected thereby and if such action hasreceived the consent, authorization, or agreement of the Required Lenders but not of all Lenders orall Lenders affected thereby, or (ii) any Lender makes a claim for compensation under Section16, then Borrower or Agent, upon at least 5 Business Days prior irrevocable notice, maypermanently replace any Lender that failed to give its consent, authorization, or agreement (a“Holdout Lender”) or any Lender that made a claim for compensation (a “Tax Lender”)with one or more Replacement Lenders, and the Holdout Lender or Tax Lender, as applicable, shallhave no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender or TaxLender, as applicable, shall specify an effective date for such replacement, which date shall notbe later than 15 Business Days after the date such notice is given.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(b) Prior to the effective date of such replacement, the Holdout Lender or Tax Lender, asapplicable, and each Replacement Lender shall execute and deliver an Assignment and Acceptance,subject only to the Holdout Lender or Tax Lender, as applicable, being repaid in full its share ofthe outstanding Obligations (without any premium or penalty of any kind whatsoever, but including(i) all interest, fees and other amounts that may be due in payable in respect thereof, and (ii) anassumption of its Pro Rata Share of participations in the Letters of Credit). If the HoldoutLender or Tax Lender, as applicable, shall refuse or fail to execute and deliver any suchAssignment and Acceptance prior to the effective date of such replacement, Agent may, but shall notbe required to, execute and deliver such Assignment and Acceptance in the name or and on behalf ofthe Holdout Lender or Tax Lender, as applicable, and irrespective of whether Agent executes anddelivers such Assignment and Acceptance, the Holdout Lender or Tax Lender, as applicable, shall bedeemed to have executed and delivered such Assignment and Acceptance. The replacement of anyHoldout Lender or Tax Lender, as applicable, shall be made in accordance with the terms ofSection 13.1. Until such time as one or more Replacement Lenders shall have acquired allof the Obligations, the Revolver Commitments, and the other rights and obligations of the HoldoutLender or Tax Lender, as applicable, hereunder and under the other Loan Documents, the HoldoutLender or Tax Lender, as applicable, shall remain obligated to make the Holdout Lender’s or TaxLender’s, as applicable, Pro Rata Share of Advances and to purchase a participation in each Letterof Credit, in an amount equal to its Pro Rata Share of such Letters of Credit.**14.3****No Waivers; Cumulative Remedies**. No failure by Agent or any Lender to exerciseany right, remedy, or option under this Agreement or any other Loan Document, or delay by Agent orany Lender in exercising the same, will operate as a waiver thereof. No waiver by Agent or anyLender will be effective unless it is in writing, and then only to the extent specifically stated.No waiver by Agent or any Lender on any occasion shall affect or diminish Agent’s and each Lender’srights thereafter to require strict performance by Parent and Borrower of any provision of thisAgreement. Agent’s and each Lender’s rights under this Agreement and the other Loan Documents willbe cumulative and not exclusive of any other right or remedy that Agent or any Lender may have.**15. AGENT; THE LENDER GROUP**.**15.1****Appointment and Authorization of Agent**. Each Lender hereby designates andappoints WFCF as its agent under this Agreement and the other Loan Documents and each Lender herebyirrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Providershall be deemed to designate, appoint, and authorize) Agent to execute and deliver each of theother Loan Documents on its behalf and to take such other action on its behalf under the provisionsof this Agreement and each other Loan Document and to exercise such powers and perform such dutiesas are expressly delegated to Agent by the terms of this Agreement or any other Loan Document,together with such powers as are reasonably incidental thereto. Agent agrees to act as agent forand on behalf of the Lenders (and the Bank Product Providers) on the conditions contained in thisSection 15. Any provision to the contrary contained elsewhere in this Agreement or in anyother Loan Document notwithstanding, Agent shall not have any duties or responsibilities, exceptthose expressly set forth herein or in the other Loan Documents, nor shall Agent have or be deemedto have any fiduciary relationship with any Lender (or Bank Product Provider), and no impliedcovenants, functions, responsibilities, duties, obligations or liabilities shall be read into thisAgreement or any other Loan Document or otherwise exist against Agent. Without limiting thegenerality of the foregoing, the use of the term “agent” in this Agreement or the other LoanDocuments with reference to Agent is not intended to connote any fiduciary or other implied (orexpress) obligations arising under agency doctrine of any applicable law. Instead, such term isused merely as a matter of market custom, and is intended to create or reflect only arepresentative relationship between independent contracting parties. Each Lender hereby furtherauthorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall bedeemed to authorize) Agent to act as the secured party under each of the Loan Documents that createa Lien on any item of Collateral. Except as expressly otherwise provided in this Agreement, Agentshall have and may use its sole discretion with respect to exercising or refraining from exercisingany discretionary rights or taking orConfidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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refraining from taking any actions that Agent expressly isentitled to take or assert under or pursuant to this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, orof any other provision of the Loan Documents that provides rights or powers to Agent, Lenders agreethat Agent shall have the right to exercise the following powers as long as this Agreement remainsin effect: (a) maintain, in accordance with its customary business practices, ledgers and recordsreflecting the status of the Obligations, the Collateral, the Collections of Parent and itsSubsidiaries, and related matters, (b) execute or file any and all financing or similar statementsor notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices andother written agreements with respect to the Loan Documents, (c) make Advances, for itself or onbehalf of Lenders, as provided in the Loan Documents, (d) exclusively receive, apply, anddistribute the Collections of Parent and its Subsidiaries as provided in the Loan Documents, (e)open and maintain such bank accounts and cash management arrangements as Agent deems necessary andappropriate in accordance with the Loan Documents for the foregoing purposes with respect to theCollateral and the Collections of Parent and its Subsidiaries, (f) perform, exercise, and enforceany and all other rights and remedies of the Lender Group with respect to Parent or itsSubsidiaries, the Obligations, the Collateral, the Collections of Parent and its Subsidiaries, orotherwise related to any of same as provided in the Loan Documents, and (g) incur and pay suchLender Group Expenses as Agent may deem necessary or appropriate for the performance andfulfillment of its functions and powers pursuant to the Loan Documents.**15.2****Delegation of Duties**. Agent may execute any of its duties under this Agreementor any other Loan Document by or through agents, employees or attorneys in fact and shall beentitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not beresponsible for the negligence or misconduct of any agent or attorney in fact that it selects aslong as such selection was made without gross negligence or willful misconduct.**15.3****Liability of Agent**. None of the Agent-Related Persons shall (a) be liable forany action taken or omitted to be taken by any of them under or in connection with this Agreementor any other Loan Document or the transactions contemplated hereby (except for its own grossnegligence or willful misconduct), or (b) be responsible in any manner to any of the Lenders (orBank Product Providers) for any recital, statement, representation or warranty made by Parent orany of its Subsidiaries or Affiliates, or any officer or director thereof, contained in thisAgreement or in any other Loan Document, or in any certificate, report, statement or other documentreferred to or provided for in, or received by Agent under or in connection with, this Agreement orany other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiencyof this Agreement or any other Loan Document, or for any failure of Parent or its Subsidiaries orany other party to any Loan Document to perform its obligations hereunder or thereunder. NoAgent-Related Person shall be under any obligation to any Lenders (or Bank Product Providers) toascertain or to inquire as to the observance or performance of any of the agreements contained in,or conditions of, this Agreement or any other Loan Document, or to inspect the books and records orproperties of Parent or its Subsidiaries.