exv10w01



 




Exhibit
10.01 


EXECUTION VERSION





 

 








CREDIT AGREEMENT




dated as of January 10, 2006




among




ORBIMAGE HOLDINGS INC.




ORBIMAGE SI HOLDCO INC.




ORBIMAGE SI OPCO INC., as the Borrower




CREDIT SUISSE FIRST BOSTON LLC,

as Lead Arranger and Bookrunner




CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Administrative Agent




and




THE BANK OF NEW YORK,

as Collateral Agent




 

 








 









 












Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	Section 1.01 Defined Terms
	 	 	1	 
	Section 1.02 Other Interpretative Provisions
	 	 	28	 
	Section 1.03 Accounting Terms and Determinations
	 	 	28	 
	Section 1.04 Annualization; Rounding
	 	 	29	 
	Section 1.05 Times of Day
	 	 	29	 
	 
	 	 	 	 
	ARTICLE II THE CREDIT FACILITIES
	 	 	29	 
	 
	 	 	 	 
	Section 2.01 Commitments to Lend
	 	 	29	 
	Section 2.02 Evidence of Loans
	 	 	29	 
	Section 2.03 Interest
	 	 	30	 
	Section 2.04 Extension and Conversion
	 	 	30	 
	Section 2.05 Maturity of Loans
	 	 	31	 
	Section 2.06 Prepayments
	 	 	31	 
	Section 2.07 Fees
	 	 	32	 
	Section 2.08 Pro-rata Treatment
	 	 	32	 
	Section 2.09 Payments Generally; Administrative Agent’s Clawback
	 	 	33	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	34	 
	 
	 	 	 	 
	Section 3.01 Taxes
	 	 	34	 
	Section 3.02 Illegality
	 	 	36	 
	Section 3.03 Inability to Determine Rates
	 	 	36	 
	Section 3.04 Increased Costs and Reduced Return; Capital Adequacy
	 	 	37	 
	Section 3.05 Compensation for Losses
	 	 	38	 
	Section 3.06 Base Rate Loans Substituted for Affected Eurodollar Loans
	 	 	38	 
	Section 3.07 Mitigation Obligations
	 	 	38	 
	Section 3.08 Survival
	 	 	39	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO CLOSING
	 	 	39	 
	 
	 	 	 	 
	Section 4.01 Conditions to Closing
	 	 	39	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	42	 
	 
	 	 	 	 
	Section 5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	42	 
	Section 5.02 Authorization; No Contravention
	 	 	42	 
	Section 5.03 Governmental Authorization; Other Consents
	 	 	43	 
	Section 5.04 Binding Effect
	 	 	43	 
	Section 5.05 Financial Condition; No Material Adverse Effect
	 	 	43	 
	Section 5.06 Litigation
	 	 	44	 
	Section 5.07 No Default
	 	 	44	 
	Section 5.08 Ownership of Property; Liens
	 	 	44	 
	Section 5.09 Environmental Compliance
	 	 	44	 
	Section 5.10 Insurance
	 	 	44	 
	Section 5.11 Taxes
	 	 	45	 






 









 







	 	 	 	 	 
	 	 	Page	 
	Section 5.12 ERISA; Foreign Pension Plans; Employee Benefit Arrangements
	 	 	45	 
	Section 5.13 Subsidiaries; Equity Interests
	 	 	46	 
	Section 5.14 Margin Regulations; Investment Company Act; Public
Utility Holding Company Act
	 	 	46	 
	Section 5.15 Disclosure
	 	 	46	 
	Section 5.16 Compliance with Law
	 	 	47	 
	Section 5.17 Intellectual Property
	 	 	47	 
	Section 5.18 Purpose of Loans
	 	 	47	 
	Section 5.19 Labor Matters
	 	 	47	 
	Section 5.20 Solvency
	 	 	47	 
	Section 5.21 Collateral Documents
	 	 	47	 
	Section 5.22 Ownership
	 	 	48	 
	Section 5.23 Certain Transactions
	 	 	48	 
	Section 5.24 TT&C Earth Station License, Etc
	 	 	48	 
	Section 5.25 In-Orbit Satellites
	 	 	48	 
	 
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	49	 
	 
	 	 	 	 
	Section 6.01 Financial Statements
	 	 	49	 
	Section 6.02 Certificates; Other Information
	 	 	50	 
	Section 6.03 Notices
	 	 	51	 
	Section 6.04 Payment of Taxes
	 	 	52	 
	Section 6.05 Preservation of Existence Etc
	 	 	52	 
	Section 6.06 Maintenance of Properties
	 	 	52	 
	Section 6.07 Maintenance of Insurance; Certain Proceeds
	 	 	52	 
	Section 6.08 Compliance with Laws
	 	 	53	 
	Section 6.09 Books and Records
	 	 	53	 
	Section 6.10 Inspection Rights
	 	 	53	 
	Section 6.11 Use of Proceeds
	 	 	54	 
	Section 6.12 Additional Loan Parties; Additional Security
	 	 	54	 
	Section 6.13 Cash Management System
	 	 	55	 
	Section 6.14 Access and Command Codes
	 	 	55	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	56	 
	 
	 	 	 	 
	Section 7.01 Limitation on Indebtedness
	 	 	57	 
	Section 7.02 Restriction on Liens
	 	 	58	 
	Section 7.03 Nature of Business
	 	 	60	 
	Section 7.04 Consolidation, Merger and Dissolution
	 	 	60	 
	Section 7.05 Asset Dispositions
	 	 	61	 
	Section 7.06 Investments
	 	 	63	 
	Section 7.07 Restricted Payments, Etc
	 	 	64	 
	Section 7.08 Prepayments of Indebtedness, Etc
	 	 	65	 
	Section 7.09 Transactions with Affiliates
	 	 	65	 
	Section 7.10 Fiscal Year; Organizational and Other Documents; Tax Sharing
Agreement
	 	 	66	 
	Section 7.11 Restrictions with Respect to Intercorporate Transfers
	 	 	66	 
	Section 7.12 Ownership of Subsidiaries; Limitations on Holdings and the
Borrower
	 	 	67	 
	Section 7.13 Sale and Leaseback Transactions
	 	 	67	 
	Section 7.14 Capital Expenditures
	 	 	67	 
	Section 7.15 Additional Negative Pledges
	 	 	68	 
	Section 7.16 Real Property Collateral
	 	 	68	 






ii









 





	 	 	 	 	 
	 	 	Page	 
	ARTICLE VIII DEFAULTS
	 	 	69	 
	 
	 	 	 	 
	Section 8.01 Events of Default
	 	 	69	 
	Section 8.02 Acceleration; Delivery of Preferred Stock Election Notice;
Remedies
	 	 	71	 
	Section 8.03 Payments on and Redemptions of Parent Preferred Stock
	 	 	72	 
	Section 8.04 Allocation of Payments After Event of Default
	 	 	72	 
	 
	 	 	 	 
	ARTICLE IX AGENCY PROVISIONS
	 	 	74	 
	 
	 	 	 	 
	Section 9.01 Appointment and Authority
	 	 	74	 
	Section 9.02 Rights as a Lender
	 	 	74	 
	Section 9.03 Exculpatory Provisions
	 	 	74	 
	Section 9.04 Reliance by Administrative Agent and Collateral Agent
	 	 	75	 
	Section 9.05 Delegation of Duties
	 	 	76	 
	Section 9.06 Resignation of Agents
	 	 	76	 
	Section 9.07 Non-Reliance on Agents and Other Lenders
	 	 	76	 
	Section 9.08 Agents May File Proofs of Claim
	 	 	77	 
	Section 9.09 Collateral and Guaranty Matters
	 	 	77	 
	Section 9.10 Related Obligations
	 	 	78	 
	Section 9.11 Collateral Agent
	 	 	78	 
	Section 9.12 Appointment of Co-Collateral Agent
	 	 	78	 
	Section 9.13 No Other Duties, etc
	 	 	79	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	80	 
	 
	 	 	 	 
	Section 10.01 Amendments, Etc
	 	 	80	 
	Section 10.02 Notices; Effectiveness; Electronic Communication
	 	 	81	 
	Section 10.03 No Waiver; Cumulative Remedies
	 	 	82	 
	Section 10.04 Expenses; Indemnity; Damage Waiver
	 	 	82	 
	Section 10.05 Payments Set Aside
	 	 	83	 
	Section 10.06 Successors and Assigns
	 	 	84	 
	Section 10.07 Treatment of Certain Information; Confidentiality
	 	 	86	 
	Section 10.08 Right of Setoff
	 	 	86	 
	Section 10.09 Interest Rate Limitation
	 	 	87	 
	Section 10.10 Counterparts; Integration; Effectiveness
	 	 	87	 
	Section 10.11 Survival of Representations and Warranties
	 	 	87	 
	Section 10.12 Severability
	 	 	87	 
	Section 10.13 Governing Law; Jurisdiction Etc.
	 	 	87	 
	Section 10.14 Waiver of Jury Trial
	 	 	88	 
	Section 10.15 USA Patriot Act Notice; Lenders’ Compliance Certification
	 	 	89	 






iii









 






Schedules:



Schedule 1.01B  —  Transaction Related Expenses

Schedule 2.01  —  Lenders and Commitments

Schedule 5.06  —  Litigation

Schedule 5.10  —  Insurance

Schedule 5.12  —  ERISA

Schedule 5.22  —  Ownership of Borrower

Schedule 5.23  —  Broker’s Fees

Schedule 5.24  —  TT&C Earth Stations; Licenses and Authorizations

Schedule 5.25  —  In-Orbit Satellites

Schedule 6.13  —  Cash Management Banks

Schedule 7.01  —  Indebtedness

Schedule 7.02  —  Existing Liens

Schedule 7.06  —  Investments

Schedule 7.16  —  Mortgaged Properties

Schedule 10.02  —  Administrative Agent’s Office, Certain Addresses for Notices




Exhibits:



Exhibit A  —  Form of Notice of Extension/Conversion

Exhibit B  —  Form of Note

Exhibit C  —  Form of Assignment and Assumption

Exhibit D  —  Form of Compliance Certificate

Exhibit E  —  Form of Opinion of Counsel for the Borrower and the Other Loan Parties

Exhibit F  —  Form of Guaranty

Exhibit G-1  —  Form of Security Agreement

Exhibit G-2  —  Form of Mortgage

Exhibit H  —  Form of Administrative Questionnaire

Exhibit I  —  Form of OFAC/Anti-Terrorism Compliance Certificate















 






CREDIT AGREEMENT




          This Credit Agreement (“Agreement”) is entered into as of January 10, 2006, among,
ORBIMAGE HOLDINGS INC., a Delaware corporation (“Parent”), ORBIMAGE SI HOLDCO INC., a Delaware
corporation (“Holdings”), ORBIMAGE SI OPCO INC., a Delaware corporation (the
“Borrower”), each guarantor from time to time party hereto, each lender from time to time
party hereto (collectively, the “Lenders” and individually, a “Lender”), Credit
Suisse First Boston LLC as Lead Arranger and Bookrunner, Credit Suisse, Cayman Islands Branch as
Administrative Agent and The Bank of New York (“BONY”) as Collateral Agent.




          As part of the financing contemplated by the Acquisition Agreement (such term and each other
capitalized term used but not defined in this preamble having the meaning assigned thereto in
Article I), Parent, Holdings and the Borrower have requested that the Lenders extend credit
in the form of a term Loan on the Closing Date in an aggregate principal amount of $50,000,000.00.




          The Lenders are willing to make the requested credit facility available on the terms and
conditions set forth herein. Accordingly, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:




ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




          Section 1.01 Defined Terms. As used in this Agreement, the following terms have the
meanings set forth below:




          “Account Debtor” means any Person who is or who may become obligated under, with
respect to or on account of an “account”, “chattel paper” or a “general intangible” (as such terms
are defined in the UCC).




          “Acquired Business” means the business acquired by the Borrower pursuant to the
Acquisition Documents.




          “Acquisition” means the transactions contemplated by the Acquisition Agreement.




          “Acquisition Agreement” means the Asset Purchase Agreement, dated as of September 15,
2005, among Parent, Orbimage, the Borrower and the Seller, as the same may be amended, modified or
supplemented from time to time in accordance with the provisions thereof and of this Agreement.




          “Acquisition Agreement Assignment” means the Assignment and Assumption Agreement,
dated as of the Closing Date, pursuant to which all of the rights and obligations of Parent and
Orbimage under the Acquisition Agreement have been assigned to and assumed by the Borrower.




          “Acquisition Documents” means the Acquisition Agreement, including all exhibits and
schedules thereto, the Acquisition Agreement Assignment, and all other material agreements,
documents and instruments relating to the Acquisition, in each case as the same may be amended,
modified or supplemented from time to time in accordance with the provisions thereof and of this
Agreement.




          “Acquisition Price” means the total consideration paid to the Seller in connection
with the Acquisition Documents.




          “Act” has the meaning specified in Section 10.15.




 









 








          “Additional Collateral Documents” has the meaning specified in Section
6.12(b).




          “Additional Subsidiary Guarantor” means each Person that becomes a Subsidiary
Guarantor after the Closing Date by execution of a Joinder Agreement as provided in Section
6.12.




          “Adjusted Eurodollar Rate” means, for the Interest Period for each Eurodollar Loan,
the quotient obtained (expressed as a decimal, carried out to five decimal places) by dividing (i)
the applicable Eurodollar Rate for such Interest Period by (ii) 1.00 minus the Eurodollar Reserve
Percentage.




          “Adjusted Treasury Rate” means, with respect to any date of prepayment, the rate per
annum equal to the monthly equivalent yield to maturity of the Comparable Treasury Issue (as
defined below). “Comparable Treasury Issue” means the United States Treasury security selected by
Deephaven as having a maturity most nearly equal to the period from the date of prepayment to the
Maturity Date; provided that if the period from the date of prepayment to the Maturity Date
is less than one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.




          “Administrative Agent” means Credit Suisse, Cayman Islands Branch in its capacity as
administrative agent under any of the Loan Documents, or any successor administrative agent.




          “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify the Collateral Agent, the Borrower and the
Lenders.




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




          “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.




          “Agent” means the Administrative Agent or the Collateral Agent, and “Agents”
means both of them.




          “Agreement” means this Credit Agreement, as amended, modified or supplemented from
time to time.




          “Applicable Margin” means 6.00% per annum for Eurodollar Loans and 5.00% per annum for
Base Rate Loans; provided, however, that the Applicable Margin shall be reduced by 25 basis points
per annum (but not below 5.75% per annum for Eurodollar Loans and 4.75% per annum for Base Rate
Loans) for each calendar month after (and excluding) November 2006 for which the Group Companies
maintain In-Orbit Insurance obtained prior to April 1, 2006 (such 25 basis point reduction reduced
on a pro rata basis both (x) to the extent such insurance is maintained for only a portion of any
such month and (y) to the extent such insurance is for less than $20.0 million).




          “Applicable Percentage” means, with respect to any Lender at any time, the portion of
the aggregate amount of the then outstanding Loan owed to such Lender. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01
opposite the Commitments or in the Assignment and Assumption pursuant to which such Lender becomes
a party hereto, as applicable.




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




- 2 -









 








          “Asset Disposition” means any sale (including any Sale/Leaseback Transaction, whether
or not involving a Capital Lease), transfer or other permanent disposition (including any such
transaction effected by way of merger or consolidation and including any sale or other disposition
of Equity Interests of a Subsidiary, but excluding any sale or other disposition by way of Casualty
or Condemnation) by any Group Company of any asset, in each case with a value in excess of $50,000
with respect to any single disposition or $250,000 in the aggregate for any calendar year of the
Borrower.




          “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, substantially in the form of
Exhibit C hereto or any other form approved by the Administrative Agent.




          “Attributable Indebtedness” means, at any date, (i) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (ii) in respect of any Synthetic Lease Obligation
of any Person, the capitalized or principal amount of the remaining lease payments under the
relevant lease that would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease or other agreement were accounted for as a Capital Lease and
(iii) in respect of any Sale/Leaseback Transaction, the lesser of (A) the present value, discounted
in accordance with GAAP at the interest rate implicit in the related lease, of the obligations of
the lessee for net rental payments over the remaining term of such lease (including any period for
which such lease has been extended or may, at the option of the lessor be extended) and (B) the
fair market value of the assets subject to such transaction.




          “Audited Financial Statements” means (a) the audited consolidated balance sheet of
Parent and its Consolidated Subsidiaries for each of the fiscal years ended December 31, 2004 and
December 31, 2003, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year of Parent and its Consolidated Subsidiaries, including
the notes thereto, and (b) the audited consolidated balance sheet of the Acquired Business for each
of the fiscal years ended December 31, 2004 and December 31, 2003, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the
Acquired Business, including the notes thereto.




          “Bank Secrecy Act” means the Financial Recordkeeping and Reporting of Currency and
Foreign Transactions Act of 1970, 31 U.S.C. 1051, et seq., as the same may be amended,
supplemented, modified, replaced or otherwise in effect from time to time.




          “Base Liquidation Preference” has the meaning specified in Section 8.03.




          “Base Rate” means, for any day, the rate per annum equal to the higher of (i) the
Federal Funds Rate plus 1/2 of 1% and (ii) the rate of interest in effect for such day as announced
from time to time by the Reference Bank as its “reference rate”, “base rate” or “prime rate”. Any
change in such rate announced by the Reference Bank shall take effect at the opening of business on
the day specified in the public announcement of such change.




          “Base Rate Loan” means a Loan that bears interest based on the Base Rate.




          “Blocked Account Agreement” has the meaning specified in Section 6.13(b).




          “Borrower” means ORBIMAGE SI Opco Inc. and its successors.




- 3 -









 








          “Borrowing” means a borrowing comprised of the Loan hereunder.




          “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located, except that if such day relates to a borrowing
of, a payment or prepayment of principal of or interest on, or the Interest Period for, a
Eurodollar Loan, or a notice by the Borrower with respect to any such borrowing, payment,
prepayment or Interest Period, such day shall also be a day on which dealings in Dollar deposits
are conducted by and between banks in the London interbank eurodollar market.




          “Capital Lease” of any Person means any lease of (or other arrangement conveying the
right to use) property (whether real, personal or mixed) by such Person as lessee which would, in
accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of
such Person.




          “Capital Lease Obligations” means, with respect to any Person, all obligations of such
Person as lessee under Capital Leases, in each case taken at the amount thereof accounted for on a
balance sheet as long-term liabilities in accordance with GAAP.




          “Cash Equivalents” means:





          (i) securities issued or directly and fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof (provided that the full faith and credit
of the United States of America is pledged in support thereof) having maturities within 365
days of the date of acquisition;




          (ii) certificates of deposit of (A) any Lender, (B) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or (C) any bank
whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof
or from Moody’s is at least P-1 or the equivalent thereof (any such bank being an
“Approved Lender”), in each case with maturities within 365 days of the date of
acquisition;




          (iii) commercial paper and variable or fixed rate notes issued by any Approved Lender
(or by the parent company thereof) or any variable rate notes issued by, or guaranteed by,
any domestic corporation not an Affiliate of the Borrower rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and
maturing within three months of the date of acquisition;




          (iv) repurchase agreements with a term of not more than seven days with a bank or trust
company (including any of the Lenders) or recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America;




          (v) Investments, classified in accordance with GAAP as current assets, in money market
investment programs registered under the Investment Company Act of 1940, as amended, which
are administered by reputable financial institutions having capital of at least $500,000,000
and the portfolios of which are limited to Investments of the character described in the
foregoing clauses (i) through (iv);




          (vi) securities with maturities of 365 days or less from the date of acquisition backed
by standby letters of credit issued by any Lender or by a commercial bank satisfying the
requirements of clause (ii)(B) of this definition;



- 4 -









 






          (vii) U.S. dollars, pounds sterling and Euros;




          (viii) direct obligations of the United States of America or any member of the European
Union or any agency thereof or obligations guaranteed by the United States of America or any
member of the European Union or any agency thereof, in each case with maturities not
exceeding two years; or




          (ix) investment funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (i) through (viii) of this definition, as applicable.



          “Cash Management Account” has the meaning specified in Section 6.13(a).




          “Cash Management Banks” has the meaning specified in Section 6.13(a).




          “Cash Management Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person in respect of treasury management services to,
for the benefit of or otherwise in respect of any Person (including intraday credit, Automated
Clearing House (ACH) services, foreign exchange services, daylight overdrafts and zero balance
arrangements) provided by any Lender or its Affiliates, including obligations for the payment of
agreed interest and reasonable, fees, charges, expenses and disbursements in connection therewith.




          “Cash Management Systems” has the meaning specified in Section 6.13.




          “Casualty” means any casualty, loss, damage, destruction or other similar loss with
respect to real or personal property or improvements.




          “Casualty Insurance Policy” means any insurance policy maintained by any Group Company
covering losses with respect to Casualties.




          “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (iii) the making or issuance for the first
time of any request, guideline or directive having the force of law by any Governmental Authority.




          “Change of Control” means the occurrence of any of the following events:





          (i) (A) Holdings shall cease to own directly 100% of the Equity Interests of the
Borrower on a fully-diluted basis assuming the conversion and exercise of all outstanding
Equity Equivalents (whether or not such securities are then currently convertible or
exercisable), (B) Parent shall cease to own directly or indirectly 100% of the Equity
Interests of Holdings on a fully-diluted basis assuming the conversion and exercise of all
outstanding Equity Equivalents (whether or not such securities are then currently
convertible or exercisable), or (C) Parent shall become aware of (by way of a report or any
other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or
otherwise) that any “person” or “group” (within the meaning of Section 13(d) or 14(d) of
the Exchange Act or any successor provision) has become the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to
have “beneficial ownership” of all securities that any such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of time), by way of
merger, consolidation or otherwise, of 50% or more of the voting power of the Equity
Interests of Parent on a fully-diluted basis after giving effect to the conversion and
exercise of all outstanding Equity Equivalents (whether or not such securities are then
currently convertible or exercisable); or



- 5 -









 






          (ii) a “change of control” (as defined in the Senior Secured Note Indenture) shall
occur.



          “Clearview Consent” means the consent by the National Geospatial Intelligence Agency
to the novation of Clearview Contract NMA301-03-C-0002, between Space Imaging and the National
Geospatial Intelligence Agency, dated January 17, 2004, through which the Borrower replaces Space
Imaging.




          “Closing Date” means the date on or after the Effective Date when the Loan is made in
accordance with Section 4.01.




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




          “Collateral” means all of the property which is subject or is purported to be subject
to the Liens granted by the Collateral Documents.




          “Collateral Agent” means The Bank of New York, in its capacity as collateral agent for
the Finance Parties under the Collateral Documents, and its successor or successors in such
capacity.




          “Collateral Agent Responsible Officer” means, when used with respect to the Collateral
Agent, any officer within the corporate trust department of the Collateral Agent, including any
vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer
or any other officer of the Collateral Agent who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this
Agreement and the Loan Documents to which the Collateral Agent is a party.




          “Collateral Documents” means, collectively, the Security Agreement, each Blocked
Account Agreement, each Mortgage, any Additional Collateral Documents, any additional pledges,
security agreements, patent, trademark or copyright filings or mortgages required to be delivered
pursuant to the Finance Documents and any instruments of assignment, control agreements, lockbox
letters or other instruments or agreements executed pursuant to the foregoing.




          “Collections” means all cash, checks, notes, instruments and other items of payment
(including insurance proceeds, proceeds of cash sales, rental proceeds and tax refunds) of any
Person.




          “Commitment” means, with respect to any Lender, the commitment of such Lender to fund
its portion of the Loan on the Closing Date in a principal amount equal to such Lender’s Commitment
Percentage of the Committed Amount.




          “Commitment Percentage” means, for each Lender, the percentage (carried out to the
ninth decimal place) of the aggregate Commitments represented by such Lender’s Commitment at such
time and identified as its Commitment Percentage on Schedule 2.01, as such percentage may
be modified in connection with any Assignment and Assumption made in accordance with the provisions
of Section 10.06(b).




          “Committed Amount” means $50,000,000.00.




          “Compliance Certificate” means a certificate substantially in the form of Exhibit
D hereto.




- 6 -









 








          “Condemnation” means any taking by a Governmental Authority of property or assets, or
any part thereof or interest therein, for public or quasi-public use under the power of eminent
domain, by reason of any public improvement or condemnation or in any other manner.




          “Condemnation Award” means all proceeds of any Condemnation or transfer in lieu
thereof.




          “Consolidated Adjusted Working Capital” means at any date the excess of (i)
Consolidated Current Assets over (ii) Consolidated Current Liabilities (excluding the current
portion of any Consolidated Funded Indebtedness).




          “Consolidated Capital Expenditures” means for any period the aggregate amount of all
cash expenditures that would, in accordance with GAAP, be included as additions to property, plant
and equipment; provided, that in any event the term “Consolidated Capital Expenditures”
shall exclude any expenditures to the extent financed with the proceeds of an Equity Issuance or
Indebtedness (other than Loans) or any Reinvestment Deferred Amount.




          “Consolidated Cash Interest Expense” means for any period Consolidated Interest
Expense that has been paid or is payable in cash for such period.




          “Consolidated Cash Taxes” means for any period the aggregate amount of all Federal,
state, local and foreign income, value added and similar taxes of Holdings and its Consolidated
Subsidiaries for such period to the extent the same are paid in cash by Holdings or any
Consolidated Subsidiary of Holdings during such period pursuant to the Tax Sharing Agreement.




          “Consolidated Current Assets” means at any date the consolidated current assets of
Holdings and its Consolidated Subsidiaries (excluding cash and Cash Equivalents) determined as of
such date in accordance with GAAP.




          “Consolidated Current Liabilities” means at any date the consolidated current
liabilities of Holdings and its Consolidated Subsidiaries, determined as of such date in accordance
with GAAP.




          “Consolidated EBITDA” means for any period the sum of:





          (i) Consolidated Net Income for such period (excluding therefrom (x) any extraordinary
items of gain or loss, (y) any gain or loss from discontinued operations and (z) any gains
or losses from Asset Dispositions); plus




          (ii) to the extent not otherwise included in the determination of Consolidated Net
Income for such period, all proceeds of business interruption insurance policies, if any,
received during such period; plus




          (iii) without duplication, those amounts which, in the determination of Consolidated
Net Income for such period, have been deducted for (A) Consolidated Interest Expense, (B)
lease expense in respect of Synthetic Lease Obligations and Sale/Leaseback Transactions
accounted for as Operating Leases under GAAP, (C) provisions for Federal, state, local and
foreign income, value added and similar taxes, (D) depreciation, amortization (including,
without limitation, amortization of goodwill and other intangible assets), impairment of
goodwill and other non-recurring non-cash charges or expenses (excluding any such non-cash
charge or expense to the extent that it represents amortization of a prepaid cash expense
that was paid in a prior period or an accrual of, or a reserve for, cash charges or expenses
in any future period and any such charge that results from the write-down or write-off of
inventory), (E) non-cash compensation expense, or other non-cash expenses or charges,
arising from the granting of stock options, the granting of stock



- 7 -









 






appreciation rights and similar arrangements (including any repricing, amendment,
modification, substitution or change of any such stock option, stock appreciation rights or
similar arrangements), (F) one-time purchase accounting adjustments in the amount of any
expenses charged on the Closing Date in respect of purchased in-process research and
development by reason of SFAS 141, paragraph 42 and FASB Interpretation No. 4, and (G)
Transaction-related expenditures not exceeding the amounts therefore set forth in
Schedule 1.01B, minus




          (iv) any amount which, in the determination of Consolidated Net Income for such period,
has been added for (A) interest income and (B) any non-cash income or non-cash gains, all as
determined in accordance with GAAP; minus




          (v) the aggregate amount of cash payments made during such period in respect of any
non-cash accrual, reserve or other non-cash charge or expense accounted for in a prior
period which were added to Consolidated Net Income to determine Consolidated EBITDA for such
prior period and which do not otherwise reduce Consolidated Net Income for the current
period.



          “Consolidated Funded Indebtedness” means at any date the Funded Indebtedness of
Holdings and its Consolidated Subsidiaries as of such date, determined on a consolidated basis in
accordance with GAAP.




          “Consolidated Interest Expense” means, for any period, the total interest expense of
Holdings and its Consolidated Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments under Capital Leases and the implied interest component of Synthetic
Leases (regardless of whether accounted for as interest expense under GAAP), all commissions,
discounts and other fees and charges owed with respect to letters of credit and bankers’
acceptances and net costs in respect of Swap Obligations constituting interest rate swaps, collars,
caps or other arrangements requiring payments contingent upon interest rates of Holdings and its
Consolidated Subsidiaries), net of interest income, but excluding (i) amortization of debt issuance
costs and original issue discount and (ii) to the extent they would otherwise be included in
interest expense under GAAP, unrealized gains and losses arising from derivative financial
instruments issued by Holdings for the benefit of Holdings, the Borrower or any employee of
Holdings or the Borrower or their respective Consolidated Subsidiaries, in each case determined on
a consolidated basis for such period.




          “Consolidated Net Income” means, for any period, the net income (or net loss) after
taxes of Holdings and its Consolidated Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP; provided, that there shall be excluded from the calculation
of Consolidated Net Income for any period (i) the income (or loss) of any Person in which any other
Person (other than Holdings or any of its Wholly-Owned Consolidated Subsidiaries) has an ownership
interest, except to the extent that any such income is actually received in cash by Holdings or
such Wholly-Owned Consolidated Subsidiary in the form of Restricted Payments during such period,
(ii) the income (or loss) of any Person accrued prior to the date it becomes a Consolidated
Subsidiary of Holdings or is merged with or into or consolidated with Holdings or any of its
Consolidated Subsidiaries or that Person’s assets are acquired by Holdings or any of its
Consolidated Subsidiaries, and (iii) the income of any Subsidiary of Holdings to the extent that
the declaration or payment of Restricted Payments or similar distributions by that Subsidiary of
that income is not at the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that
Subsidiary.




          “Consolidated Subsidiary” means with respect to any Person at any date any Subsidiary
of such Person or other entity the accounts of which would be consolidated with those of such
Person in its consolidated financial statements if such statements were prepared as of such date in
accordance with GAAP.




- 8 -









 








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




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.




          “Credit Exposure” means, as applied to each Lender:





          (i) at any time prior to the termination of the Commitments, such Lender’s Commitment
Percentage multiplied by the Committed Amount; and




          (ii) at any time after the termination of the Commitments, the principal balance of the
outstanding Loans of such Lender.


For purposes of the foregoing, (i) the interest of any Lender holding a Loan in which any other
Lender has a Participation Interest pursuant to Section 10.06(d) shall be calculated net of
all such Participation Interests under Section 10.06(d) of other Lenders and (ii) the
Participation Interest of any Lender pursuant to Section 10.06(d) in a Loan held by any
other Lender shall be counted as if such Lender holding a Participation Interest under Section
10.06(d) held a proportionate part of the related Loan directly.




          “Debt Equivalents” of any Person means (i) any Equity Interest of such Person which by
its terms (or by the terms of any security for which it is convertible or for which it is
exchangeable or exercisable), or upon the happening of any event or otherwise (including an event
which would constitute a Change of Control), (A) matures or is mandatorily redeemable or subject to
any mandatory repurchase requirement, pursuant to a sinking fund or otherwise, (B) is convertible
into or exchangeable for Indebtedness or Debt Equivalents or (C) is redeemable or subject to any
repurchase requirement arising at the option of the holder thereof, in whole or in part, in any
such event on or prior to the 3 month anniversary after the Maturity Date and (ii) if such Person
is a Subsidiary of the Borrower, any Preferred Stock of such Person.




          “Debt Issuance” means the issuance by any Group Company of any Indebtedness.




          “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.




          “Default” means any condition or event that constitutes an Event of Default or that,
with the giving of notice, the passage of time, or both, would be an Event of Default.




          “Default Rate” means an interest rate equal to the rate otherwise then applicable to
the Loan plus 2.00% per annum.




          “Dollars” and “$” means lawful money of the United States of America.




          “Domestic Subsidiary” means with respect to any Person each Subsidiary of such Person
that is organized under the laws of the United States or any political subdivision or any territory
thereof, and “Domestic Subsidiaries” means any two or more of them.




- 9 -









 








          “Effective Date” means the date this Agreement becomes effective in accordance with
Section 10.10.




          “Eligible Assignee” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an
Approved Fund and (iv) any other Person (other than a natural person) approved by the
Administrative Agent and, so long as no Event of Default shall have occurred and be continuing, the
Borrower (such approval, in any such case, not to be unreasonably withheld or delayed). In no
event shall a non-United States Person be an “Eligible Assignee” if such assignment will result in
the revocation of a facility security clearance held by any Loan Party by the Department of
Defense.




          “Employee Benefit Arrangements” means in any jurisdiction the benefit schemes or
arrangements in respect of any employees or past employees operated by any Group Company or in
which any Group Company participates and which provide benefits on retirement, ill-health, injury,
death or voluntary withdrawal from or termination of employment, including termination indemnity
payments and life assurance and post-retirement medical benefits, other than Plans and Foreign
Pension Plans.




          “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
Laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any hazardous materials into the environment,
including those related to hazardous substances or wastes, air emissions and discharges to waste or
public systems.




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of remediation, fines, penalties or indemnities), of any Group Company
directly or indirectly resulting from or based on (i) violation of any Environmental Law, (ii) the
generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Material, (iii) exposure to any Hazardous Material, (iv) the release or threatened release of any
Hazardous Material into the environment or (v) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.




          “Equity Equivalents” means with respect to any Person any rights, warrants, options,
convertible securities, exchangeable securities, indebtedness or other rights, in each case
exercisable for or convertible or exchangeable into, directly or indirectly, Equity Interests of
such Person or securities exercisable for or convertible or exchangeable into Equity Interests of
such Person, whether at the time of issuance or upon the passage of time or the occurrence of some
future event.




          “Equity Interests” means all shares of capital stock, partnership interests (whether
general or limited), limited liability company membership interests, beneficial interests in a
trust and any other interest or participation that confers on a Person the right to receive a share
of profits or losses, or distributions of assets, of an issuing Person, but excluding any debt
securities convertible into such Equity Interests.




          “Equity Issuance” means (i) any sale or issuance by Holdings to any Person other than
Holdings or a Subsidiary of Holdings of any Equity Interests or any Equity Equivalents (other than
any such Equity Equivalents that constitute Indebtedness) and (ii) the receipt by any Group Company
of any cash capital contributions, whether or not paid in connection with any issuance of Equity
Interests of any Group Company, from any Person other than Holdings or a Subsidiary of Holdings.




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




          “ERISA Affiliate” means each business or entity which is a member of a “controlled
group of corporations,” under “common control” or an “affiliated service group” with a Group
Company within the meaning of Section 414(b), (c) or (m) of the Code, or required to be aggregated
with a Group Company




- 10 -









 







under Section 414(o) of the Code or is under “common control” with a Group Company, within the
meaning of Section 4001(a)(14) of ERISA.