**15.4****Reliance by Agent**. Agent shall be entitled to rely, and shall be fully protectedin relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter,telegram, telefacsimile or other electronic method of transmission, telex or telephone message,statement or other document or conversation believed by it to be genuine and correct and to havebeen signed, sent, or made by the proper Person or Persons, and upon advice and statements of legalcounsel (including counsel to Borrower or counsel to any Lender), independent accountants and otherexperts selected by Agent. Agent shall be fully justified in failing or refusing to take anyaction under this Agreement or any other Loan Document unless Agent shall first receive such adviceor concurrence of the Lenders as it deems appropriate and until such instructions are received,Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shallfirst be indemnified to its reasonable satisfaction by the Lenders (and, if it so elects, the BankProduct Providers) against any and all liability and expense that may be incurred by it by reasonof taking or continuing to take any such action. Agent shall in all cases be fully protected inacting, or in refraining from acting, under this Agreement or any other Loan Document in accordancewith a request or consent of the Required Lenders and such request and any action taken or failureto act pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers).Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**15.5****Notice of Default or Event of Default**. Agent shall not be deemed to haveknowledge or notice of the occurrence of any Default or Event of Default, except with respect todefaults in the payment of principal, interest, fees, and expenses required to be paid to Agent forthe account of the Lenders and, except with respect to Events of Default of which Agent has actualknowledge, unless Agent shall have received written notice from a Lender or Borrower referring tothis Agreement, describing such Default or Event of Default, and stating that such notice is a“notice of default.” Agent promptly will notify the Lenders of its receipt of any such notice orof any Event of Default of which Agent has actual knowledge. If any Lender obtains actualknowledge of any Event of Default, such Lender promptly shall notify the other Lenders and Agent ofsuch Event of Default. Each Lender shall be solely responsible for giving any notices to itsParticipants, if any. Subject to Section 15.4, Agent shall take such action with respectto such Default or Event of Default as may be requested by the Required Lenders in accordance withSection 9; provided, however, that unless and until Agent has received any such request,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.**15.6****Credit Decision**. Each Lender (and Bank Product Provider) acknowledges that noneof the Agent-Related Persons has made any representation or warranty to it, and that no act byAgent hereinafter taken, including any review of the affairs of Parent and its Subsidiaries orAffiliates, shall be deemed to constitute any representation or warranty by any Agent-RelatedPerson to any Lender (or Bank Product Provider). Each Lender represents (and by entering into aBank Product Agreement, each Bank Product Provider shall be deemed to represent) to Agent that ithas, independently and without reliance upon any Agent-Related Person and based on such duediligence, documents and information as it has deemed appropriate, made its own appraisal of andinvestigation into the business, prospects, operations, property, financial and other condition andcreditworthiness of Borrower or any other Person party to a Loan Document, and all applicable bankregulatory laws relating to the transactions contemplated hereby, and made its own decision toenter into this Agreement and to extend credit to Borrower. Each Lender also represents (and byentering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent)that it will, independently and without reliance upon any Agent-Related Person and based on suchdocuments and information as it shall deem appropriate at the time, continue to make its own creditanalysis, appraisals and decisions in taking or not taking action under this Agreement and theother Loan Documents, and to make such investigations as it deems necessary to inform itself as tothe business, prospects, operations, property, financial and other condition and creditworthinessof Borrower or any other Person party to a Loan Document. Except for notices, reports, and otherdocuments expressly herein required to be furnished to the Lenders by Agent, Agent shall not haveany duty or responsibility to provide any Lender (or Bank Product Provider) with any credit orother information concerning the business, prospects, operations, property, financial and othercondition or creditworthiness of Borrower or any other Person party to a Loan Document that maycome into the possession of any of the Agent-Related Persons. Each Lender acknowledges (and byentering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge)that Agent does not have any duty or responsibility, either initially or on a continuing basis(except to the extent, if any, that is expressly specified herein) to provide such Lender (or BankProduct Provider) with any credit or other information with respect to Borrower, its Affiliates orany of their respective business, legal, financial or other affairs, and irrespective of whethersuch information came into Agent’s or its Affiliates’ or representatives’ possession before orafter the date on which such Lender became a party to this Agreement (or such Bank Product Providerentered into a Bank Product Agreement).Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**15.7****Costs and Expenses; Indemnification**. Agent may incur and pay Lender GroupExpenses to the extent Agent reasonably deems necessary or appropriate for the performance andfulfillment of its functions, powers, and obligations pursuant to the Loan Documents, includingcourt costs, attorneys fees and expenses, fees and expenses of financial accountants, advisors,consultants, and appraisers, costs of collection by outside collection agencies, auctioneer feesand expenses, and costs of security guards or insurance premiums paid to maintain the Collateral,whether or not Borrower is obligated to reimburse Agent or Lenders for such expenses pursuant tothis Agreement or otherwise. Agent is authorized and directed to deduct and retain sufficientamounts from the Collections of Parent and its Subsidiaries received by Agent toreimburse Agent for such out-of-pocket costs and expenses prior to the distribution of anyamounts to Lenders (or Bank Product Providers). In the event Agent is not reimbursed for suchcosts and expenses by Parent or its Subsidiaries, each Lender hereby agrees that it is and shall beobligated to pay to Agent such Lender’s ratable thereof. Whether or not the transactionscontemplated hereby are consummated, each of the Lenders, on a ratable basis, shall indemnify anddefend the Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrower andwithout limiting the obligation of Borrower to do so) from and against any and all IndemnifiedLiabilities; provided, however, that no Lender shall be liable for the payment to any Agent-RelatedPerson of any portion of such Indemnified Liabilities resulting solely from such Person’s grossnegligence or willful misconduct nor shall any Lender be liable for the obligations of anyDefaulting Lender in failing to make an Advance or other extension of credit hereunder. Withoutlimitation of the foregoing, each Lender shall reimburse Agent upon demand for such Lender’sratable share of any costs or out of pocket expenses (including attorneys, accountants, advisors,and consultants fees and expenses) incurred by Agent in connection with the preparation, execution,delivery, administration, modification, amendment, or enforcement (whether through negotiations,legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under,this Agreement or any other Loan Document to the extent that Agent is not reimbursed for suchexpenses by or on behalf of Borrower. The undertaking in this Section shall survive the payment ofall Obligations hereunder and the resignation or replacement of Agent.**15.8****Agent in Individual Capacity**. WFCF and its Affiliates may make loans to, issueletters of credit for the account of, accept deposits from, provide Bank Products to, acquireequity interests in, and generally engage in any kind of banking, trust, financial advisory,underwriting, or other business with Parent and its Subsidiaries and Affiliates and any otherPerson party to any Loan Document as though WFCF were not Agent hereunder, and, in each case,without notice to or consent of the other members of the Lender Group. The other members of theLender Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Providershall be deemed to acknowledge) that, pursuant to such activities, WFCF or its Affiliates mayreceive information regarding Parent or its Affiliates or any other Person party to any LoanDocuments that is subject to confidentiality obligations in favor of Parent or such other Personand that prohibit the disclosure of such information to the Lenders (or Bank Product Providers),and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank ProductProvider shall be deemed to acknowledge) that, in such circumstances (and in the absence of awaiver of such confidentiality obligations, which waiver Agent will use its reasonable best effortsto obtain), Agent shall not be under any obligation to provide such information to them. The terms“Lender” and “Lenders” include WFCF in its individual capacity.**15.9****Successor Agent**. Agent may resign as Agent upon 30 days prior written notice tothe Lenders (unless such notice is waived by the Required Lenders) and Borrower (unless such noticeis waived by Borrower) and without any notice to the Bank Product Providers. If Agent resignsunder this Agreement, the Required Lenders shall be entitled, with (so long as no Event of Defaulthas occurred and is continuing) the consent of Borrower (such consent not to be unreasonablywithheld, delayed, or conditioned), appoint a successor Agent for the Lenders (and the Bank ProductProviders). If, at the time that Agent’s resignation is effective, it is acting as the IssuingLender or the Swing Lender, such resignation shall also operate to effectuate its resignation asthe Issuing Lender or the Swing Lender, as applicable, and it shall automatically be relieved ofany further obligation to issue Letters of Credit, to cause the Underlying Issuer to issue Lettersof Credit, or to make Swing Loans. If no successor Agent is appointed prior to the effective dateof the resignation of Agent, Agent may appoint, after consulting with the Lenders and Borrower, asuccessor Agent. If Agent has materially breached or failed to perform any material provision ofthis Agreement or of applicable law, the Required Lenders may agree in writing to remove andreplace Agent with a successor Agent from among the Lenders with (so long as no Event of Defaulthas occurred and is continuing) the consent of Borrower (such consent not to be unreasonablywithheld, delayed, or conditioned). In any such event, upon the acceptance of its appointment assuccessor Agent hereunder, such successor Agent shall succeed to all the rights, powers, and dutiesof the retiring Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’sappointment, powers, and duties as Agent shall be terminated. After any retiring Agent’sresignation hereunder as Agent, the provisions of this Section 15 shall inure to itsbenefitas to any actions taken or omitted to be taken by it while it was Agent under this Agreement.If no successor Agent has accepted appointment as Agent by the date which is 30 days following aretiring Agent’s notice of resignation, the retiring Agent’s resignation shall neverthelessthereupon become effective and the Lenders shall perform all of the duties of Agent hereunder untilsuch time, if any, as the Lenders appoint a successor Agent as provided for above.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**15.10****Lender in Individual Capacity**. Any Lender and its respective Affiliates maymake loans to, issue letters of credit for the account of, accept deposits from, provide BankProducts to, acquire equity interests in and generally engage in any kind of banking, trust,financial advisory, underwriting, or other business with Parent and its Subsidiaries and Affiliatesand any other Person party to any Loan Documents as though such Lender were not a Lender hereunderwithout notice to or consent of the other members of the Lender Group (or the Bank ProductProviders). The other members of the Lender Group acknowledge (and by entering into a Bank ProductAgreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to suchactivities, such Lender and its respective Affiliates may receive information regarding Parent orits Affiliates or any other Person party to any Loan Documents that is subject to confidentialityobligations in favor of Parent or such other Person and that prohibit the disclosure of suchinformation to the Lenders, and the Lenders acknowledge (and by entering into a Bank ProductAgreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances(and in the absence of a waiver of such confidentiality obligations, which waiver such Lender willuse its reasonable best efforts to obtain), such Lender shall not be under any obligation toprovide such information to them.**15.11****Collateral Matters**.(a) The Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement,each Bank Product Provider shall be deemed to authorize) Agent to release any Lien on anyCollateral (i) upon the termination of the Revolver Commitments and payment and satisfaction infull by Borrower of all of the Obligations, (ii) constituting property being sold or disposed of ifa release is required or desirable in connection therewith and if Borrower certifies to Agent thatthe sale or disposition is permitted under Section 6.4 (and Agent may rely conclusively onany such certificate, without further inquiry), (iii) constituting property in which Parent or itsSubsidiaries owned no interest at the time Agent’s Lien was granted nor at any time thereafter, or(iv) constituting property leased to Parent or its Subsidiaries under a lease that has expired oris terminated in a transaction permitted under this Agreement, or (v) constituting property of aSubsidiary, the Stock of which is being sold in accordance with the terms of this Agreement. TheLoan Parties and the Lenders hereby irrevocably authorize (and by entering into a Bank ProductAgreement, each Bank Product Provider shall be deemed to authorize) Agent, based upon theinstruction of the Required Lenders, to (a) consent to, credit bid or purchase (either directly orthrough one or more acquisition vehicles) all or any portion of the Collateral at any sale thereofconducted under the provisions of the Bankruptcy Code, including under Section 363 of theBankruptcy Code, (b) credit bid or purchase (either directly or through one or more acquisitionvehicles) all or any portion of the Collateral at any sale or other disposition thereof conductedunder the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c)credit bid or purchase (either directly or through one or more acquisition vehicles) all or anyportion of the Collateral at any other sale or foreclosure conducted by Agent (whether by judicialaction or otherwise) in accordance with applicable law. In connection with any such credit bid orpurchase, the Obligations owed to the Lenders and the Bank Product Providers shall be entitled tobe, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent orunliquidated claims being estimated for such purpose if the fixing or liquidation thereof would notunduly delay the ability of Agent to credit bid or purchase at such sale or other disposition ofthe Collateral and, if such claims cannot be estimated without unduly delaying the ability of Agentto credit bid, then such claims shall be disregarded, not credit bid, and not entitled to anyinterest in the asset or assets purchased by means of such credit bid) and the Lenders and the BankProduct Providers whose Obligations are credit bid shall be entitled to receive interests (ratablybased upon the proportion of their Obligations credit bid in relation to the aggregate amount ofObligations so credit bid) in the asset or assets so purchased (or in the Stock of the acquisitionvehicle or vehicles that are used to consummate such purchase). Except as providedConfidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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above, Agentwill not execute and deliver a release of any Lien on any Collateral without the prior written authorization of (y) if the release is of allor substantially all of the Collateral, all of the Lenders (without requiring the authorization ofthe Bank Product Providers), or (z) otherwise, the Required Lenders (without requiring theauthorization of the Bank Product Providers). Upon request by Agent or Borrower at any time, theLenders will (and if so requested, the Bank Product Providers will) confirm in writing Agent’sauthority to release any such Liens on particular types or items of Collateral pursuant to thisSection 15.11; provided, however, that (1) Agent shall not be required to execute anydocument necessary to evidence such release on terms that, in Agent’s opinion, would expose Agentto liability or create any obligation or entail any consequence other than the release of such Lienwithout recourse, representation, or warranty, and (2) such release shall not in any mannerdischarge, affect, or impair the Obligations or any Liens (other than those expressly beingreleased) upon (or obligations of Borrower in respect of) all interests retained by Borrower,including, the proceeds of any sale, all of which shall continue to constitute part of theCollateral. The Lenders further hereby irrevocably authorize (and by entering into a Bank ProductAgreement, each Bank Product Provider shall be deemed to authorize) Agent, at its option and in itssole discretion, to subordinate any Lien granted to or held by Agent under any Loan Document to theholder of any Permitted Lien on such property if such Permitted Lien secures Permitted PurchaseMoney Indebtedness.(b) Agent shall have no obligation whatsoever to any of the Lenders (or the Bank ProductProviders) to assure that the Collateral exists or is owned by Parent or its Subsidiaries or iscared for, protected, or insured or has been encumbered, or that Agent’s Liens have been properlyor sufficiently or lawfully created, perfected, protected, or enforced or are entitled to anyparticular priority, or that any particular items of Collateral meet the eligibility criteriaapplicable in respect thereof or whether to impose, maintain, reduce, or eliminate any particularreserve hereunder or whether the amount of any such reserve is appropriate or not, or to exerciseat all or in any particular manner or under any duty of care, disclosure or fidelity, or tocontinue exercising, any of the rights, authorities and powers granted or available to Agentpursuant to any of the Loan Documents, it being understood and agreed that in respect of theCollateral, or any act, omission, or event related thereto, subject to the terms and conditionscontained herein, Agent may act in any manner it may deem appropriate, in its sole discretion givenAgent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shallhave no other duty or liability whatsoever to any Lender (or Bank Product Provider) as to any ofthe foregoing, except as otherwise provided herein.**15.12****Collateral Matters for UK Transaction Security**.(a) Each Secured Party appoints the Agent to hold the UK Transaction Security, and all rights,powers, discretions and remedies vested in the Agent by the UK Collateral Documents or by law, ontrust for the Secured Parties, and the Agent accepts that appointment.(b) The Agent, its subsidiaries and associated companies may each retain for its own accountand benefit any fee, remuneration and profits paid to it in connection with (i) its activitiesunder the Loan Documents; and (ii) its engagement in any kind of banking or other business with anyLoan Party.(c) Nothing in this Agreement constitutes the Agent as a trustee or fiduciary of, nor shallthe Agent have any duty or responsibility to, any Loan Party.(d) The Agent shall have no duties or obligations to any other Person except for those whichare expressly specified in the Loan Documents or mandatorily required by applicable law.