          “ERISA Event” means:





          (i) a reportable event as defined in Section 4043 of ERISA and the regulations issued
under such Section with respect to a Plan, excluding, however, such events as to which the
PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event;




          (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of any Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days;




          (iii) the failure to meet the minimum funding standard of Section 412 of the Code with
respect to any Plan (whether or not waived in accordance with Section 412(d) of the Code),
the application for a minimum funding waiver under Section 303 of ERISA with respect to any
Plan, the failure to make by its due date a required installment under Section 412(m) of the
Code with respect to any Plan or the failure to make any required contribution to a
Multiemployer Plan;




          (iv) the incurrence of any material liability by a Group Company or any ERISA Affiliate
pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in Section 3 of ERISA), or the occurrence or
existence of any event, transaction or condition that could reasonably be expected to result
in the incurrence of any such material liability by a Group Company or any ERISA Affiliate,
or in the imposition of any lien on any of the rights, properties or assets of a Group
Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to such
penalty or excise tax provisions of the Code or to Section 401(a)(29) or 412 of the Code;




          (v) the provision by the administrator of any Plan of a notice pursuant to Section
4041(a)(2) of ERISA (or the reasonable expectation of such provision of notice) of intent to
terminate such Plan in a distress termination described in Section 4041(c) of ERISA, the
institution by the PBGC of proceedings to terminate any Plan or the occurrence of any event
or condition which might constitute grounds under ERISA for the termination of, or the
appointment of a trustee by the PBGC to administer, any Plan;




          (vi) the withdrawal of a Group Company or ERISA Affiliate in a complete or partial
withdrawal (within the meaning of Section 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefor, or the receipt by a Group Company or
ERISA Affiliate of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA;




          (vii) the imposition of liability (or the reasonable expectation thereof) on a Group
Company or ERISA Affiliate pursuant to Section 4062, 4063, 4064 or 4069 of ERISA or by
reason of the application of Section 4212(c) of ERISA;




          (viii) the assertion of a material claim (other than routine claims for benefits)
against any Plan other than a Multiemployer Plan or the assets thereof, or against a Group
Company or ERISA Affiliate in connection with any Plan;



- 11 -









 






          (ix) the receipt from the United States Internal Revenue Service of notice of the
failure of any Plan (or any Employee Benefit Arrangement intended to be qualified under
Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of
any trust forming part of any Plan to qualify for exemption from taxation under Section
501(a) of the Code, and, with respect to Multiemployer Plans, notice thereof to any Group
Company; and




          (x) the establishment or amendment by a Group Company of any Welfare Plan that provides
post-employment welfare benefits in a manner that would increase the liability of a Group
Company.



          “Eurodollar Loan” means at any date a Loan which bears interest at a rate based on the
Eurodollar Rate.




          “Eurodollar Rate” means, with respect to any Eurodollar Loan for any Interest Period,
the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time)
on the date that is two Business Days prior to the beginning of the relevant Interest Period by
reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as
set forth by the Bloomberg Information Service or any successor thereto or any other service
selected by the Administrative Agent which has been nominated by the British Bankers’ Association
as an authorized information vendor for the purpose of displaying such rates) for a period equal to
such Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the “Eurodollar Rate” shall
be the interest rate per annum determined by the Administrative Agent to be the average of the
rates per annum at which deposits in Dollars are offered for such relevant Interest Period to major
banks in the London interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning
of such Interest Period; provided further, that at no time shall the Eurodollar Rate be
less than 3.00% or more than 5.00%.




          “Eurodollar Reserve Percentage” means for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any other entity succeeding to the functions
currently performed thereby) for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as “Eurocurrency liabilities”). The Adjusted Eurodollar Rate for each
outstanding Eurodollar Loan shall be adjusted automatically on and as of the effective date of any
change in the Eurodollar Reserve Percentage.




          “Event of Default” has the meaning specified in Section 8.01.




          “Excess Cash Flow” means for any period an amount equal to, without duplication,:





          (i) Consolidated EBITDA for such period; plus




          (ii) the decrease, if any, in Consolidated Adjusted Working Capital from the first day
to the last day of such period; plus




          (iii) the net increase in deferred tax accounts from the first day to the last day of
such period; minus




          (iv) the amount, if any, which, in the determination of Consolidated Net Income for
such period, has been included in respect of income or gain from Asset Dispositions of
Holdings and its Consolidated Subsidiaries to the extent utilized to repay or prepay Loans
pursuant to Section 2.06(b)(ii); minus



- 12 -









 






          (v) the aggregate amount (without duplication and in each case except to the extent
paid, directly or indirectly, with proceeds of any Equity Issuance, Debt Issuance or with
the proceeds of any Asset Disposition not included in the determination of Consolidated Net
Income for the applicable period by any Group Company) of (A) the sum of (x) cash payments
during such period in respect of Consolidated Capital Expenditures allowed under Section
7.14 plus (y) to the extent amounts permitted to be paid during such period in respect
of Consolidated Capital Expenditures are carried forward to the next succeeding period in
accordance with Section 7.14(b), the aggregate amounts of all cash payments (not to
exceed such permitted carryforward amount) in respect of such Consolidated Capital
Expenditures made during the first 90 days of such next succeeding period (it being
understood and agreed that any cash payments in respect of Consolidated Capital Expenditures
deducted from Excess Cash Flow pursuant to this clause (v)(A)(y) shall not
thereafter be deducted pursuant to clause (v)(A)(x) above in the determination of
Excess Cash Flow for the period during which such payments were actually paid), (B) optional
prepayments of the Loan and other Consolidated Funded Indebtedness during such period, (D)
Consolidated Cash Interest Expense actually paid by Holdings and its Consolidated
Subsidiaries during such period, (E) Consolidated Cash Taxes actually paid by Holdings and
its Consolidated Subsidiaries during such period, (F) the aggregate amount of all Restricted
Payments allowed under Section 7.07 actually paid in cash during such period, (G)
the aggregate amount of all financial advisory fees, accounting fees, legal fees and other
similar advisory and consulting fees and related out-of-pocket expenses incurred as a result
of the Transaction and actually paid in cash by Holdings and its Consolidated Subsidiaries
during such period, in each case to the extent added to Consolidated Net Income in the
determination of Consolidated EBITDA for such period, (H) Transaction related expenditures
to the extent set forth on Schedule 1.01B and actually paid in cash by Holdings and
its Consolidated Subsidiaries during such period, in each case to the extent added to
Consolidated Net Income in the determination of Consolidated EBITDA for such period, (I)
purchase price adjustments paid or received in cash during such period pursuant to the
Acquisition Agreement in connection with the Transaction and (J) the net amount of cash
Investments permitted by Section 7.06 and made during such period; minus




          (vi) all cash extraordinary losses, if any, during such period (whether or not accrued
in such period); minus




          (vii) the increase, if any, in Consolidated Adjusted Working Capital from the first day
to the last day of such period; minus




          (viii) the net decrease in deferred tax accounts from the first day to the last day of
such period.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.




          “Excluded Asset Disposition” means an Asset Disposition permitted pursuant to any one
or more of clauses (i) through (xii) of Section 7.05.




          “Excluded Equity Issuance” means (i) any issuance by any Subsidiary of the Borrower of
its Equity Interests to the Borrower or any other Subsidiary of the Borrower, (ii) the receipt by
any Subsidiary of the Borrower of a capital contribution from the Borrower or a Subsidiary of the
Borrower, (iii) any Qualifying Equity Issuance by Holdings and (iv) the receipt by Borrower of any
other capital contribution by Holdings.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, taxes (a) imposed on or measured by its overall net income, net of profits or capital
taxes (however denominated), and




- 13 -









 







franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its Lending Office is located,
(b) imposed on it as a result of a present or former connection between such Administrative Agent,
Lender or such other recipient and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than any such connection
arising solely from the Administrative Agent, Lender, or such other recipient having executed,
delivered, or performed its obligations or received a payment under, or enforced, this Agreement or
any other Loan Document), or (c) of the nature of any branch profits or similar taxes imposed by
the United States or any other jurisdiction in which the Borrower is located.




          “Existing Debt” has the meaning specified in Section 7.01(i).




          “FCC” means the Federal Communications Commission or any governmental authority
substituted therefor.




          “FCC Licenses” means all authorizations, orders, licenses and permits issued by the
FCC to the Borrower or any of its Subsidiaries, under which the Borrower or any of its Subsidiaries
is authorized to launch and operate any of its Satellites or to operate any of its TT&C Earth
Stations (other than authorizations, orders, licenses or permits that are no longer in effect.)




          “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided, that (i) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no
such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to the Reference Bank on such day on such transactions as determined by the Administrative
Agent.




          “Finance Document” means (i) each Loan Document, (ii) each Swap Agreement between one
or more Loan Parties and a Swap Creditor evidencing Swap Obligations permitted hereunder and (iii)
each agreement or instrument governing Cash Management Obligations between any Loan Party and a
Lender or one or more of its Affiliates, and “Finance Documents” means all of them,
collectively.




          “Finance Obligations” means, at any date, (i) all Senior Credit Obligations, (ii) all
Swap Obligations of a Loan Party permitted hereunder owed or owing to any Swap Creditor and (iii)
all Cash Management Obligations owing to a Lender or one or more of its Affiliates.




          “Finance Party” means each Lender and, with respect to Swap Obligations and Cash
Management Obligations, each Lender and its Affiliates party thereto, each Agent and each
Indemnitee and their respective successors and assigns, and “Finance Parties” means any two
or more of them, collectively.




          “Financial Statement Delivery Date” means, at any date and with respect to the
immediately preceding fiscal month, fiscal quarter or fiscal year of the Borrower, the date by
which the Borrower has delivered to the Lenders all required financial statements in respect of
such fiscal month, quarter or year pursuant to Section 6.01(a), (b) or (c)
and the related Compliance Certificate, duly completed, pursuant to Section 6.02(b).




          “Foreign Cash Equivalents” means any Investment in certificates of deposit or bankers’
acceptances of any bank organized under the laws of Canada, Japan or any country that is a member
of the European Economic Community whose short-term commercial paper rating from S&P is at least
A-1 or the




- 14 -









 







equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof; provided
in each case that such Investment matures within one year from the date of acquisition thereof by a
Foreign Subsidiary of the Borrower.




          “Foreign Lender” means any Lender that is not a “United States Person” (as such term
is defined in Section 7721(a)(32) of the Code).




          “Foreign Pension Plan” means any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside the United States
by any Group Company primarily for the benefit of employees of any Group Company residing outside
the United States, which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be made upon termination
of employment, and which plan is not subject to ERISA or the Code.




          “Foreign Subsidiary” means with respect to any Person any Subsidiary of such Person
that is not a Domestic Subsidiary of such Person.




          “Fund” means any United States (or foreign, with the Borrower’s consent if such
assignment will result in the revocation of a facility security clearance held by any Loan Party by
the Department of Defense) Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.




          “Funded Indebtedness” means, with respect to any Person and without duplication, (i)
all Indebtedness of such Person of the types referred to in clauses (i), (ii), and
(v) of the definition of “Indebtedness” in this Section 1.01, (ii) all Debt of
others of the type referred to in clause (i) above secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien on, or
payable out of the proceeds of production from, any property or asset of such Person, whether or
not the obligations secured thereby have been assumed by such Person (up to the lesser of the
amount of such obligation or the fair market value of such properties or asset), and (iii) all
Guaranty Obligations of such Person with respect to Indebtedness of others of the type referred to
in clause (i) above.




          “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.




          “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other governmental entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central bank).




          “Group” means at any time a group of Loans consisting of (i) all Loans which are Base
Rate Loans at such time or (ii) all Loans which are Eurodollar Loans at such time; provided
that, if a Loan of any particular Lender is converted to or made as a Base Rate Loan pursuant to
Article III, such Loan shall be included in the same Group of Loans from time to time as it would
have been had it not been so converted or made.




          “Group Company” means any of Holdings, the Borrower or their respective Subsidiaries
(regardless of whether or not consolidated with Holdings or the Borrower for purposes of GAAP), and
“Group Companies” means all of them, collectively.




- 15 -









 








          “Guarantee” means, with respect to any Person, without duplication, any obligation
(other than endorsements in the ordinary course of business of negotiable instruments for deposit
or collection) guaranteeing, intended to guarantee, or having the economic effect of guaranteeing,
any Indebtedness or other obligation of any other Person in any manner, whether direct or indirect,
and including, without limitation, any obligation, whether or not contingent, (i) to purchase any
such Indebtedness or other obligation or any property constituting security therefor, (ii) to
advance or provide funds or other support for the payment or purchase of such Indebtedness or
obligation or to maintain working capital, solvency or other balance sheet condition of such other
Person (including, without limitation, maintenance agreements, comfort letters, take or pay
arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder
of Indebtedness or other obligation of such other Person, (iii) to lease or purchase property,
securities or services primarily for the purpose of assuring the owner of such Indebtedness or
other obligation or (iv) to otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof. The amount of any Guarantee hereunder shall (subject
to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal
amount (or maximum principal amount, if larger) of the Indebtedness or other obligation in respect
of which such Guarantee is made.




          “Guaranty” means the Guaranty, substantially in the form of Exhibit F hereto,
by Holdings and the Subsidiary Guarantors in favor of the Administrative Agent, on its own behalf
and on behalf of the Collateral Agent and the Lenders, as the same may be amended, modified or
supplemented from time to time.




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




          “Holdings” means ORBIMAGE SI Holdco Inc., a Delaware corporation, and its successors.




          “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:





          (i) all obligations of such Person for borrowed money;




          (ii) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;




          (iii) all obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person to the extent of the value of such
property (other than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business);




          (iv) all obligations, other than intercompany items, of such Person to pay the deferred
purchase price of property or services (other than trade accounts payable and accrued
expenses arising in the ordinary course of business and due within six months of the
incurrence thereof);




          (v) the Attributable Indebtedness of such Person in respect of Capital Lease
Obligations, Sale/Leaseback Transactions and Synthetic Lease Obligations (regardless of
whether accounted for as indebtedness under GAAP);



- 16 -









 






          (vi) all obligations, contingent or otherwise, of such Person to reimburse any bank or
other Person in respect of amounts paid under a letter of credit, bankers’ acceptance or
similar instrument;




          (vii) all obligations of others secured by (or for which the holder of such obligations
has an existing right, contingent or otherwise, to be secured by) a Lien on, or payable out
of the proceeds of production from, any property or asset of such Person, whether or not
such obligation is assumed by such Person up to the lesser of the amount of such obligation
or the fair market value of such property or asset;




          (viii) all Guarantees of such Person;




          (ix) all Debt Equivalents of such Person; and




          (x) the Indebtedness of any other Person (including any partnership in which such
Person is a general partner and any unincorporated joint venture in which such Person is a
joint venturer) to the extent such Person would be liable therefor under applicable Law or
any agreement or instrument by virtue of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such Indebtedness provide
that such person shall not be liable therefore.


provided, that the amount of any Limited Recourse Indebtedness of any Person shall be equal
to the lesser of (A) the aggregate principal amount of such Limited Recourse Indebtedness for which
such Person provides credit support of any kind (including any undertaking agreement or instrument
that would constitute Indebtedness), is directly or indirectly liable as a guarantor or otherwise
or is the lender and (B) the fair market value of any assets securing such Indebtedness or to which
such Indebtedness is otherwise recourse.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Indemnitee” has the meaning specified in Section 10.04(b).




          “Information” has the meaning specified in Section 10.07.




          “In-Orbit Satellite” means a Satellite owned by the Borrower or any of its
Subsidiaries that has been launched (or, if the entire Satellite is not owned by the Borrower or
any of its Subsidiaries, the portion of the Satellite the Borrower and/or such Subsidiary owns),
excluding any such Satellite that has been decommissioned or that has otherwise suffered a
constructive or actual total loss.




          “Insurance Proceeds” means all insurance proceeds (other than business interruption
insurance proceeds), damages, awards, claims and rights of action with respect to any Casualty.




          “Interest Payment Date” means (i) as to Base Rate Loans, the last Business Day of each
of January, April, July, and October and the Maturity Date and (ii) as to Eurodollar Loans, the
last day of each applicable Interest Period (but in any event not less frequently than every three
months) and the Maturity Date.




          “Interest Period” means with respect to each Eurodollar Loan, a period commencing on
the Effective Date or on the date specified in the applicable Notice of Extension/Conversion and
ending one, two, three or six months thereafter; provided that:





          (i) any Interest Period which would otherwise end on a day which is not a Business Day
shall, subject to clause (iv) below, be extended to the next succeeding Business Day



- 17 -









 






unless such Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;




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




          (iii) no Interest Period may be selected at any time when a Default or an Event of
Default is then in existence; and




          (iv) no Interest Period may be selected which would end after the Maturity Date.



          “Investment” in any Person means (i) the acquisition (whether for cash, property,
services, assumption of Indebtedness, securities or otherwise) of Equity Interests, Equity
Equivalents, Debt Equivalents, or other securities of such Person, (ii) any advance, loan or other
extension of credit to or for the benefit of such Person or (iii) any other capital contribution to
or investment in such Person, including by way of Guaranty Obligations of any obligation of such
Person, any support for a letter of credit issued on behalf of such Person incurred for the benefit
of such Person or any release, cancellation, compromise or forgiveness in whole or in part of any
Indebtedness owing by such Person. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.




          “IRS Disposition” means the disposition of the India Remote Sensing portion of the
Borrower’s business.




          “Joinder Agreement” shall mean an agreement substantially in the form of Exhibit
3 attached to the Security Agreement.




          “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, regulations, ordinances, codes and administrative precedents or
authorities, including the interpretation or administration thereof by any Governmental Authority
charged with the enforcement, interpretation or administration thereof, and all applicable
administrative orders, directives, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, having the force of Law.




          “Leaseholds” means with respect to any Person all of the right, title and interest of
such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or
fixtures.




          “Lender” means each bank or other lending institution listed on Schedule 2.01,
each Eligible Assignee that becomes a Lender pursuant to Section 10.06(b) and their
respective successors.




          “Lending Office” means with respect to any Lender, the “Lending Office” of such Lender
(or of an Affiliate of such Lender) designated in such Lender’s Administrative Questionnaire or in
any applicable Assignment and Assumption pursuant to which such Lender became a Lender hereunder or
such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time
to time specify to the Administrative Agent and the Borrower as the office by which its Loans are
to be made and maintained.




          “Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge, or preference, priority or
other security interest or preferential arrangement in the nature of a security interest of any
kind or nature whatsoever (including any conditional sale or other title retention agreement, any
easement, right of way or other




- 18 -









 







encumbrance on title to Owned Real Property, and any financing lease having substantially the
same economic effect as any of the foregoing).




          “Limited Recourse Indebtedness” means with respect to any Person, Indebtedness to the
extent: (i) such Person (A) provides no credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness) or (B) is not directly or indirectly
liable as a guarantor or otherwise; and (ii) no default with respect thereto would permit upon
notice, lapse of time or both, any holder of any other Indebtedness (other than the Loans or the
Notes) of such Person to declare a default on such other Indebtedness or cause the payment thereof
to be accelerated or payable prior to its stated maturity.




          “Loan” means the loan made hereunder.




          “Loan Documents” means this Agreement, the Notes, the Acknowledgment Agreement, the
Guaranty, the Collateral Documents, each Blocked Account Agreement and each Joinder Agreement,
collectively, and all other related material agreements and documents issued or delivered hereunder
or thereunder or pursuant hereto or thereto, in each case as the same may be amended, modified or
supplemented from time to time.




          “Loan Party” means each of Holdings, the Borrower and each Subsidiary Guarantor, and
“Loan Parties” means any combination of the foregoing.




          “Make-Whole Premium” means, with respect to a prepayment of principal, an amount equal
to the sum of (i) the present value of the remaining payments of principal and interest on the
principal being so prepaid, calculated as if such principal would be repaid on the date that is two
and one-half years after the Closing Date at 102.0% of the principal amount thereof, and using an
annual discount factor (applied monthly) equal to the Adjusted Treasury Rate in effect as of the
date of such prepayment plus 50 basis points minus (ii) the principal being so prepaid;
provided, however, that in no case shall the Make-Whole Premium be less than zero.




          “Management Services Agreement” means the management services agreement between
Parent, the Borrower and Holdings in the form previously provided to the Lenders, as the same may
be amended, modified or supplemented from time to time in accordance with the provisions thereof
and of this Agreement.




          “Margin Stock” means “margin stock” as such term is defined in Regulation U.




          “Material Adverse Effect” means (i) any material adverse effect upon the financial
condition, business, operations, assets, liabilities or property of Holdings and its Consolidated
Subsidiaries, taken as a whole, after giving pro forma effect to the Transaction, (ii) a material
adverse effect on the ability of any Loan Party to consummate the transactions contemplated hereby
to occur on the Closing Date, (iii) a material impairment of the ability of any Loan Party to
perform any of its material obligations under the Loan Documents to which it is a party that is
materially adverse to the interests of the Lenders or (iv) a material impairment of the rights and
benefits of the Lenders or the Agents under the Loan Documents.




          “Maturity Date” means July 1, 2008.




          “Maximum Rate” has the meaning specified in Section 10.09.




          “Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and its
successors or, absent any such successor, such nationally recognized statistical rating
organization as the Borrower and the Lenders may select.




- 19 -









 








          “Mortgage” means in the case of owned real property interests, a mortgage or deed of
trust, substantially in the form of, or otherwise substantially similar in substance to, the
provisions of Exhibit G-2 hereto, among any Loan Party, the Collateral Agent and one or
more trustees, co-agents or co-trustees, as the same may be amended, modified or supplemented from
time to time.




          “Mortgage Policies” has the meaning specified in Section 7.16(a)(ii).




          “Multiemployer Plan” means a “multiemployer plan” as defined in Section 3(37) or
4001(a)(3) of ERISA.




          “Net Cash Proceeds” means:





          (i) with respect to any Asset Disposition (other than an Asset Disposition consisting
of a lease where one or more Group Companies is acting as lessor entered into in the
ordinary course of business), Casualty or Condemnation, (A) the gross amount of all cash
proceeds (including Insurance Proceeds and Condemnation Awards in the case of any Casualty
or Condemnation) actually paid to or actually received by any Group Company in respect of
such Asset Disposition, Casualty or Condemnation (including any cash proceeds received as
income or other proceeds of any noncash proceeds of any Asset Disposition, Casualty or
Condemnation as and when received), less (B) the sum of (1) the amount, if any, of all taxes
(other than income taxes) and all income taxes (as estimated in good faith by a senior
financial or senior accounting officer of the Borrower giving effect to the overall tax
position of Holdings and its Subsidiaries) (to the extent that the amount of such taxes
shall have been set aside for the purpose of paying such taxes when due), and customary
fees, brokerage fees, attorneys’ fees and expenses commissions, costs and other expenses
(other than those payable to any Group Company or to Affiliates of any Group Company) that
are incurred in connection with such Asset Disposition, Casualty or Condemnation and are
payable by any Group Company, but only to the extent not already deducted in arriving at the
amount referred to in clause (i)(A) above, (2) appropriate amounts that must be set
aside as a reserve in accordance with GAAP against any liabilities associated with such
Asset Disposition, Casualty or Condemnation, (3) if applicable, the amount of any
Indebtedness secured by a Permitted Lien that has been repaid or refinanced in accordance
with its terms with the proceeds of such Asset Disposition, Casualty or Condemnation; and
(4) any payments to be made by any Group Company as agreed between such Group Company and
the purchaser of any assets subject to an Asset Disposition, Casualty or Condemnation in
connection therewith; and




          (ii) with respect to any Equity Issuance or Debt Issuance, the gross amount of cash
proceeds paid to or received by any Group Company in respect of such Equity Issuance or Debt
Issuance as the case may be (including cash proceeds subsequently as and when received at
any time in respect of such Equity Issuance or Debt Issuance from non-cash consideration
initially received or otherwise), net of underwriting discounts and commissions or placement
fees, investment banking fees, legal fees, consulting fees, accounting fees and other
customary fees and expenses directly incurred by any Group Company in connection therewith
(other than those payable to any Group Company or any Affiliate of any Group Company).



          “Note” means a promissory note, substantially in the form of Exhibit B hereto,
evidencing the obligation of the Borrower to repay outstanding Loans, as such note may be amended,
modified or supplemented from time to time.




          “Notice of Extension/Conversion” has the meaning specified in Section 2.04(a).




- 20 -









 








          “Operating Lease” means, as applied to any Person, a lease (including leases which may
be terminated by the lessee at any time) of any property (whether real, personal or mixed) by such
Person as lessee which is not a Capital Lease.




          “Organization Documents” means, (i) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-United States jurisdiction); (ii) with respect to any limited liability
company, the certificate or articles of formation or organization and operating agreement; and
(iii) with respect to any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or organization and any
agreement, instrument, filing or notice with respect thereto filed in connection with its formation
or organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.




          “Orbimage” means Orbimage, Inc., a Delaware corporation and a wholly owned subsidiary
of Parent.




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




          “Owned Mortgaged Property” and “Owned Mortgaged Properties” have the
respective meanings specified in Section 7.16(a)(i).




          “paid in full” and “payment in full” means, at any date and with respect to
any Finance Obligation, the occurrence of all of the foregoing: (i) with respect to such Finance
Obligations other than (A) contingent indemnification obligations and (B) Swap Obligations and Cash
Management Obligations which in each case are not then due and payable, payment in full thereof in
cash (or otherwise to the written satisfaction of the Finance Parties owed such Finance
Obligations), and (ii) if such Finance Obligations consist of all the Senior Credit Obligations
under or in respect of the Commitments, termination of all Commitments and all other obligations of
the Lenders in respect of such Commitments under the Loan Documents.




          “Parent” means ORBIMAGE Holdings Inc., a Delaware corporation, and its successors.




          “Parent Certificate of Designation” means that certain Certificate of Designation of
Parent establishing the Parent Preferred Stock.




          “Parent Preferred Stock” means the Class A Senior Preferred Stock, par value $0.01 per
share, issued by Parent and having the terms described in the Parent Certificate of Designation.




          “Parent Purchase Agreement” means the Purchase Agreement, dated as of the Effective
Date, between Parent and the Lenders, pursuant to which Parent will issue, at the Effective Date,
1,000 shares of Parent Preferred Stock to the Lenders.




          “Participant” has the meaning specified in Section 10.06(d).




          “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA or any entity succeeding to any or all of its functions under ERISA.




- 21 -









 








          “Permit” means any license, permit, franchise, right or privilege, certificate of
authority or order, or any waiver of the foregoing, issued or issuable by any Governmental
Authority.




          “Permitted Liens” has the meaning specified in Section 7.02.




          “Permitted Refinancing” means, with respect to any Person, any modification,
refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided
that (i) the principal amount (or accreted value, if applicable) thereof does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced,
refunded, renewed or extended except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal or extension and by an amount equal to any existing commitments
unutilized thereunder or as otherwise permitted pursuant to Section 7.01, (ii) such
modification, refinancing, refunding, renewal or extension has a final maturity date equal to or
later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced,
refunded, renewed or extended, (iii) if the Indebtedness being refinanced, refunded, renewed or
extended is subordinated in right of payment to the Senior Credit Obligations, such modification,
refinancing, refunding, renewal or extension is subordinated in right of payment to the Senior
Credit Obligations on terms at least as favorable to the Lenders as those contained in the
documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended,
and (iv) at the time thereof, no Event of Default shall have occurred and be continuing.




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




          “Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code maintained by or contributed
to by any Group Company or any ERISA Affiliate including a Multiemployer Plan.




          “Pledged Collateral” has the meaning specified in the Security Agreement.




          “Preferred Stock” means, as applied to the Equity Interests of a Person, Equity
Interests of any class or classes (however designated) which is preferred as to the payment of
dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over the Equity Interests of any other class of such
Person.




          “Preferred Stock Election Notice” has the meaning specified in the Parent Purchase
Agreement.




          “Purchase Money Indebtedness” means Indebtedness of the Borrower or any of its
Subsidiaries incurred for the purpose of financing all or any part of the purchase price or cost of
construction or improvement of property used in the business of the Borrower or such Subsidiary;
provided that such Indebtedness is incurred within 90 days after such property is acquired
or, in the case of improvements, contracted for construction.




          “Qualified Capital Stock” means common stock of Holdings issued in a Qualifying Equity
Issuance.




          “Qualifying Equity Issuance” means any issuance of Equity Interests (other than Debt
Equivalents) by Holdings or any receipt by Holdings of a capital contribution to its common equity,
the Net Cash Proceeds of which are contributed promptly to the common equity of the Borrower if:
(i) after giving effect thereto, no Change of Control shall have occurred; (ii) any stock issued
shall be issued in a private




- 22 -









 







placement exempt from registration under the Securities Act; (iii) the Net Cash Proceeds
thereof shall be used (without duplication) only to make Consolidated Capital Expenditures pursuant
to Section 7.14(a)(ii), or to pay interest on or principal of Indebtedness of the Borrower
and its Subsidiaries.




          “Real Property” means, with respect to any Person, all of the right, title and
interest of such Person in and to land, improvements and fixtures, including Leaseholds.




          “Reference Bank” Credit Suisse, or such other commercial bank selected by the
Administrative Agent and identified as such in a notice to the Borrower.




          “Register” has the meaning specified in Section 10.06(c).




          “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower as prescribed by the Securities Laws.




          “Regulation D, O, T, U or X” means Regulation D, O, T, U or X, respectively, of the
Board of Governors of the Federal Reserve System as amended, or any successor regulation.




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




          “Reinvestment Deferred Amount” means, with respect to any Reinvestment Event, the
aggregate Net Cash Proceeds received by any Loan Party for its own account in connection therewith
that are not applied to prepay the Term Loans pursuant to Section 2.06 as a result of the delivery
of a Reinvestment Notice.




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




          “Reinvestment Notice” means a written notice signed on behalf of the Borrower by a
Responsible Officer stating that the Borrower (directly or indirectly through a Subsidiary that is
or becomes a Loan Party) intends and expects to use all or a specified portion of the Net Cash
Proceeds of an Asset Sale, Casualty or Condemnation (other than a sale or other disposition of or a
total loss of a Satellite) to acquire assets useful in its business.




          “Reinvestment Prepayment Amount” means with respect to any Reinvestment Event (and any
portion of the related Reinvestment Deferred Amount), the Reinvestment Deferred Amount relating
thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to
acquire assets useful in the Borrower’s business.




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




          “Required Lenders” means, at any date of determination, Lenders whose aggregate Credit
Exposure constitutes more than 50% of the Credit Exposure of all Lenders at such time.




          “Responsible Officer” means the chief executive officer, president, senior vice
president, vice president, chief financial officer, treasurer, assistant treasurer, secretary or
assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be presumed (absent manifest error) to have been
authorized by all necessary corporate, partnership and/or




- 23 -









 







other action on the part of such Loan Party and such Responsible Officer shall be presumed
(absent manifest error) to have acted on behalf of such Loan Party.




          “Restricted Payment” means (i) any dividend or other distribution (whether in cash,
securities or other property), direct or indirect, on account of any class of Equity Interests or
Equity Equivalents of any Group Company, now or hereafter outstanding, (ii) any payment (whether in
cash, securities or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation, termination or similar payment,
purchase or other acquisition for value, direct or indirect, of any class of Equity Interests or
Equity Equivalents of any Group Company, now or hereafter outstanding and (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire
any class of Equity Interests or Equity Equivalents of any Group Company, now or hereafter
outstanding.




          “Sale/Leaseback Transaction” means any direct or indirect arrangement with any Person
or to which any such Person is a party providing for the leasing to Holdings or any of its
Subsidiaries of any property, whether owned by Holdings or any of its Subsidiaries as of the
Closing Date or later acquired, which has been or is to be sold or transferred by Holdings or any
of its Subsidiaries to such Person or to any other Person from whom funds have been, or are to be,
advanced by such Person on the security of such property.




          “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.




          “Satellite” means any satellite owned by or for which a contract to purchase has been
entered into by the Borrower or any of its Subsidiaries (whether or not in operational service).




          “S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., a New
York corporation, and its successors or, absent any such successor, such nationally recognized
statistical rating organization as the Borrower and the Lenders may select.




          “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.




          “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public Company Accounting
Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.




          “Security Agreement” means the Security Agreement, substantially in the form of
Exhibit G-1 hereto, dated as of the Effective Date among Holdings, the Borrower, the
Subsidiary Guarantors and the Collateral Agent, as the same may be amended, modified or
supplemented from time to time.




          “Seller” means Space Imaging.




          “Senior Credit Obligations” means, with respect to each Loan Party, without
duplication:





          (i) in the case of the Borrower, all principal of and interest (including, without
limitation, any interest which accrues after the commencement of any proceeding under any
Debtor Relief Law with respect to the Borrower, whether or not allowed or allowable as a
claim in any such proceeding) on any Loan under, or any Note issued pursuant to, this
Agreement or any other Loan Document;



- 24 -









 






          (ii) all fees, reasonable out-of-pocket expenses, indemnification obligations and other
amounts of whatever nature now or hereafter payable by such Loan Party (including, without
limitation, any amounts which accrue after the commencement of any proceeding under any
Debtor Relief Law with respect to such Loan Party, whether or not allowed or allowable as a
claim in any such proceeding) pursuant to this Agreement or any other Loan Document;




          (iii) all reasonable out-of-pocket expenses of the Agents as to which one or more of
the Agents have a right to reimbursement by such Loan Party under Section 10.04(a)
of this Agreement or under any other similar provision of any other Loan Document,
including, without limitation, any and all sums advanced by the Collateral Agent to preserve
the Collateral or preserve its security interests in the Collateral to the extent permitted
under any Loan Document or applicable Law;




          (iv) all amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement by such Loan Party under Section 10.04(b) of this Agreement or under
any other similar provision of any other Loan Document; and




          (v) in the case of Holdings and each Subsidiary Guarantor, all amounts now or hereafter
payable by Holdings or such Subsidiary Guarantor and all other obligations or liabilities
now existing or hereafter arising or incurred (including, without limitation, any amounts
which accrue after the commencement of any proceeding under any Debtor Relief Law with
respect to the Borrower, Holdings or such Subsidiary Guarantor, whether or not allowed or
allowable as a claim in any such proceeding) on the part of Holdings or such Subsidiary
Guarantor pursuant to this Agreement, the Guaranty or any other Loan Document;


together in each case with all renewals, modifications, consolidations or extensions thereof.




          “Senior Notes” means the Senior Secured Floating Rate Notes due 2012 of Parent.




          “Senior Secured Note Indenture” means the indenture, dated as of June 29, 2005,
between Parent and The Bank of New York, as Trustee, governing the Senior Notes, as in effect on
the Effective Date.




          “Solvent” means, with respect to any Person as of a particular date, that on such date
(i) such Person is able generally to pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business, (ii) such Person does not
intend to, and does not believe that it will, incur debts beyond such Person’s ability to pay as
such debts mature, (iii) such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person’s assets would constitute
unreasonably small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged or is to engage, (iv) the fair value (determined in
accordance with the United States Bankruptcy Code) of the assets of such Person is greater than the
total amount of liabilities, including, without limitation, probable liabilities, of such Person
and (v) the present fair value (i.e., the amount that may be realized within a commercially
reasonable time, either through collection or sale at the regular market value, conceiving the
latter as the amount that could be obtained for the assets in question within such period by a
capable and diligent businessperson from a buyer who is willing to purchase under ordinary selling
conditions) of the assets of such Person will exceed the amount that will be required to pay the
probable liability on such Person’s existing debts as they become absolute and matured.




          “Space Imaging” means Space Imaging LLC, a Delaware limited liability company.




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          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association or other business entity of which (i) if a corporation, more than
50% of the total voting
power of stock entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a partnership, limited liability company, association or business entity other
than a corporation, more than 50% of the partnership or other similar ownership interests thereof
is at the time owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have more than 50% ownership interest in a partnership, limited liability
company, association or other business entity if such Person or Persons shall be allocated more
than 50% of partnership, association or other business entity gains or losses or shall be or
control the managing director, manager or a general partner of such partnership, association or
other business entity. Unless otherwise specified, all references herein to a “Subsidiary” or to
“Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.




          “Subsidiary Guarantor” means each Subsidiary of Holdings on the Closing Date (other
than the Borrower and other than a Foreign Subsidiary) and each Subsidiary of Holdings (other than
a Foreign Subsidiary) that becomes a party to the Guaranty after the Closing Date by execution of a
Joinder Agreement, and “Subsidiary Guarantors” means any two or more of them.




          “Swap Agreement” means (i) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement and (ii) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.




          “Swap Creditor” means any Lender, any Agent or any Affiliate of any Lender or Agent
from time to time party to one or more Swap Agreements permitted hereunder with a Loan Party (even
if any such Lender or Agent for any reason ceases after the execution of such agreement to be a
Lender or Agent hereunder), and its successors and assigns, and “Swap Creditors” means any
two or more of them, collectively.




          “Swap Obligations” of any Person means all obligations (including, without limitation,
any amounts which accrue after the commencement of any bankruptcy or insolvency proceeding with
respect to such Person, whether or not allowed or allowable as a claim under any proceeding under
any Debtor Relief Law) of such Person in respect of any Swap Agreement, excluding any amounts which
such Person is entitled to set-off against its obligations under applicable Law.




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




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          “Tax Sharing Agreement” means the tax sharing agreement between Parent, the Borrower
and Holdings in the form to be provided to the Lenders for approval (and effective for the purposes
of this
Agreement only upon such approval), as the same may be amended, modified or supplemented from
time to time in accordance with the provisions thereof and of this Agreement.




          “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




          “Threshold Amount” means $500,000.00.




          “Title Insurance Company” has the meaning specified in Section 7.16(a)(ii).




          “Transaction” means the events contemplated by the Transaction Documents.




          “Transaction Documents” means the Acquisition Documents and the Loan Documents,
collectively, and “Transaction Document” means any one of them.




          “TT&C Earth Station” means any earth station licensed for operation by the FCC or by
any Governmental Authority outside of the United States used for the provision of TT&C Services
that is owned and operated by the Borrower or any of its Subsidiaries.




          “TT&C Services” means the provision of tracking, telemetry and command services for
the purposes of operational control of any Satellite.




          “Unfunded Liabilities” means (i) with respect to each Plan, the amount (if any) by
which the present value of all nonforfeitable benefits under each Plan exceeds the current value of
such Plan’s assets allocable to such benefits, all determined in accordance with the respective
most recent valuations for such Plan using applicable PBGC plan termination actuarial assumptions
(the terms “present value” and “current value” shall have the same meanings specified in Section 3
of ERISA) and (ii) with respect to each Foreign Pension Plan, the amount (if any) by which the
present value of all nonforfeitable benefits under each Foreign Pension Plan exceeds the current
value of such Foreign Pension Plan’s assets allocable to such benefits, all determined in
accordance with the respective most recent valuations for such Plan using applicable PBGC plan
termination actuarial assumptions (the terms “present value” and “current value” shall have the
same meanings specified in Section 3 of ERISA).




          “United States” means the United States of America, including each of the States and
the District of Columbia, but excluding its territories and possessions.




          “U.S. Patriot Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L.
107-56 (signed into Law October 26, 2001)), as the same may be amended, supplemented, modified,
replaced or otherwise in effect from time to time.




          “Voting Securities” means Equity Interests of any Person having ordinary power to vote
in the election of members of the board of directors, managers, trustees or other controlling
Persons of such Person (irrespective of whether, at the time, Equity Interests of any other class
or classes of such Person shall have or might have voting power by reason of the happening of any
contingency.




          “Warrant Agreement” means the Warrant Agreement, dated as of the Closing Date, between
Parent and the Lenders, pursuant to which the Parent will issue, at the Closing Date, the Warrants
to the Lenders.




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          “Warrants” means the warrants to purchase Common Stock, par value $.01 per share, of
Parent, issued pursuant to the Warrant Agreement.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: (i) the sum of the products obtained by
multiplying (A) the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in respect thereof, by
(B) the number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.




          “Welfare Plan” means a “welfare plan” as such term is defined in Section 3(1) of
ERISA.




          “Wholly-Owned Subsidiary” means, with respect to any Person at any date, any
Subsidiary of such Person all of the outstanding shares of capital stock or other ownership
interests of which (except directors’ qualifying shares) are at the time directly or indirectly
owned by such Person.




          Section 1.02 Other Interpretative Provisions. With reference to this Agreement and each
other Loan Document, unless otherwise specified herein or in such other Loan Document:




          (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Loan
Document shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any Law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such Law and any reference to any law or regulation shall, unless otherwise specified, refer to
such Law or regulation as amended, modified or supplemented from time to time and (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.




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




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




          Section 1.03 Accounting Terms and Determinations.




          (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on




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a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the audited financial statements of Holdings for the
year ended December 31, 2004, except as otherwise specifically prescribed herein.




          (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any amount set forth in any Loan Document, and either the Borrower or the Required Lenders shall
so request, the Lenders and the Borrower shall negotiate in good faith to amend such requirement to
preserve the original intent thereof in light of such change in GAAP (subject to the approval of
the Required Lenders); provided that, until so amended, (i) such requirement shall continue
to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements any other documents
required under this Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such requirement made before and after giving effect to such change in
GAAP.




          (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of Holdings and its Subsidiaries or of the Borrower and its
Subsidiaries or to the determination of any amount of Holdings and its Subsidiaries or the Borrower
and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be
deemed to include each variable interest entity that Holdings or the Borrower is required to
consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities;
an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a
Subsidiary as defined herein.




          Section 1.04 Annualization; Rounding. If any determination hereunder is required by the
terms hereof to be made for a period of four consecutive fiscal quarters at a time at which fewer
than four full fiscal quarters have elapsed since the Closing Date, such determination shall
(except as otherwise expressly provided herein) be made for the period elapsed from the Closing
Date through the most recent fiscal quarter then ended (annualized on a simple arithmetic basis, if
such determination is to be used in a ratio with a balance sheet item).




          Section 1.05 Times of Day. Unless otherwise specified, all references herein to times of
day shall be references to Eastern time (daylight or standard, as applicable).




ARTICLE II

THE CREDIT FACILITIES




          Section 2.01 Commitments to Lend.




          (a) Loan. Subject to the terms and conditions set forth herein, each Lender severally
agrees to make a Loan in accordance with its Commitment Percentage to the Borrower on the Closing
Date in a principal amount not exceeding the lesser of (i) its Commitment and (ii) the sum of the
Acquisition Price plus the transaction fees and expenses disclosed on Schedule 1.01B. The
Borrowing shall be made from the several Lenders ratably in proportion to their respective
Commitment Percentages. The Commitment is not revolving in nature, and amounts repaid or prepaid
prior to the Maturity Date may not be reborrowed.




          Section 2.02 Evidence of Loans.




          (a) Lender and Administrative Agent Accounts; Notes. The Loans made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be presumptively correct absent manifest error of the
amount of the Loan made by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any





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amount owing with respect to the Senior Credit
Obligations. In the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.
Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute
and deliver to such Lender (through the Administrative Agent) a single Note substantially in the
form of Exhibit B payable to the order of such Lender for the account of its Lending Office
in an amount equal to the aggregate unpaid principal amount of such Lender’s Loans which shall
evidence such Lender’s Loans in addition to such accounts or records.




          Section 2.03 Interest.




          (a) Eurodollar Rate Loans. Subject to Sections 3.02 and 3.03 of this Agreement, each
Borrowing shall be comprised of Eurodollar Loans, with an Interest Period as the Borrower may
request in writing at least three Business Days prior to the Closing Date; provided, that if a
Eurodollar Loan is unavailable pursuant to Section 3.02 of this Agreement, Borrowings will be
comprised entirely of Base Rate Loans.




          (b) Rates Applicable to Loans. Subject to the provisions of subsection (c)
below, each Eurodollar Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period applicable thereto at a rate per annum equal to the sum of the Adjusted
Eurodollar Rate for such Interest Period plus the Applicable Margin. If a Eurodollar Loan is
unavailable pursuant to Section 3.02 of this Agreement, each Base Rate Loan shall bear interest on
the outstanding principal amount thereof for each day from the date such Loan is made as, or
converted into, a Base Rate Loan until it becomes due or is converted into a Eurodollar Loan, at a
rate per annum equal to the Base Rate for such day plus the Applicable Margin.




          (c) Additional Interest.





          (i) If any Event of Default has occurred and is continuing, the Loan shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the Default
Rate to the fullest extent permitted by applicable Laws.




          (ii) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



          (d) Interest Payments. Interest on the Loan shall be due and payable in arrears on
each Interest Payment Date and at such other times as may be specified herein. Interest hereunder
shall be due and payable in accordance with the terms hereof before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief Law.




          (e) Determination and Notice of Interest Rates. The Administrative Agent shall
promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period
for Eurodollar Loans (or Base Rate Loans, if applicable) upon determination of such interest rate.




          Section 2.04 Extension and Conversion.




          (a) Continuation and Conversion Options. The Borrower shall have the option, on any
Business Day (subject in each case to the provisions of Article III) to continue such Loans as
Eurodollar Loans for an additional Interest Period, subject to Section 3.05 in the case of any such
conversion or continuation effective on any day other than the last day of the then current
Interest Period applicable to such Loans. Each such election shall be made by delivering a notice,
substantially in the form of Exhibit A hereto (a “Notice of Extension/Conversion”)
(which may be by telephone if promptly confirmed in writing), to the Administrative Agent not later
than 12:00 Noon on the third Business Day before the conversion or




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continuation selected in such
notice is to be effective. A Notice of Extension/Conversion may, if it so specifies, apply to only
a portion of the aggregate principal amount of the Loan; provided that the portion of Eurodollar
Loans to which such Notice applies is $5,000,000 or any larger multiple of $1,000,000.




          (b) Contents of Notice of Extension/Conversion. Each Notice of Extension/Conversion
shall specify:





          (i) the Group of Loans (or portion thereof) to which such notice applies;




          (ii) the date on which the conversion or continuation selected in such notice is to be
effective, which shall comply with the applicable clause of subsection 2.04(a)
above; and




          (iii) if the Loans comprising such Group are to be converted, the new type of Loans.


Each Interest Period specified in a Notice of Interest Rate Election shall comply with the
provisions of the definition of the term “Interest Period”. If no Notice of Extension/Conversion
is timely received prior to the end of an Interest Period for any Group of Eurodollar Loans, the
Borrower shall be deemed to have elected that such Group be continued from the existing Interest
Period.




          (c) Notification to Lenders. Upon receipt of a Notice of Extension/Conversion from
the Borrower pursuant to subsection 2.04(a) above, the Administrative Agent shall promptly
notify each Lender of the contents thereof.




          Section 2.05 Maturity of Loans.




          The Loans shall mature on the Maturity Date, and any principal amount then outstanding
(together with accrued interest thereon and fees in respect thereof) shall be due and payable on
such date.




          Section 2.06 Prepayments.




          (a) Voluntary Prepayments. The Borrower shall have the right voluntarily to prepay
the Loan in whole or in part from time to time, subject to Section 2.06(c) and Section
3.05, but otherwise without premium or penalty; provided, however, that (i)
each partial prepayment shall be in a minimum principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof, in the case of Eurodollar Loans, and $500,000 or a whole multiple of
$100,000 in excess thereof, in the case of Base Rate Loans and (ii) the Borrower shall have given
prior written or telecopy notice (or telephone notice promptly confirmed by written or telecopy
notice) to the Administrative Agent, by 11:00 A.M., at least three Business Days prior to the date
of prepayment. Each notice of prepayment shall specify the prepayment date, the principal amount
to be prepaid, whether the Loan to be prepaid is a Eurodollar Loan or a Base Rate Loan and, in the
case of a
Eurodollar Loan, the Interest Period of such Loan. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of such Lender’s pro-rata
share, if any, thereof. If such notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and payable as specified
therein. Subject to the foregoing, amounts prepaid under this Section 2.06(a) shall be
applied first to pay all accrued and unpaid interest on the portion of the Loan being prepaid and
then to pay the unpaid principal amount of the portion of the Loan being prepaid. Subject to the
foregoing, amounts prepaid under this Section 2.06(a) shall be applied first to Base Rate
Loans and then to Eurodollar Loans, unless the Borrower requests otherwise and pays any breakage
fees incurred in connection therewith and due under Section 3.05. All prepayments of
Eurodollar Loans under this Section 2.06(a) shall be accompanied by accrued interest on the
principal amount being prepaid to the date of payment, together with any additional amounts
required pursuant to Section 3.05.





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          (b) Mandatory Prepayments.





          (i) Excess Cash Flow. Within 60 days after the end of each fiscal quarter
(commencing with the fiscal quarter ending March 31, 2006), the Borrower shall prepay the
Loan in an amount equal to 100% of the Excess Cash Flow for such fiscal quarter, less the
portion thereof that the Borrower deposits into a deposit account in which the Collateral
Agent has a security interest on behalf of itself and the Lenders, so long as the total cash
and Cash Equivalents of the Group Companies does not exceed $6,000,000 immediately after
giving effect to such deposit and prepayment.




          (ii) Asset Dispositions, Casualties and Condemnations, etc. Promptly (but in
any event within five Business Days) upon receipt by any Group Company of Net Cash Proceeds
from any Asset Disposition (other than any Excluded Asset Disposition), Casualty or
Condemnation or any cash or Cash Equivalents paid to any Group Company or their Affiliates
under the Acquisition Agreement (including as a result of any indemnity payment by the
Seller (including through any amounts held in escrow) to any Group Company or their
Affiliates), the Borrower shall, unless a Reinvestment Notice has been delivered, prepay the
Loan in an aggregate amount equal to 100% of the Net Cash Proceeds of such Asset
Disposition, Casualty or Condemnation or 100% of such cash or Cash Equivalents paid pursuant
to the Acquisition Agreement.




          (iii) Debt Issuances. Immediately upon receipt by any Group Company of Net
Cash Proceeds from any Debt Issuance (other than any Debt Issuance permitted pursuant to
Section 7.01 of this Agreement), the Borrower shall prepay the Loan in an aggregate
amount equal to 100% of the Net Cash Proceeds of such Debt Issuance.




          (iv) Equity Issuances. Immediately upon receipt by any Group Company of Net
Cash Proceeds from any Equity Issuance (other than any Excluded Equity Issuance), the
Borrower shall prepay the Loan in an aggregate amount equal to 100% of the Net Cash Proceeds
of such Equity Issuance.



          (c) Prepayment Premium. Whenever any (i) prepayment of principal of the Loan is made
(including by reason of the provisions of this Section 2.06) or (ii) repayment of principal
of the Loan is required as a result of a declaration pursuant to Article VIII that the Loan
is due and payable, the Borrower shall on the date of such prepayment or declaration, as
applicable, pay to the Lenders a prepayment premium equal to (A) if such prepayment or declaration
occurs prior to the date that is two years after the Closing Date, the Make-Whole Premium with
respect to the principal amount of the Loan or portion thereof so prepaid and (B) if such
prepayment or declaration occurs after the date that is two years after the Closing Date and prior
to the Maturity Date, 2.0% of the principal amount of the Loan or portion thereof so prepaid;
provided that no such prepayment premium shall be required in respect of (i) any
prepayments of principal of the Loan under Section 2.06(b)(i) in respect of Excess Cash
Flow and (ii) and prepayments of principal of the
Loan that is made pursuant to Section 2.06(b)(ii) in respect of Net Cash Proceeds from
a Casualty or Condemnation.




          Section 2.07 Fees.




          The Borrower shall pay to each Lender on the Closing Date for the Lender’s own respective
account a cash funding fee in an amount equal to 1.50% of such Lender’s Commitment. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.




          Section 2.08 Pro-rata Treatment. Each payment or prepayment of principal of or interest on
any Loan, each payment of fees and each conversion or continuation of the Loan shall be allocated
pro-rata among the relevant Lenders in accordance with the respective Commitment Percentages of
such Lenders





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(or, if the Commitments of such Lenders have expired or been terminated, in accordance
with the respective principal amounts of the outstanding Loans of such Lenders); provided
that, in the event any amount paid to any Lender pursuant to this Section 2.08 is rescinded
or must otherwise be returned by the Administrative Agent, each Lender shall, upon the request of
the Administrative Agent, repay to the Administrative Agent the amount so paid to such Lender, with
interest for the period commencing on the date such payment is returned by the Administrative Agent
until the date the Administrative Agent receives such repayment at a rate per annum equal to,
during the period to but excluding the date two Business Days after such request, the Federal Funds
Rate, and thereafter, the Base Rate plus 2.00% per annum.




          Section 2.09 Payments Generally; Administrative Agent’s Clawback.




          (a) Payments by the Borrower. All payments to be made by the Borrower shall be made
without condition or deduction for any counterclaim, defense, recoupment or setoff. Each payment
of principal of and interest on the Loan and fees hereunder shall be paid not later than 2:00 P.M.
on the date when due, in Federal or other funds immediately available to the Administrative Agent
at the account designated by it by notice to the Borrower. Payments received after 2:00 P.M. shall
be deemed to have been received on the next Business Day, and any applicable interest or fee shall
continue to accrue. All payments made in cash by Parent pursuant to the Parent Preferred Stock
shall, to the extent set forth in Section 8.03, be considered payments of principal
hereunder for purposes of calculating the remaining outstanding principal amount hereunder. The
Borrower shall, at the time it makes any payments under this Agreement, specify to the
Administrative Agent the fees or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and if it fails to specify or if such application would be inconsistent
with the terms hereof, the Administrative Agent shall, subject to Section 2.08, distribute
such payment to the Lenders in such manner as the Administrative Agent may deem reasonably
appropriate). The Administrative Agent may in its sole discretion distribute such payments to the
applicable Lenders on the date of receipt thereof, if such payment is received prior to 2:00 P.M.;
otherwise the Administrative Agent may, in its sole discretion, distribute such payment to the
applicable Lenders on the date of receipt thereof or on the immediately succeeding Business Day.
Whenever any payment hereunder shall be due on a day which is not a Business Day, the date for
payment thereof shall be extended to the next succeeding Business Day (and such extension of time
shall be reflected in computing interest or fees, as the case may be), unless (in the case of
Eurodollar Loans) such Business Day falls in another calendar month, in which case the date for
payment thereof shall be the next preceding Business Day. If the date for any payment of principal
is extended by operation of Law or otherwise, interest thereon shall be payable for such extended
time. Effective during the continuance of an Event of Default, the Borrower hereby authorizes and
directs the Administrative Agent to debit any account maintained by the Borrower with the
Administrative Agent to pay when due any amounts required to be paid from time to time under this
Agreement.




          (b) Payments by Borrower; Presumptions by the Administrative Agent. Unless the
Administrative Agent shall have received notice (which may be by telephone if promptly confirmed in
writing) from the Borrower prior to the date on which any payment is due to the Lenders that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith, and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender, in immediately available funds with interest
thereon, for each day from and including the date such is amount is distributed to but excluding
the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.




          (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for the Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because




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the conditions set forth in Article IV are not satisfied or
waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in
like funds as received from such Lender) to such Lender without interest.




          (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans are several and not joint. The failure of any Lender to make a Loan required to be made by
it as part of any Borrowing hereunder shall not relieve any other Lender of its obligation, if any,
hereunder to make the Loan, but no Lender shall be responsible for the failure of any other Lender
to make the Loan to be made by such other Lender.




          (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for the Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for the Loan in any particular place or
manner.




          (f) Computations. All computations of fees and interest shall be made on the basis of
a 360-day year and actual days elapsed. Interest shall accrue on the Loan for the day on which
Loan is made (or converted or continued), and shall not accrue on the Loan, or any portion thereof,
for the day on which the Loan or such portion is paid, provided that if the Loan is repaid
on the same day on which it is made (or continued or converted), it shall, subject to
subsection (a) above, bear interest for one day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be presumptively correct, absent manifest error.




ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




          Section 3.01 Taxes.




          (a) Payments Free of Taxes. Except as otherwise provided in this Agreement or by
applicable law, any and all payments by or on account of any obligation of the Borrower hereunder
or under any other Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if the Borrower shall
be required by applicable Law to deduct any Indemnified Taxes (including any Other Taxes) from such
payments, then (i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable under this Section)
the Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable Law. Notwithstanding the foregoing, the Borrower
shall not be required to increase any such payments by or on account of any obligation of the
Borrower hereunder or under any other Loan Document with respect to any Taxes (i) that are
attributable to the Administrative Agent’s or any Lender’s failure to comply with the requirements
of subsection (e) of this Section or (ii) that are United States withholding taxes imposed
on amounts payable to such Administrative Agent or Lender at the time such Administrative Agent or
Lender becomes a party to this Agreement, except to the extent that such Administrative Agent’s or
Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts
from the Borrower with respect to such Taxes pursuant to this subsection (a).




          (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Law.




          (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified
Taxes





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or Other Taxes (including Indemnified Taxes, Other Taxes or Excluded Taxes imposed or
asserted on or attributable to amounts payable under this Section) that Borrower was required to
pay pursuant to subsection (a) above and that was paid by the Administrative Agent or such Lender,
as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, excluding any penalties or interest that arise because of the Administrative
Agent’s or Lender’s failure to take any action required by applicable law. Payments under this
subsection (c) shall be made within 30 days after the date such Lender or Administrative Agent
makes a written demand therefore accompanied by either (i) a copy of the receipt issued by a
Governmental Authority evidencing the Lender’s or Administrative Agent’s payment of such
Indemnified Taxes, Other Taxes and applicable Excluded Taxes, or (ii) if the Lender or
Administrative Agent determines that it is unable to provide a copy of such receipt without making
its tax returns available to the Borrower, a certificate as to the amount of such payment or
liability prepared in good faith.




          (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes pursuant to subsection (a) above by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.




          (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), on or before the date it becomes a party to this Agreement and at the time
or times reasonably requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable Law as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any Lender that is not a
Foreign Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable Law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether
or not such Lender is subject to backup withholding or information reporting requirements.




          Without limiting the generality of the foregoing, any Foreign Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative
Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is
applicable:





          (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party;




          (ii) duly completed copies of Internal Revenue Service Form W-8ECI;




          (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (A) a certificate to the effect that
such Foreign Lender is not (x) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (y) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (z) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (B) duly completed copies of Internal Revenue Service Form
W-8BEN, or




          (iv) any other form prescribed by applicable Law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.



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          Each Foreign Lender shall (i) promptly notify Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the Borrower (or any other
form of certification adopted by the United States taxing authorities for such purpose) and (ii)
take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of the
Foreign Lender, and as may be reasonably necessary (including designating a different Lending
Office under Section 3.07(a)) to avoid any requirement of applicable laws of any such jurisdiction
that Borrower make any deduction or withholding for taxes from amount payable to such Foreign
Lender.




          Furthermore, each Lender that is not a Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent), duly completed copies of
Internal Revenue Service Form W-9, or any subsequent versions or successors to such form.




          (f) Treatment of Certain Refunds. If the Administrative Agent or any Lender
determines, in its good faith, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section, it shall promptly pay to the Borrower an amount equal
to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case
may be, and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority provided further that in no event
shall the Borrower be required to pay the Administrative Agent or any Lender an amount in excess of
the amount received under this Section 3.01(f). This subsection shall not be construed to require
the Administrative Agent or any Lender to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.




          Section 3.02 Illegality. If, on or after the date of this Agreement, the adoption of any
applicable Law, or any change in any applicable Law, or any change in the interpretation or
administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Lending Office) with any request or directive having the force of
Law of any such authority, central bank or comparable agency first made after the Effective Date
shall make it unlawful or impossible for any Lender (or its Lending Office) to make, maintain or
fund any of its Eurodollar Loans and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon, until such Lender notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist (which it shall do reasonably
promptly), the obligation of such Lender to make Eurodollar Loans, or to convert outstanding Loans
into Eurodollar Loans, shall be suspended. Before giving any notice to the Administrative Agent
pursuant to this Section 3.02, such Lender shall designate a different Lending Office if
such designation will avoid the need for giving such notice and will not, in the judgment of such
Lender, be otherwise materially disadvantageous to such Lender. If such notice is given, each
Eurodollar Loan of such Lender then outstanding shall be converted to a Base Rate Loan either (i)
on the last day of the then current Interest Period applicable to such Eurodollar Loan, if such
Lender may lawfully continue to maintain and fund such Loan to such day or (ii) immediately, if
such Lender shall determine that it may not lawfully continue to maintain and fund such Loan to
such day.




          Section 3.03 Inability to Determine Rates. If on or prior to the first day of any Interest
Period for any Eurodollar Loan:





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          (i) the Administrative Agent determines (which determination shall be presumptively
correct absent manifest error) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the applicable
Eurodollar Rate for such Interest Period; or




          (ii) Lenders having 50% or more of the aggregate amount of the Loans advise the
Administrative Agent that the Eurodollar Rate as determined by the Administrative Agent will
not adequately and fairly reflect the cost to such Lenders of funding their Eurodollar Loans
for such Interest Period;


the Administrative Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon, until the Administrative Agent notifies the Borrower that the circumstances giving rise
to such suspension no longer exist, (i) the obligations of the Lenders to make Eurodollar Loans, or
to continue or convert outstanding Loans as or into Eurodollar Loans, shall be suspended and (ii)
each outstanding Eurodollar Loan shall be converted into a Base Rate Loan on the last day of the
then current Interest Period applicable thereto.




          Section 3.04 Increased Costs and Reduced Return; Capital Adequacy.




          (a) Increased Costs Generally. If any Change in Law after the Effective Date shall:





          (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets held by, deposits with or for the
account of, or credit extended or participated in by, any Lender (or its Lending Office)
(except any reserve requirement which is reflected in the determination of the Adjusted
Eurodollar Rate hereunder);




          (ii) subject any Lender (or its Lending Office) to any tax of any kind whatsoever with
respect to this Agreement or any Eurodollar Loan made by it, or change the basis of taxation
of payments to such Lender in respect thereof (except for Indemnified Taxes or Other
Taxes and the imposition of, or any change in the rate of, any Excluded Tax payable by
such Lender);




          (iii) impose on any Lender (or its Lending Office) or the London interbank market any
other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such
Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender (or its Lending
Office) of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any
such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or any other amount) then, upon request of such Lender, the
Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.




          (b) Capital Requirements. If any Lender determines that any Change in Law made after
the Effective Date affecting such Lender or any Lending Office of such Lender or such Lender’s
holding company, if any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if
any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such
Lender, to a level below that which such Lender or such Lender’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s policies and the
policies of such Lender’s holding company with respect to capital adequacy), then from time to time
the Borrower will pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender’s holding company for any such reduction suffered.





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          (c) Certificates for Reimbursement. A certificate of a Lender setting forth in
reasonable detail with supporting calculations the amount necessary to compensate such Lender or
its holding company, as the case may be, as specified in subsection (a) or (b) of
this Section and delivered to the Borrower shall be presumptively correct absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.




          (d) Delays in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than six months prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect thereof).




          Section 3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense (except for lost profits) directly and
actually incurred by it as a result of:





          (i) any continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or




          (ii) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert the Loan other than a Base Rate Loan on
the date or in the amount notified by the Borrower.


The Borrower shall also pay any reasonable administrative fees charged by such Lender in connection
with the foregoing.




          Section 3.06 Base Rate Loans Substituted for Affected Eurodollar Loans. If (i) the
obligation of any Lender to continue or convert outstanding Loans as or to Eurodollar Loans has
been suspended pursuant to Section 3.02 or (ii) any Lender has demanded compensation under
Section 3.01 or 3.04 with respect to its Eurodollar Loans, and in any such case the
Borrower shall, by at least five Business Days’ prior notice to such Lender through the
Administrative Agent, have elected that the provisions of this Section 3.06 shall apply to
such Lender, then, unless and until such Lender notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer exist, all Loans which would otherwise
be made by such Lender as (or continued as or converted to) Eurodollar Loans shall instead be Base
Rate Loans (on which interest and principal shall be payable contemporaneously with the related
Eurodollar Loans of the other Lenders). If such Lender notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no longer exist (which it
shall do reasonably promptly), the principal amount of each such Base Rate Loan shall be converted
into a Eurodollar Loan on the first day of the next succeeding Interest Period applicable to the
related Eurodollar Loans of the other Lenders.




          Section 3.07 Mitigation Obligations.




          (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for




- 38 -









 







funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.




          Section 3.08 Survival. All of the Borrower’s obligations under this Article III
shall survive termination of the Commitments and repayment of all other Senior Credit Obligations
hereunder.




ARTICLE IV

CONDITIONS PRECEDENT TO CLOSING




          Section 4.01 Conditions to Closing. The occurrence of the Effective Date and the
obligation of each Lender to make its Loan hereunder on the Closing Date is subject to the
satisfaction of the following conditions precedent:




          (a) Representations and Warranties. The representations and warranties set forth in
each Loan Document shall be true and correct in all material respects on and as of the Effective
Date and the
Closing Date, except that to the extent any such representation and warranty expressly is made
as of an earlier date, such representation and warranty shall be true and correct in all material
respects as of such earlier date.




          (b) Default or Event of Default. As of the Effective Date and as of the Closing Date,
no Default or Event of Default shall have occurred and be continuing.




          (c) Executed Documents. The Administrative Agent shall have received duly executed
copies of: (i) this Agreement; (ii) the Notes; (iii) the Guaranty; (iv) the Collateral Documents,
(v) the Parent Purchase Agreement; (vi) the Warrant Agreement; (vii) properly completed perfection
certificates for each of the Loan Parties; and (viii) all other Loan Documents, each in form and
substance reasonably satisfactory to the Lenders.




          (d) Organization Documents. The Administrative Agent shall have received: (i) a copy
of the Organization Documents, including all amendments thereto, of each Loan Party, certified as
of a recent date by the Secretary of State or other applicable Governmental Authority of its
jurisdiction of organization, and a certificate as to the good standing of each Loan Party from
such Secretary of State, as of a recent date; (ii) a certificate as to the good standing of each
Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its
respective jurisdiction of organization and from each other state in which such Loan Party is
qualified or is required to be qualified to do business; (iii) a certificate of the Secretary or
Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that the
Organization Documents of such Loan Party have not been amended since the date of the last
amendment thereto shown on the certificate of good standing from its jurisdiction of organization
furnished pursuant to clause (ii) above; (B) that attached thereto is a true and complete
copy of the agreement of limited partnership, operating agreement or by-laws of such Loan Party, as
applicable, as in effect on the Closing Date and at all times since a date prior to the date of the
resolutions described in clause (C) below, (C) that attached thereto is a true and complete
copy of resolutions duly adopted by the board of directors or other governing body of such Loan
Party authorizing the execution, delivery and performance of the Loan Documents to which it is to
be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and effect; and (D) as to the
incumbency and specimen signature of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party; and (iv) a certificate of another
officer as to the





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incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (iii) above;




          (e) Officer’s Certificates. The Administrative Agent shall have received a
certificate of Holdings and the Borrower, dated the Closing Date and signed by a Responsible
Officer of each of Holdings and the Borrower on behalf of Holdings and the Borrower, confirming
that the representations and warranties made by the Loan Parties in each Loan Document are true and
correct in all material respects at and as if made as of such date except to the extent they
expressly relate to an earlier date.




          (f) Opinions of Counsel. The Administrative Agent shall have received a written
opinion of Latham & Watkins LLP, special counsel to the Loan Parties, dated the Closing Date,
substantially in the form of Exhibit E hereto.




          (g) Capitalization. After giving effect to the Transaction, no Change of Control
shall have occurred. Upon the consummation of the Transaction, all of the issued and outstanding
shares of Capital Stock of Holdings and the Borrower shall have been duly authorized and validly
issued, fully paid and nonassessable and shall be free of preemptive rights.




          (h) Issuance of Parent Preferred Stock and Warrants. The representations and
warranties of Parent set forth in the Parent Purchase Agreement and the Warrant Agreement shall be
true and correct in all material respects when made and as if made on and as of the Closing Date
(except to the extent such
representations and warranties expressly refer to a prior date, in which case such
representations and warranties shall have been true and correct in all material respects as of such
prior date). All of the Parent Preferred Stock and Warrants to be issued to and acquired by the
Lenders pursuant to the Parent Purchase Agreement and the Warrant Agreement shall have been duly
authorized and validly issued, fully paid and nonassessable, free of preemptive rights and free
from all taxes, liens, charges and security interests and no personal liability will attach to the
ownership thereof. Any shares of common stock of Parent issuable upon exercise of the Warrants
shall have been duly authorized and validly issued, and shall be fully paid and nonassessable, free
of preemptive rights and free from all taxes, liens, charges and security interests and no personal
liability will attach to the ownership thereof.




          (i) Consummation of the Acquisition. On or prior to the Closing Date, there shall
have been delivered to the Administrative Agent true and correct copies of all Acquisition
Documents, certified as such by a Responsible Officer of the Borrower, and all Acquisition
Documents shall be in full force and effect, and shall not have been materially amended or modified
or a waiver with respect thereto granted, in each case in a manner material and adverse to the
Lenders, unless the Lenders shall have consented to such amendment, modification or waiver. The
Acquisition shall have been consummated in accordance with the Acquisition Agreement (with such
amendments, modifications or waivers that are not material and adverse to the Lenders) for an
aggregate consideration not in excess of $58,500,000.00 (excluding related transaction fees and
expenses not exceeding $7,750,000.00) (such consideration, excluding such related transaction fees
and expenses, the “Acquisition Price”).




          (j) Perfection of Personal Property Security Interests and Pledges; Search Reports.
On or prior to the Closing Date, the Collateral Agent shall have received:





          (i) appropriate financing statements reasonably satisfactory to the Lenders (Form UCC-1
or such other financing statements or similar notices as shall be required by local Law)
authenticated and authorized for filing under the Uniform Commercial Code or other
applicable local law of each jurisdiction in which the filing of a financing statement or
giving of notice is required to perfect the security interests intended to be created by the
Collateral Documents;



- 40 -









 






          (ii) copies of reports from CT Corporation or another independent search service
reasonably satisfactory to the Lenders listing all effective financing statements, notices
of tax, PBGC or judgment liens or similar notices that name the Borrower, any other Loan
Party or the Seller, as such (under its present name and any previous name and, if requested
by the Lenders, under any trade names, in each case used in the past 5 years), as debtor or
seller that are filed in the jurisdictions referred to in clause (i) above;




          (iii) searches of ownership of intellectual property in the appropriate governmental
offices and such patent, trademark and/or copyright filings as may be requested by the
Lenders to the extent necessary to perfect the Collateral Agent’s security interest in
intellectual property Collateral; and




          (iv) all of the Pledged Collateral, which Pledged Collateral shall be in suitable form
for transfer by delivery, or shall be accompanied by duly executed instruments of transfer
or assignment in blank, with signatures appropriately guaranteed, accompanied in each case
by any required transfer tax stamps, all in form and substance reasonably satisfactory to
the Lenders.



          (k) Reserved.




          (l) Consents and Approvals. On the Closing Date, all material governmental,
regulatory and material third party approvals (other than with respect to real property leases,
license agreements relating to intellectual property and the Clearview Consent) in connection with
the transactions contemplated by the
Acquisition Agreement (to the extent required to be obtained pursuant to the Acquisition
Agreement) and the other Transaction Documents and otherwise referred to herein or therein shall
have been obtained and remain in full force and effect, and all applicable waiting and appeal
periods (including any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976) shall have expired, in each case without any action being taken by any competent
authority which have or could have a reasonable likelihood of restraining, preventing or imposing
materially burdensome conditions on such transactions or impose materially burdensome conditions
upon the consummation of such transactions.