(e) Unless a contrary indication appears in a UK Collateral Document, the Agent (in itscapacity as security trustee) shall (subject to its legal obligations) act (or refrain from takingaction) in accordance with any instructions given to it by Required Lenders.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(f) In the absence of instructions from the Required Lenders (or, if appropriate, the Lenders)the Agent shall act (or refrain from taking action) in such manner as it considers appropriate andfor the benefit of the Secured Parties.(g) The Agent may: (i) assume that any instructions it receives from the Required Lenders arein accordance with the Loan Documents and that those instructions have not been revoked, unless ithas received actual notice to the contrary and (ii) request instructions or clarification from theRequired Lenders about whether, and in what manner, it should exercise or refrain from exercisingany duty, right, power or discretion, and may refrain from acting until it receives suchinstructions or clarification.(h) The Agent may appoint one or more Delegates on such terms (which may include the power tosub-delegate) and subject to such conditions as it thinks fit, to exercise and perform all or anyof the duties, rights, powers and discretions vested in it by any of the UK Collateral Documentsand shall not be obliged to supervise any Delegate or be responsible to any person for any lossincurred by reason of any act, omission, misconduct or default on the part of any Delegate.(i) The Agent may (whether for the purpose of complying with any law or regulation of anyoverseas jurisdiction, or for any other reason) appoint (and subsequently remove) any person to actjointly with the Agent either as a separate trustee or as a co-trustee on such terms and subject tosuch conditions as the Agent thinks fit and with such of the duties, rights, powers and discretionsvested in the Agent by any UK Collateral Document as may be conferred by the instrument ofappointment of that person.(j) The Agent shall notify the Secured Parties of the appointment of each Appointee (otherthan a Delegate).(k) The Agent may pay reasonable remuneration to any Delegate or Appointee, together with anycosts and expenses (including legal fees) reasonably incurred by the Delegate or Appointee inconnection with its appointment. All such remuneration, costs and expenses shall be treated, forthe purposes of this Agreement and any Fee Letter, as paid or incurred by the Agent.(l) Each Delegate and each Appointee shall have every benefit, right, power and discretion andthe benefit of every exculpation (together “Rights”) of the Agent (in its capacity as securitytrustee) under the UK Collateral Documents, and each reference to the Agent (where the contextrequires that such reference is to the Agent in its capacity as security trustee) in the provisionsof the UK Collateral Documents which confer Rights shall be deemed to include a reference to eachDelegate and each Appointee.(m) Each Secured Party confirms its approval of the UK Transaction Security and the UKCollateral Documents and authorizes and instructs the Agent: (i) to execute and deliver the UKCollateral Documents; (ii) to exercise the rights, powers and discretions given to the Agent (inits capacity as security trustee) under or in connection with the UK Collateral Documents togetherwith any other incidental rights, powers and discretions; and (iii) to give any authorizations andconfirmations to be given by the Agent (in its capacity as security trustee) on behalf of theSecured Parties under the UK Collateral Documents.(n) The Agent may accept without inquiry the title (if any) which any Person may have to theCharged Property.(o) Each other Secured Party confirms that it does not wish to be registered as a jointproprietor of any UK Transaction Security and accordingly authorizes: (a) the Agent to hold the UKTransaction Security in its sole name (or in the name of any Delegate or Appointee) as trustee forthe Secured Parties; and (b) the Land Registry (or other relevant registry) to register the Agent(or any Delegate or Appointee) as a sole proprietor of the UK Transaction Security.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(p) Except to the extent that a UK Collateral Document otherwise requires, any moneys whichthe Agent receives under or pursuant to a UK Collateral Document may be: (a) invested in anyinvestments which the Agent selects and which are authorized by applicable law; or (b) placed ondeposit at any bank or institution (including the Agent) on terms that the Agent thinks fit, ineach case in the name or under the control of the Agent, and the Agent shall hold those moneys,together with any accrued income (net of any applicable Taxes) to the order of the Lenders, andshall pay them to the Lenders on demand.(q) On a disposal of any of the Charged Property which is permitted under the Loan Documents,the Agent shall (at the cost of the Loan Parties) execute any release of the UK CollateralDocuments or other claim over that Charged Property and issue any certificates ofnon-crystallisation of floating charges that may be required or take any other action that theAgent considers desirable.(r) The Agent shall not be liable for: (i) any defect in or failure of the title (if any)which any person may have to any assets over which security is intended to be created by any UKCollateral Document; any loss resulting from the investment or deposit at any bank of moneys whichit invests or deposits in a manner permitted by the UK Collateral Documents; (ii) the exercise of,or the failure to exercise, any right, power or discretion given to it by or in connection with anyLoan Document or any other agreement, arrangement or document entered into, or executed inanticipation of, under or in connection with, any Loan Document; or any shortfall which arises onenforcing the UK Collateral Document.(s) The Agent shall not be obligated to (i) obtain any authorization or environmental permitin respect of any of the Charged Property or any of the UK Collateral Documents; (ii) hold in itsown possession any UK Collateral Document, title deed or other document relating to the ChargedProperty or the UK Collateral Documents; (iii) perfect, protect, register, make any filing or giveany notice in respect of the UK Collateral Documents (or the order of ranking of any UK CollateralDocument), unless that failure arises directly from its own gross negligence or wilful misconduct;or (iv) require any further assurances in relation to any UK Collateral Document.(t) In respect of the UK Collateral Documents, the Agent shall not be obligated to (i) insure,or require any other person to insure, the Charged Property; or (ii) make any enquiry or conductany investigation into the legality, validity, effectiveness, adequacy or enforceability of anyinsurance existing over the Charged Property.(u) In respect of the UK Collateral Documents, the Agent shall not have any obligation or dutyto any person for any loss suffered as a result of: (i) the lack or inadequacy of any insurance; or(ii) the failure of the Agent to notify the insurers of any material fact relating to the riskassumed by them, or of any other information of any kind, unless Required Lenders have requested itto do so in writing and the Agent has failed to do so within fourteen (14) days after receipt ofthat request.(v) Every appointment of a successor Agent under the UK Collateral Documents shall be by deed.(w) Section 1 of the Trustee Act 2000 shall not apply to the duty of the Agent in relation tothe trusts constituted by this Agreement.(x) In the case of any conflict between the provisions of this Agreement and those of theTrustee Act 1925 or the Trustee Act 2000, the provisions of this Agreement shall prevail to theextent allowed by law, and shall constitute a restriction or exclusion for the purposes of theTrustee Act 2000.(y) This Section 15.12 shall be governed by and construed in accordance with the laws ofEngland & WalesConfidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**15.13****Restrictions on Actions by Lenders; Sharing of Payments**.(a) Each of the Lenders agrees that it shall not, without the express written consent ofAgent, and that it shall, to the extent it is lawfully entitled to do so, upon the written requestof Agent, set off against the Obligations, any amounts owing by such Lender to Parent or itsSubsidiaries or any deposit accounts of Parent or its Subsidiaries now or hereafter maintained withsuch Lender. Each of the Lenders further agrees that it shall not, unless specifically requestedto do so in writing by Agent, take or cause to be taken any action, including, the commencement ofany legal or equitable proceedings to enforce any Loan Document against Borrower or any Guarantoror to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral.(b) If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, orotherwise, any proceeds of Collateral or any payments with respect to the Obligations, except forany such proceeds or payments received by such Lender from Agent pursuant to the terms of thisAgreement, or (ii) payments from Agent in excess of such Lender’s Pro Rata Share of all suchdistributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in kind, andwith such endorsements as may be required to negotiate the same to Agent, or in immediatelyavailable funds, as applicable, for the account of all of the Lenders and for application to theObligations in accordance with the applicable provisions of this Agreement, or (B) purchase,without recourse or warranty, an undivided interest and participation in the Obligations owed tothe other Lenders so that such excess payment received shall be applied ratably as among theLenders in accordance with their Pro Rata Shares; provided, however, that to theextent that such excess payment received by the purchasing party is thereafter recovered from it,those purchases of participations shall be rescinded in whole or in part, as applicable, and theapplicable portion of the purchase price paid therefor shall be returned to such purchasing party,but without interest except to the extent that such purchasing party is required to pay interest inconnection with the recovery of the excess payment.