          (m) Litigation; Judgments. On the Closing Date, there shall be no actions, suits,
proceedings, counterclaims or investigations pending (i) challenging the consummation of any
material portion of the Transaction or which could materially restrain, prevent or impose
materially burdensome conditions on the Transaction, (ii) seeking to prohibit the ownership or
operation by Holdings, the Seller or any of their respective Subsidiaries of all or any material
portion of any of their respective businesses or assets or (iii) seeking to obtain, or which could
result or has resulted in the entry of, any judgment, order or injunction that (A) would prohibit
or impose materially adverse or materially burdensome conditions on the ability of the Lenders to
make the Loans, (B) that could reasonably, individually or in the aggregate, be expected to result
in a Material Adverse Effect or (C) would reasonably be expected to adversely affect the legality,
validity or enforceability of any Loan Document or could have a material adverse effect on the
ability of any Loan Party to fully and timely perform their payment and security obligations under
the Loan Documents or the rights and remedies of the Lenders and the Agents taken as a whole.
Additionally, there shall not exist any judgment, order, injunction or other restraint issued or
filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the consummation of the transactions contemplated by
the Transaction Documents and otherwise referred to herein or therein.




          (n) Solvency Opinion. On or prior to the Closing Date, the Borrower shall have
delivered or caused to be delivered to the Administrative Agent a solvency opinion from Valuation
Research Corporation, in form and substance reasonably satisfactory to the Lenders, setting forth
the conclusions that, after giving effect to the Acquisition and the consummation of all financings
contemplated herein, Holdings





- 41 -









 







and its Subsidiaries (on a consolidated basis), the Borrower and its
Subsidiaries (on a consolidated basis) and the Borrower (on a stand-alone basis) are solvent.




          (o) Financial Information. The Administrative Agent shall have received: (i) the
Audited Financial Statements, (ii) unaudited financial statements of each of Parent and the
Acquired Business for any interim quarterly and monthly periods which have ended since the most
recent such audited financial statements at least 30 days prior to the Closing Date, together with
unaudited financial statements for the twelve month period ended on the last day of the most recent
of such fiscal periods and (iii) pro-forma financial statements as to Holdings and its Consolidated
Subsidiaries as of the end of the most recent fiscal month prior to the Closing Date for which
financial information is available giving effect to the transactions contemplated to occur on or
prior to the Closing Date pursuant to the Transaction Documents, prepared on a pro-forma basis in
accordance with Regulation S-X giving effect to the consummation of the Transaction, which in each
case, shall be reasonably satisfactory in form and substance to the Lenders; and (iv) evidence
satisfactory to the Lenders that (A) the Consolidated EBITDA of Parent and its Consolidated
Subsidiaries for the twelve-month period ending as of the most recent month ended prior to the
Closing Date was not less than $51,400,000, and (B) the Consolidated EBITDA of Holdings and its
Consolidated Subsidiaries for the twelve-month period then ended was not less than $36,100,000.




          (p) Payment of Fees. All costs, fees and expenses due (and for which invoices have
been delivered) to the Administrative Agent, the Collateral Agent and the Lenders on or before the
Closing Date shall have been paid.




          (q) OFAC/Anti-Terrorism Compliance Certificate. The Administrative Agent shall have
received a certificate of the Borrower substantially in the form of Exhibit I hereto, dated
the Closing Date, certifying as to the matters set forth in Exhibit I.




          Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.




ARTICLE V

REPRESENTATIONS AND WARRANTIES




          Each of Holdings and the Borrower represents and warrants to the Administrative Agent, the
Collateral Agent and the Lenders, that:




          Section 5.01 Existence, Qualification and Power; Compliance with Laws. Each Group Company
(i) is duly organized or formed, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, (ii) has all requisite power and authority and
all requisite and material governmental licenses, authorizations, consents and approvals to (A) own
or lease its assets and carry on its business and (B) execute, deliver and perform its obligations
under the Finance Documents to which it is a party, (iii) is duly qualified and is licensed and in
good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license, and (iv) is in
compliance with all Laws; except in each case referred to in clause (ii)(A), (iii)
or (iv), to the extent that failure to do so could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.




          Section 5.02 Authorization; No Contravention. The execution, delivery and performance by
Parent and each Loan Party of each Loan Document to which such Person is party have





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been duly
authorized by all necessary corporate, partnership, limited liability company or other
organizational action, and do not and will not (i) contravene the terms of the Organization
Documents of any Loan Party or Parent or any of its Subsidiaries; (ii) conflict with or result in
any breach or contravention of, or the creation of any Lien under, any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which any Loan Party or Parent or any
of its Subsidiaries or its property is subject; or (iii) violate any Law, except in the case of
clause (ii) or clause (iii) for such violations could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.




          Section 5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Transaction Document to which
it is a party except, in each case, as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.




          Section 5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance with its terms,
except (i) as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and (ii) that rights of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability (regardless of whether enforcement is sought by
proceedings in equity or at law).




Section 5.05 Financial Condition; No Material Adverse Effect.




          (a) Audited Financial Statements. The Audited Financial Statements (i) were prepared
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition of each of (A)
Parent and its Subsidiaries and (B) the Acquired Business, in each case as of the date thereof and
their results of operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or contingent, of (A) Parent and
its Subsidiaries and (B) the Acquired Business as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.




          (b) Interim Financial Statements. The unaudited consolidated balance sheets of each
of (A) Parent and its Consolidated Subsidiaries and (B) the Acquired Business, in each case as of
October 31, 2005, and the related unaudited consolidated statements of income and cash flows for
the ten months then ended, copies of which have been delivered to each of the Lenders, fairly
present, in conformity with GAAP applied on a basis consistent with the financial statements
referred to in subsection (a) of this Section 5.05 (except for the absence of
footnotes and normal year-end audit adjustments), the consolidated financial position of (A) Parent
and its Consolidated Subsidiaries and (B) the Acquired Business as of such date and their
consolidated results of operations and cash flows for such six-month period (subject to normal
year-end audit adjustments).




          (c) Material Adverse Effect. Since the date of the Audited Financial Statements,
nothing has occurred which could, individually or in the aggregate, reasonably be expected to have,
individually or in the aggregate, (i) a material adverse effect on the financial condition,
business, operations, assets, liabilities or property of Parent and its Subsidiaries, taken as a
whole or (ii) a Material Adverse Effect.





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          (d) Pro-Forma Financial Statements. The pro-forma balance sheet delivered pursuant to
Section 4.01(o) has been prepared in good faith by Holdings, based on assumptions deemed reasonable
by Holdings at the time made, accurately reflects all material adjustments required to be made to
give effect to the Transaction, including estimated purchase price accounting adjustments, and
presents fairly on a pro-forma basis the estimated consolidated financial position of Holdings and
its Consolidated Subsidiaries as of the end of such month, assuming that the Transaction had
actually occurred on that date.




          (e) Projections. The projections delivered by Parent to the Lenders prior to the
Effective Date with respect to the Acquired Business have in each case been prepared on a basis
consistent with the financial statements referred to in subsection (a) above and are based
on good faith estimates and assumptions made by management of Parent, it being recognized by the
Lenders, however, that projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by such projections may differ from the
projected results and that such differences may be material.




          (f) Post-Closing Financial Statements. The financial statements delivered to the
Lenders pursuant to Section 6.01(a) and (b), if any, (i) have been prepared in
accordance with GAAP (except as may otherwise be permitted under Section 6.01(a) and
(b)) and (ii) present fairly (on the basis disclosed in the footnotes to such financial
statements, if any) in all material respects the consolidated financial condition, results of
operations and cash flows of (A) Parent and its Consolidated Subsidiaries and (B) the Acquired
Business, as the case may be, as of the respective dates thereof and for the respective
periods covered thereby subject, in the case of quarterly statements, to normal year-end audit
adjustments and the absence of footnotes.




          Section 5.06 Litigation. There are no actions, suits, proceedings claims or disputes
pending at law, in equity, in arbitration of before any Governmental Authority, by or against any
Group Company or against any of their properties or revenues that (i) purport to affect this
Agreement or any other Loan Document or (ii) except as specifically disclosed in Schedule
5.06, could, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.




          Section 5.07 No Default. No Default or Event of Default has occurred and is continuing or
would result from the consummation of the Transaction.




          Section 5.08 Ownership of Property; Liens. Each Group Company has good and marketable
title to, or valid leasehold interests in, all its material properties and assets, except for
defects in title that do not materially interfere with its ability to conduct its business as
currently conducted. All such material properties and assets are free and clear of Liens other than
Permitted Liens.




          Section 5.09 Environmental Compliance. No Group Company has failed to comply with any
Environmental Law or to obtain, maintain, or comply with any permit, license or other approval
required under any Environmental Law or is subject to any Environmental Liability or has received
notice of any claim with respect to any Environmental Liability, and no Group Company knows of any
basis for any Environmental Liability against any Group Company, except as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Group Companies
conduct in the ordinary course of business a review of the effect of existing Environmental Laws
and claims alleging potential liability or responsibility for violation of any Environmental Law on
their respective businesses, operations and properties, and as a result thereof the Borrower has
reasonably concluded that such Environmental Laws and claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.




          Section 5.10 Insurance. Schedule 5.10 hereto sets forth all insurance policies for
the Group Companies as in effect on the Effective Date.





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          Section 5.11 Taxes. Each Group Company has filed, or caused to be filed, all federal tax
returns and all material state, local and foreign tax returns) required to be filed and paid all
amounts of taxes shown thereon to be due (including interest and penalties), except for such taxes
(A) which are not yet delinquent or (B) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained to the extent required by
GAAP. No Loan Party knows of any pending investigation of such party by any taxing authority or
proposed tax assessments against any Group Company that would, if made, have a Material Adverse
Effect.




          Section 5.12 ERISA; Foreign Pension Plans; Employee Benefit Arrangements. Except as
disclosed in Schedule 5.12 and except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect:




          (a) ERISA.





          (i) There are no Unfunded Liabilities (A) with respect to any member of the Group
Companies and (B) with respect to any ERISA Affiliate; provided that for purposes of
this Section 5.12(a)(i)(B) only, Unfunded Liabilities shall mean the amount (if any)
by which the projected benefit obligation exceeds the value of the plan’s assets as of its
last valuation date.




          (ii) Each Plan, other than a Multiemployer Plan, complies in all material respects with
the applicable requirements of ERISA and the Code, and each Group Company complies in all
material respects with the applicable requirements of ERISA and the Code with respect to all
Multiemployer Plans to which it contributes.




          (iii) No ERISA Event has occurred or, subject to the passage of time, is reasonably
expected to occur with respect to any Plan maintained by any member of the Group Companies
and, to the knowledge of the Group Companies, no ERISA Event has occurred or, subject to the
passage of time, is reasonably expected to occur with respect to any Plan maintained by an
ERISA Affiliate.




          (iv) No Group Company: (A) is or has been within the last six years a party to any
Multiemployer Plan; or (B) has completely or partially withdrawn from any Multiemployer
Plan.




          (v) To the knowledge of the Group Companies, if any ERISA Affiliate were to incur a
complete withdrawal (as described in Section 4203 of ERISA) from any Multiemployer Plan as
of the Closing Date, the aggregate withdrawal liability, as determined under Section 4201 of
ERISA, with respect to all such Multiemployer Plans would not exceed $100,000.




          (vi) The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereunder will not involve any transaction that is subject to the
prohibitions of Section 406 of ERISA or in connection with which taxes could be imposed
pursuant to Section 4975(c)(1)(A)-(D) of the Code, for which an exemption under ERISA does
not apply.




          (vii) No Group Company has any contingent liability with respect to any post-retirement
benefit under a Welfare Plan, other than liability for continuation coverage described in
Part 6 of Title I of ERISA.



          (b) Foreign Pension Plans. Each Foreign Pension Plan has been maintained in compliance
with its terms and with the requirements of any and all applicable Laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing with applicable
regulatory authorities. No Group Company has incurred any obligation in connection with the
termination of or withdrawal from any Foreign Pension Plan.






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          (c) Employee Benefit Arrangements.





          (i) All liabilities under the Employee Benefit Arrangements are (A) funded to at least
the minimum level required by Law or, if higher, to the level required by the terms
governing the Employee Benefit Arrangements, (B) insured with a reputable insurance company,
(C) provided for or recognized in the financial statements most recently delivered to the
Administrative Agent
pursuant to Section 6.01 hereof or (D) estimated in the formal notes to the
financial statements most recently delivered to the Administrative Agent pursuant to
Section 6.01.




          (ii) There are no circumstances which may give rise to a liability in relation to the
Employee Benefit Arrangements which are not funded, insured, provided for, recognized or
estimated in the manner described in clause (i) above.




          (iii) Each Group Company is in material compliance with all applicable Laws, trust
documentation and contracts relating to the Employee Benefit Arrangements.



          Section 5.13 Subsidiaries; Equity Interests. As of the Closing Date, Holdings has no
Subsidiaries other than the Borrower. As of the Closing Date, the Borrower has no Subsidiaries.




          Section 5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company
Act.




          (a) Neither Holdings nor the Borrower is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying “margin
stock” within the meaning of Regulation U. No part of the proceeds of the Loan will be used,
directly or indirectly, for the purpose of purchasing or carrying any “margin stock” within the
meaning of Regulation U. If requested by the Administrative Agent, the Borrower will furnish to
the Administrative Agent for distribution to Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in Regulation U. No indebtedness being
reduced or retired out of the proceeds of the Loan was or will be incurred for the purpose of
purchasing or carrying any margin stock within the meaning of Regulation U or any “margin security”
within the meaning of Regulation T. “Margin stock” within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of Holdings and its Consolidated
Subsidiaries. None of the transactions contemplated by this Agreement (including the direct or
indirect use of the proceeds of the Loans) will violate or result in a violation of the Securities
Act, the Exchange Act or Regulation T, U or X.




          (b) None of the Group Companies is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act or the Investment Company Act of 1940, each as amended.
In addition, none of the Group Companies is (i) an “investment company” registered or required to
be registered under the Investment Company Act of 1940, as amended, (ii) controlled by such a
company, or (iii) a “holding company”, a “subsidiary company” of a “holding company”, or an
“affiliate” of a “holding company” or of a “subsidiary” of a “holding company”, within the meaning
of the Public Utility Holding Company Act of 1934, as amended.




          Section 5.15 Disclosure. No information or data (excluding forecasts, financial
projections, budgets, estimates and general market data) furnished to the Administrative Agent or
any Lender by or on behalf of any Loan Party in connection with any Finance Document, when taken as
a whole, as of the date furnished contains any untrue statement of a material fact or omits any
material fact necessary to make the statements therein, in light of the circumstances under which
they were made, not materially misleading.





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          Section 5.16 Compliance with Law. Each Group Company is in compliance with all requirements of Law (including Environmental Laws)
applicable to it or to its properties, except for any such failure to comply which could not,
individually or in the aggregate, reasonably be expected to cause a Material Adverse Effect.




          Section 5.17 Intellectual Property. Holding and its Subsidiaries own, or possess the right
to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other rights that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person, except, as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the
best knowledge of Holdings, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be employed, by Holdings or
any Subsidiary infringes upon any rights held by any other Person.




          Section 5.18 Purpose of Loans. The proceeds of the Loan will be used solely to fund a
portion of the consideration paid pursuant to the Acquisition Agreement and to pay fees and
expenses incurred in connection with the transactions contemplated by the Acquisition Agreement.




          Section 5.19 Labor Matters. There are no strikes against Holdings or any of its
Subsidiaries, other than any strikes that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect. The hours worked by and payments made to
employees of Holdings or any its Subsidiaries have not been in violation of the Fair Labor
Standards Act of 1938, as amended, or any other applicable federal, state, local or foreign law
dealing with such matters in any manner which could reasonably be expected to result in a Material
Adverse Effect. All payments due from Holdings or any its Subsidiaries, or for which any claim may
be made against Holdings or any its Subsidiaries, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a liability on the books of
Holdings or any its Subsidiaries except where the failure to do so could not reasonably be expected
to result in a Material Adverse Effect. The consummation of the Transactions will not give rise to
any right of termination or right of renegotiation on the part of any union under any collective
bargaining agreement to which Holdings or any its Subsidiaries is bound.




          Section 5.20 Solvency. Each Loan Party is and, after consummation of the Transactions, will be Solvent.




          Section 5.21 Collateral Documents.




          (a) Article 9 Collateral. The Security Agreement is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Finance Parties, a legal, valid and
enforceable security interest in the Collateral described therein and, when financing statements in
appropriate form are filed in the offices specified on Schedule 4.01 to the Security
Agreement and the Pledged Collateral is delivered to the Collateral Agent, the Security Agreement
shall constitute a fully perfected Lien on, and security interest in, all right, title and interest
of the grantors thereunder in such of the Collateral in which a security interest can be perfected
under Article 9 of the Uniform Commercial Code by the filing of such financing statements, in each
case prior and superior in right to any other Person, other than with respect to Permitted Liens.




          (b) Intellectual Property. When financing statements in the appropriate form are
filed in the offices specified on Schedule 4.01 to the Security Agreement, the Assignment
of Patents and Trademarks,
substantially in the form of Exhibit A to the Security Agreement, is filed in the United
States Patent and Trademark Office and the Assignment of Copyrights, substantially in the form of
Exhibit B to the Security Agreement, is filed in the United States Copyright Office, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the grantors thereunder in the United States patents, trademarks, copyrights,
licenses and other intellectual property rights covered in such




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Assignments to the extent such
security interest can be perfected by such filings, in each case prior and superior in right to any
other Person (it being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to perfect a lien on
registered trademarks, trademark applications and copyrights acquired by the Loan Parties after the
Closing Date).




          Section 5.22 Ownership.




          (a) Securities of the Borrower. Holdings owns good, valid and marketable title to all
the outstanding Equity Interests of the Borrower, free and clear of all Liens of every kind,
whether absolute, matured, contingent or otherwise, other than those arising under the Collateral
Documents. Except as set forth on Schedule 5.22, there are no shareholder agreements or
other agreements pertaining to Holdings’ beneficial ownership of the common stock of the Borrower,
including any agreement that would restrict Holdings’ right to dispose of such common stock and/or
its right to vote such common stock.




          (b) Holdings Equity Interests. Orbimage owns all of the outstanding Equity Interests
of Holdings.




          Section 5.23 Certain Transactions.




          (a) Acquisition Agreement. On the Closing Date, (i) the Acquisition Agreement has not
been materially amended or modified or a waiver with respect thereto granted, in each case in a
manner material and adverse to the Lenders, unless the Lenders shall have consented to such
amendment, modification or waiver, (ii) all funds advanced on the Closing Date by the Lenders have
been used in accordance with Section 5.18 and (iii) the transactions contemplated by the
Acquisition Agreement have been consummated in accordance with the Acquisition Agreement (with such
amendments, modifications or waivers that are not material and adverse to the Lenders).




          (b) No Broker’s Fees. Except as disclosed on Schedule 5.23, no broker’s or
finder’s fee or commission will be payable with respect to this Agreement or any of the
transactions contemplated hereby as a result of any action by or on behalf of the Borrower or their
Affiliates, and each of Holdings and the Borrower hereby indemnifies each Agent and each Lender
against, and agrees that it will hold each Agent and each Lender harmless from, any claim, demand
or liability for any such broker’s or finder’s fees alleged to have been incurred in connection
herewith or therewith and any expenses (including reasonable fees, expenses and disbursements of
counsel) arising in connection with any such claim, demand or liability.




          Section 5.24 TT&C Earth Station License, Etc. As of the Closing Date, Schedule
5.24 accurately and completely lists for each TT&C Earth Station all current licenses or
authorizations issued or granted by the FCC or by any Governmental Authority outside of the United
States to the Borrower or any of its Subsidiaries. As of the Closing Date, the TT&C Earth Station
licenses and authorizations listed on Schedule 5.24 include all material authorizations,
licenses and permits issued by the FCC or any other Governmental Authority outside of the United
States to the Borrower or any of its Subsidiaries that are required or necessary for it to operate
such TT&C Earth Station. Each such license is held in the name of the Borrower or one of its
Subsidiaries and is validly issued and in full force and effect as of the Closing Date, and as of
the Closing Date, the Borrower and its Subsidiaries have fulfilled and
performed in all material respects all of their obligations with respect thereto and have full
power and authority to operate thereunder.




          Section 5.25 In-Orbit Satellites. Schedule 5.25 accurately and completely lists
each of the In-Orbit Satellites owned by the Borrower and its Subsidiaries on the Closing Date, and
sets forth for each such In-Orbit Satellite the orbital slot of, and number and frequency band of
the transponders (based on Satellite design capabilities and measured in 36 megahertz equivalents)
on, such In-Orbit Satellite.





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ARTICLE VI

AFFIRMATIVE COVENANTS




          Each of Holdings and the Borrower agrees that so long as, any Senior Credit Obligation or
other amount payable hereunder or under any Note or other Loan Document (in each case other than
contingent indemnification obligations) remains unpaid:




          Section 6.01 Financial Statements. Holdings will deliver to the Administrative Agent for
delivery to each Lender:




          (a) Annual Financial Statements. As soon as available, and in any event within 90
days after the end of each fiscal year of Holdings (commencing with fiscal year ended December 31,
2005), a consolidated and consolidating balance sheets of Holdings and its Consolidated
Subsidiaries as of the end of such fiscal year, the related consolidated and consolidating
statements of operations and shareholders’ equity and a consolidated statement of cash flows for
such fiscal year, setting forth in each case in comparative form the consolidated and consolidating
figures for the preceding fiscal year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be audited and accompanied by a report and opinion of a
Registered Public Accounting Firm of nationally recognized standing or another accounting firm
acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and applicable Securities Laws and shall not be subject
to any “going concern” or like qualification or exception or any qualification or exception as to
the scope of such audit, and such consolidating statements to be certified by a Responsible Officer
of the Borrower to the effect that such statements are fairly stated in all material respects when
considered in relation to the consolidated financial statements of Holdings and its Consolidated
Subsidiaries.




          (b) Quarterly Financial Statements. As soon as available, and in any event within 45
days after the end of each of the first three fiscal quarters in each fiscal year of Holdings
(commencing with fiscal year ended December 31, 2006), a consolidated and consolidating balance
sheet of Holdings and its Consolidated Subsidiaries as of the end of such fiscal quarter, together
with related consolidated and consolidating statements of operations and shareholders’ equity and a
consolidated statement of cash flows for such fiscal quarter and the then elapsed portion of such
fiscal year, setting forth in comparative form the consolidated and consolidating figures for the
corresponding periods of the preceding fiscal year, all in reasonable detail, such consolidated
statements to be certified by a Responsible Officer of the Borrower as fairly presenting the
financial condition, results of operations, shareholders’ equity and cash flows of Holdings and its
Consolidated Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes, and such consolidating statements to be certified by a
Responsible Officer of the Borrower to the effect that such statements are fairly stated in all
material respects when considered in relation to the consolidated financial statements of Holdings
and its Consolidated Subsidiaries.




          (c) Monthly Financial Statements. As soon as available, and in any event within 45
days after the end of each fiscal month of Holdings (commencing with the first full fiscal month
following the
Closing Date), a consolidated and consolidating balance sheet of Holdings and its Consolidated
Subsidiaries as of the end of such fiscal month, together with related consolidated and
consolidating statements of operations and shareholders’ equity and a consolidated statement of
cash flows for such fiscal month and the then elapsed portion of such fiscal year, setting forth in
comparative form the consolidated and consolidating figures for the corresponding periods of the
preceding fiscal year, all in reasonable detail, such consolidated statements to be certified by a
Responsible Officer of the Borrower as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of Holdings and its Consolidated Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.





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          (d) Budgets. As soon as available, and in any event within 45 days after the
beginning of each fiscal year, a budget for Holdings and its Subsidiaries in form reasonably
satisfactory to the Administrative Agent, but to include balance sheets, statements of income and
sources and uses of cash, for (i) each month of such fiscal year prepared in detail and (ii) each
fiscal year thereafter, through and including the fiscal year in which the Maturity Date occurs,
prepared in summary form, in each case, with appropriate presentation and discussion of the
principal assumptions upon which such budgets are based, accompanied by the statement of a
financial officer of the Borrower to the effect that the budget of Holdings is a reasonable
estimate for the periods covered thereby and, promptly when available, any significant revisions of
such budget; provided, however, that such budget shall be delivered only to the Administrative
Agent and to such Lenders that have executed a written request to receive such budget and a
confidentiality agreement reasonably acceptable to the Borrower.




          Section 6.02 Certificates; Other Information. Holdings will deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required
Lenders:




          (a) Auditors’ Certificate. Concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in the course of the audit upon
which their opinion on such financial statements was based (but without any special or additional
audit procedures for the purpose), they obtained knowledge of no condition or event relating to
financial matters which constitutes a Default or an Event of Default or, if such accountants shall
have obtained in the course of such audit knowledge of any such Default or Event of Default,
disclosing in such written statement the nature and period of existence thereof, it being
understood that such accountants shall be under no liability, directly or indirectly, to the
Lenders for failure to obtain knowledge of any such condition or event.




          (b) Compliance Certificate. At the time of delivery of the financial statements
provided for in Sections 6.01(a), 6.01(b) and 6.01(c) above (commencing
with the delivery of the financial statements for the first full fiscal month following the Closing
Date), a Compliance Certificate signed by a Responsible Officer on behalf of Holdings (i) stating
that, to the knowledge of the Responsible Officers of Holdings, no Default or Event of Default
exists, or if any Default or Event of Default does exist, specifying the nature and extent thereof
and what action the Borrower proposes to take with respect thereto, and (ii) stating whether, since
the date of the most recent financial statements delivered hereunder, there has been any material
change in the GAAP applied in the preparation of the financial statements of Holdings and its
Consolidated Subsidiaries, and, if so, describing such change.




          (c) Auditor’s Reports. Promptly after any request by the Administrative Agent, copies
of any detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of Parent or any Group Company by
independent accountants in connection with the accounts or books of Parent or any Group Company, or
any audit of any of them;




          (d) SEC Reports. Promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the stockholders of Parent,
and copies of all annual, regular, periodic and special reports and registration statements which
any Group Company may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative
Agent pursuant hereto.




          (e) Reports to Holders of Debt Securities. Promptly after the furnishing thereof,
copies of any statement or report furnished of any holder of debt securities of any Loan Party or
any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement
and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any
other clause of this Section 6.02.





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          (f) Investigations. Promptly, and in any event within ten Business Days after receipt
thereof by any Group Company, copies of each notice or other correspondence received from any
Governmental Authority concerning any investigation or possible investigation or other inquiry by
such Governmental Authority regarding the business, financial or other operational results of such
Group Company thereof that, if adversely determined, could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.




          (g) ERISA Reports. Promptly after the same are available, the most recently prepared
actuarial reports in relation to the Plans for the time being operated by Group Companies which are
prepared in order to comply with the then current statutory or auditing requirements within the
relevant jurisdiction.




          (h) Additional Patents, Trademarks and Copyrights. At the time of delivery of the
financial statements and reports provided for in Section 6.01(a), a report signed by the
chief financial officer of the Borrower setting forth (i) a list of registration numbers for all
material patents, trademarks, service marks, tradenames and copyrights awarded to any Group Company
since the last day of the immediately preceding fiscal year of the Borrower and (ii) a list of all
material patent applications, trademark applications, service mark applications, trade name
applications and copyright applications submitted by any Group Company since the last day of the
immediately preceding fiscal year and the status of each such application, all in such form as
shall be reasonably satisfactory to the Administrative Agent.




          (i) Domestication in Other Jurisdiction. Promptly after any change in the
jurisdiction of organization of any Loan Party, a copy of all documents and certificates intended
to be filed or otherwise executed to effect such change.




          (j) Other Information. With reasonable promptness upon request therefor, such other
information regarding the financial condition of any Group Company as the Administrative Agent or
any Lender may reasonably request, which may include such information as the Administrative Agent
or such Lender may reasonably determine is necessary or advisable to enable it either (i) to comply
with the policies and procedures adopted by it and its Affiliates to comply with the Bank Secrecy
Act, the U.S. Patriot Act and all applicable regulations thereunder or (ii) to respond to requests
for information concerning Holdings and its Subsidiaries from any governmental, self-regulatory
organization or financial institution in connection with its anti-money laundering and
anti-terrorism regulatory requirements or its compliance procedures under the U.S. Patriot Act.




          Section 6.03 Notices. The Borrower will promptly notify the Administrative Agent:





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




          (ii) of (A) any default or event of default, not waived in accordance with the
provisions hereof, under any material Contractual Obligation of the Borrower or any of its
Subsidiaries, (B) any dispute, litigation, investigation, proceeding or suspension between
any Group Company and any Governmental Authority, (C) the commencement of, or any material
adverse development in, any litigation or proceeding affecting any Group Company including
pursuant to any applicable Environmental Law, (D) any litigation, investigation or
proceeding affecting any Loan Party and (E) and any other matter, event or circumstance, in
each case of subclauses (A) through (E) to the extent that the same have resulted or could
reasonably be expected to result in a Material Adverse Effect;




          (iii) of the occurrence of any ERISA Event that is reasonably likely to have a Material
Adverse Effect; or



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          (iv) of any material change in accounting policies or financial reporting practice by
Holdings or any of its Subsidiaries.



          Each notice pursuant to this Section 6.03 shall be accompanied by a statement of the
Borrower setting forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto.




          Section 6.04 Payment of Taxes. Each of the Group Companies will pay and discharge all taxes, assessments and other governmental charges or levies imposed upon it, or upon its income or
profits, or upon any of its properties, before they shall become delinquent, provided,
however, that no Group Company shall be required to pay any such tax, assessment, charge or
levy which is being contested in good faith by appropriate proceedings and as to which adequate
reserves have been established if required by GAAP.




          Section 6.05 Preservation of Existence Etc. Except as a result of or in connection with a dissolution, merger or disposition of a Subsidiary of the Borrower permitted under Section
7.04 or Section 7.05, each Group Company will: (i) preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the jurisdiction of its
organization; (ii) take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business, except to the extent
that failure to do so could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and (iii) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.




          Section 6.06 Maintenance of Properties. Each Group Company will maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in
good working order and condition, ordinary wear and tear excepted, except where the failure to do
so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.




          Section 6.07 Maintenance of Insurance; Certain Proceeds.




          (a) Insurance Policies. Each of the Group Companies will at all times maintain in
full force and effect insurance (including maintenance of usual and customary in-orbit insurance
through September 24, 2006 on the IKONOS Satellite with reputable insurance carriers (“In-Orbit
Insurance”) of not less than $20.0 million, worker’s compensation insurance, liability insurance and casualty
insurance, in each case in such amounts, covering such risk and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal industry practice (or as
are otherwise required by the Collateral Documents). In addition to the foregoing, if the Group
Companies fail to obtain on or prior to April 1, 2006 In-Orbit Insurance for the period from and
after September 24, 2006 through and including November 30, 2006 (the “In-Orbit Insurance
Period”) in an amount equal to or greater than $20.0 million, then the Borrower shall pay to
the Administrative Agent on such date, for distribution to the Lenders in accordance with Section
2.08, liquidated damages of $135,000 (reduced on a pro rata basis both (x) to the extent such
In-Orbit Insurance is obtained for only a portion of the In-Orbit Insurance Period and (y) to the
extent such insurance is for less than $20.0 million). Within 20 days of the Effective Date, the
Collateral Agent shall have received certificates of insurance of the Loan Parties and their
Subsidiaries reasonably acceptable to the Lenders and evidencing liability and casualty insurance
meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the
Collateral Agent as additional insured or loss payee, as appropriate, on behalf of the Lenders.
After such time, the Collateral Agent shall be named as loss payee or mortgagee, as its interest
may appear, with respect to all such property and casualty policies and additional insured with
respect to all such other policies (other than workers’ compensation, employee health and
directors’ and officers’ policies), and each provider of any such insurance shall agree, by
endorsement upon the policy or policies issued by it or by independent instruments furnished to the
Collateral Agent, that if the insurance carrier shall have received







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written notice from the Collateral Agent of the occurrence and continuance of an Event of Default, the insurance carrier
will give the Collateral Agent 30 days’ prior written notice before any such policy or policies
shall be canceled, and that no act or default of any Group Company or any other Person shall affect
the rights of the Collateral Agent or the Lenders under such policy or policies.




          (b) Loss Events. In case of any Casualty or Condemnation with respect to any property
of any Group Company or any part thereof (other than a complete loss of a Satellite), the Borrower
shall promptly give written notice thereof to the Administrative Agent generally describing the
nature and extent of such damage, destruction or taking. In such case, the Borrower may, at its
option, cause such Group Company to, promptly repair, restore or replace the property of such
Person (or part thereof) which was subject to such Casualty or Condemnation, at such Person’s cost
and expense, whether or not the Insurance Proceeds or Condemnation Award, if any, received on
account of such event shall be sufficient for that purpose; provided, that such property
need not be repaired, restored or replaced to the extent such Person concludes that the failure to
make such repair, restoration or replacement (i)(A) is desirable to the proper conduct of the
business of such Person in the ordinary course and otherwise in the best interest of such Person
and (B) would not materially impair the rights and benefits of the Collateral Agent or the Finance
Parties under the Collateral Documents or any other Loan Document or (ii) the failure to repair,
restore or replace the property is attributable to the application of the Insurance Proceeds from
such Casualty or the Condemnation Award from such Condemnation to payment of the Senior Credit
Obligations in accordance with the following provisions of this Section 6.07(b). If
Holdings or any of its Subsidiaries shall receive any Insurance Proceeds from a Casualty or
Condemnation Award from a Condemnation, in each case attributable to a Satellite, such Person will
promptly pay over such proceeds to the Administrative Agent, for payment of the Senior Credit
Obligations in accordance with Section 2.06(b)(ii).




          Section 6.08 Compliance with Laws. Each of the Group Companies will comply with all requirements of Law applicable to it and its properties to the extent that noncompliance with any
such requirement of Law could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.




          Section 6.09 Books and Records. Each of the Group Companies will keep complete and accurate books and records of its transactions in accordance with GAAP (including the establishment
and maintenance of appropriate reserves if required by GAAP) and will maintain such books and records and accounts in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over any Group
Company, except where the failure to do so could not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.




          Section 6.10 Inspection Rights. Upon reasonable notice and during normal business hours, each of the Group Companies will permit representatives appointed by the Administrative Agent,
including independent accountants, agents and employees to visit and inspect its property,
including its books and records, its facilities and its other business assets, and to make
photocopies or photographs thereof and to write down and record any information such
representatives obtain and shall permit the Agents or such representatives to investigate and
verify the accuracy of information provided to the Lenders and to discuss all such matters with the
officers, employees, independent accountants, attorneys and representatives of the Group Companies;
provided that so long as no Event of Default has occurred during such fiscal year, only one
such visit and inspection per fiscal year of the Group Companies shall be at the expense of the
Group Companies; provided further that if an Event of Default has occurred during
such fiscal year, all such visits and inspections, without limitation, shall be at the sole expense
of the Group Companies. Each of Holdings and the Borrower hereby irrevocably authorizes and
directs all accountants and auditors employed by it at any time during the term of this Agreement
to exhibit and deliver to the Administrative Agent and the Lenders copies of any of the financial
statements, trial balances or other accounting records of any sort of any Group Company in the
accountant’s or auditor’s possession, and to disclose to the Administrative Agent and the






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Lenders any information they may have concerning the financial status and business operations of any Group
Company.




          Section 6.11 Use of Proceeds. The Borrower will use the proceeds of the Loans solely for the purposes set forth in Section 5.18.




          Section 6.12 Additional Loan Parties; Additional Security.