**15.14****Agency for Perfection**. Agent hereby appoints each other Lender (and each BankProduct Provider) as its agent (and each Lender hereby accepts (and by entering into a Bank ProductAgreement, each Bank Product Provider shall be deemed to accept) such appointment) for the purposeof perfecting Agent’s Liens in assets which, in accordance with Article 8 or Article 9, asapplicable, of the Code can be perfected by possession or control. Should any Lender obtainpossession or control of any such Collateral, such Lender shall notify Agent thereof, and, promptlyupon Agent’s request therefor shall deliver possession or control of such Collateral to Agent or inaccordance with Agent’s instructions.**15.15****Payments by Agent to the Lenders**. All payments to be made by Agent to theLenders (or Bank Product Providers) shall be made by bank wire transfer of immediately availablefunds pursuant to such wire transfer instructions as each party may designate for itself by writtennotice to Agent. Concurrently with each such payment, Agent shall identify whether such payment(or any portion thereof) represents principal, premium, fees, or interest of the Obligations.**15.16****Concerning the Collateral and Related Loan Documents**. Each member of the LenderGroup authorizes and directs Agent to enter into this Agreement and the other Loan Documents. Eachmember of the Lender Group agrees (and by entering into a Bank Product Agreement, each Bank ProductProvider shall be deemed to agree) that any action taken by Agent in accordance with the terms ofthis Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent ofits powers set forth therein or herein, together with such other powers that are reasonablyincidental thereto, shall be binding upon all of the Lenders (and such Bank Product Provider).**15.17****Audits and Examination Reports; Confidentiality; Disclaimers by Lenders; OtherReports and Information**. By becoming a party to this Agreement, each Lender:(a) is deemed to have requested that Agent furnish such Lender, promptly after it becomesavailable, a copy of each field audit or examination report respecting Parent or its Subsidiaries(each, a “Report”) prepared by or at the request of Agent, and Agent shall so furnish eachLender with such Reports,Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(b) expressly agrees and acknowledges that Agent does not (i) make any representation orwarranty as to the accuracy of any Report, and (ii) shall not be liable for any informationcontained in any Report,(c) expressly agrees and acknowledges that the Reports are not comprehensive audits orexaminations, that Agent or other party performing any audit or examination will inspect onlyspecific information regarding Parent and its Subsidiaries and will rely significantly uponParent’s and its Subsidiaries’ books and records, as well as on representations of Borrower’spersonnel,(d) agrees to keep all Reports and other material, non-public information regarding Parent andits Subsidiaries and their operations, assets, and existing and contemplated business plans in aconfidential manner in accordance with Section 17.9, and(e) without limiting the generality of any other indemnification provision contained in thisAgreement, agrees: (i) to hold Agent and any other Lender preparing a Report harmless from anyaction the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lendermay reach or draw from any Report in connection with any loans or other credit accommodations thatthe indemnifying Lender has made or may make to Borrower, or the indemnifying Lender’sparticipation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrower, and (ii)to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing aReport harmless from and against, the claims, actions, proceedings, damages, costs, expenses, andother amounts (including, attorneys fees and costs) incurred by Agent and any such other Lenderpreparing a Report as the direct or indirect result of any third parties who might obtain all orpart of any Report through the indemnifying Lender.In addition to the foregoing: (x) any Lender may from time to time request of Agent in writingthat Agent provide to such Lender a copy of any report or document provided by Parent or itsSubsidiaries to Agent that has not been contemporaneously provided by Parent or such Subsidiary tosuch Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same to suchLender, (y) to the extent that Agent is entitled, under any provision of the Loan Documents, torequest additional reports or information from Parent or its Subsidiaries, any Lender may, fromtime to time, reasonably request Agent to exercise such right as specified in such Lender’s noticeto Agent, whereupon Agent promptly shall request of Borrower the additional reports or informationreasonably specified by such Lender, and, upon receipt thereof from Parent or such Subsidiary,Agent promptly shall provide a copy of same to such Lender, and (z) any time that Agent renders toBorrower a statement regarding the Loan Account, Agent shall send a copy of such statement to eachLender.**15.18****Several Obligations; No Liability**. Notwithstanding that certain of the LoanDocuments now or hereafter may have been or will be executed only by or in favor of Agent in itscapacity as such, and not by or in favor of the Lenders, any and all obligations on the part ofAgent (if any) to make any credit available hereunder shall constitute the several (and not joint)obligations of the respective Lenders on a ratable basis, according to their respective RevolverCommitments, to make an amount of such credit not to exceed, in principal amount, at any one timeoutstanding, the amount of their respective Revolver Commitments. Nothing contained herein shallconfer upon any Lender any interest in, or subject any Lender to any liability for, or in respectof, the business, assets, profits, losses, or liabilities of any other Lender. Each Lender shallbe solely responsible for notifying its Participants of any matters relating to the Loan Documentsto the extent any such notice may be required, and no Lender shall have any obligation, duty, orliability to any Participant of any other Lender. Except as provided in Section 15.7, nomember of the Lender Group shall have any liability for the acts of any other member of the LenderGroup. No Lender shall be responsible to Borrower or any other Person for any failure by any otherLender (or Bank Product Provider) to fulfill its obligations to make credit available hereunder,nor to advance for such Lender (or Bank Product Provider) or on its behalf, nor to take any otheraction on behalf of such Lender (or Bank Product Provider) hereunder or in connection with thefinancing contemplated herein.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**16. WITHHOLDING TAXES**.(a) All payments made by Borrower hereunder or under any note or other Loan Document will bemade without setoff, counterclaim, or other defense. In addition, all such payments will be madefree and clear of, and without deduction or withholding for, any present or future Taxes, and inthe event any deduction or withholding of Taxes is required, Borrower shall comply with the nextsentence of this Section 16(a). If any Taxes are so levied or imposed, Borrower agrees topay the full amount of such Taxes and such additional amounts as may be necessary so that everypayment of all amounts due under this Agreement, any note, or Loan Document, including any amountpaid pursuant to this Section 16(a) after withholding or deduction for or on account of anyTaxes, will not be less than the amount provided for herein; provided, however, that Borrower shallnot be required to increase any such amounts if the increase in such amount payable results fromAgent’s or such Lender’s own willful misconduct or gross negligence (as finally determined by acourt of competent jurisdiction). Borrower will furnish to Agent as promptly as possible after thedate the payment of any Tax is due pursuant to applicable law, certified copies of tax receiptsevidencing such payment by Borrower.(b) Borrower agrees to pay any present or future stamp, value added or documentary taxes orany other excise or property taxes, charges, or similar levies that arise from any payment madehereunder or from the execution, delivery, performance, recordation, or filing of, or otherwisewith respect to this Agreement or any other Loan Document.(c) If a Lender or Participant is entitled to claim an exemption or reduction from UnitedStates withholding tax, such Lender or Participant agrees with and in favor of Agent, to deliver toAgent (or, in the case of a Participant, to the Lender granting the participation only) one of thefollowing before receiving its first payment under this Agreement:(i) if such Lender or Participant is entitled to claim an exemption from United Stateswithholding tax pursuant to the portfolio interest exception, (A) a statement of the Lender orParticipant, signed under penalty of perjury, that it is not a (I) a “bank” as described in Section881(c)(3)(A) of the IRC, (II) a 10% shareholder of Borrower (within the meaning of Section871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to Borrower within themeaning of Section 864(d)(4) of the IRC, and (B) a properly completed and executed IRS Form W-8BENor Form W-8IMY (with proper attachments);(ii) if such Lender or Participant is entitled to claim an exemption from, or a reduction of,withholding tax under a United States tax treaty, a properly completed and executed copy of IRSForm W-8BEN;(iii) if such Lender or Participant is entitled to claim that interest paid under thisAgreement is exempt from United States withholding tax because it is effectively connected with aUnited States trade or business of such Lender, a properly completed and executed copy of IRS FormW-8ECI;(iv) if such Lender or Participant is entitled to claim that interest paid under thisAgreement is exempt from United States withholding tax because such Lender or Participant serves asan intermediary, a properly completed and executed copy of IRS Form W-8IMY (with properattachments); or(v) a properly completed and executed copy of any other form or forms, including IRS Form W-9,as may be required under the IRC or other laws of the United States as a condition to exemptionfrom, or reduction of, United States withholding or backup withholding tax.Each Lender or Participant shall provide new forms (or successor forms) upon the expiration orobsolescence of any previously delivered forms and to promptly notify Agent (or, in the case of aParticipant, to the Lendergranting the participation only) of any change in circumstances which would modify or renderinvalid any claimed exemption or reduction.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(d) Subject to Section 16(l), if a Lender or Participant claims an exemption fromwithholding tax in a jurisdiction other than the United States, such Lender or such Participantagrees with and in favor of Agent, to deliver to Agent (or, in the case of a Participant, to theLender granting the participation only) any such form or forms, as may be required under the lawsof such jurisdiction as a condition to exemption from, or reduction of, foreign withholding orbackup withholding tax before receiving its first payment under this Agreement, but only if suchLender or such Participant is legally able to deliver such forms. Each Lender and each Participantshall provide new forms (or successor forms) upon the expiration or obsolescence of any previouslydelivered forms and to promptly notify Agent (or, in the case of a Participant, to the Lendergranting the participation only) of any change in circumstances which would modify or renderinvalid any claimed exemption or reduction.(e) If a Lender or Participant claims exemption from, or reduction of, withholding tax andsuch Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all orpart of the Obligations of Borrower to such Lender or Participant, such Lender or Participantagrees to notify Agent (or, in the case of a sale of a participation interest, to the Lendergranting the participation only) of the percentage amount in which it is no longer the beneficialowner of Obligations of Borrower to such Lender or Participant. To the extent of such percentageamount, Agent will treat such Lender’s or such Participant’s documentation provided pursuant toSection 16(c) or 16(d) as no longer valid. With respect to such percentage amount,such Participant or Assignee will, if legally permissible, provide new documentation, pursuant toSection 16(c) or 16(d), if applicable. Borrower agrees that each Participant shallbe entitled to the benefits of this Section 16 with respect to its participation in any portion ofthe Revolver Commitments and the Obligations so long as such Participant complies with theobligations set forth in this Section 16 with respect thereto.(f) If a Lender or a Participant is entitled to a reduction in the applicable withholding tax,Agent (or, in the case of a Participant, to the Lender granting the participation) may withholdfrom any interest payment to such Lender or such Participant an amount equivalent to the applicablewithholding tax after taking into account such reduction. If the forms or other documentationrequired by Section 16(c) or 16(d) are not delivered to Agent (or, in the case of aParticipant, to the Lender granting the participation), then Agent (or, in the case of aParticipant, to the Lender granting the participation) may withhold from any interest payment tosuch Lender or such Participant not providing such forms or other documentation an amountequivalent to the applicable withholding tax.(g) If the IRS or any other Governmental Authority of the United States or other jurisdictionasserts a claim that Agent (or, in the case of a Participant, to the Lender granting theparticipation) did not properly withhold tax from amounts paid to or for the account of any Lenderor any Participant due to a failure on the part of the Lender or any Participant (because theappropriate form was not delivered, was not properly executed, or because such Lender failed tonotify Agent (or such Participant failed to notify the Lender granting the participation) of achange in circumstances which rendered the exemption from, or reduction of, withholding taxineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless (or, inthe case of a Participant, such Participant shall indemnify and hold the Lender granting theparticipation harmless) for all amounts paid, directly or indirectly, by Agent (or, in the case ofa Participant, to the Lender granting the participation), as tax or otherwise, including penaltiesand interest, and including any taxes imposed by any jurisdiction on the amounts payable to Agent(or, in the case of a Participant, to the Lender granting the participation only) under thisSection 16, together with all costs and expenses (including attorneys fees and expenses).The obligation of the Lenders and the Participants under this subsection shall survive the paymentof all Obligations and the resignation or replacement of Agent.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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(h) If Agent or a Lender determines, in its sole discretion, that it has received a refund ofany Taxes as to which it has been indemnified by Borrower or with respect to which Borrower haspaid additional amounts pursuant to this Section 16, so long as no Default or Event ofDefault has occurred and is continuing, it shall pay over such refund to Borrower (but only to theextent of payments made, or additional amounts paid, by Borrower under this Section 16 withrespect to Taxes giving rise to such a refund), net of all out-of-pocket expenses of Agent or suchLender and without interest (other than any interest paid by the relevant Governmental Authoritywith respect to such a refund); provided, that Borrower, upon the request of Agent or such Lender,agrees to repay the amount paid over to Borrower (plus any penalties, interest or other charges,imposed by the relevant Governmental Authority, other than such penalties, interest or othercharges imposed as a result of the willful misconduct or gross negligence of Agent hereunder) toAgent or such Lender in the event Agent or such Lender is required to repay such refund to suchGovernmental Authority. Notwithstanding anything in this Agreement to the contrary, thisSection 16 shall not be construed to require Agent or any Lender to make available its taxreturns (or any other information which it deems confidential) to Borrower or any other Person.(i) WFCF, in its capacity as a Lender, hereby represents and warrants to Borrower that it is aTreaty Lender at the date of this Agreement. “Treaty Lender” means, in relation to any Lender,that the Lender: (i) is a resident of a Treaty State for the purposes of the relevant Treaty, andis entitled to the full benefit of that Treaty with respect to interest payments, (ii) is thebeneficial owner of any payments made hereunder by Borrower for the purposes of the relevantTreaty, and (iii) does not carry on a business in any state other than the Treaty State through apermanent establishment with which that Lender’s receipt of any payments hereunder is effectivelyconnected. “Treaty State” means a jurisdiction having a Treaty with the United Kingdom which makesprovision for full exemption from Tax imposed by the United Kingdom on any payment of interest.“Treaty” means a double taxation convention.(j) Notwithstanding anything else in this Agreement, in respect of United Kingdom Taxes only,so long as no Event of Default shall have occurred and be continuing, no Lender shall be able toassign the benefit of Section 16(a) (pursuant to Section 13 or otherwise) unless the Assigneerepresents to Borrower Agent, Agent, and the assigning Lender that it is a Treaty Lender or aQualifying Lender at the date of that assignment. “Qualifying Lender” means a bank within thecharge to United Kingdom corporation tax or a company resident in the United Kingdom for UnitedKingdom Tax purposes (provided that such company or bank does not carry on any business through apermanent establishment outside of the United Kingdom with which that Lender’s receipt of anypayments hereunder is effectively connected).(k) Section 16(d) shall not apply where a Lender claims an exemption from withholdingtax in the United Kingdom and that Lender wishes the HMRC DT Treaty Passport Scheme to apply tothis Agreement and has notified the Borrower in writing of its scheme reference number and itsjurisdiction of tax residence. Each Lender and each Participant shall provide new details (orsuccessor details) upon the expiration or obsolescence of any previously delivered details and topromptly notify Agent (or, in the case of a Participant, to the Lender granting the participationonly) of any change in circumstances which would modify or render invalid any claimed exemption orreduction claimed under the HMRC DT Treaty Passport Scheme.(l) WFCF, in its capacity as Lender, holds a passport under the HMRC DT Treaty Passportscheme, and wishes that scheme to apply to this Agreement, for its own benefit and withoutliability to any Loan Party. The HMRC DT Treaty Passport scheme number for WFCF is [***] and itsjurisdiction of tax residence is the United States of America. The Borrower shall accordingly filea duly completed form DTTP2 in respect of WFCF as Lender with HM Revenue & Customs within 30 daysof the date of this Agreement and shall promptly provide the Lender with a copy of that filing.Each Lender and each Participant shall provide new details (or successor details) upon theexpiration or obsolescence of any previously delivered details and to promptly notify Agent (or, inthe case of a Participant, to the Lender granting the participation only) of any change incircumstances which would modify or render invalid any claimed exemption or reduction claimed underthe HMRC DT Treaty Passport Scheme.