          (a) Additional Subsidiary Guarantors. Each of Holdings and the Borrower will take,
and will cause each of its Subsidiaries (other than Foreign Subsidiaries) to take, such actions
from time to time as shall be necessary to ensure that all Subsidiaries of Holdings (other than the
Borrower and Foreign Subsidiaries) are Subsidiary Guarantors. Without limiting the generality of
the foregoing, if any Loan Parties shall form or acquire any new Subsidiary, the Borrower, as soon
as practicable and in any event within 30 days after such formation or acquisition, will provide
the Collateral Agent with notice of such formation or acquisition setting forth in reasonable
detail a description of all of the material assets of such new Subsidiary and will cause such new
Subsidiary (other than a Foreign Subsidiary) to:





          (i) within 30 days after such formation or acquisition, execute a Joinder Agreement
pursuant to which such new Subsidiary shall agree to become a “Guarantor” under the Guaranty
and a “Pledgor” under the Security Agreement; and




          (ii) deliver such proof of organizational authority, incumbency of officers, opinions
of counsel (for non-Delaware entities) and other documents as is consistent with those
delivered by each Loan Party pursuant to Section 4.01 on the Closing Date or as the
Administrative Agent or the Collateral Agent shall have reasonably requested.



          (b) Additional Security. Each of Holdings and the Borrower will cause, and will cause
each of its Subsidiaries (other than a Foreign Subsidiary) to cause (i) all of its Owned Real
Properties and personal property with a fair market value in excess of $1.5 million, and (ii) all
other assets and properties of Holdings and its Subsidiaries as are not covered by the original
Collateral Documents (and except for vehicles) to be subject at all times to first priority (subject only to Permitted Liens),
perfected and, in the case of Owned Real Property, title insured Liens in favor of the Collateral
Agent pursuant to the Collateral Documents or such other security agreements, pledge agreements,
mortgages or similar collateral documents as either the Administrative Agent or the Collateral
Agent shall request in its reasonable discretion (collectively, the “Additional Collateral
Documents”). With respect to any Owned Real Property acquired by any Loan Party subsequent to
the Closing Date, such Person will cause to be delivered to the Collateral Agent with respect to
such Owned Real Property, documents, instruments and other items of the types reasonably required
to be delivered, all in form, content and scope reasonably satisfactory to the Administrative Agent
and the Collateral Agent. In furtherance of the foregoing terms of this Section 6.12, the
Borrower agrees to promptly provide the Administrative Agent with written notice of the acquisition
by Holdings or any of its Subsidiaries of any Owned Real Property having a market value greater
than $1.0 million or more in the aggregate, setting forth in each case in reasonable detail the
location and a description of the asset(s) so acquired or leased. Without limiting the generality
of the foregoing, Holdings and the Borrower will cause, and will cause each of their respective
Subsidiaries to cause, 100% of the Equity Interests of each of their respective direct and indirect
Subsidiaries (or 65% of such Equity Interests, if such Subsidiary is a direct Foreign Subsidiary)
to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent
pursuant to the terms and conditions of the Collateral Documents, subject only to Permitted Liens.




          All such security interests and mortgages shall be granted pursuant to documentation
substantially consistent with the Collateral Documents executed at Closing or otherwise reasonably
satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall
constitute valid and enforceable perfected security interests and mortgages superior to and prior
to the rights of all third






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Persons and subject to no other Liens except for Permitted Liens. The
Additional Collateral Documents or instruments related thereto shall have been duly recorded or
filed in such manner and in such places as are required by law to establish, perfect, preserve and
protect the Liens in favor of the Collateral Agent required to be granted pursuant to the
Additional Collateral Documents.




          (c) Real Property Appraisals. If the Administrative Agent, the Collateral Agent or
the Required Lenders reasonably determine that they are required by Law or regulation to have
appraisals prepared in respect of the Owned Real Property of any Group Company constituting
Collateral, the Borrower shall provide to the Collateral Agent appraisals which satisfy the
applicable requirements set forth in 12 C.F.R., Part 34 — Subpart C or any successor or similar
statute, rule, regulation, guideline or order, and which shall be in scope, form and substance, and
from appraisers, reasonably satisfactory to the Required Lenders and shall be accompanied by a
certification of the appraisal firm providing such appraisals that the appraisals comply with such
requirements.




          (d) Each of Holdings and the Borrower agrees that each action required by this Section
6.12 shall be completed as soon as possible, but in no event later than 60 days after such
action is either requested to be taken by the Administrative Agent, the Collateral Agent or the
Required Lenders or required to be taken by Holdings or any of its Subsidiaries pursuant to the
terms of this Section 6.12.




          Section 6.13 Cash Management System. Within 90 days following the Closing Date, the
Borrower will establish, and, once established, for so long as any Senior Credit Obligation or
other amount payable hereunder or under any Note or other Loan Document (in each case other than
contingent indemnification obligations) remains unpaid will maintain, the cash management systems
described below in this Section 6.13 (the “Cash Management Systems”):




          (a) The Borrower shall request in writing and otherwise take such reasonable steps to ensure
that all of its Account Debtors forward payment of the amounts owed by them directly to one or more
of the banks set forth on Schedule 6.13 (the “Cash Management Banks”), and deposit
or cause to be deposited promptly all Collections of Borrower (including those sent directly by
Account Debtors to a Cash Management Bank) into a bank account (a “Cash Management Account”) at one of the Cash
Management Banks.




          (b) Each Cash Management Bank shall establish and maintain a blocked account agreement with
Collateral Agent and the Borrower, in form and substance reasonably acceptable to the Collateral
Agent and the Administrative Agent (each, a “Blocked Account Agreement”).




          (c) So long as no Event of Default has occurred and is continuing, the Borrower may amend
Schedule 6.13 to add or replace a Cash Management Account Bank or Cash Management Account;
provided, however, that prior to the time of the opening of such Cash Management
Account, the Borrower and such prospective Cash Management Bank shall have executed and delivered
to the Collateral Agent a Blocked Account Agreement.




          (d) The Cash Management Accounts shall be cash collateral accounts, with all cash, checks and
similar items of payment in such accounts securing payment of the Senior Credit Obligations or
other amount payable hereunder or under any Note or other Loan Document, and in which the Loan
Parties are hereby deemed to have granted a Lien to Collateral Agent




          Section 6.14 Access and Command Codes.




          (a) At any time upon an acceleration by the Lenders of the Loans pursuant to Article VIII, and
upon notification thereof by the Administrative Agent, the Borrower will, and will cause its
Subsidiaries to, promptly deliver to the Collateral Agent, subject to having obtained any requisite
consent or






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approval of, or registration or filing with, any Governmental Authority for such
delivery, all existing access codes, command codes and command encryption necessary, in the sole
judgment of the Administrative Agent, to establish access to and perform TT&C Services for any
Satellite for which the Borrower or any of its Subsidiaries provides TT&C Services that has not
been decommissioned or otherwise suffered an actual or constructive total loss, including
activation and control of any spacecraft subsystems and payload components and the transponders
thereon and any changes to or modifications of such codes and encryption.




          (b) The Borrower will, and will cause each of its Subsidiaries to:





          (i) at the request of the Administrative Agent, upon notification by the Administrative
Agent that such an acceleration pursuant to Article VIII has occurred, use its best efforts
to obtain promptly from each provider (other than the Borrower or any of its Subsidiaries)
of TT&C Services for any Satellite, consents and agreements with the Collateral Agent to
deliver expeditiously to the Collateral Agent, subject to having obtained any consent or
approval of, or registration or filing with, any Governmental Authority for such delivery,
all access codes, command codes and command encryption necessary to establish access to and
perform TT&C Services for any such Satellite that has not been decommissioned or otherwise
suffered an actual or constructive total loss, including activation and control of any
spacecraft subsystems and payload components and the transponders thereon;




          (ii) at the request of Administrative Agent, upon notification by the Administrative
Agent that an acceleration pursuant to Article VIII has occurred, take all steps necessary,
to obtain any consent or approval of, or registration or filing with, any Governmental
Authority required to effect any transfer of operational control over any such Satellite and
related technical data (including any license approving the export or re-export of such
Satellite or related technical data to any Person or Persons as designated by the
Administrative Agent); and




          (iii) deliver to the Collateral Agent written evidence of the issuance of any such
consent, approval, registration or filing once such consent, approval, registration or
filing has been obtained.



          (c) At any time following the delivery of any access codes, command codes or command
encryption to the Administrative Agent pursuant to preceding clauses (a) or (b),
except as otherwise required by Law, the Borrower will not, and will use its best efforts to cause
each provider (other than the Borrower or its Subsidiaries) of TT&C Services for any Satellite that
has not been decommissioned or otherwise suffered an actual or constructive total loss to agree not
to, change any access codes, command codes or command encryption necessary to establish access to
and perform tracking, telemetry, control and monitoring of each Satellite, without promptly
furnishing to the Administrative Agent the new access codes, command codes and command encryption
necessary to establish access to and perform TT&C Services for such Satellite.




ARTICLE VII




NEGATIVE COVENANTS




          Each of Holdings and the Borrower agrees that so long as any Senior Credit Obligations or
other amount payable hereunder or under any Note or other Loan Document (in each case other than
contingent indemnification obligations) remains unpaid:






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          Section 7.01 Limitation on Indebtedness. None of the Group Companies will incur, create,
assume or permit to exist any Indebtedness or Swap Obligations except:





          (i) Indebtedness of the Borrower and its Subsidiaries outstanding on the Effective Date
and disclosed on Schedule 7.01 (collectively, the “Existing Debt”);




          (ii) Indebtedness of the Loan Parties under this Agreement and the other Loan
Documents;




          (iii) Purchase Money Indebtedness and Attributable Indebtedness in respect of Capital
Leases and Synthetic Lease Obligations of the Borrower and its Subsidiaries incurred after
the Closing Date to finance Capital Expenditures permitted by Section 7.14;
provided that (A) the aggregate amount of all such Debt does not exceed $500,000 at
any time outstanding, (B) the Debt when incurred shall not be more than 100% of the lesser
of the cost or fair market value as of the time of acquisition of the asset financed, (C)
such Debt is issued and any Liens securing such Debt are created concurrently with, or
within 90 days after, the acquisition of the asset financed and (D) no Lien securing such
Debt shall extend to or cover any property or asset of any Group Company other than the
asset so financed;




          (iv) Indebtedness of the Borrower or its Subsidiaries secured by Liens permitted by
clauses (i), (xv) and (xvi) of Section 7.02 and any
Permitted Refinancing thereof; provided such Indebtedness permitted by clauses (xvi)
and (xvii) of Section 7.02 does not constitute Indebtedness for borrowed
money;




          (v) (A) contingent liabilities in respect of any indemnification, adjustment of
purchase price, earn-out, non-compete, consulting, deferred compensation and similar
obligations of the Borrower and its Subsidiaries incurred in connection with the Acquisition
and (B) Indebtedness incurred by the Borrower or its Subsidiaries in connection with
permitted Asset Dispositions under agreements providing for earn-outs or the adjustment of
the purchase price or similar adjustments;




          (vi) unsecured Swap Obligations of the Borrower or any Subsidiary of the Borrower under
Swap Agreements to the extent entered into to manage interest rate, foreign currency
exchange rate and commodity pricing risks and not for speculative purposes;




          (vii) Indebtedness owed to any Person providing property, casualty or liability
insurance to the Borrower or any Subsidiary of the Borrower, so long as such Indebtedness
shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to
defer the cost of, such insurance for the year in which such Indebtedness is incurred and
such Indebtedness shall be outstanding only during such year; 




          (viii) Indebtedness consisting of Guarantees (A) by the Borrower in respect of
Indebtedness, leases and other ordinary course obligations permitted to be incurred by
Wholly-Owned Domestic Subsidiaries of the Borrower and (B) by the Borrower or any Subsidiary
of the Borrower of Indebtedness, leases or other ordinary course obligations permitted to be
incurred by, Foreign Subsidiaries; provided that the aggregate amount of Guarantees
referred to in this clause (B), together with all Investments by the Borrower and
its Wholly-Owned Domestic Subsidiaries permitted under Section 7.06(a)(xi), will not
exceed $500,000 at any one time outstanding;




          (ix) inter-company Indebtedness owing to the Borrower or a Subsidiary of the Borrower
to the extent permitted by Section 7.06(a)(x) or (xi);



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          (x) Indebtedness of Foreign Subsidiaries not otherwise permitted by clause (ix)
above incurred on or after the Closing Date to finance working capital requirements and
Permitted Refinancings thereof (determined without regard to clause (ii) of the
definition thereof) in an aggregate principal amount which, when taken together with the
then outstanding principal amount of all Indebtedness of Foreign Subsidiaries referred to in
clause (ix) above, does not exceed $500,000 (or its equivalent in one or more
applicable foreign currencies);




          (xi) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business; provided that (A) such Indebtedness (other than credit or purchase
cards) is extinguished within three Business Days of its incurrence and (B) such
Indebtedness in respect of credit or purchase cards in extinguished within 60 days from its
incurrence;




          (xii) Debt representing deferred compensation to employees of the Borrower and its
Subsidiaries;




          (xiii) unsecured Indebtedness of the Borrower and its Subsidiaries not otherwise
permitted by this Section 7.01 incurred after the Closing Date in an aggregate
principal amount not to exceed $500,000 at any time outstanding; provided that (A)
the credit documentation with respect to such Indebtedness shall not contain covenants or
default provisions relating to Holdings or any Subsidiary of Holdings that are more
restrictive than the covenants and default provisions contained in the Loan Documents, and
(B) no Default or Event of Default shall have occurred and be continuing immediately before
and immediately after giving effect to such incurrence;




          (xiv) Indebtedness of the Borrower or any of its Subsidiaries in respect of workers’
compensation claims, self-insurance obligations, performance, bid and surety bonds and
completion guaranties, in each case in the ordinary course of business; and




          (xv)Indebtedness in the form of advances and commissions to employees.



          Section 7.02
Restriction on Liens. None of the Group Companies will create, incur, assume or permit to exist any Lien on any
property or assets (including Equity Interests or other securities of any Person, including any
Subsidiary of Holdings) now owned or hereafter acquired by it or on any income or rights in respect
of any thereof, or sign or file or authorize the filing under the Uniform Commercial Code of any
jurisdiction of a financing statement that names any Group Company as debtor, or sign any security
agreement authorizing any secured party thereunder to file such a financing statement, except Liens
described in any of the following clauses (collectively, “Permitted Liens”):





          (i) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and
any modifications, replacements, renewals or extensions thereof; provided that (A)
the Lien does not extend to any additional property other than (x) after-acquired property
that is affixed or incorporated into the property covered by such Lien or financed by Debt
permitted under Section 7.01 and (y) proceeds and products thereof and (B) the
renewal, extension or modification of the obligations secured or benefited by such Liens is
permitted by Section 7.01;




          (ii) Liens created by the Collateral Documents;




          (iii) Liens for taxes, assessments or governmental charges or levies not yet due or
being contested in good faith and by appropriate proceedings for which adequate reserves
have been established to the extent required by GAAP (and as to which the property or assets
subject to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof);



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          (iv) Liens imposed by Law securing the charges, claims, demands or levies of landlords,
carriers, warehousemen, mechanics, carriers and other like persons which were incurred in
the ordinary course of business and which (A) do not, individually or in the aggregate,
materially detract from the value of the property or assets which are the subject of such
Lien or materially impair the use thereof in the operation of the business of the Borrower
or any of its Subsidiaries or (B) which are being contested in good faith by appropriate
proceedings diligently pursued for which adequate reserves (in the good faith judgment of
the management of the Borrower) have been established in accordance with GAAP, which
proceedings have the effect of preventing the forfeiture or sale of the property or assets
subject to such Lien;




          (v) Liens (other than any Liens imposed by ERISA) securing Indebtedness or Swap
Obligations incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social security and other
similar obligations incurred in the ordinary course of business;




          (vi) Liens securing obligations in respect of surety bonds (other than appeal bonds),
bids, leases, government contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business;




          (vii) Liens upon specific items or inventory or other goods and proceeds of the
Borrower or any of its Subsidiaries securing such Person’s obligations in respect of
bankers’ acceptances or documentary letters of credit issued or created for the account of
such Person to facilitate the shipment or storage of such inventory or other goods;




          (viii) pledges or deposits of cash and Cash Equivalents securing deductibles,
self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of
insurance in the ordinary cause of business;




          (ix) Liens on (A) incurred premiums, dividends and rebates which may become payable
under insurance policies and loss payments which reduce the incurred premiums on such
insurance policies and (B) rights which may arise under State insurance guarantee funds
relating to any such insurance policy, in each case securing Indebtedness permitted to be
incurred pursuant to Section 7.01(vii);




          (x) Liens arising solely by virtue of any statutory or common Law provision relating to
banker’s liens, rights of set-off or similar rights, in each case incurred in the ordinary
course of business;




          (xi) licenses, leases or subleases granted to third Persons in the ordinary course of
business not interfering in any material respect with the business of any Group Company;




          (xii) zoning restrictions, building codes, easements, rights of way, licenses,
reservations, covenants, conditions, waivers, restrictions on the use of property or other
minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations
which do not, individually or in the aggregate, materially impair the use of any property in
the operation or business of Holdings or any of its Subsidiaries or the value of such
property for the purpose of such business;




          (xiii) Liens arising from judgments, decrees or attachments (or securing of appeal
bonds with respect thereto) in circumstances not constituting an Event of Default under
Section 8.01; provided that no cash or other property (other than proceeds
of insurance payable by reason of



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such judgments, decrees or attachments) the fair value of which exceeds $150,000 is deposited or delivered to secure any such judgment, decree or
award, or any appeal bond in respect thereof;




          (xiv) Liens securing Debt permitted to be incurred under Section 7.01(i),
(iii) and (iv);




          (xv) any Lien existing on any asset of any Person at the time such Person becomes a
Subsidiary of the Borrower and not created in contemplation of such event;




          (xvi) any Lien existing on any asset (other than on the Equity Interests of one or more
Subsidiaries) prior to the acquisition thereof by the Borrower or a Subsidiary of the
Borrower and not created in contemplation of such acquisition;




          (xvii) Liens on any assets of a Foreign Subsidiary of the Borrower securing
Indebtedness of such Foreign Subsidiary incurred pursuant to Section 7.01(x);




          (xviii) other Liens incurred by the Borrower and its Subsidiaries not securing
Indebtedness if the aggregate fair market value of the property subject to such Liens, and
the aggregate amount of the obligations secured thereby, do not exceed $250,000; and




          (xix) Liens arising out of consignment or similar arrangements for the sale by the
Borrower and its Subsidiaries of goods through third parties in the ordinary course of
business.



          Section 7.03 Nature of Business. None of the Group Companies will alter in any material
respect the character or conduct of the business conducted by such Person as of the Effective Date.




          Section 7.04 Consolidation, Merger and Dissolution. Except in connection with an Asset Disposition permitted by the terms of Section 7.05,
none of the Group Companies will enter into any transaction of merger or consolidation or
liquidate, wind up or dissolve itself or its affairs (or suffer any liquidations or dissolutions);
provided that:





          (i) any Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily
dissolved or liquidated into, the Borrower, so long as (A) the Borrower is the surviving
corporation of such merger, dissolution or liquidation, (B) the security interests granted
to the Collateral Agent for the benefit of the Finance Parties pursuant to the Collateral
Documents in the assets of the Borrower and such Domestic Subsidiary so merged, dissolved or
liquidated shall remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such merger, dissolution or liquidation) and (C) no Person
other than Holdings the Borrower or a Subsidiary Guarantor receives any consideration in
respect or as a result of such transaction;




          (ii) any Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily
dissolved or liquidated into, any other Domestic Subsidiary of the Borrower, so long as (A)
in the case of any such merger, dissolution or liquidation involving one or more Subsidiary
Guarantors, (x) a Subsidiary Guarantor is the surviving corporation of such merger,
dissolution or liquidation, (y) no Person other than the Borrower or a Subsidiary Guarantor
receives any consideration in respect of or as a result of such transaction and (B) the
security interests granted to the Collateral Agent for the benefit of the Finance Parties
pursuant to the Collateral Documents in the assets of each Domestic Subsidiary so merged,
dissolved or liquidated and in the Equity Interests of the surviving entity of such merger,
dissolution or liquidation shall remain in full force and effect and perfected (to at least
the same extent as in effect immediately prior to such merger, dissolution or liquidation);
and



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          (iii) any Foreign Subsidiary of the Borrower may be merged with and into, or be
voluntarily dissolved or liquidated into, the Borrower or any Wholly-Owned Subsidiary of the
Borrower, so long as (A) in the case of any such merger, dissolution or liquidation
involving one or more Subsidiary Guarantors, if any, the Borrower or such Subsidiary
Guarantor, as the case may be, is the surviving corporation of any such merger, dissolution
or liquidation and (B) the security interests granted to the Collateral Agent for the
benefit of the Finance Parties pursuant to the Collateral Documents in the assets of such
Foreign Subsidiary, if any, and the Borrower or such other Subsidiary, as the case may be,
and in the Equity Interests of the surviving entity of such merger, dissolution or
liquidation shall remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such merger, dissolution or liquidation);




          (iv) any Foreign Subsidiary may be merged or consolidated with or into, or be
liquidated into, another Foreign Subsidiary;




          (v) any Investment permitted by Section 7.06 may be structured as a merger,
consolidation or amalgamation; and




          (vi) any Asset Disposition permitted by Section 7.05 may be consummated.


In the case of any merger or consolidation permitted by this Section 7.04 of any Subsidiary
of Holdings which is not a Loan Party into a Loan Party, the Loan Parties shall cause to be
executed and delivered such documents, instruments and certificates as the Administrative Agent may
reasonably request so as to cause the Loan Parties to be in compliance with the terms of
Section 6.12 after giving effect to such transaction.




          Section 7.05 Asset Dispositions. None of the Group Companies will make any Asset
Disposition; provided that:





          (i) any Group Company may sell inventory (including the right to use images owned by a
Group Company) and services in the ordinary course of business for fair value;




          (ii) the Borrower may make any Asset Disposition to any Subsidiary Guarantor;




          (iii) the Borrower and its Subsidiaries may liquidate or sell Cash Equivalents and
Foreign Cash Equivalents;




          (iv) the Borrower or any of its Subsidiaries may dispose of machinery or equipment or
other similar tangible assets (other than any satellite) which will be replaced or upgraded
with machinery or equipment or other similar tangible assets put to a similar use and owned
or otherwise used or useful in the ordinary course of business of and owned by such Person;
provided that (A) such replacement or upgraded machinery and equipment is acquired
within 180 days after such disposition, (B) the fair market value of all property disposed
of pursuant to this clause (iv) does not exceed $500,000 in the aggregate in any
fiscal year of the Borrower and (C) upon their acquisition, such replacement assets become
subject to the Lien of the Collateral Agent under the Collateral Documents;




          (v) the Borrower or any of its Subsidiaries may dispose of obsolete, worn-out or
surplus tangible assets (other than a satellite) in the ordinary course of business and in a
commercially reasonable manner;




          (vi) any Group Company may enter into any Sale/Leaseback Transaction not prohibited by
Section 7.01 or Section 7.13;



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          (vii) any Subsidiary of the Borrower may sell, lease or otherwise transfer all or
substantially all or any part of its assets (including any such transaction effected by way
of merger or consolidation) to the Borrower or any Wholly-Owned Domestic Subsidiary of the
Borrower;




          (viii) any non-Wholly-Owned Domestic Subsidiary or Foreign Subsidiary of the Borrower
may sell, lease or otherwise transfer all or any part of its assets (including any such
transaction effected by way of merger or consolidation) to any other non-Wholly-Owned
Domestic Subsidiary or Foreign Subsidiary of the Borrower, so long as the security
interests, if any, granted to the Collateral Agent for the benefit of the Finance Parties
pursuant to the Collateral Documents, if any, in such assets shall remain in full force and
effect and perfected (to at least the same extent as in effect immediately prior to such
sale, lease or other transfer);




          (ix) any Subsidiary of the Borrower may sell or dispose of Equity Interests in such
Subsidiary to qualify directors where required by applicable Law or to satisfy other
requirements of applicable Law with respect to the ownership of Equity Interests in Foreign
Subsidiaries;




          (x) Asset Dispositions effected by transactions permitted under Section 7.04 or
7.13 shall be permitted;




          (xi) any Group Company may lease, as lessor or sublessor, or license, as licensor or
sublicensor, real or personal property in the ordinary course of business;




          (xii) any Group Company may dispose of defaulted receivables and similar obligations in
the ordinary course of business and not as part of an accounts receivable financing
transaction;




          (xiii) any Group Company may make any other Asset Disposition; provided that
(A) at least 75% of the consideration therefor is cash or Cash Equivalents; (B) such Asset
Disposition is for fair value and on an arms’-length basis, (C) such transaction does not
involve the sale or other disposition of a minority Equity Interest in any Group Company or
of a satellite; (D) the aggregate fair market value of all assets sold or otherwise disposed
of by the Group Companies in all such transactions in reliance on this clause (xiii)
(other than with respect to the sale of all or any portion of the Borrower’s image library)
shall not exceed $500,000 in any fiscal year of the Borrower or $1,000,000 in the aggregate
from and after the Closing Date; and (E) no Default or Event of Default shall have occurred
and be continuing immediately before or immediately after giving effect to such transaction;




          (xiv) the Borrower or any Subsidiary Guarantor may make an Asset Disposition to any
Group Company which is not, and is not required to be, a Subsidiary Guarantor (1) for fair
value and (2) to the extent the amount of consideration received therefore is less than fair
value (the “Deficit”), the amount of such Deficit, together with (a) the amount of
any Investment made pursuant to Section 7.06(xi) and (b) with all Guarantees
permitted under Section 7.01(ix)(B) (determined without regard to any write-downs or
write-offs of any such Investments constituting Indebtedness), does not exceed $500,000 at
any time outstanding; and




          (xv) the IRS Disposition may be consummated.


Upon consummation of an Asset Disposition permitted under this Section 7.05, the Lien
created thereon under the Collateral Documents (but not the Lien on any proceeds thereof) shall,
except as otherwise specified herein, be automatically released, and the Administrative Agent shall
(or shall cause the Collateral Agent to) (to the extent applicable) deliver to the Borrower, upon
the Borrower’s request and at the Borrower’s expense, such documentation as is necessary to
evidence the release of the Collateral Agent’s






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security interests, if any, in the assets being disposed of, including amendments or terminations of Uniform Commercial Code Financing Statements,
if any, the return of stock certificates, if any, and the release of any Subsidiary being disposed
of in its entirety from all of its obligations, if any, under the Loan Documents.




          Section 7.06 Investments.




          (a) Investments. None of the Group Companies will make or acquire any Investment in
any Person, except the following:





          (i) Investments existing on the Effective Date disclosed on Schedule 7.06
hereto or in Persons which are Wholly-Owned Domestic Subsidiaries on the Effective Date and
Investments in Wholly-Owned Domestic Subsidiaries formed after the Effective Date if the
Loan Parties shall cause to be executed and delivered such documents, instruments and
certificates as the Administrative Agent may reasonably request so as to cause the Loan
Parties to be in compliance with the terms of Section 6.12 after giving effect to
such Investment;




          (ii) the Borrower or any Domestic Subsidiary of the Borrower may invest in cash and
Cash Equivalents;




          (iii) Foreign Subsidiaries of the Borrower may invest in Foreign Cash Equivalents;




          (iv) the Borrower and any Subsidiary of the Borrower may acquire and hold receivables
owing to them;




          (v) the Borrower and each Subsidiary of the Borrower may acquire and own Investments
(including Indebtedness obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the ordinary course of business;




          (vi) loans and advances by the Borrower and its Subsidiaries to employees of Holdings
and its Subsidiaries for moving and travel and other similar expenses, in each case in the
ordinary course of business, in an aggregate principal amount not to exceed $250,000 at any
time outstanding (determined without regard to any write-downs or write-offs of such loans
and advances);




          (vii) deposits by the Borrower or any Subsidiary of the Borrower made in the ordinary
course of business consistent with past practices to secure the performance of leases shall
be permitted;




          (viii) the Borrower or any of its Subsidiaries may make loans and advances to Holdings
for the purposes and in the amounts necessary to pay the fees, expenses and taxes described
in Section 7.07(iii);




          (ix) Holdings may make equity contributions to the capital of the Borrower;




          (x) the Borrower may make Investments in any of its Wholly-Owned Domestic Subsidiaries
and any Subsidiary of the Borrower may make Investments in any Wholly-Owned Domestic
Subsidiary of the Borrower; provided that (A) each item of intercompany Indebtedness
shall be evidenced by a promissory note, (B) each promissory note evidencing intercompany
loans and advances made by a Foreign Subsidiary or a non-Wholly-Owned Domestic Subsidiary to
the Borrower or a Wholly-Owned Domestic Subsidiary of the Borrower shall contain the
subordination



- 63 -









 






provisions reasonably satisfactory to the Lenders and (C) each promissory note
evidencing intercompany loans and advances (other than promissory notes held by Foreign
Subsidiaries) shall be pledged to the Collateral Agent pursuant to the Security Agreement;




          (xi) the Borrower and its Subsidiaries may make Investments in any Foreign Subsidiary
or any non-Wholly-Owned Domestic Subsidiary of the Borrower (A) in the case of Investments
by the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower, in an aggregate
amount together with all Guarantees permitted under Section 7.01(ix)(B) (determined
without regard to any write-downs or write-offs of any such Investments constituting
Indebtedness) and all Asset Dispositions permitted under Section 7.05(xiv) at any
one time outstanding not exceeding $500,000 and (B) to the extent such Investments arise
from the sale of inventory in the ordinary course of business by the Borrower or such
Subsidiary to such Foreign Subsidiary or non-Wholly-Owned Domestic Subsidiary for resale by
such Foreign Subsidiary or non-Wholly-Owned Domestic Subsidiary (including any such
Investments resulting from the extension of the payment terms with respect to such sales);
provided that (A) each item of intercompany Indebtedness shall be evidenced by a
promissory note and (B) each promissory note evidencing intercompany loans and advances
(other than promissory notes held by Foreign Subsidiaries of the Borrower) shall be pledged
to the Collateral Agent pursuant to the Security Agreement;




          (xii) Investments arising out of the receipt by the Borrower or any of its Subsidiaries
of non-cash consideration for the sale of assets permitted under Section 7.05;




          (xiii) the Borrower and its Subsidiaries may make other Investments not otherwise
permitted by this Section 7.06 in an aggregate amount (determined without regard to
any write-downs or write-offs of any such Investments constituting Indebtedness) at any
time outstanding not exceeding $500,000; and




          (xiv) Investments in the form of advances and commissions to employees not to exceed
$75,000 per annum;


provided that no Group Company may make or own any Investment in Margin Stock.




          (b) Limitation on the Creation of Subsidiaries. No Group Company will establish,
create or acquire after the Closing Date any Subsidiary, unless (i) at least 15 days’ written
notice after the formation thereof is given to the Administrative Agent, (ii) the Investment
resulting from such establishment, creation or acquisition is permitted pursuant to Section
7.06(a) above, (iii) the capital stock or other equity interests of such new Subsidiary (other
than a Foreign Subsidiary) is pledged pursuant to, and to the extent required by, the Security
Agreement and the certificates representing such interests, together with transfer powers duly
executed in blank, are delivered to the Collateral Agent, (iv) such new Subsidiary (other than a
Foreign Subsidiary) executes a counterpart of the Joinder Agreement, the Guaranty and the Security
Agreement to the extent required by Section 6.12(b), and (v) such new Subsidiary, to the
extent requested by the Administrative Agent, takes all other actions required pursuant to
Section 6.12.




          Section 7.07 Restricted Payments, Etc. None of the Group Companies will declare or pay any
Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive
of Debt Equivalents) of such Person), except that:





          (i) any Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the
Borrower or to any Wholly-Owned Subsidiary of the Borrower which is a Subsidiary Guarantor;



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          (ii) any non-Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to
the Borrower or to any Wholly-Owned Subsidiary of the Borrower which is a Subsidiary
Guarantor or ratably to all holders of its outstanding Equity Interests;




          (iii) the Borrower may make cash Restricted Payments to Holdings for the purpose of
paying, and in amounts not to exceed the amount necessary to pay, (A) the then currently due
fees and expenses of Holdings’ counsel, accountants and other advisors and consultants, and
other operating and administrative expenses of Holdings (including employee and compensation
expenditures and other similar costs and expenses) incurred in the ordinary course of
business that are for the benefit of, or are attributable to, or are related to, including
the financing or refinancing of, Holdings’ Investment in the Borrower and its Subsidiaries
up to an aggregate amount of $100,000 for each fiscal year, (B) the then currently due taxes
payable by Parent pursuant to the Tax Sharing Agreement solely on account of the income of
Holdings related to its Investment in the Borrower and its Subsidiaries and the reasonable
expenses of preparing returns reflecting such taxes;




          (iv) the Borrower may make payments to Parent due under the Management Services
Agreement to the extent such payments reflect normal compensation for services rendered by
officers and directors of Parent and/or Orbimage in the ordinary course of business; and




          (v) the Borrower may make payments to Parent up to $6,000,000 for reimbursement of
deposits made by Parent to the Seller as part of the aggregate purchase price under the
Acquisition Agreement.



          Section 7.08 Prepayments of Indebtedness, Etc.




          (a) Prohibition Against Certain Payments of Principal and Interest of Other
Indebtedness. None of the Group Companies will directly or indirectly, redeem, purchase,
prepay, retire, defease or otherwise acquire for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness which is expressly subordinated to
the Loan, or set aside any funds for such purpose, whether such redemption, purchase, prepayment,
retirement or acquisition is made at the option of the maker or at the option of the holder
thereof, and whether or not any such redemption, purchase, prepayment, retirement or acquisition is
required under the terms and conditions applicable to such Indebtedness.




          Section 7.09 Transactions with Affiliates. None of the Group Companies will engage in any
transaction or series of transactions with (i) any officer, director, holder of any Equity Interest
in or other Affiliate of Holdings, or (ii) any Affiliate of any such officer, director, holder or
Affiliate, including, without limitation, Parent or any of its Subsidiaries that is not a Group
Company), other than:





          (i) transfers of assets to any Loan Party other than Holdings permitted by Section
7.05;




          (ii) transactions expressly permitted by Section 7.01, Section 7.04,
Section 7.06 or Section 7.07;




          (iii) (a) normal compensation, indemnities and reimbursement of reasonable expenses of
officers and directors and (b) transactions expressly permitted by the Management Services
Agreement and the Tax Sharing Agreement;




          (iv) any sale of inventory, products or services by the Borrower or its Wholly-Owned
Domestic Subsidiaries to Parent or any of its Subsidiaries in the ordinary course of
business and on terms and conditions as favorable to such Person as would be obtainable by
it in a comparable arms’-length transaction with an independent, unrelated third party;



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          (v) any transaction entered into among the Borrower and its Wholly-Owned Domestic
Subsidiaries or among such Wholly-Owned Domestic Subsidiaries; and




          (vi) other transactions which are engaged in by the Borrower or any of its Subsidiaries
in the ordinary course of its business on terms and conditions as favorable to such Person
as would be obtainable by it in a comparable arms’-length transaction with an independent,
unrelated third party. None of Holdings or any of its Subsidiaries will enter into any
management, employment, consulting or similar agreement or arrangement with, or otherwise
pay any professional, consulting, management or similar fees to or for the benefit of, the
Parent, any Affiliates of the Parent other than Holdings or any of its Subsidiaries, any
director, officer or security holder of any of the foregoing, or any successor or transferee
of any of the foregoing, except for the Management Services Agreement.



          Section 7.10 Fiscal Year; Organizational and Other Documents; Tax Sharing Agreement. None
of the Group Companies will (i) change its fiscal year, (ii) enter into or consent to any
amendment, modification or waiver that is material and adverse in any respect to the Lenders of any
of the provisions of the Acquisition Documents, (iii) enter into or consent to any amendment,
modification or waiver that is material and adverse in any respect to the Lenders to its articles
or certificate of incorporation, bylaws (or analogous organizational documents) or any agreement entered into by it with respect to its Equity
Interests (including the Stockholders’ Agreement) or (iv) enter into any amendment or modification
of the Tax Sharing Agreement or the Management Services Agreement material and in any respect to
the Lenders in each case as in effect on the Closing Date. The Borrower will cause the Group
Companies to promptly provide the Lenders with copies of all amendments to the foregoing documents
and instruments as in effect as of the Closing Date.




          Section 7.11 Restrictions with Respect to Intercorporate Transfers. None of the Group
Companies will create or otherwise cause or permit to exist any encumbrance or restriction which
prohibits or otherwise restricts (i) the ability of any Subsidiary of the Borrower to (A) make
Restricted Payments to, or pay any Indebtedness owed to, the Borrower or any other Subsidiary of
the Borrower, (B) make loans or advances to the Borrower or any other Subsidiary of the Borrower,
(D) transfer any of its properties or assets to the Borrower or any other Subsidiary of the
Borrower or (E) act as a Subsidiary Guarantor and pledge its assets pursuant to the Finance
Documents or any renewals, refinancings, exchanges, refundings or extensions thereof or (ii) the
ability of any Loan Party to create, incur, assume or permit to exist any Lien upon its property or
assets whether now owned or hereafter acquired to secure the Senior Credit Obligations, except in
each case for prohibitions or restrictions existing under or by reason of:





          (i) this Agreement and the other Loan Documents;




          (ii) applicable Law;




          (iii) customary non-assignment provisions with respect to leases or licensing
agreements entered into by the Borrower or any of its Subsidiaries, in each case entered
into in the ordinary course of business and consistent with past practices;




          (iv) any restriction or encumbrance with respect to any asset of the Borrower or any of
its Subsidiaries or a Subsidiary of the Borrower imposed pursuant to an agreement which has
been entered into for the sale or disposition of such assets or all or substantially all of
the capital stock or assets of such Subsidiary, so long as such sale or disposition is
permitted under this Agreement; and




          (v) Liens permitted under Section 7.02 and any documents or instruments
governing the terms of any Indebtedness or other obligations secured by any such Liens;
provided



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that such prohibitions or restrictions apply only to the assets subject to
such Liens and the proceeds thereof.



          Section 7.12 Ownership of Subsidiaries; Limitations on Holdings and the Borrower.




          (a) Holdings and the Borrower will not (i) permit any Person (other than the Borrower or any
Subsidiary of the Borrower) to own any Equity Interest of any Subsidiary of the Borrower, (ii)
permit any Subsidiary of the Borrower to issue Equity Interests to any Person, except (A) the
Borrower or any Subsidiary of the Borrower or (B) to qualify directors where required by applicable
Law or to satisfy other requirements of applicable Law with respect to the ownership of Equity
Interests of Foreign Subsidiaries or (iii) permit the Borrower or any Subsidiary of the Borrower to
issue any shares of Preferred Stock.




          (b) Holdings will not (i) hold any assets other than (A) the Equity Interests of the Borrower
and (B) assets incidental to its being a holding company with a value at no time in excess of
$100,000, (ii) have any material liabilities other than (A) liabilities under the Finance Documents
and (B) tax liabilities in the ordinary course of business or (iii) engage in any business or
activity other than (A) owning the common stock of the Borrower (including purchasing additional shares of common stock after
the Closing Date) and activities incidental or related thereto or to the maintenance of the
corporate existence of Holdings or compliance with applicable Law, (B) acting as a Guarantor under
its Guaranty and pledging its assets to the Collateral Agent, for the benefit of the Lenders,
pursuant to the Collateral Documents to which it is a party and (C) issuing its own common stock in
any Qualifying Equity Issuance.




          (c) Holdings and the Borrower will not permit any Person other than Holdings to hold any
Equity Interests or Equity Equivalents of the Borrower.




          Section 7.13 Sale and Leaseback Transactions. None of the Group Companies will directly or
indirectly become or remain liable as lessee or as guarantor or other surety with respect to any
lease (whether an Operating Lease or a Capital Lease) of any property (whether real, personal or
mixed), whether now owned or hereafter acquired, (i) which such Group Company has sold or
transferred or is to sell or transfer to any other Person which is not a Group Company or (ii)
which such Group Company intends to use for substantially the same purpose as any other property
which has been sold or is to be sold or transferred by such Group Company to another Person which
is not a Group Company in connection with such lease; provided, however, that the
Group Companies may enter into such transactions with respect to personal property, in an aggregate
amount of up to $250,000 in sales proceeds during the term of this Agreement, if (i) after giving
effect on a pro-forma basis to any such transaction the Borrower shall be in compliance with all
other provisions of this Agreement, including Section 7.01 and Section 7.02, (ii)
the gross cash proceeds of any such transaction are at least equal to the fair market value of such
property (as determined by the Borrower, whose determination shall be conclusive if made in good
faith) and (iii) the Net Cash Proceeds are forwarded to the Administrative Agent as set forth in
Section 2.06(b)(ii) to the extent required therein.




          Section 7.14 Capital Expenditures.




          (a) None of the Group Companies will make any Consolidated Capital Expenditures, except that
during any fiscal year, the Borrower and its Subsidiaries may make Consolidated Capital
Expenditures so long as the aggregate amount of such Consolidated Capital Expenditures does not
exceed the sum of (i) $1,200,000 in any fiscal year, plus (ii) up to $2,000,000 funded after the
Closing Date with the proceeds of Qualifying Equity Issuances by Holdings.




          (b) To the extent that Consolidated Capital Expenditures permitted under subsection
(a)(i) above for any fiscal year are less than the amount specified in subsection
(a)(i) above, 50% of the difference may be carried forward and utilized to make Consolidated
Capital Expenditures during the







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immediately succeeding fiscal year (and for this purpose,
Consolidated Capital Expenditures in any subsequent fiscal year shall be applied, first, to the
amount specified for such year and, second, to any such carry forward amounts).




          Section 7.15 Additional Negative Pledges. None of the Group Companies will enter into,
assume or become subject to any agreement prohibiting or otherwise restricting the creation or
assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for an obligation if security is given for some other
obligation, except (i) pursuant to this Agreement and the other Loan Documents and (ii) pursuant to
any document or instrument governing Capital Lease Obligations or Purchase Money Indebtedness
incurred pursuant to Section 7.01 if any such restriction contained therein relates only to the
asset or assets acquired in connection therewith; provided, however, that under no circumstances
may the capital stock of the Borrower be subject to any pledge or lien.




          Section 7.16 Real Property Collateral. Within 90 days of the Closing Date (or such longer
date as the Administrative Agent may consent to) the Collateral Agent shall have received (in form
and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent):





          (i) fully executed and notarized mortgages, deeds of trust or deeds to secure debt
(each a “Mortgage” and, collectively, the “Mortgages”) encumbering the fee
interest of the Loan Parties in each real property asset owned by a Loan Party set forth on
Schedule 7.16 (each an “Owned Mortgaged Property” and, collectively, the
“Owned Mortgaged Properties”), together with such UCC-1 financing statements or
similar notices as the Administrative Agent shall reasonably deem appropriate with respect
to each such Owned Mortgaged Property;




          (ii) ALTA or other appropriate form mortgagee title insurance policies (the
“Mortgage Policies”) issued by a title insurance company satisfactory to the
Administrative Agent (the “Title Insurance Company”), in an amount satisfactory to
the Administrative Agent with respect to each Owned Mortgaged Property, which amount
reasonably shall not exceed the fair market value for each such Owned Mortgaged Property,
assuring the Administrative Agent that the applicable Mortgages create valid and enforceable
first priority mortgage liens on the respective Owned Mortgaged Property, free and clear of
all defects and encumbrances except Permitted Liens, which Mortgage Policies shall contain
such endorsements as shall be reasonably satisfactory to the Administrative Agent and for
any other matters that the Administrative Agent may request, and providing affirmative
insurance and such reinsurance as the Administrative Agent may request, all of the foregoing
in form and substance reasonably satisfactory to the Administrative Agent;




          (iii) If required by the Title Insurance Company to issue a title insurance policy
without a survey exception, maps or plats of an as-built survey of the sites of the Owned
Mortgaged Properties certified to the Administrative Agent and the Title Insurance Company
in a manner reasonably satisfactory to the Administrative Agent and the Title Insurance
Company, dated a date satisfactory to the Administrative Agent and the Title Insurance
Company by an independent professional licensed land surveyor reasonably satisfactory to the
Administrative Agent and the Title Insurance Company, which maps or plats and the surveys on
which they are based shall be sufficient to delete any standard printed survey exception
contained in the applicable Mortgage Policy and be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and adopted by the
American Land Title Association and the American Congress on Surveying and Mapping in 1992,
and, without limiting the generality of the foregoing, there shall be surveyed and shown on
such maps, plats or surveys the following: (A) the locations on such sites of all the
buildings, structures and other improvements and the established building setback lines; (B)
the lines of streets abutting the sites and width thereof; (C) all access and other
easements appurtenant to the sites necessary to use the sites; (D) all roadways, paths,
driveways, easements, encroachments and overhanging projections and similar encumbrances
affecting the site, whether



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recorded, apparent from a physical inspection of the sites or
otherwise known to the surveyor; (E) any encroachments on any adjoining property by the
building structures and improvements on the sites; and (F) if the site is described as being
on a filed map, a legend relating the survey to said map; and




          (iv) if a survey is delivered and if reasonably requested by the Administrative Agent
certification from a registered engineer or land surveyor in a form reasonably satisfactory
to the Administrative Agent or other evidence acceptable to the Administrative Agent that
none of the improvements on the Owned Mortgaged Properties are located within any area
designated by the Director of the Federal Emergency Management Agency as a “special flood
hazard” area or if any improvements on the Owned Mortgaged Properties are located within a
“special flood hazard” area, evidence of a flood insurance policy (if such insurance is
required by applicable Law) from a company and in an amount satisfactory to the Administrative Agent for the applicable
portion of the premises, naming the Collateral Agent, for the benefit of the Lenders, as
mortgagee.



ARTICLE VIII




DEFAULTS




          Section 8.01 Events of Default. An Event of Default shall exist upon the occurrence of any
of the following specified events or conditions (each, an “Event of Default”):




          (a) Payment. Any Loan Party shall:





          (i) default in the payment within one Business Day of when due (whether by scheduled
maturity, acceleration or otherwise) of any principal of any Loan; or




          (ii) default, and such default shall continue for thirty or more days, in the
payment when due of any interest on the Loan, or of any fees or other amounts owing
hereunder, under any of the other Loan Documents or in connection herewith.



          (b) Representations. Any representation, warranty or statement made or deemed to be
made by any Loan Party herein, in any of the other Loan Documents, or in any statement or
certificate delivered pursuant hereto or thereto shall prove untrue in any material respect on the
date as of which it was made or deemed to have been made.




          (c) Covenants. Any Loan Party shall:





          (i) default in the due performance or observance of any term, covenant or agreement
contained in Section 6.03(i), 6.05, 6.07 or Article VII of this Agreement;




          (ii) default in the due performance or observance by it of any term, covenant or
agreement (other than those referred to in subsection (a), (b) or
(c)(i) of this Section 8.01) contained in this Agreement and such default
shall continue unremedied for a period of 30 days after notice thereof given by the
Administrative Agent or any Lender.



          (d) Other Loan Documents. (i) Any Loan Party or Parent shall default in the due
performance or observance of any term, covenant or agreement in any of the other Loan Documents and
such default shall continue unremedied for a period of 30 days after notice thereof given by the
Administrative Agent or any Lender, (ii) except pursuant to the terms thereof, any Loan Document
shall fail to be in full force and effect or any Loan Party or Parent shall so assert in writing or
(iii) except pursuant to the terms thereof, any Loan Document shall fail to give the Administrative
Agent, the Collateral Agent







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and/or the Lenders any material security interests, liens, rights,
powers and privileges purported to be created thereby.




          (e) Cross-Default. Any Group Company or Parent or any of its other Subsidiaries fails
to make payment when due (whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), regardless of amount, in respect of any Funded Indebtedness having an aggregate
principal amount (including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than the Threshold
Amount.




          (f) Insolvency Events. (i) Any Group Company or Parent or any of its other
Subsidiaries shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any Debtor Relief Law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any corporate action to authorize
any of the foregoing or (ii) an involuntary case or other proceeding shall be commenced against any
Group Company or Parent or any of its other Subsidiaries seeking liquidation, reorganization or
other relief with respect to it or its debts under any Debtor Relief Law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days, or any order for relief shall be entered
against any Group Company or Parent or any of its other Subsidiaries under the federal bankruptcy
laws as now or hereafter in effect.




          (g) Judgments. One or more judgments, orders, decrees or arbitration awards is
entered against any Group Company or Parent or any of its other Subsidiaries involving in the
aggregate a liability (to the extent not covered by independent third-party insurance or an
indemnity from a credit-worthy third party, as to any single or related series of transactions,
incidents or conditions, in excess of the Threshold Amount, and the same shall not have been
discharged, vacated or stayed pending appeal within 45 days after the entry thereof.




          (h) ERISA. (i) An ERISA Event occurs which has resulted or could reasonably be
expected to result in liability of any Group Company or Parent or any of its other Subsidiaries in
an aggregate amount in excess of the Threshold Amount; (ii) there shall exist an amount of Unfunded
Liabilities, individually or in the aggregate, for all Plans and Foreign Pension Plans (excluding
for purposes of such computation any Plans and Foreign Pension Plans with respect to which assets
exceed benefit liabilities), in an aggregate amount in excess of the Threshold Amount; (iii) any
Foreign Pension Plan is not in substantial compliance with all applicable pension benefits and tax
laws; (iv) any contribution required to be made in accordance with any applicable law or the terms
of any Foreign Pension Plan has not been made; (v) any event has occurred or condition exists with
respect to any Foreign Pension Plan that has resulted or could result in any Foreign Pension Plan
being ordered or required to be wound up in whole or in part pursuant to any applicable laws or
having any applicable registration revoked or refused for the purposes of any applicable pension
benefits or tax laws or being placed under the administration of the relevant pension benefits
regulatory authority or being required to pay any taxes or penalties under applicable pension
benefits and tax laws; (vi) an order has been made or notice has been given pursuant to any
applicable pension benefits and tax laws in respect of any Foreign Pension Plan requiring any
person to take or refrain from taking any action in respect thereof or that there has been a
contravention of any such applicable laws; (vii) an event has occurred or a condition exists that
has resulted or could result in any Group Company being required to pay, repay or refund any amount
other than contributions required to be made or expenses required to be paid in the ordinary
course) to or on account of any Foreign Pension Plan or a current or former member thereof; or
(viii) an event has occurred or a condition exists that has resulted or could result in a payment
being made out of a guarantee fund established under the applicable pension benefits laws in







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respect of a Foreign Pension Plan; and which, with respect to all the events and obligations
described in the preceding clauses (i) through (viii) of this Section
8.01(h), could, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.




          (i) Guaranties. Any Guaranty given by any Loan Parties or any provision thereof
shall, except pursuant to the terms thereof, cease to be in full force and effect, or any Guarantor
thereunder or any Person acting by or on behalf of such guarantor shall deny or disaffirm such
Guarantor’s obligations under such Guaranty.




          (j) Impairment of Collateral. Any material security interest purported to be created
by any material Collateral Document shall cease to be, or shall be asserted by any Group Company
not to be, a valid, perfected, first-priority (except as otherwise expressly provided in any Loan Document)
security interest in the securities, assets or properties covered thereby, other than in respect of
assets and properties which, individually and in the aggregate, are not material to the Group
Companies taken as a whole or in respect of which the failure of the security interests in respect
thereof to be valid, perfected first priority security interests could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.




          (k) Ownership. A Change of Control shall occur.




          Section 8.02 Acceleration; Delivery of Preferred Stock Election Notice; Remedies. Upon the
occurrence of an Event of Default, the Required Lenders may (i) waive such Event of Default in
writing (unless such Event of Default must be waived by each Lender or each Lender affected thereby
as required pursuant to Section 10.01), or (ii) require the Administrative Agent (or require the
Administrative Agent to require the Collateral Agent, as applicable) to, by written notice to the
Borrower, take any of the following actions without prejudice to the rights of the Agents or any
Lender to enforce its claims against the Loan Parties except as otherwise specifically provided for
herein:




          (a) Acceleration of the Loan. Declare the unpaid principal of, any accrued interest
in respect of, or prepayment premium as provided in Section 2.06(c) in respect of, the Loan, and
any and all other indebtedness or obligations of any and every kind owing by a Loan Party to any of
the Lenders hereunder to be due whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Loan Parties.




          (b) Enforcement of Rights. Enforce any and all rights and interests created and
existing under the Loan Documents, including, without limitation, all rights and remedies existing
under the Collateral Documents, all rights and remedies against a Guarantor and all rights of
set-off.




          In addition, upon the occurrence of an Event of Default, the Required Lenders may deliver the
Preferred Stock Election Notice to the Borrower, notifying the Borrower that the Lenders have
exercised their right to trigger the provisions under the Parent Certificate of Designation that
apply from and after the Trigger Date (as defined in the Parent Certificate of Designation).




          Notwithstanding the fact that enforcement powers reside primarily with the Administrative
Agent, each Lender has, to the extent permitted by Law, a separate right of payment and shall be
considered a separate “creditor” holding a separate “claim” within the meaning of Section 101(5) of
the Bankruptcy Code or any other insolvency statute.




          In case any one or more of the covenants and/or agreements set forth in this Agreement or any
other Loan Document shall have been breached by any Loan Party, then the Administrative Agent may
proceed to protect and enforce the Lenders’ rights either by suit in equity and/or by action at
Law, including an action for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement or such other Loan
Document. Without limitation of






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the foregoing, the Borrower agrees that failure to comply with any
of the covenants contained herein will cause irreparable harm and that specific performance shall
be available in the event of any breach thereof. The Administrative Agent acting pursuant to this
paragraph shall be indemnified in accordance with Section 10.04.




          Notwithstanding anything in any Loan Document to the contrary, in the event that any Event of
Default under Sections 8.01(a) through (e) or (g) through (k) of the Credit Agreement (but not
following the occurrence of any other Event of Default) shall have occurred and so long as the
Senior Notes are outstanding and are not then due and payable, the Administrative Agent shall not
(and the Administrative Agent shall not direct the Collateral Agent to), and each Lender shall not
(and each Lender shall not direct the Collateral Agent to) take any action hereunder that would result in the occurrence of an
“Event of Default” (as that term is defined in the Senior Secured Note Indenture) pursuant to any
of Sections 6.01(e), (f) (as to the Borrower or any of its Subsidiaries only) or (g) of the Senior
Secured Note Indenture, except that in any event the Administrative Agent, the Collateral Agent and
the Lenders may take possession of the Equity Interests of the Borrower or any of its Subsidiaries
in accordance with the provisions of the Loan Documents.




          (c) Control. Notwithstanding anything herein to the contrary, prior to the occurrence
of an Event of Default, this Agreement and the transactions contemplated hereby do not and will not
constitute, create, or have the effect of constituting or creating, directly or indirectly, actual
or practical ownership of any Group Company by the Administrative Agent, the Collateral Agent or
any Lender, or affirmative or negative, direct or indirect control by the Administrative Agent, the
Collateral Agent or any Lender over the management or any other aspect of the operation of the
Group Company, which ownership and control remains exclusively and at all times in those Group
Company.




          Section 8.03 Payments on and Redemptions of Parent Preferred Stock. Following delivery of
the Preferred Stock Election Notice to the Borrower, all payments received by the Lenders or by any
Agent with respect to, or redemptions of, the Parent Preferred Stock shall be deemed payments of
(i) principal on the Loans, to the extent of the Base Liquidation Preference of Parent Preferred
Stock redeemed, (ii) interest on the Loans, to the extent of payments of dividends on Parent
Preferred Stock (including any portion of Liquidation Preference of Parent Preferred Stock redeemed
attributable to the accrual of dividends) paid in cash to the extent that such amount exceeds the
amount of interest hereunder attributable to an amount of principal equal to the Base Liquidation
Preference of the Parent Preferred Stock to which such dividend payment relates, and (iii)
prepayment premium, if any, that would be payable pursuant to Section 2.06(c) with respect to the
prepayment of principal on the Loans hereunder in an amount equal to the Base Liquidation
Preference, to the extent of the amount of Premium (as defined in the Parent Certificate of
Designations) included in the Liquidation Preference of Parent Preferred Stock redeemed or to the
extent that the cash redemption price of Parent Preferred Stock redeemed exceeds 100% of the
Liquidation Preference thereof (but excluding any such amounts that exceed the prepayment premium
that would be so payable hereunder). “Base Liquidation Preference” of any Parent Preferred
Stock means the Liquidation Preference of such Parent Preferred Stock without giving effect to (x)
the accrual of any dividends on such Parent Preferred Stock, or (y) the provisions of the Parent
Certificate of Designation providing for redemption of such Parent Preferred Stock at a cash
redemption price in excess of 100% of the Liquidation Preference thereof or the addition of Premium
to the Liquidation Preference.




          Section 8.04 Allocation of Payments After Event of Default.




          (a) Priority of Distributions. The Borrower hereby irrevocably waives the right to
direct the application of any and all payments in respect of its Finance Obligations and any
proceeds of Collateral after the occurrence and during the continuance of an Event of Default and
agrees, and each of the Finance Parties agrees, that, notwithstanding the provisions of
Sections 2.09(b), after the exercise of remedies provided for in Section 8.02 (or
after the Loan has automatically become immediately due and payable), all








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amounts collected or received by the Administrative Agent, the Collateral Agent or any Finance Party on account of
any Finance Obligation shall be paid over or delivered in respect of its Finance Obligations as
follows:





          FIRST, to pay interest on and then principal of any portion of the Loan that the
Administrative Agent may have advanced on behalf of any Lender for which the Administrative
Agent has not then been reimbursed by such Lender or the Borrower;




          SECOND, to the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of the Administrative Agent and the Collateral Agent in
connection with enforcing the rights of the Finance Parties under the Finance Documents,
including all expenses of sale or other realization of or in respect of the Collateral,
including reasonable compensation to the agents and counsel for the Collateral Agent, and
all expenses, liabilities and advances incurred or made by the Collateral Agent in
connection therewith, and any other obligations owing to the Collateral Agent under the Loan
Documents, including in respect of sums advanced by the Collateral Agent to preserve the
Collateral or to preserve its security interest in the Collateral;




          THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of (i) each of the Lenders in connection with enforcing its
rights under the Loan Documents or otherwise with respect to the Senior Credit Obligations
owing to such Lender and (ii) each Swap Creditor in connection with enforcing any of its
rights under the Swap Agreements or otherwise with respect to the Swap Obligations owing to
such Swap Creditor;




          FOURTH, to the payment of all of the Senior Credit Obligations consisting of accrued
fees and interest;




          FIFTH, except as set forth in clauses FIRST through FOURTH above, to
the payment of the outstanding Senior Credit Obligations and Swap Obligations owing to any
Finance Party, Pro-Rata, as set forth below, with (i) an amount equal to the Senior Credit
Obligations being paid to the Collateral Agent (in the case of Senior Credit Obligations
owing to the Collateral Agent) or to the Administrative Agent (in the case of all other
Senior Credit Obligations) for the account of the Lenders or any Agent, with the Collateral
Agent, each Lender and the Agents receiving an amount equal to its outstanding Senior Credit
Obligations, or, if the proceeds are insufficient to pay in full all Senior Credit
Obligations, its Pro-Rata Share of the amount remaining to be distributed, and (ii) an
amount equal to the Swap Obligations being paid to the trustee, paying agent or other
similar representative (each a “Representative”) for the Swap Creditors, with each
Swap Creditor receiving an amount equal to the outstanding Swap Obligations owed to it by
the Loan Parties or, if the proceeds are insufficient to pay in full all such Swap
Obligations, its Pro-Rata Share of the amount remaining to be distributed;




          SIXTH, to the payment of the surplus, if any, to whomever may be lawfully entitled to
receive such surplus.



          In carrying out the foregoing, (i) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category; and (ii) each of the
Finance Parties shall receive an amount equal to its Pro-Rata Share of amounts available to be
applied pursuant to clauses “THIRD”, “FOURTH” and “FIFTH” above.




          (b) Pro-Rata Treatment. For purposes of this Section 8.04, “Pro-Rata
Share” means, when calculating a Finance Party’s portion of any distribution or amount, that
amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid
amount of such Finance Party’s







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Senior Credit Obligations or Swap Obligations, as the case may be,
and the denominator of which is the then outstanding amount of all Senior Credit Obligations or
Swap Obligations, as the case may be. When payments to the Finance Parties are based upon their
respective Pro-Rata Shares, the amounts received by such Finance Parties hereunder shall be applied
(for purposes of making determinations under this Section 8.04 only) (i) first, to their
Senior Credit Obligations and (ii) second, to their Swap Obligations. If any payment to any
Finance Party of its Pro-Rata Share of any distribution would result in overpayment to such Finance
Party, such excess amount shall instead be distributed in respect of the unpaid Senior Credit
Obligations or Swap Obligations, as the case may be, of the other Finance Parties, with each
Finance Party whose Senior Credit Obligations or Swap Obligations, as the case may be, have not been paid in
full to receive an amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Senior Credit Obligations, Swap Obligations or Secondary Obligations, as the
case may be, of such Finance Party and the denominator of which is the unpaid Senior Credit
Obligations or Swap Obligations, as the case may be, of all Finance Parties entitled to such
distribution.




          (c) Reliance by Collateral Agent. For purposes of applying payments received in
accordance with this Section 8.04, the Collateral Agent shall be entitled to rely upon (i)
the Administrative Agent under the Credit Agreement and (ii) the Representative, if any, for the
Swap Creditors for a determination (which the Administrative Agent, each Representative for any
Swap Creditor and the Finance Parties agree (or shall agree) to provide upon request of the
Collateral Agent) of the outstanding Senior Credit Obligations and Swap Obligations owed to the
Agents, the Lenders or the Swap Creditors, as the case may be. Unless it has actual knowledge
(including by way of written notice from a Swap Creditor or any Representatives thereof) to the
contrary, the Collateral Agent, in acting hereunder, shall be entitled to assume that no Swap
Agreements are in existence.




ARTICLE IX




AGENCY PROVISIONS




          Section 9.01 Appointment and Authority. Each of the Lenders hereby irrevocably appoints
Credit Suisse, Cayman Islands Branch to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. Each of
the Lenders hereby irrevocably appoints The Bank of New York to act on its behalf as the Collateral
Agent hereunder and under the other Loan Documents and authorizes the Collateral Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the Administrative Agent,
the Collateral Agent and the Lenders, and neither the Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions.




          Section 9.02 Rights as a Lender. The Person serving as the Administrative Agent and the
Person serving as the Collateral Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent or the Collateral Agent, respectively, and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent and the Person serving as the
Collateral Agent hereunder, respectively, in its individual capacity. Each such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent or the
Collateral Agent hereunder and without any duty to account therefor to the Lenders.




     Section 9.03 Exculpatory Provisions. Neither the Administrative Agent nor the Collateral
Agent shall have any duties or obligations except those expressly set forth herein and in the other



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Loan Documents. Without limiting the generality of the foregoing, the neither the Administrative
Agent nor the Collateral Agent:





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




          (ii) shall have any duty to take any discretionary action or exercise any discretionary
powers, except, in the case of the Administrative Agent, discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that neither the Administrative Agent nor the Collateral Agent
shall be required to take any action that, in the opinion of its counsel, may expose it to
liability or that is contrary to any Loan Document or applicable Law; and




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



          Neither the Administrative Agent nor the Collateral Agent shall be liable for any action taken
or not taken by it (i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall
believe in good faith shall be necessary, under the circumstances as provided in Sections
10.01 and 8.02), or, in the case of the Collateral Agent, as shall be directed or
requested by the Administrative Agent, or (ii) in the absence of its own gross negligence or
willful misconduct. The Administrative Agent and the Collateral Agent shall be deemed not to have
knowledge of any Default (or, in the case of the Collateral Agent, any other fact, event or
circumstance) unless and until notice in writing describing such Default is given to the
Administrative Agent or the Collateral Agent in accordance with this Agreement by the Borrower or a
Lender.




          Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have any
duty to ascertain or inquire into (i) any recital contained in, or any statement, warranty or
representation made in or in connection with, this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any
Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than, in the case of the
Administrative Agent, to confirm receipt of items expressly required to be delivered to the
Administrative Agent.




          Section 9.04 Reliance by Administrative Agent and Collateral Agent. The Administrative
Agent and the Collateral Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website posting or other
distribution) reasonably believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Administrative Agent and the Collateral Agent also may
rely upon any statement made to it orally or by telephone and reasonably believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, that by its terms must
be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall have received notice
to the contrary from such Lender prior to the making of such Loan. The Administrative





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Agent and the Collateral Agent may each consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.




          Section 9.05 Delegation of Duties. The Administrative Agent and the Collateral Agent may
each perform any and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more agents, co-agents, or sub-agents appointed by the
Administrative Agent and the Collateral Agent, as applicable. Each of the Administrative Agent and
the Collateral Agent and any such agent, co-agent, or sub-agent of either may perform any and all
of its duties and exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of this Article shall apply to any such agent, co-agent or sub-agent and
to the Related Parties of the Administrative Agent or the Collateral Agent and any such agent,
co-agent or sub-agent, and, in the case of the Administrative Agent, shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein, and shall also apply to the other respective activities of the Administrative Agent or
Collateral Agent.




          Section 9.06 Resignation of Agents. Each of the Administrative Agent and the Collateral
Agent may at any time give notice of its resignation to the Lenders and the Borrower effective
after the earlier of (x) 30 days from the Borrower’s receipt of such notice and (y) the appointment
of a successor Administrative Agent or Collateral Agent. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent or Collateral Agent gives notice of its resignation, then the
retiring Administrative Agent or Collateral Agent may on behalf of the Lenders appoint a successor
Administrative Agent or Collateral Agent meeting the qualifications set forth above; provided that
if the Administrative Agent or Collateral Agent, as applicable, shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Administrative
Agent or Collateral Agent, as applicable, shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or though the Administrative Agent or the Collateral
Agent, as applicable, shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent or Collateral Agent, as applicable, as
provided for above in this paragraph. Upon the acceptance of a successor’s appointment as
Administrative Agent or Collateral Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent or Collateral Agent, and the retiring Administrative Agent or Collateral Agent
shall be discharged from all of its duties and obligations hereunder and under the other Loan
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Borrower to a successor Administrative Agent or Collateral Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent’s or Collateral Agent’s resignation hereunder
and under the other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent or Collateral Agent, its
agents, co-agents and sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative Agent or Collateral
Agent was acting as Administrative Agent or Collateral Agent.




          Section 9.07 Non-Reliance on Agents and Other Lenders. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent, the Collateral Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent, the Collateral




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Agent or any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.




          Section 9.08 Agents May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent or Collateral Agent
(irrespective of whether the principal of the Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the Administrative Agent or
Collateral Agent shall have made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:





          (i) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loan and all other Finance Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders, the Administrative Agent and the Collateral Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the Administrative Agent and the Collateral Agent and their respective agents and counsel
and all other amounts due the Lenders, the Administrative Agent and the Collateral Agent
under Sections 2.09 and 10.04) allowed in such judicial proceeding;




          (ii) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same; and




          (iii) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Lender to make
such payments to the Administrative Agent or Collateral Agent and, in the event that the
Administrative Agent or Collateral Agent, as applicable, shall consent to the making of such
payments directly to the Lenders, to pay to the Administrative Agent and the Collateral
Agent any amount due for the reasonable compensation, expenses, disbursements and advances
of the Administrative Agent and the Collateral Agent and their respective agents and
counsel, and any other amounts due the Administrative Agent and the Collateral Agent under
Sections 2.09 and 10.04 and under the other Loan Documents to which it is a
party.



          Nothing contained herein shall be deemed to authorize the Administrative Agent or the
Collateral Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Finance Obligations or the
rights of any Lender or to authorize the Administrative Agent or Collateral Agent to vote in
respect of the claim of any Lender in any such proceeding.




          Section 9.09 Collateral and Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion:





          (i) to release (and to direct the Collateral Agent to release) any Lien on any property
granted to or held by the Administrative Agent or the Collateral Agent under any Finance
Document (A) upon termination of the Commitments and payment in full of all Finance
Obligations (other than contingent indemnification obligations), (B) that is sold or to be
sold as part of or in connection with any sale not prohibited hereunder, or (C) subject to
Section 10.01, if approved, authorized or ratified in writing by the Required
Lenders;



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          (ii) to subordinate (and to direct the Collateral Agent to subordinate) any Lien on any
property granted to or held by the Administrative Agent or the Collateral Agent under any
Finance Document to the holder of any Lien on such property that is permitted by Section
7.02; and




          (iii) to release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction not prohibited hereunder.


Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release or subordinate (or to direct the Collateral Agent
to release or subordinate) the interest of the Administrative Agent or the Collateral Agent in
particular types or items of property, or to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 9.09.




          Section 9.10 Related Obligations. The benefit of the Loan Documents and of the provisions
of this Agreement relating to the Collateral shall extend to and be available in respect of any
Cash Management Obligations and to any Swap Obligations permitted hereunder from time to time owing
to one or more Swap Creditors (collectively, “Related Obligations”) solely on the condition
and understanding, as among the Collateral Agent and all Finance Parties, that (i) the Related
Obligations shall be entitled to the benefit of the Loan Documents and the Collateral to the extent
expressly set forth in this Agreement and the other Loan Documents and to such extent the
Administrative Agent and the Collateral Agent shall hold, and have the right and power to act with
respect to, the Guaranty and the Collateral on behalf of and as agent for the holders of the
Related Obligations, but the Administrative Agent and the Collateral Agent are otherwise acting
solely as agent for the Lenders and shall have no fiduciary duty, duty of loyalty, duty of care,
duty of disclosure or other obligation whatsoever to any holder of Related Obligations, (ii) all
matters, acts and omissions relating in any manner to the Guaranty, the Collateral, or the
omission, creation, perfection, priority, abandonment or release of any Lien, shall be governed
solely by the provisions of this Agreement and the other Loan Documents and no separate Lien,
right, power or remedy shall arise or exist in favor of any Finance Party under any separate
instrument or agreement or in respect of any Related Obligation, (iii) each Finance Party shall be
bound by all actions taken or omitted, in accordance with the provisions of this Agreement and the
other Loan Documents, by the Administrative Agent, the Collateral Agent and the Required Lenders,
as applicable, each of whom shall be entitled to act at its sole discretion and exclusively in its
own interest given its own Commitments and its own interest in the Loans and other Senior Credit
Obligations to it arising under this Agreement or the other Loan Documents, without any duty or
liability to any Swap Creditor or holder of Cash Management Obligations or as to any Related
Obligation and without regard to whether any Related Obligation remains outstanding or is deprived
of the benefit of the Collateral or becomes unsecured or is otherwise affected or put in jeopardy
thereby, (iv) no holder of Related Obligations and no other Finance Party (except the Lenders to
the extent set forth in this Agreement) shall have any right to be notified of, or to direct,
require or be heard with respect to, any action taken or omitted in respect of the Collateral or
under this Agreement or the Loan Documents and (v) no holder of any Related Obligation shall
exercise any right of setoff, banker’s lien or similar right except to the extent provided in
Section 10.08.