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**17. GENERAL PROVISIONS**.**17.1****Effectiveness**. This Agreement shall be binding and deemed effective whenexecuted by Parent, Borrower, Agent, and each Lender whose signature is provided for on thesignature pages hereof.**17.2****Section Headings**. Headings and numbers have been set forth herein forconvenience only. Unless the contrary is compelled by the context, everything contained in eachSection applies equally to this entire Agreement.**17.3****Interpretation**. Neither this Agreement nor any uncertainty or ambiguity hereinshall be construed against the Lender Group or Parent or Borrower, whether under any rule ofconstruction or otherwise. On the contrary, this Agreement has been reviewed by all parties andshall be construed and interpreted according to the ordinary meaning of the words used so as toaccomplish fairly the purposes and intentions of all parties hereto.**17.4****Severability of Provisions**. Each provision of this Agreement shall be severablefrom every other provision of this Agreement for the purpose of determining the legalenforceability of any specific provision.**17.5****Bank Product Providers**. Each Bank Product Provider shall be deemed a third partybeneficiary hereof and of the provisions of the other Loan Documents for purposes of any referencein a Loan Document to the parties for whom Agent is acting. Agent hereby agrees to act as agentfor such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, theapplicable Bank Product Provider shall be automatically deemed to have appointed Agent as its agentand to have accepted the benefits of the Loan Documents; it being understood and agreed that therights and benefits of each Bank Product Provider under the Loan Documents consist exclusively ofsuch Bank Product Provider’s being a beneficiary of the Liens and security interests (and, ifapplicable, guarantees) granted to Agent and the right to share in payments and collections out ofthe Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtueof entering into a Bank Product Agreement, shall be automatically deemed to have agreed that Agentshall have the right, but shall have no obligation, to establish, maintain, relax, or releasereserves in respect of the Bank Product Obligations and that if reserves are established there isno obligation on the part of Agent to determine or insure whether the amount of any such reserve isappropriate or not. In connection with any such distribution of payments or proceeds ofCollateral, Agent shall be entitled to assume no amounts are due or owing to any Bank ProductProvider unless such Bank Product Provider has provided a written certification (setting forth areasonably detailed calculation) to Agent as to the amounts that are due and owing to it and suchwritten certification is received by Agent a reasonable period of time prior to the making of suchdistribution. Agent shall have no obligation to calculate the amount due and payable with respectto any Bank Products, but may rely upon the written certification of the amount due and payablefrom the relevant Bank Product Provider. In the absence of an updated certification, Agent shallbe entitled to assume that the amount due and payable to the relevant Bank Product Provider is theamount last certified to Agent by such Bank Product Provider as being due and payable (less anydistributions made to such Bank Product Provider on account thereof). Borrower may obtain BankProducts from any Bank Product Provider, although Borrower is not required to do so. Borroweracknowledges and agrees that no Bank Product Provider has committed to provide any Bank Productsand that the providing of Bank Products by any Bank Product Provider is in the sole and absolutediscretion of such Bank Product Provider. Notwithstanding anything to the contrary in thisAgreement or any other Loan Document, no provider or holder of any Bank Product shall have anyvoting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as theprovider or holder of such agreements or products or the Obligations owing thereunder, nor shallthe consent of any such provider or holder be required (other than in their capacities as Lenders,to the extent applicable) for any matter hereunder or under any of the other Loan Documents,including as to any matter relating to the Collateral or the release of Collateral or Guarantors.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**17.6****Debtor-Creditor Relationship**. The relationship between the Lenders and Agent, onthe one hand, and the Loan Parties, on the other hand, is solely that of creditor and debtor. Nomember of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty toany Loan Party arising out of or in connection with the Loan Documents or the transactionscontemplated thereby, and there is no agency or joint venture relationship between the members ofthe Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue of any LoanDocument or any transaction contemplated therein.**17.7****Counterparts; Electronic Execution**. This Agreement may be executed in any numberof counterparts and by different parties on separate counterparts, each of which, when executed anddelivered, shall be deemed to be an original, and all of which, when taken together, shallconstitute but one and the same Agreement. Delivery of an executed counterpart of this Agreementby telefacsimile or other electronic method of transmission shall be equally as effective asdelivery of an original executed counterpart of this Agreement. Any party delivering an executedcounterpart of this Agreement by telefacsimile or other electronic method of transmission alsoshall deliver an original executed counterpart of this Agreement but the failure to deliver anoriginal executed counterpart shall not affect the validity, enforceability, and binding effect ofthis Agreement. The foregoing shall apply to each other Loan Document *mutatis mutandis*.**17.8****Revival and Reinstatement of Obligations**. If the incurrence or payment of theObligations by Borrower or Guarantor or the transfer to the Lender Group of any property should forany reason subsequently be asserted or declared to be void or voidable under any state or federallaw relating to creditors’ rights, including provisions of the Bankruptcy Code relating tofraudulent conveyances, preferences, or other voidable or recoverable payments of money ortransfers of property (each, a “Voidable Transfer”), and if the Lender Group is required torepay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon theadvice of counsel, then, as to any such Voidable Transfer, or the amount thereof that the LenderGroup is required or elects to repay or restore, and as to all reasonable costs, expenses, andattorneys fees of the Lender Group related thereto, the liability of Borrower or Guarantorautomatically shall be revived, reinstated, and restored and shall exist as though such VoidableTransfer had never been made.**17.9****Confidentiality**.(a) Agent and Lenders each individually (and not jointly or jointly and severally) agree thatmaterial, non-public information regarding Parent and its Subsidiaries, their operations, assets,and existing and contemplated business plans (“Confidential Information”) shall be treatedby Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and theLenders to Persons who are not parties to this Agreement, except: (i) to attorneys for and otheradvisors, accountants, auditors, and consultants to any member of the Lender Group and toemployees, directors and officers of any member of the Lender Group (the Persons in this clause(i), “Lender Group Representatives”) on a “need to know” basis in connection with thisAgreement and the transactions contemplated hereby and on a confidential basis, (ii) toSubsidiaries and Affiliates of any member of the Lender Group (including the Bank ProductProviders), provided that any such Subsidiary or Affiliate shall have agreed to receive suchinformation hereunder subject to the terms of this Section 17.9, (iii) as may be requiredby regulatory authorities so long as such authorities are informed of the confidential nature ofsuch information, (iv) as may be required by statute, decision, or judicial or administrativeorder, rule, or regulation; provided that (x) prior to any disclosure under this clause (iv), thedisclosing party agrees to provide Borrower with prior notice thereof, to the extent that it ispracticable to do so and to the extent that the disclosing party is permitted to provide such priornotice to Borrower pursuant to the terms of the applicable statute, decision, or judicial oradministrative order, rule, or regulation and (y) any disclosure under this clause (iv) shall belimited to the portion of the Confidential Information as may be required by such statute,decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to inadvance in writing by Borrower, (vi) as requested or required by any Governmental Authoritypursuant to any subpoena or other legal process, provided, that, (x) prior to any disclosure underthis clause (vi) the disclosing party agrees to provide Borrower with prior written notice thereof,to the extent that it is practicable to do so and to the extent that the disclosing party ispermitted to provide such prior written notice to BorrowerConfidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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pursuant to the terms of the subpoena orother legal process and (y) any disclosure under this clause (vi) shall be limited to the portion of the Confidential Information as may be requiredby such Governmental Authority pursuant to such subpoena or other legal process, (vii) as to anysuch information that is or becomes generally available to the public (other than as a result ofprohibited disclosure by Agent or the Lenders or the Lender Group Representatives), (viii) inconnection with any assignment, participation or pledge of any Lender’s interest under thisAgreement, provided that prior to receipt of Confidential Information any such assignee,participant, or pledgee shall have agreed in writing to receive such Confidential Informationhereunder subject to the terms of this Section, (ix) in connection with any litigation or otheradversary proceeding involving parties hereto which such litigation or adversary proceedinginvolves claims related to the rights or duties of such parties under this Agreement or the otherLoan Documents; provided, that, prior to any disclosure to any Person (other than any Loan Party,Agent, any Lender, any of their respective Affiliates, or their respective counsel) under thisclause (ix) with respect to litigation involving any Person (other than Borrower, Agent, anyLender, any of their respective Affiliates, or their respective counsel), the disclosing partyagrees to provide Borrower with prior written notice thereof, and (x) in connection with, and tothe extent reasonably necessary for, the exercise of any secured creditor remedy under thisAgreement or under any other Loan Document.