          Section 9.11 Collateral Agent. The Collateral Agent shall have all of the rights,
benefits, privileges and immunities granted to the Collateral Agent under any of the Loan Documents
to which it is a party, all of which are incorporated herein mutatis mutandis.




          Section 9.12 Appointment of Co-Collateral Agent.




          (a) Notwithstanding any other provisions of this Agreement, at any time, for the purpose of
meeting any legal requirement of any jurisdiction in which any part of the Collateral may at the
time be located, the Collateral Agent shall have the power and may execute and deliver all
instruments necessary to appoint one or more Persons to act as a co-collateral agent or separate
collateral agent or separate collateral agents, of all or any part of the Collateral, and to vest
in such Person or Persons, in such




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capacity and for the benefit of the Secured Parties, such title to the Collateral, or any part
hereof, and subject to the other provisions of this Section, such powers, duties, obligations, and
rights as the Collateral Agent may consider necessary or desirable. No co-collateral agent or
separate collateral agent hereunder shall be required to meet the terms of eligibility as a
successor Collateral Agent under Section 9.6 and no notice to the Secured Parties of the
appointment of any co-collateral agent or separate collateral agent shall be required under Section
9.6.




          (b) Every separate collateral agent and co-collateral agent shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:





          (i) all rights, powers, duties and obligations conferred or imposed upon the Collateral
Agent shall be conferred or imposed upon and exercised or performed by the Collateral Agent
and such separate collateral agent or co-collateral agent jointly (it being understood that
such separate collateral agent or co-collateral agent is not authorized to act separately
without the Collateral Agent joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be performed the Collateral
Agent shall be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the Collateral or
any portion thereof in any such jurisdiction) shall be exercised and performed singly by
such separate collateral agent or co-collateral agent, but solely at the direction of the
Collateral Agent;




          (ii) no collateral agent shall be personally liable by reason of any act or omission of




          any other collateral agent under the Loan Documents; and




          (iii) the Collateral Agent may at any time accept the resignation of or remove any
separate collateral agent or co-collateral agent.



          (c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have
been given to each of the then separate collateral agents and co-collateral agents, as effectively
as if given to each of them. Every instrument appointing any separate collateral agent or
co-collateral agent shall refer to this Agreement and the conditions of this Article IX. Each
separate collateral agent and co-collateral agent, upon its acceptance of the obligations
conferred, shall be vested with the estates or property specified in its instrument of appointment,
either jointly with the Collateral Agent or separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including every provision of this Agreement relating
to the conduct of, affecting the liability of, or affording protection or rights (including the
rights to compensation, reimbursement and indemnification hereunder) to, the Collateral Agent.
Every such instrument shall be filed with the Collateral Agent.




          (d) Any separate collateral agent or co-collateral agent may at any time constitute the
Collateral Agent its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in
its name. If any separate collateral agent or co-collateral agent shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights, remedies and obligations
shall vest in and be exercised by the Collateral Agent, to the extent permitted by law, without the
appointment of a new or successor collateral agent.




          Section 9.13 No Other Duties, etc. Anything herein to the contrary notwithstanding, the
Lead Arranger and Bookrunner listed on the cover page hereof shall not have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent or a Lender hereunder.




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ARTICLE X

MISCELLANEOUS




          Section 10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders or such other number or percentage of
Lenders as may be specified herein) and the Borrower or the applicable Loan Party, as the case may
be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given;
provided that for the purposes of this Section any Loans held by the Borrower or an
Affiliate of the Borrower shall be disregarded from the determination of Required Lenders;
provided further that (x) the Administrative Agent and the Borrower may, with the consent
of the other, amend, modify or supplement this Agreement and any other Loan Document to cure any
ambiguity, typographical error, defect or inconsistency if such amendment, modification or
supplement does not adversely affect the rights of any Agent or any Lender , (y) no such amendment,
waiver or consent that affects the Administrative Agent or the Collateral Agent shall be effective
without the written consent of the Administrative Agent or the Collateral Agent, as the case may
be, and (z) no such amendment, waiver or consent shall:





          (i) extend or increase the Commitment or Loan of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of such
Lender;




          (ii) postpone any date fixed by this Agreement or any other Loan Document for any
payment or mandatory prepayment of principal, premium, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;




          (iii) reduce the principal of, or the premium or rate of interest specified herein on,
the Loan, or any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be necessary to amend
the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest
at the Default Rate;




          (iv) change Section 8.04 or Section 2.08 in a manner that would alter
the pro-rata sharing of payments required thereby without the written consent of each
Lender;




          (v) change any provision of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written consent of each Lender;




          (vi) release all or substantially all of the aggregate value of the Guaranties without
the written consent of each Lender; provided that the Administrative Agent may,
without the consent of any Lender, release any Guarantor that is sold or transferred in
compliance with Section 7.05 or as permitted by Section 9.09; or




          (vii) release in any transaction or series of related transactions all or substantially
all of the Collateral securing the Senior Credit Obligations without the written consent of
each Lender; provided that the Collateral Agent may, without consent from any
Lender, release any Collateral that is sold or transferred by a Loan Party in compliance
with Section 7.05 or released in compliance with Section 9.10(i) or (ii).



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          Section 10.02 Notices; Effectiveness; Electronic Communication.




          (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows:





          (i) if to the Borrower or the Administrative Agent or the Collateral Agent, to the
address, telecopier number, or telephone number specified for such Person on Schedule
10.02; and




          (ii) if to any Lender, to the address, telecopier number or telephone number specified
in its Administrative Questionnaire.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient),
provided, that, in the case of the Collateral Agent, receipt thereof is confirmed by the
Collateral Agent by telephone or in writing. Notices delivered through electronic communications
to the extent provided in subsection (b) below, shall be effective as provided in such
subsection (b). No notice or communication to the Collateral Agent shall be deemed
received by the Collateral Agent until such notice has been received by a Collateral Agent
Responsible Officer.




          (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender pursuant to Article II if such
Lender has notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent, the Collateral Agent or the
Borrower may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it, provided that approval
of such procedures may be limited to particular notices or communications.




          Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




          (c) Change of Address, Etc. Each of Parent, Holdings, the Borrower, the
Administrative Agent and the Collateral Agent may change its address, telecopier or telephone
number for notices and other communications hereunder by written notice to the other parties
hereto. Each Lender may change its address, telecopier or telephone number for notices and other
communications hereunder by written notice to the Borrower and the Administrative Agent. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address,




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contact name, telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (ii) accurate wire instructions for such Lender.




          (d) Reliance by Agents and Lenders. The Administrative Agent, the Collateral Agent
and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices)
purportedly given by or on behalf of the Borrower or any other Loan Party (or in the case of the
Collateral Agent, upon notices purportedly given by the Administrative Agent) even if (i) such
notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Borrower shall indemnify the
Administrative Agent, the Collateral Agent, each Lender and the Related Parties of each of them
from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other
communications with the Administrative Agent or the Collateral Agent may be recorded by the
Administrative Agent or the Collateral Agent, and each of the parties hereto hereby consents to
such recording.




          Section 10.03 No Waiver; Cumulative Remedies. No failure by any Lender or by the
Administrative Agent or the Collateral Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by Law.




          Section 10.04 Expenses; Indemnity; Damage Waiver.




          (a) Costs and Expenses. Holdings and the Borrower jointly and severally agrees to pay
(i) all reasonable out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent and the Lenders and their respective Affiliates (including the reasonable fees, charges and
disbursements of counsel for each of the Administrative Agent and the Collateral Agent and
Lenders), in connection with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all
out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent or any Lender
(including the fees, charges and disbursements of any counsel for the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection of its rights (A)
in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made hereunder).




          (b) Indemnification. Holdings and the Borrower, jointly and severally, shall
indemnify the Administrative Agent and the Collateral Agent (and any agent, co-agent or sub-agent
thereof), each Lender and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any outside counsel for any Indemnitee), incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out
of, in connection with, or as a result of any claim, proceeding or litigation arising out of or
relating to (i) the execution or delivery of this Agreement, any other Finance Document or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of
their respective obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) the Loan or use or proposed use of the proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property owned or operated by
Holdings or any of its Subsidiaries, or any Environmental Liability related in




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any way to Holdings or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding brought by a third party or by the Borrower or any other
Loan Party, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or
not caused by or arising, in whole or in part, out of the comparative, contributory or sole
negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or related expenses (x)
are determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.




          (c) Reimbursement by Lenders. To the extent that Holdings and the Borrower for any
reason fail indefeasibly to pay any amount required under subsection (a) or (b) of
this Section to be paid by it or them to each Agent (or any agent, co-agent or sub-agent thereof)
or any Related Party of the foregoing, each Lender severally agrees to pay to each Agent (or any
such agent, co-agent or sub-agent) or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against each Agent (or any such agent, co-agent or sub-agent) in its capacity as
such, or against any Related Party of any of the foregoing acting for each Agent (or any such
agent, co-agent or sub-agent) in connection with such capacity.




          (d) Waiver of Consequential Damages. To the fullest extent permitted by applicable
Law, no Loan Party shall assert, and each of them hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Finance Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, the Loan or the use of the proceeds thereof. No Indemnitee shall
be liable for any damages arising from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.




          (e) Payments. All amounts due under this Section shall be payable not later than
thirty days after receipt by Borrower of a reasonably detailed invoice therefor.




          (f) Survival. The agreements in this Section shall survive the resignation or
replacement of the Administrative Agent or Collateral Agent, the replacement of any Lender and the
repayment, satisfaction or discharge of all the other Senior Credit Obligations.




          Section 10.05 Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower or any other Loan Party is made to the Administrative Agent, the Collateral Agent or any
Lender, or the Administrative Agent, the Collateral Agent or any Lender exercises its right of
set-off, and such payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by the Administrative Agent, the Collateral Agent or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (i) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had not occurred, and
(ii) each Lender severally agrees to pay to the Administrative Agent or the Collateral Agent, as
applicable, upon demand, its applicable share of any amount so recovered from or repaid by the
Administrative Agent or the Collateral Agent, as applicable, plus interest thereon from the date of
such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect. The obligations of the Lenders under clause (ii) of the
preceding sentence shall survive the payment in full of the Senior Credit Obligations and the
termination of this Agreement.




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          Section 10.06 Successors and Assigns.




          (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder (except pursuant to a transaction
permitted hereunder) without the prior written consent of the Administrative Agent and the
Collateral Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights
or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent and the Collateral Agent and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it); provided,
however, that:





          (i) except in the case of an assignment of the entire remaining amount of the Lender’s
Loan or Commitments owing to it or in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Loans
of an assigning Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the Administrative
Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $1,000,000 and shall be an integral multiple of $500,000 unless
each of the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower consent (such consent, in any such case, not to be unreasonably
withheld or delayed); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an Assignee Group to
a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group)
will be treated as a single assignment for purposes of determining whether such minimum
amount has been met;




          (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lenders’ rights and obligations under this Agreement with respect to the
Loan;




          (iii) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500
(it being understood that such fee may be reduced or eliminated in the Administrative
Agent’s sole discretion) and the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire and appropriate tax
forms.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto




- 84 -









 







but shall continue to be entitled to the benefits of Sections 3.01, 3.04,
3.05 and 10.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note or Notes to the assignee Lender. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.




          (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be presumptively correct,
absent manifest error, and the Borrower, the Administrative Agent, the Collateral Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower at any reasonable time and from time
to time upon reasonable prior notice.




          (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person) (each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Agreement (including all or a portion of the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Collateral Agent and the
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.




          Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in clause (z)
of the first proviso to Section 10.01 that affects such Participant. Subject to
subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by Law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it were a Lender.




          (e) Limitation Upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.




          (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.




          (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or




- 85 -









 




the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a paper-based record
keeping system, as the case may be, to the extent and as provided for in any applicable Law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act or any other similar state laws based on the Uniform
Electronic Transactions Act.




          Section 10.07 Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the Collateral Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed (i) to its
Affiliates and to it and its Affiliates’ respective partners, directors, officers, employees,
agents, advisors and representatives (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and instructed to keep such
Information confidential); (ii) to the extent requested by a regulatory authority purporting to
have jurisdiction over it, including any self-regulatory authority, such as the National
Association of Insurance Commissioners; (iii) to the extent required by applicable Law or by any
subpoena or similar legal process; (iv) to any other party hereto; (v) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (vi) subject to an agreement containing provisions substantially the same as those of
this Section, to (A) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (B) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (vii) with the consent of the Borrower or (viii) to the extent such
Information (A) becomes publicly available other than as a result of a breach of this Section or
(B) becomes available to the Administrative Agent, the Collateral Agent or any Lender on a
nonconfidential basis from a source other than the Borrower.




          For purposes of this Section, “Information” means all information received from the
Borrower or any of its Subsidiaries relating to the Borrower or any Subsidiary or any of their
respective businesses, other than any such information that is available to the Administrative
Agent, the Collateral Agent or any Lender on a nonconfidential basis prior to disclosure by the
Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information. Notwithstanding the foregoing, any
Agent and any Lender may place advertisements in financial and other newspapers and periodicals or
on a home page or similar place for dissemination of information on the Internet or worldwide web
as it may choose, and circulate similar promotional materials, after the closing of the
transactions contemplated by this Agreement in the form of a “tombstone” or otherwise describing
the names of the Loan Parties, or any of them, and the amount, type and closing date of such
transactions, all at their sole expense.




          Section 10.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, the Administrative Agent, the Collateral Agent, each Lender and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable Law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency, but excluding trust, payroll and fiduciary
accounts) at any time held and other obligations (in whatever currency) at any time owing by the
Administrative Agent, the Collateral Agent or such Lender or any such Affiliate of any of them to
or for the credit or the account of the Borrower or any other Loan Party against any and all of the
obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to the Administrative Agent, the Collateral Agent or such Lender,
irrespective of whether or not the Administrative Agent, the Collateral Agent or such Lender shall
have made any demand under this Agreement or any other Loan Document and although such obligations
of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office
of the Administrative Agent, the Collateral Agent or such Lender different from the branch or
office holding such




- 86 -









 




deposit or obligated on such indebtedness. The rights of the Administrative Agent, the Collateral
Agent and each Lender and their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that the Administrative Agent, the
Collateral Agent or such Lender or their respective Affiliates may have. The Administrative Agent,
the Collateral Agent and each Lender agrees to notify the Borrower (and in the case of the
Collateral Agent or a Lender, the Administrative Agent) promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the validity of
such setoff and application.




          Section 10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained
in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum
Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans then
to premium or, if it exceeds such unpaid principal or premium, refunded to the Borrower. In
determining whether the interest contracted for, charged, or received by the Administrative Agent
or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law,
(i) characterize any payment that is not principal as an expense, fee, or premium rather than
interest, (ii) exclude voluntary prepayments and the effects thereof and (iii) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Senior Credit Obligations hereunder.




          Section 10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. This Agreement shall
become effective when it shall have been executed by the Administrative Agent, the Collateral Agent
and the Borrower and when the Administrative Agent shall have received counterparts hereof that,
when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.




          Section 10.11 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent, the Collateral Agent and each Lender, regardless of any investigation made by
any Agent or any Lender or on their behalf and notwithstanding that the Agent or any Lender may
have had notice or knowledge of any Default or Event of Default, and shall continue in full force
and effect as long as any Loan or any other Senior Credit Obligation shall remain unpaid or
unsatisfied.




          Section 10.12 Severability. If any provision of this Agreement or the other Loan Documents
is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of
the remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.




          Section 10.13 Governing Law; Jurisdiction Etc.




          (a) Governing Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN SUCH OTHER LOAN DOCUMENTS) AND THE




- 87 -









 




RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING,
WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).




          (b) Submission to Jurisdiction. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT EACH PARTY HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST EACH PARTY HERETO OR ANY OTHER PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.




          (c) Waiver of Venue. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




          (d) Service of Process. EACH PARTY HERETO (OTHER THAN THE COLLATERAL AGENT)
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION
10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.




          Section 10.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER




- 88 -









 




LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          Section 10.15 USA Patriot Act Notice; Lenders’ Compliance Certification. Each Lender that
is subject to the Act (as hereinafter defined) and each of the Administrative Agent and Collateral
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name, address and tax identification number of the
Borrower and other information that will allow such Lender or the Administrative Agent or the
Collateral Agent, as applicable, to identify the Borrower in accordance with the Act.




[Signature Pages Follow]




- 89 -









 





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




	 	 	 	 	 	 	 
	 	 	ORBIMAGE HOLDINGS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ORBIMAGE SI HOLDCO INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ORBIMAGE SI OPCO INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Collateral Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
















 






	 	 	 	 	 	 	 
	 	 	[LENDER NAME]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 







S-2









 






EXHIBIT A




FORM OF NOTICE OF EXTENSION/CONVERSION




Credit Suisse, Cayman Islands Branch, as Administrative Agent under the

     Credit Agreement referred to below




                                                             ,                     

Attention:




          Re:  ORBIMAGE SI Opco, Inc.




     Reference is made to the Credit Agreement, dated as of January 10, 2006 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among ORBIMAGE HOLDINGS INC., a Delaware corporation (“Parent”),
ORBIMAGE SI HOLDCO INC., a Delaware corporation (“Holdings”), ORBIMAGE SI OPCO INC., a
Delaware corporation (the “Borrower”), each lender from time to time party hereto
(collectively, the “Lenders” and individually, a “Lender”), Credit Suisse, Cayman
Islands Branch as administrative agent (“Administrative Agent”) and The Bank of New York as
collateral agent (“Collateral Agent”). Capitalized terms used herein and not otherwise
defined herein are used herein as defined in the Credit Agreement.



     The Borrower hereby gives you irrevocable notice, pursuant to Section 2.04(a) of the
Credit Agreement of its request for the following:




     (i) an extension, on                                         ,                     , as Eurodollar Loans having an Interest Period of
                     months in an aggregate outstanding principal amount of $                                                             having an Interest
Period ending on the proposed date for such continuation; and/or




     (ii) a conversion, on                                         ,                     , to Eurodollar Loans having an Interest Period of
                    
months in an aggregate outstanding principal amount of $                                        _.



     In connection herewith, the undersigned hereby certifies on behalf of the Borrower that no
Default or Event of Default is continuing on the date hereof, both before and after giving effect
to any Loan to be made on or before any date for any proposed conversion or extension set forth
above.



	 	 	 	 	 
	 	ORBIMAGE SI OPCO INC.

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



 









 






	 	 	 	 	 



EXHIBIT B




NOTE







			
	$ [                                        ]
	 	New York, New York

                                                            , 2006






     FOR VALUE RECEIVED, the undersigned, ORBIMAGE SI Opco Inc., a Delaware corporation (the
“Borrower”), hereby unconditionally promises to pay to the order of
                    
(the “Lender”) at the office of Administrative Agent (as defined below) at                     
                                                                                                    , New York, New York                                         , or at such other place as
Administrative Agent may from time to time designate in writing, in lawful money of the United
States of America and in immediately available funds, the principal sum of                                                             ($                                        ). This Note (this “Note”) is issued in accordance with
the provisions of that certain Credit Agreement, dated as of January 10, 2006 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among ORBIMAGE Holdings Inc., a Delaware corporation (“Parent”), ORBIMAGE SI Holdco Inc., a
Delaware corporation (“Holdings”), ORBIMAGE SI Opco Inc., a Delaware corporation (the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), Credit Suisse, Cayman Islands Branch as administrative agent (“Administrative Agent”)
and The Bank of New York as collateral agent (“Collateral Agent”). Capitalized terms used herein
and not otherwise defined herein are used herein as defined in the Credit Agreement.



     The outstanding principal balance of the portion of the Loan evidenced by this Note shall be
due and payable as provided for in the Credit Agreement.



     The Borrower promises to pay interest from the date hereof until payment in full hereof on the
unpaid principal balance of the portion of the Loan evidenced hereby at the per annum rate or rates
set forth in the Credit Agreement. Interest on the unpaid principal balance of the portion of the
Loan evidenced hereby shall be payable on the dates and in the manner set forth in the Credit
Agreement.



     Upon the occurrence and during the continuance of an Event of Default, the principal of and
accrued interest on this Note may be declared to be due and payable in the manner and with the
effect provided in the Credit Agreement.



     Payments received in respect of the Loan shall be applied as provided in the Credit Agreement.



     Presentment, demand, protest and notice of presentment, demand, nonpayment and protest are
each hereby waived by the Borrower.



     THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). Whenever possible each provision of this Note
shall be interpreted in such manner as to be effective and valid under applicable law, but in case
any provision of or obligation under this Note shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations,
or of such provision or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby. Whenever in this Note reference is made to the Administrative Agent, the Lender
or the Borrower, such reference shall be deemed to include, as applicable, a reference to their
respective successors and assigns. The provisions of this Note shall be binding upon the Borrower
and its successors and assigns, and shall inure to the benefit of the Lender and its successors and
assigns.



 









 





[Signature Page Follows]







-2-









 








	 	 	 	 	 	 
	 	 	ORBIMAGE SI OPCO INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





Signature Page to Note




 









 








EXHIBIT C




[Form of]

ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between                                          (the “Assignor”) and                                         
(the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement defined below, receipt of a copy of which is hereby acknowledged by
the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby
agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as
if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the
Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement, (ii) all
of the Assignor’s shares of Parent Preferred Stock and (iii) to the extent permitted to be assigned
under applicable law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto
or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty by the Assignor.




	1.	 	Assignor:                                                                                                                                                                                     
	 
	2.	 	Assignee:                                                                                                                                                                                     
	 
	3.	 	Borrower: ORBIMAGE SI Opco Inc.
	 
	4.	 	Administrative Agent: Credit Suisse, Cayman Islands Branch, as the administrative agent under the Credit Agreement
	 
	5.	 	Credit Agreement: The Credit Agreement dated as of January 10, 2006 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among ORBIMAGE SI
Opco Inc., a Delaware corporation (“Borrower”), ORBIMAGE Holdings Inc., a Delaware corporation
(“Parent”), ORBIMAGE SI Holdco Inc., a Delaware corporation (“Holdings”), the Subsidiary
Guarantors (such term and each other capitalized term used but not defined herein having the
meaning given it in Article I of the Credit Agreement), the Lenders, Credit
Suisse, Cayman Islands Branch, as administrative agent (in such capacity, “Administrative
Agent”) and The Bank of New York, as collateral agent (in such capacity, “Collateral
Agent”).
	 
	6.	 	Assigned Interest:
	 
	7.	 	Assigned Preferred Stock:




C-1









 













          Effective Date:                                                                                  , 20                    




     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	Consented to and Accepted:	 	 
	 
	 	 	 	 
	ORBIMAGE SI OPCO INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	CREDIT SUISSE, CAYMAN ISLANDS BRANCH,	 	 
	     as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






C-2









 






EXHIBIT C




ANNEX 1 to Assignment and Assumption




ORBIMAGE SI OPCO INC.

CREDIT AGREEMENT




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of Parent, Holdings, the Borrower, any of their Subsidiaries or any other person
obligated in respect of any Loan Document or (iv) the performance or observance by Holdings, the
Borrower, any of their Subsidiaries or any other person of any of their respective obligations
under any Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the Person exercising discretion in making
its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v)
it has received a copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Sections 4.01(o) or 6.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, (vi) if it is not already a Lender under the Credit
Agreement, attached to the Assignment and Assumption an Administrative Questionnaire in the form of
Exhibit H to the Credit Agreement, (vii) the Administrative Agent has received a processing
and recordation fee of $3,500 as of the Effective Date and (viii) if it is a Foreign Lender,
attached to the Assignment and Assumption is any documentation required to be delivered by it
pursuant to Section 3.01 of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations that by the terms of the Loan Documents are
required to be performed by it as a Lender.



     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts that have accrued to but excluding the Effective
Date and to the Assignee for amounts that have accrued from and after the Effective Date.



 









 





     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be construed
in accordance with and governed by, the law of the State of New York without regard to conflicts of
principles of law that would require the application of the laws of another jurisdiction.



-2-









 





EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




                                        ,                     1




     This certificate is delivered pursuant to Section 6.02(b) of the Credit Agreement,
dated as of January 10, 2006 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among ORBIMAGE HOLDINGS INC., a
Delaware corporation (“Parent”), ORBIMAGE SI HOLDCO INC., a Delaware corporation
(“Holdings”), ORBIMAGE SI OPCO INC., a Delaware corporation (the “Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), Credit Suisse, Cayman Islands Branch as administrative agent
(“Administrative Agent”) and The Bank of New York as collateral agent (“Collateral
Agent”). Capitalized terms used herein and not otherwise defined herein are used herein as
defined in the Credit Agreement.



     The undersigned, a duly authorized Responsible Officer of Holdings having the name and title
set forth below under his signature, hereby certifies, on behalf of Holdings, that to his or her
knowledge as of the date hereof:




	 	1.	 	[No Default or Event of Default exists] or [The following Default or
Event of Default exists and the Borrower proposes to take the following action
with respect thereto:]
	 
	 	2.	 	Since the date of the financial statements delivered to the
Administrative Agent pursuant to Section [6.01(a)][6.01(b)][6.01(c)] there has
been [no material change in the GAAP applied in the preparation of such financial
statements] or [the following material change in the GAAP applied in the
preparation of such financial statements:]





 [Signature Page Follows]






 




			
	1	 	Insert date of delivery of certificate.




D-1









 










     In Witness Whereof, the undersigned has executed this certificate on behalf of
Holdings on the date first written above.



	 	 	 	 	 
	 	ORBIMAGE SI HOLDCO INC.

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



[SIGNATURE PAGE TO COMPLIANCE CERTIFICATE OF DATED                                            ,                ]





 









 






EXHIBIT F




GUARANTY




I. RECITALS




          Reference is made to that certain Credit Agreement, dated as of the date hereof (as it may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among ORBIMAGE SI Holdco Inc., a Delaware corporation, ORBIMAGE SI Opco
Inc., a Delaware corporation, each guarantor from time to time party thereto, each lender from time
to time party thereto (collectively, the “Lenders” and individually, a “Lender”),
Credit Suisse, Cayman Islands Branch, as Administrative Agent (the “Administrative Agent”)
and The Bank of New York, as the Collateral Agent (the “Collateral Agent”). As one of the
conditions to making Loans to Borrower under the Credit Agreement, the Lenders have required that
the undersigned (“Guarantor”), guaranty the obligations of Borrower to Administrative
Agent, the Collateral Agent and the Lenders. Capitalized terms used and not otherwise defined
herein shall have the respective meanings provided for in the Credit Agreement.




II. GUARANTY




          Therefore, for value received, and in consideration of any loan, advance or financial
accommodation of any kind whatsoever heretofore, now or hereafter made, given or granted to
Borrower by Administrative Agent, the Collateral Agent or any Lender, Guarantor hereby
unconditionally guaranties the full and prompt payment when due, whether at maturity or earlier, by
reason of acceleration or otherwise, and at all times thereafter, of all of the Secured Credit
Obligations. Without limiting the foregoing, the Secured Credit Obligations guaranteed hereby
include all fees, costs and expenses (including attorneys’ fees and expenses) incurred by
Administrative Agent, the Collateral Agent or any Lender in attempting to collect any amount due
under this Guaranty or in prosecuting any action against Borrower, Guarantor or any other guarantor
of all or part of the Secured Credit Obligations and all interest, fees, reasonable out-of-pocket
costs and expenses owing to Administrative Agent, the Collateral Agent or any Lender after the
commencement of bankruptcy proceedings with respect to Borrower, Guarantor or any other guarantor
of all or part of the Secured Credit Obligations (whether or not the same may be collected while
such proceedings are pending).




          Guarantor hereby agrees that this Guaranty is a present and continuing guaranty of payment and
not of collection and that its obligations hereunder shall be unconditional, irrespective of (i)
the validity or enforceability of the Secured Credit Obligations or any part thereof, or of any of
the Financing Documents, (ii) the waiver or consent by Administrative Agent, the Collateral Agent
or any Lender with respect to any provision of any Financing Document, or any amendment,
modification or other change with respect to any Financing Document, (iii) any merger or
consolidation of Borrower, Guarantor or any other guarantor of all or part of the Secured Credit
Obligations into or with any Person or any change in the ownership of the equity of Borrower,
Guarantor or any other guarantor of all or part of the Secured Credit Obligations, (iv) any
dissolution of Guarantor or any insolvency, bankruptcy, liquidation, reorganization or similar
proceedings with respect to Borrower, Guarantor or any other guarantor of all or part of the
Secured Credit Obligations, (v) any action or inaction on the part of Administrative Agent, the
Collateral Agent or any Lender, including without limitation the absence of any attempt to collect
the Secured Credit Obligations from Borrower, Guarantor or any other guarantor of all or part of
the Secured Credit Obligations or other action to enforce the same or the failure by
Administrative Agent or the Collateral Agent to take any steps to perfect and maintain its Lien on,
or to preserve its rights to, any security or collateral for the Secured Credit Obligations, (vi)
Administrative Agent’s election, in any proceeding instituted under Chapter 11 of Title 11 of the
United States Code (11 U.S.C. Section 101 et seq.), as amended (the “Bankruptcy Code”) of the
application of Section 1111(b)(2) of the Bankruptcy Code, (vii) any borrowing or grant of a Lien by
Borrower, Guarantor or any other guarantor of all or part of the Secured Credit Obligations, as
debtor-in-possession, under Section 364 of the Bankruptcy Code, (viii) the disallowance, under
Section 502 of the Bankruptcy Code, of all or any portion of Administrative Agent’s, the
Collateral Agent’s or any Lender’s claims for repayment of the Secured Credit Obligations, (ix)
Administrative Agent’s, Collateral Agent’s or any Lender’s inability to enforce the Secured Credit
Obligations of Borrower as a result of the automatic stay provisions under Section 362 of the
Bankruptcy Code, (x) the discharge or release by Administrative Agent,




 









 







Collateral Agent and/or
Lenders of Guarantor’s obligations and liabilities under this Guaranty or (xi) any other
circumstance which might otherwise constitute a legal or equitable discharge or defense of
Borrower, Guarantor or any other guarantor of all or part of the Secured Credit Obligations.




          Notwithstanding any provision of this Guaranty to the contrary, it is intended that this
Guaranty, and any Liens granted by Guarantor to secure the obligations and liabilities arising
pursuant to this Guaranty, not constitute a “Fraudulent Conveyance” (as defined below).
Consequently, Guarantor agrees that if this Guaranty, or any Liens securing the obligations and
liabilities arising pursuant to this Guaranty, would, but for the application of this sentence,
constitute a Fraudulent Conveyance, this Guaranty and each such Lien shall be valid and enforceable
only to the maximum extent that would not cause this Guaranty or such Lien to constitute a
Fraudulent Conveyance, and this Guaranty shall automatically be deemed to have been amended
accordingly at all relevant times. For purposes hereof, “Fraudulent Conveyance” means a fraudulent
conveyance or fraudulent transfer under Section 548 of the Bankruptcy Code or a fraudulent
conveyance or fraudulent transfer under the provisions of any applicable fraudulent conveyance or
fraudulent transfer law or similar law of any state, nation or other governmental unit, as in
effect from time to time.




          No payment made by or for the account or benefit of Guarantor (including, without limitation,
(i) a payment made by Borrower in respect of the Secured Credit Obligations, (ii) a payment made by
any Person under any other guaranty of the Secured Credit Obligations or (iii) a payment made by
means of set-off or other application of funds by Administrative Agent or any Lender) pursuant to
this Guaranty shall entitle Guarantor, by subrogation or otherwise, to any payment by Borrower or
from or out of any property of Borrower, and Guarantor shall not exercise any right or remedy
against Borrower or any property of Borrower including, without limitation, any right of
contribution or reimbursement by reason of any performance by any Person under this Guaranty, until
the Secured Credit Obligations have been indefeasibly paid in full and the Credit Agreement has
been terminated.




          Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of any bankruptcy proceeding (or other insolvency proceeding) of Borrower,
protest or notice with respect to the Secured Credit Obligations and all demands whatsoever, and
covenants that this Guaranty will not be discharged, except by complete and irrevocable payment and
performance of the obligations and liabilities (other than contingent liabilities) contained
herein. No notice to Guarantor or any other party shall be required for Administrative Agent, on
behalf of Administrative Agent or any Lender, to make demand hereunder. Such demand shall
constitute a mature and liquidated claim against Guarantor. Upon the occurrence and during the
continuance of any Event of Default, Administrative Agent or Collateral Agent may, at its sole
election, proceed directly and at once, without notice, against Guarantor to collect and recover
the full amount or any portion of the Secured Credit Obligations, without first proceeding against
Borrower, any other Person or any security or collateral for the Secured Credit Obligations.
Administrative Agent and Collateral Agent shall have the exclusive right to determine the
application of payments and credits, if any, from Guarantor, Borrower, any other Person, or any
security or collateral for the Secured Credit Obligations, on account of the Secured Credit
Obligations or of any other liability of Guarantor to Administrative Agent, Collateral Agent and
Lenders arising hereunder.




          Administrative Agent, Collateral Agent and Lenders are hereby authorized, without notice or
demand to Guarantor and without affecting or impairing the liability of Guarantor hereunder, to,
from time to time, (i) renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to, the Secured Credit Obligations or otherwise modify, amend or change the
terms of any Financing Document, (ii) accept partial payments on the Secured Credit Obligations,
(iii) take and hold collateral for the payment of the Secured Credit Obligations, or for the
payment of this Guaranty, or for the payment of any other guaranties of the Secured Credit
Obligations or other liabilities of Borrower, and exchange, enforce, waive and release any such
collateral, (iv) apply such collateral and direct the order or manner of sale thereof as in
their sole discretion they may determine and (v) settle, release, compromise, collect or otherwise
liquidate the Secured Credit Obligations and any collateral therefor in any manner.




-2-









 








          At any time after maturity of the Secured Credit Obligations, Administrative Agent, Collateral
Agent and Lenders may, in their sole discretion, with reasonable prompt subsequent notice to
Guarantor and regardless of the acceptance of any collateral for the payment hereof, appropriate
and apply toward payment of the Secured Credit Obligations (i) any indebtedness due or to become
due from Administrative Agent, Collateral Agent or any Lender to Guarantor and (ii) any moneys,
credits or other property belonging to Guarantor at any time held by or coming into the possession
of Administrative Agent, Collateral Agent or any Lender or any Affiliates thereof, whether for
deposit or otherwise; except that no Lender shall exercise any such right without the prior written
consent of Administrative Agent.




          Guarantor hereby assumes responsibility for keeping itself informed of the financial condition
of Borrower, and any and all endorsers and other guarantors of all or any part of the Secured
Credit Obligations and of all other circumstances bearing upon the risk of nonpayment of the
Secured Credit Obligations or any part thereof that diligent inquiry would reveal, and Guarantor
hereby agrees that neither Administrative Agent, Collateral Agent nor any Lender shall have any
duty to advise Guarantor of information known to such Administrative Agent, Collateral Agent or
Lender regarding such condition or any such circumstances. Guarantor hereby acknowledges
familiarity with Borrower’s financial condition and that it has not relied on any statements by
Administrative Agent, Collateral Agent or any Lender in obtaining such information. In the event
Administrative Agent, Collateral Agent or any Lender, in its sole discretion, undertakes at any
time or from time to time to provide any such information to Guarantor, neither Administrative
Agent, Collateral Agent nor any Lender shall be under any obligation (i) to undertake any
investigation with respect thereto, (ii) to disclose any information which, pursuant to accepted or
reasonable commercial finance practices, Administrative Agent, Collateral Agent or such Lender
wishes to maintain confidential or (iii) to make any other or future disclosures of such
information, or any other information, to Guarantor.