(b) Anything in this Agreement to the contrary notwithstanding, Agent may (i) providecustomary information concerning the terms and conditions of this Agreement and the other LoanDocuments to loan syndication and pricing reporting services, and (ii) use the name, logos, andother insignia of Borrower and the Loan Parties and the Revolver Commitments provided hereunder inany “tombstone” or comparable advertising, on its website or in other marketing materials of Agent.**17.10****Lender Group Expenses**. Borrower agrees to pay the Lender Group Expenses on theearlier of (a) the first day of the month following the date on which such Lender Group Expenseswere first incurred or (b) the date on which demand therefor is made by Agent. Borrower agreesthat its obligations contained in this Section 17.10 shall survive payment or satisfaction in fullof all other Obligations.**17.11****Survival**. All representations and warranties made by the Loan Parties in theLoan Documents and in the certificates or other instruments delivered in connection with orpursuant to this Agreement or any other Loan Document shall be considered to have been relied uponby the other parties hereto and shall survive the execution and delivery of the Loan Documents andthe making of any loans and issuance of any Letters of Credit, regardless of any investigation madeby any such other party or on its behalf and notwithstanding that Agent, the Issuing Lender, or anyLender may have had notice or knowledge of any Default or Event of Default or incorrectrepresentation or warranty at the time any credit is extended hereunder, and shall continue in fullforce and effect as long as the principal of or any accrued interest on any loan or any fee or anyother amount payable under this Agreement is outstanding and unpaid or any Letter of Credit isoutstanding and so long as the Revolver Commitments have not expired or terminated.**17.12****Patriot Act**. Each Lender that is subject to the requirements of the Patriot Acthereby notifies Borrower that pursuant to the requirements of the Act, it is required to obtain,verify and record information that identifies Borrower, which information includes the name andaddress of Borrower and other information that will allow such Lender to identify Borrower inaccordance with the Patriot Act. In addition, if Agent is required by law or regulation orinternal policies to do so, it shall have the right to periodically conduct (a) Patriot Actsearches, OFAC/PEP searches, and customary individual background checks for the Loan Parties and(b) OFAC/PEP searches and customary individual background checks for the Loan Parties’ seniormanagement and key principals, and Borrower agrees to cooperate in respect of the conduct of suchsearches and further agrees that the reasonable costs and charges for such searches shallconstitute Lender Expenses hereunder and be for the account of Borrower.**17.13****Integration**. This Agreement, together with the other Loan Documents, reflectsthe entire understanding of the parties with respect to the transactions contemplated hereby andshall not be contradicted or qualified by any other agreement, oral or written, before the datehereof. The foregoing to the contrary notwithstanding, all Bank Product Agreements, if any, areindependent agreements governed by thewritten provisions of such Bank Product Agreements, which will remain in full force andeffect, unaffected by any repayment, prepayments, acceleration, reduction, increase, or change inthe terms of any credit extended hereunder, except as otherwise expressly provided in such BankProduct Agreement.Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**17.14****Judgment Currency**. The specification under this Agreement of Dollars is of theessence. Each Loan Party’s obligations hereunder and under the other Loan Documents to makepayments in Dollars shall not be discharged or satisfied by any tender or recovery pursuant to anyjudgment expressed in or converted into any currency other than Dollars, except to the extent thatsuch tender or recovery results in the effective receipt by the Lender Group of the full amount ofDollars expressed to be payable to the Lender Group under this Agreement or the other LoanDocuments. If, for the purpose of obtaining or enforcing judgment in any court, it is necessary toconvert into or from any currency other than Dollars (such other currency being hereinafterreferred to as the “Judgment Currency”) an amount due in Dollars, the rate of exchange used shallbe that at which Agent could, in accordance with normal banking procedures, purchase Dollars withthe Judgment Currency on the Business Day preceding that on which final judgment is given. Theobligation of each Loan Party in respect of any such sum due from it to Agent or Lenders hereundershall, notwithstanding any judgment in such Judgment Currency, be discharged only to the extentthat, on the Business Day immediately following the date on which Agent or such Lenders receive anysum adjudged to be so due in the Judgment Currency, Agent or such Lenders may, in accordance withnormal banking procedures, purchase Dollars with the Judgment Currency. If the Dollars sopurchased are less than the sum originally due to Agent or such Lenders in Dollars, each Loan Partyagrees, as a separate obligation and notwithstanding any such judgment, to indemnify Agent or suchLenders, as the case may be, against such loss, and if the Dollars so purchased exceed the sumoriginally due to Agent or Lenders in Dollars, Agent or Lenders, as the case may be, agree to remitto such Loan Party such excess.**17.15****Amendment and Restatement of Original Credit Agreement**. This Agreementconstitutes an amendment and restatement of the Original Credit Agreement effective from and afterthe Closing Date. The execution and delivery of this Agreement and the consummation of thetransactions contemplated hereby are not intended by the parties to be, and shall not constitute, anovation or an accord and satisfaction of the Obligations or any other obligations owing to Agentor the Lenders under the Original Credit Agreement or any other loan document executed inconnection therewith. On the Closing Date, the credit facilities and the terms and conditionsthereof described in the Original Credit Agreement shall be amended and replaced in their entiretyby the credit facilities and the terms and conditions described herein, and all Advances and otherObligations of Borrower outstanding as of such date under the Original Credit Agreement shall bedeemed to be Advances, Letters of Credit and Obligations outstanding under the correspondingfacilities described herein (such that all Obligations which are outstanding on the Closing Dateunder the Original Credit Agreement shall become Obligations under this Agreement), without furtheraction by any Person. Each of the parties hereto hereby acknowledges and agrees that the grant ofthe security interests in the Collateral pursuant to the Security Agreement and in any other LoanDocument (unless explicitly agreed to by Agent in writing) is not intended to, nor shall it beconstrued, as constituting a release of any prior security interests granted by any Loan Party infavor of Agent for the benefit of itself, the Lenders, Issuing Lender, Underlying Issuer and theBank Product Providers in or to any Collateral or any other Property of such Loan Party, but isintended to constitute a restatement and reconfirmation of the prior security interests granted bythe Loan Parties in favor of Agent for the benefit of itself, the Lenders, Issuing Lender,Underlying Issuer and the Bank Product Providers in and to the Collateral and a grant of a newsecurity interest in any Collateral that is not included in the prior security grants by the LoanParties and in favor of Agent for the benefit of itself, the Lenders, Issuing Lender, UnderlyingIssuer and the Bank Product Providers to the extent such grant was not included in the priorsecurity grants.[Signature pages to follow.]Confidential treatment is being requested for portions of this document.This copy of the document filed as an exhibit omits the confidential informationsubject to the confidentiality request.Omissions are designated by the symbol [***]. A complete version of this documenthas been filed separately with the Securities and Exchange Commission.
 
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**IN WITNESS WHEREOF,**the parties hereto have caused this Agreement to be executed and deliveredas of the date first above written.      **OCLARO, INC.**