          Guarantor consents and agrees that neither Administrative Agent, Collateral Agent nor any
Lender shall be under any obligation to marshal any assets in favor of Guarantor or against or in
payment of any or all of the Secured Credit Obligations. Guarantor further agrees that, to the
extent that Borrower makes a payment or payments to Administrative Agent, Collateral Agent or any
Lender, or Administrative Agent, Collateral Agent or any Lender receives any proceeds of
Collateral, which payment or payments or any part thereof are subsequently invalidated, declared to
be fraudulent or preferential, set aside or required to be repaid to Borrower, its estate, trustee,
receiver or any other party, including without limitation Guarantor, under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such payment or
repayment, the Secured Credit Obligations or the part thereof which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and effect as of the date
such initial payment, reduction or satisfaction occurred, and this Guaranty shall continue to be in
existence and in full force and effect, irrespective of whether any evidence of indebtedness has
been surrendered or cancelled.




          Guarantor also waives all set-offs and counterclaims and all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty. Guarantor further waives all notices of the existence,
creation or incurring of new or additional indebtedness, arising either from additional loans
extended to Borrower or otherwise, and also waives all notices that the principal amount, or any
portion thereof, or any interest under or on any Financing Document is due, notices of any and all
proceedings to collect from the maker, any endorser or any other guarantor of all or any part of
the Secured Credit Obligations, or from anyone else, and, to the extent permitted by law, notices
of exchange, sale, surrender or other handling of any security or collateral given to
Administrative Agent or Collateral Agent to secure payment of the Secured Credit Obligations.




III. MISCELLANEOUS




          Guarantor hereby represents and warrants to Administrative Agent, Collateral Agent and Lenders
that (i) it is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) the execution, delivery and performance by Guarantor of this
Guaranty and the other Financing




-3-









 







Documents to which it is a party are within its powers, have been
duly authorized by all necessary action pursuant to its Organizational Documents, require no
further action by or in respect of, or filing with, any governmental body, agency or official and
do not violate, conflict with or cause a breach or a default under (A) any provision of applicable
law or regulation, (B) any of its Organizational Documents or (C) any agreement, judgment,
injunction, order, decree or other instrument binding upon it except for such violations,
conflicts, breaches, or defaults as could not, with respect to clauses (A) and (C), reasonably be
expected to have a Material Adverse Effect and (iii) this Guaranty, and each other Financing
Document to which it is a party, constitutes a valid and binding agreement or instrument of
Guarantor, enforceable against Guarantor in accordance with its respective terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to
the enforcement of creditors’ rights generally and by general equitable principles. In addition to
and without limitation of the foregoing, Guarantor hereby confirms that it has reviewed the
representations and warranties contained in Article V of the Credit Agreement and agrees that such
representations and warranties shall be deemed to have been made by Guarantor herein and shall be
fully incorporated in this Guaranty by reference thereto (provided, that Guarantor shall only be
deemed to have made such representations and warranties with respect to itself and its
Subsidiaries).




          No delay on the part of Administrative Agent or Collateral Agent in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise by Administrative
Agent or Collateral Agent of any right or remedy shall preclude any further exercise thereof; nor
shall any modification or waiver of any of the provisions of this Guaranty be binding upon
Administrative Agent, Collateral Agent or Lenders, except as expressly set forth in a writing duly
signed and delivered on Administrative Agent’s and Collateral Agent’s behalf by an authorized
officer or agent thereof. Administrative Agent’s, Collateral Agent’s or any Lender’s failure at
any time or times hereafter to require strict performance by Borrower or Guarantor of any of the
provisions, warranties, terms and conditions contained in this Guaranty shall not waive, affect or
diminish any right of Administrative Agent, Collateral Agent and Lenders at any time or times
hereafter to demand strict performance thereof and such right shall not be deemed to have been
waived by any act or knowledge of Administrative Agent, Collateral Agent or any Lender, or its
respective agents, officers or employees, unless such waiver is contained in an instrument in
writing signed by an officer or agent of Administrative Agent or Collateral Agent, as applicable,
and directed to Borrower or Guarantor, as applicable, specifying such waiver. No failure or delay
by Administrative Agent, Collateral Agent or any Lender in exercising any right, power or privilege
under this Guaranty shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law. The obligations of Guarantor under this Guaranty are secured
by, among other things, that certain Security Agreement of even date herewith among Guarantor,
Borrower, Collateral Agent and Administrative Agent.




          This Guaranty shall be binding upon Guarantor and their respective successors and assigns and
shall inure to the benefit of Administrative Agent, Collateral Agent and Lenders and their
respective successors and assigns, except that Guarantor may not assign its obligations hereunder
without the written consent of Administrative Agent and the Collateral Agent. All notices,
approvals, requests, demands and other communications hereunder shall be given in accordance with
the notice provision of the Credit Agreement; provided, that such notices shall be given to
Guarantor at its address or facsimile number set forth on the signature pages hereof.




          THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. GUARANTOR HEREBY
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE
CITY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO ADMINISTRATIVE OR
COLLATERAL AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY
SHALL BE LITIGATED IN SUCH COURTS. GUARANTOR EXPRESSLY





-4-









 







SUBMITS AND CONSENTS TO THE JURISDICTION OF
THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. GUARANTOR HEREBY WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE
UPON GUARANTOR BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO GUARANTOR IN
ACCORDANCE WITH THE NOTICE PROVISIONS HEREOF AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS
AFTER THE SAME HAS BEEN POSTED.




          EACH OF GUARANTOR, ADMINISTRATIVE AGENT AND COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.




          This Guaranty may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument.




          In addition to and without limitation of any of the foregoing, this Guaranty shall be deemed
to be a Loan Document and shall otherwise be subject to all of general terms and conditions
contained in Articles IX and X of the Credit Agreement, mutatis mutandi.




[Signature page follows]





-5-









 









     IN WITNESS WHEREOF, this Guaranty has been duly executed by Guarantor this ___day of January
___, 2006.



	 	 	 	 	 	 	 
	 	 	GUARANTOR:	 	 
	 
	 	 	 	 	 	 
	 	 	ORBIMAGE SI HOLDCO INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Facsimile:	 	 
	 

	 	 	 	 

	 	 






Signature Page to Guaranty




 









 








	 	 	 	 	 	 	 
	 	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Signature Page to Guaranty




 









 








	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK,

as Collateral Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its	 	 	 	 
	 

	 	 	 	 	 	 





Signature Page to Guaranty





 










 






EXHIBIT G-2




This instrument was prepared

outside of the State of

Colorado by and after

recording should be

returned to:




                                        




                    County, Colorado




 







DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF

LEASES AND RENTS, FINANCING STATEMENT AND

FIXTURE FILING



BY



 





Trustor,



TO


THE PUBLIC TRUSTEE OF ADAMS COUNTY COLORADO,

the Trustee,


for the benefit of


THE BANK OF NEW YORK

as Collateral Agent and Beneficiary


Property:


12121 Grant Street, Suite 750, Thornton, Adams County, Colorado


DATED: As of                                         , 20                    




 







 









 








EXHIBIT G-2




DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF

LEASES AND RENTS, FINANCING STATEMENT AND FIXTURE FILING




          THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS, FINANCING STATEMENT
AND FIXTURE FILING (“Deed of Trust”) is made as of                                         , 20                    , by ORBIMAGE SI
Opco, Inc., a Delaware corporation, as trustor (“Trustor”), with its principal office at
21700 Atlantic Boulevard, Dulles, Virginia 20166, in favor of THE PUBLIC TRUSTEE OF ADAMS COUNTY,
COLORADO, as trustee (together with its successor and assigns, “Trustee”), having an office
at                                                             , for the benefit of THE BANK OF NEW YORK with an office at 101
Barclay Street, New York, New York 10286, in its capacity as collateral agent for the Lenders as
hereinafter defined (together with any successors or assigns in such capacity, the “Agent”
or “Beneficiary”).




I.



RECITALS




          WHEREAS, Trustor is the owner and holder of fee simple title in and to all of the real estate
located in the County of                     and State of Colorado (the “State”), and more fully
described in Exhibit A attached hereto (the “Premises”), which Premises forms a
portion of the Property (as hereinafter defined);




          WHEREAS, on January 10, 2006, Trustor entered into that certain Credit Agreement by and among
each of the financial institutions named therein (the “Lenders”), the Agent, Credit Suisse,
Cayman Islands Branch, as Administrative Agent, ORBIMAGE SI Holdco, Inc., a Delaware corporation
and Trustor as “Loan Parties” (as the same may be amended, modified or otherwise supplemented and
in effect from time to time, hereinafter the “Credit Agreement”), under which the Lenders
agreed to make available to Trustor certain loans in the form of a term loan to Trustor in the
aggregate principal amount of Sixty Five Million Dollars ($65,000,000.00);




          WHEREAS, Trustor wishes to provide further assurance and security to the Agent and the
Lenders, and pursuant to the Credit Agreement the Agent and the Lenders are requiring that Trustor
grant to the Agent, on behalf of the Lenders, a security interest in and a first mortgage lien upon
the Property, subject to Permitted Liens (as such term is defined in the Credit Agreement), to
secure all of Trustor’s obligations under the Credit Agreement, this Deed of Trust and the Loan
Documents (as such term is defined in the Credit Agreement). All capitalized terms used herein but
not defined herein shall have the meanings ascribed to them in the Credit Agreement.




II.



THE GRANT




          NOW, THEREFORE, in order to secure the payment of the obligations of Trustor under the Credit
Agreement, this Deed of Trust and the other Loan Documents that may now or hereafter become owing
from Trustor to Beneficiary and the Lenders (the “Secured Indebtedness”), and in
consideration of Ten and No/100 Dollars ($10.00) in hand paid by Beneficiary to Trustor, the
Recitals above stated, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Trustor hereby irrevocably grants, bargains, sells, releases,
conveys, warrants, assigns, transfers, mortgages, deeds, pledges, hypothecates, sets over and
confirms unto Trustee, IN TRUST WITH POWER OF SALE AND RIGHT OF ENTRY AND POSSESSION for the
benefit and security of Beneficiary and its successors and assigns (for the benefit of the Lenders)
forever TO HAVE AND TO HOLD the Property with all privileges




2









 







and appurtenances thereunto belonging to Trustee and Trustor does hereby bind itself, its
successors and assigns to WARRANT AND FOREVER DEFEND the title to the Property unto Trustee and
Beneficiary forever.




          The “Property” shall mean and include Trustor’s estate, right, claim and interest in
and to the Premises, together with all of Trustor’s estate, right, claim and interest in and to the
following described property, all of which other property is pledged primarily on a parity with the
Premises and not secondarily:





     (a) all buildings, structures and other improvements of every kind and
description now or hereafter erected, situated, or placed upon the Premises (the
“Improvements”), together with any and all personal property now or hereafter owned
by Trustor and located in or on, forming part of, attached to, used or intended to be used
in connection with, or incorporated in any such Improvements, including all extensions of,
additions to, betterments, renewals of, substitutions for and replacements for any of the
foregoing;




     (b) all claims, demands, rights, title and interest of Trustor now owned or
hereafter acquired, including without limitation, any after-acquired title, franchise,
license, remainder or reversion, in and to any and all (i) land or vaults lying within the
right-of-way of any street, avenue, way, passage, highway, or alley, open or proposed,
vacated or otherwise, adjoining the Premises; (ii) alleys, sidewalks, streets, avenues,
strips and gores of land belonging, adjacent or pertaining to the Premises or the
Improvements; (iii) storm and sanitary sewer, water, gas, electric, railway and telephone
services relating to the Premises and the Improvements; (iv) development rights, air rights,
water, water rights, water stock, gas, oil, minerals, coal and other substances of any kind
or character underlying or relating to the Premises or any part thereof; and (v) tenements,
hereditaments, easements, appurtenances, other rights, liberties, reservations, allowances
and privileges relating to the Premises or the Improvements or in any way now or hereafter
appertaining thereto, including homestead and any other claims at law or in equity;




     (c) all right, title and interest of Trustor in any and all leases,
subleases, management agreements, arrangements, concessions or agreements, written or oral,
relating to the use and occupancy of the Premises or the Improvements or any portion
thereof, now or hereafter existing or entered into (collectively “Leases”);




     (d) all rents, issues, profits, royalties, revenue, advantages, income,
avails, claims against guarantors, all cash or security deposits, advance rentals, deposits
or payments given and other benefits now or hereafter derived directly or indirectly from
the Premises and Improvements under the Leases or otherwise (collectively “Rents”),
subject to the right, power and authority granted to Beneficiary pursuant to Section 3.8
hereof;




     (e) all right, title and interest of Trustor in and to all options to
purchase or lease the Premises or the Improvements or any portion thereof or interest
therein, or any other rights, interests or greater estates in the rights and properties
comprising the Property now owned or hereafter acquired by Trustor;




     (f) any interests, estates or other claims of every name, kind or nature,
both in law and in equity, which Trustor now has or may acquire in the Premises and
Improvements or other rights, interests or properties comprising the Property now owned or
hereafter acquired;



3









 






     (g) all rights of Trustor to any and all plans and specifications, designs,
drawings and other matters prepared for any construction on the Premises or regarding the
Improvements;




     (h) all rights of Trustor under any contracts executed by Trustor with any
provider of goods or services for or in connection with any construction undertaken on or
services performed or to be performed in connection with the Premises or the Improvements;




     (i) all right, title and interest of Trustor in and to all tangible personal
property (“Personal Property”) now or hereafter owned by Trustor and located in, on
or at the Premises or the Improvements and used or useful in connection therewith,
including, without limitation:




     (i) all building materials and equipment located upon the Premises and intended
for construction, reconstruction, alteration, repair or incorporation in or to the
Improvements now or hereafter to be constructed thereon, whether or not yet
incorporated in such Improvements (all of which shall be deemed to be included in
the Property upon delivery thereto);




     (ii) all machines, machinery, fixtures, apparatus, equipment or articles used
in supplying heating, gas, electricity, air-conditioning, water, light, power,
plumbing, sprinkler, waste removal, refrigeration, ventilation, and all fire
sprinklers, alarm systems, protection, electronic monitoring equipment and devices;




     (iii) all window, structural, maintenance and cleaning equipment and rigs; and




     (iv) all Fixtures now or hereafter owned by Trustor and attached to or
contained in and used or useful in connection with the Premises or the Improvements;
and




     (j) all the estate, interest, right, title or other claim or demand which the
Trustor now has or may hereafter have or acquire with respect to (i) proceeds of insurance
in effect with respect to the Property and (ii) any and all awards, claims for damages,
judgments, settlements and other compensation made for or consequent upon the taking by
condemnation, eminent domain or any like proceeding, or by any proceeding or purchase in
lieu thereof, of the whole or any part of the Property, including, without limitation, any
awards and compensation resulting from a change of grade of streets and awards and
compensation for severance damages (collectively “Awards”).



          The Trustor hereby covenants with the Trustee and the Beneficiary: (i) that at the execution
and delivery hereof, Trustor owns the Property and has good, indefeasible estate therein, in fee
simple; (ii) that the Property is free from all encumbrances and exceptions to title (and any claim
of any other person) other than Permitted Liens, (iii) that it has good and lawful right to sell,
mortgage and convey the Property; and (iv) that Trustor and its successors and assigns shall
forever warrant and defend the Property against all claims and demands whatsoever.




III.



GENERAL AGREEMENTS




     3.1 Payment of Indebtedness. Trustor shall pay promptly and when due all
amounts owing by Trustor in respect of the Secured Indebtedness at the times and in the manner
provided in the Credit Agreement, the Notes evidencing the loans, this Deed of Trust, or any of the
other Loan Documents. The



4









 




loans which are the subject of the Credit Agreement bear interest at variable rates as
provided in the Credit Agreement, and the latest final maturity date of such loans is July 1, 2008.




     3.2 Impositions. Except as otherwise permitted under the Credit Agreement,
Trustor shall pay prior to delinquency all general taxes, special taxes, special assessments, water
charges, sewer charges, and any other charges, fees, taxes, claims, levies, expenses, liens and
assessments, ordinary or extraordinary, governmental or nongovernmental, statutory or otherwise
(all of the foregoing being herein collectively referred to as “Impositions”), that may be
asserted against the Property or any part thereof or Trustor’s interest therein.



     3.3 Payment of Impositions by Beneficiary. Upon the occurrence and during
the continuance of an Event of Default (as hereinafter defined), Beneficiary is hereby authorized
to make or advance, in the place and stead of Trustor, any payment relating to Impositions.
Beneficiary may do so according to any bill, statement, or estimate procured from the appropriate
public office without inquiry into the accuracy or the validity of any Impositions, lien, sale,
forfeiture, or related title or claim. Beneficiary is further authorized to make or advance, in
place of Trustor, unless such matter is being properly contested by Trustor in accordance with the
Credit Agreement, any payment relating to any apparent or threatened adverse title, lien, statement
of lien, encumbrance, claim, charge, or payment otherwise relating to any other purpose herein and
hereby authorized, but not enumerated in this Section 3.3, whenever, in Beneficiary’s judgment and
discretion, such advance is necessary to protect the full security intended to be created by this
Deed of Trust. All such advances and indebtedness authorized by this Section 3.3 shall constitute
Secured Indebtedness and shall be repayable by Trustor promptly upon demand.



     3.4 Intentionally Omitted .



     3.5 Intentionally Omitted.



     3.6 Intentionally Omitted.



     3.7  Prohibited Liens; Prohibited Transfers.




     (a) Except as otherwise permitted in the Credit Agreement, Trustor shall not
create, suffer, or permit to be created or filed against the Property any Lien superior or
inferior to the lien created by this Deed of Trust.




     (b) Except as otherwise provided in the Credit Agreement, Trustor may not
sell, lease or convey all or any part of the Property or any interest therein.



     3.8 Assignment of Leases and Rents.




     (a) All right, title, and interest of Trustor in and to all Leases and Rents
are hereby transferred and assigned simultaneously herewith to Beneficiary. Although it is
the intention of the parties that the assignment contained in this paragraph shall be a
present assignment, it is expressly understood and agreed, anything to the contrary
notwithstanding, that Beneficiary shall not exercise any of the rights or powers conferred
upon it by this paragraph until an Event of Default shall exist and be continuing under this
Deed of Trust.



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     (b) Following the occurrence of an Event of Default and during the
continuance thereof, (a) Beneficiary shall have the rights and powers as are provided
herein, (b) this Deed of Trust shall constitute a direction to each lessee under the Leases
and each guarantor thereof to pay all Rents directly to Beneficiary without proof of the
Event of Default, and (c) Beneficiary shall have the authority, as Trustor’s
attorney-in-fact (such authority being coupled with an interest and irrevocable), to sign
the name of Trustor and to bind Trustor on all papers and documents relating to the
operation, leasing and maintenance of the Property.



     3.9 Uniform Commercial Code.




     (a) This Deed of Trust constitutes a Security Agreement as that term is used
in the Uniform Commercial Code in the State (the “Code”) with respect to any part of
the Property which may or might now or hereafter be or be deemed to be personal property,
fixtures or property other than real estate (including all replacements thereof, additions
thereto and substitutions therefor) (collectively, the “Personal Property
Collateral”). All of Trustor’s right, title and interest in the Personal Property
Collateral is hereby assigned to Beneficiary to secure the payment of the Secured
Indebtedness.




     (b) At any time after an Event of Default has occurred and shall be
continuing, Beneficiary shall have the remedies of a secured party under the Code, including
without limitation, the right to take immediate and exclusive possession of the Personal
Property Collateral or any part thereof. The remedies of Beneficiary hereunder are
cumulative and the exercise of any one or more of the remedies provided for herein or under
the Code shall not be construed as a waiver of any of the other remedies of the Beneficiary,
including having the Personal Property Collateral deemed part of the realty upon any
foreclosure so long as any part of the Secured Indebtedness remains unsatisfied.




     (c) This Deed of Trust is intended to be a “fixture filing” for purposes of
the Code with respect to the items of Property which are or may become fixtures relating to
the Premises upon recording of this Deed of Trust in the real estate records of the proper
office. The addresses of Trustor (Debtor) and Beneficiary (Secured Party) are set forth in
Section 6.2 hereof.




     (d) Trustor shall record or cause to be recorded in the County in which the
Premises are located, as well as with the applicable offices of the State, such financing
statements and fixture filings and any and all continuation statements or other documents or
instruments as shall be necessary in order to perfect and preserve the priority of
Beneficiary’s lien upon the Personal Property Collateral.



     3.10 Releases. Without notice and without regard to the consideration
therefor, and to the existence at that time of any inferior liens, Beneficiary may release from the
lien created hereby all or any part of the Property, or release from liability any person obligated
to repay any of the Obligations, without affecting the liability of any party to any of the Notes,
this Deed of Trust, or any of the other Loan Documents (including without limitation any guaranty
given as additional security) and without in any way affecting the priority of the lien created
hereby. Beneficiary may agree with any liable party to extend the time for payment of any part or
all of the Obligations. Such agreement shall not in any way release or impair the lien created by
this Deed of Trust or reduce or modify the liability of any person or entity obligated personally
to repay the Obligations, but shall extend the lien created by this Deed of Trust as against the
title of all parties having any interest in the Property.



6









 





     3.11 Further Assurances. Trustor agrees that, upon the request of
Beneficiary from time to time, it will, at Trustor’s sole cost and expense, execute, acknowledge
and deliver all such additional instruments and further assurances of title and will do or cause to
be done all such further acts and things as may reasonably be necessary to fully effectuate the
intent of this Deed of Trust. In the event that Trustor shall fail to do any of the foregoing,
Beneficiary may, in its sole discretion, do so in the name of Trustor, and Trustor hereby appoints
Beneficiary as its attorney-in-fact to do any of the foregoing.



IV.



EVENT OF DEFAULT AND REMEDIES




     4.1 Event of Default. The occurrence of an “Event of Default,” as such term
is defined in the Credit Agreement, shall constitute an “Event of Default” under this Deed of
Trust.



     4.2 Foreclosure and Sale. Upon the occurrence and during the continuance of
a Default or Event of Default, Beneficiary may foreclose this Deed of Trust, either by judicial
action or through Trustee. If this Deed of Trust encumbers more than one parcel of real estate,
foreclosure may be by separate parcel or en masse, as Beneficiary may elect in its sole discretion.
Foreclosure through Trustee will be initiated by Beneficiary’s filing of its notice of election and
demand for sale with Trustee. Upon the filing of such notice of election and demand for sale,
Trustee shall promptly comply with all notice and other requirements of the laws of Colorado then
in force with respect to such sales, and shall give four weeks’ public notice of the time and place
of such sale by advertisement weekly in some newspaper of general circulation then published in the
County or City and County in which the Property is located. Any sale conducted by Trustee pursuant
to this Section shall be held at the front door of the county courthouse for such County or City
and County, or on the Property, or at such other place as similar sales are then customarily held
in such County or City and County, provided that the actual place of sale shall be specified in the
notice of sale. All fees, costs and expenses of any kind incurred by Beneficiary in connection with
foreclosure of this Deed of Trust, including, without limitation, the costs of any appraisals of
the Property obtained by Beneficiary, all costs of any receivership for the Property advanced by
Beneficiary, all costs of any environmental audits or tests incurred by Beneficiary and all
attorneys’ and consultants’ fees incurred by Beneficiary, shall constitute a part of the Secured
Indebtedness and may be included as part of the amount owing from Trustor to Beneficiary at any
foreclosure sale. The proceeds of any sale under this Section shall be applied first to the fees
and expenses of the Trustee or other officer conducting the sale (all of which shall be part of the
obligations secured by this Deed of Trust), and then to the reduction or discharge of the Secured
Indebtedness in accordance with the Credit Agreement; any surplus remaining shall be paid over to
Trustor or to such other person or persons as may be lawfully entitled to such surplus.
Beneficiary may bid at any such foreclosure sale, and in connection therewith Beneficiary may
credit bid all or any portion of the Secured Indebtedness (including, without limitation, the
Trustee’s fees and expenses, Beneficiary’s attorneys’ and appraisal fees, and all other expenses
incurred by Beneficiary in undertaking the foreclosure). At the conclusion of any foreclosure
sale, the officer conducting the sale shall execute and deliver to the purchaser at the sale a
certificate of purchase which shall describe the Property sold to such purchaser and shall state
that upon the expiration of the applicable periods for redemption, the holder of such certificate
will be entitled to a deed to the Property described in the certificate. After the expiration of
all applicable periods of redemption, unless the Property sold has been redeemed by Trustor, the
officer who conducted such sale shall, upon request, execute and deliver an appropriate deed to the
holder of the certificate of purchase or the last certificate of redemption, as the case may be,
and such deed shall operate to divest Trustor and all persons claiming under Trustor of all right,
title, and interest, whether legal or equitable, in the Property described in the deed. Nothing in
this Section or elsewhere in this Deed of Trust dealing with foreclosure procedures or specifying
particular actions to be taken by Beneficiary or by Trustee or any similar officer shall be deemed
to contradict or add to the



7









 




requirements and procedures now or hereafter specified by Colorado law, and any such
inconsistency shall be resolved in favor of Colorado law applicable at the time of foreclosure.




     4.3 Remedies Cumulative and Non-Waiver. No remedy or right of Beneficiary
hereunder or under the Credit Agreement, or any of the Loan Documents or otherwise, or available
under applicable law, shall be exclusive of any other right or remedy. Each such remedy or right
shall be in addition to every other remedy or right now or hereafter existing under any such
document or under applicable law. No delay in the exercise of, or omission to exercise, any remedy
or right accruing on the occurrence of any Event of Default shall impair any such remedy or right
or be construed to be a waiver of any such Event of Default or an acquiescence therein, nor shall
it affect any subsequent Event of Default of the same or a different nature, nor shall it extend or
affect any grace period. Every remedy or right may be exercised concurrently or independently,
when and as often as may be deemed expedient by the Beneficiary. All obligations of the Trustor,
and all rights, powers and remedies of the Beneficiary shall be in addition to, and not in
limitation of, those provided by law or in the Credit Agreement or contained in any of the Loan
Documents or any other written agreement or instrument relating to any of the Secured Indebtedness
or any security therefor.



     4.4 Beneficiary’s Performance of Trustor’s Obligations. Following the
occurrence of an Event of Default and during the continuance thereof, Beneficiary, either before or
after acceleration of the Secured Indebtedness or the foreclosure of the lien hereof and during the
period of redemption, if any, may, but shall not be required to (a) make any payment or perform any
act herein, in the Notes or any other Loan Document which is required of Trustor (whether or not
Trustor is personally liable therefor) in any form and manner deemed expedient to Beneficiary; (b)
make full or partial payments of principal or interest on any permitted prior mortgage or
encumbrance and purchase, discharge, compromise or settle any tax lien or other prior lien on title
or claim thereof, or redeem from any tax sale or forfeiture affecting the Premises, or contest any
Impositions; and (c) complete construction, furnishing and equipping of the Improvements upon the
Premises and rent, operate and manage the Premises and such Improvements and pay operating costs
and expenses, including management fees, of every kind and nature in connection therewith, so that
the Premises and Improvements shall be operational and usable for their intended purposes. All
monies paid for any of the purposes herein authorized, and all expenses paid or incurred in
connection therewith, including reasonable attorneys’ fees, shall constitute Secured Indebtedness,
and shall become due and payable upon demand and with interest thereon at the Default Rate.
Beneficiary, in making any payment hereby authorized: (x) for the payment of Impositions, may do so
according to any bill or statement, without inquiry into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof; (y) for the purchase, discharge, compromise or
settlement of any other prior lien, may do so without inquiry as to the validity or amount of any
claim or lien which may be asserted; or (z) for the completion of construction, furnishing or
equipping of the Improvements or the Premises or the rental, operation or management of the
Premises or the payment of operating cost and expenses thereof, may do so in such amounts and to
such persons as Beneficiary may deem appropriate and may enter into such contracts therefor as
Beneficiary may deem appropriate or may perform the same itself.



     4.5 Right of Possession. Following the occurrence of an Event of Default
and during the continuance thereof, Trustor shall, immediately upon Beneficiary’s demand, surrender
to Beneficiary, and Beneficiary shall be entitled to take actual possession of the Property or any
part thereof, personally or by its agent or attorneys. Beneficiary may enter upon and take and
maintain possession or may apply to the court in which a foreclosure is pending to be placed in
possession of all or any part of the Property, together with all documents, books, records, papers,
and accounts of Trustor or the then owner of the Property relating thereto. Beneficiary may
exclude Trustor, such owner, and any agents and servants from the Property. As attorney-in-fact or
agent of Trustor or such owner, or in its own name Beneficiary may hold, operate, manage, and
control all or any part of the Property, either personally or by its agents. Beneficiary shall
have



8









 







full power to use such measures, legal or equitable, as it may deem proper or necessary to
enforce the payment or security of the rents, issues, deposits, profits, and avails of the
Property, including actions for recovery of rent, actions in forcible detainer, and actions in
distress for rent, all without notice to Trustor.



     4.6 Application of Income Received by Beneficiary. Beneficiary, in the
exercise of the rights and powers hereinabove conferred upon it, shall have full power to use and
apply the avails, rents, issues and profits of the Property to the payment of or on account of the
following, in such order as Beneficiary may determine: (i) to the payment of the operating
expenses of the Property including cost of management thereof, established claims for damages, if
any, and premiums on insurance hereinabove authorized; (ii) to the payment of taxes and special
assessments now due or which may hereafter become due on the Premises; (iii) to all other items
which may under the terms hereof constitute Secured Indebtedness additional to that evidenced by
the Notes, with interest thereon as provided herein or in the other Loan Documents; and (iv) to all
principal and interest remaining unpaid on the Notes.



     4.7 Intentionally Omitted.



     4.8 Foreclosure by Power of Sale. If Beneficiary elects to foreclose by
exercise of the power of sale contained herein, Beneficiary shall notify Trustee and shall, if
required, deposit with Trustee the Notes, the original or a certified copy of this Deed of Trust,
and such other documents, receipts and evidences of expenditures made and secured hereby as Trustee
may require.




     (a) Upon receipt of such notice from Beneficiary, Trustee shall cause to be
recorded and delivered to Trustor such notice as may then be required by law and by this
Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may
then be required by law and after recordation of such notice of default and after notice of
sale has been given as required by law, sell the Property at the time and place of sale
fixed by it in said notice of sale, either as a whole or in separate lots or parcels or
items as Trustee shall deem expedient, and in such order as it may determine, at public
auction to the highest bidder for cash in lawful money of the United States payable at the
time of sale. Trustee shall deliver to the purchaser or purchasers at such sale its good and
sufficient deed or deeds conveying the property so sold, but without any covenant or
warranty, express or implied. The recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person, including, without limitation,
Trustor, Trustee, Beneficiary or the Lenders, may purchase at such sale, and Trustor hereby
covenants to warrant and defend the title of such purchaser or purchasers.




     (b) Trustee may postpone the sale of all or any portion of the Property by
public announcement at the time and place of the scheduled sale, and from time to time
thereafter may postpone such sale by public announcement at the time fixed by the preceding
postponement or subsequent notice of sale, and without further notice may make such sale at
the time fixed by the last postponement, or may, in its discretion, give a new notice of
sale.




     (c) Trustor hereby expressly waives any right which it may have to direct the
order in which any of the Property shall be sold in the event of any sale or sales pursuant
to this Deed of Trust.



     4.9 Rescission of Notice of Default. Beneficiary (on behalf of the Lenders)
may from time to time rescind any notice of default or notice of sale before any Trustee’s sale as
provided above, by executing and delivering to Trustee a written notice of such rescission, which
such notice, when recorded, shall also



9









 







constitute a cancellation of any prior declaration of default and demand for sale. The
exercise by Beneficiary of such right of rescission shall not constitute a waiver of any breach or
default then existing or subsequently occurring, or impair the right of Beneficiary to execute and
deliver to Trustee, as above provided, other declarations or notices of default to satisfy the
obligations of this Deed of Trust or the obligations secured hereby, nor otherwise affect any
provision, covenant or condition of any Loan Document or any of the rights, obligations or remedies
of Trustee, Beneficiary or the Lenders hereunder or thereunder.



     4.10 Application of Proceeds of Foreclosure Sale. The proceeds of any
foreclosure sale of the Property shall be distributed and applied in the following order of
priority: first, to all costs and expenses incident to the foreclosure proceedings, including all
such items as are mentioned in Section 4.4 hereof; second, to all other items which may under the
terms hereof constitute Secured Indebtedness in accordance with the Credit Agreement.



     4.11 Insurance Upon Foreclosure. In case of an insured loss after
foreclosure proceedings have been instituted, the proceeds of any insurance policy or policies, if
not applied in repairing, restoring, replacing or rebuilding any portion of the Property, shall be
used to pay the amount due in accordance with any decree of foreclosure that may be entered in any
such proceedings, and the balance, if any, shall be paid as the court may direct. In case of the
foreclosure of this Deed of Trust, the court in its judgment may provide that the judgment creditor
may cause a new or additional loss clause to be attached to each of said policies making the loss
thereunder payable to said judgment creditor; and any such foreclosure judgment may further
provide, unless the right of redemption has been waived, that in case of redemption under said
judgment, then, and in every such case, the redemptory may cause the preceding loss clause attached
to each insurance policy to be canceled and a new loss clause to be attached thereto, making the
loss thereunder payable to such redemptory.



     4.12 Waiver of Statutory Rights. Trustor shall not apply for or avail
itself of any appraisement, valuation, redemption, stay, extension, or exemption laws, or any
so-called “moratorium laws,” now existing or hereafter enacted, in order to prevent or hinder the
enforcement or foreclosure of this Deed of Trust, and Trustor hereby waives the benefit of such
laws. Trustor, for itself and all who may claim through or under it, waives any and all rights to
have the Property and estates comprising the Property marshaled upon any foreclosure of the lien of
this Deed of Trust, and agrees that any court having jurisdiction to foreclose such lien may order
the Property sold in its entirety. Trustor further waives any and all rights of redemption from
foreclosure and from sale under any order or decree of foreclosure of the lien created by this Deed
of Trust, for itself and on behalf of: (i) any trust estate of which the Premises are a part; (ii)
all beneficially interested persons; (iii) each and every person acquiring any interest in the
Property or title to the Premises subsequent to the date of this Deed of Trust; and (iv) all other
persons to the extent permitted by the provisions of laws of the State in which the Premises are
located.



     4.13 Effect of Judgment. The obtaining of any judgment by Beneficiary and
any levy of any execution under any judgment upon the Property shall not affect in any manner or to
any extent the Lien of this Deed of Trust upon the Property or any part thereof, or any Liens,
powers, rights and remedies of Beneficiary hereunder, but such Liens, powers, rights and remedies
shall continue unimpaired as before until the judgment or levy is satisfied.



     4.14 Request for Notice. Trustor hereby requests a copy of any notice of
default and requests that any notice of sale hereunder be mailed to Trustor at the address
referenced in Section 6.2 hereof. Otherwise, neither Trustee nor Beneficiary is under any
obligation to notify any person or entity of any action



10









 







or proceeding of any kind in which Trustor, Beneficiary and/or Trustee shall be a party,
unless brought by Trustee, or of any pending sale under any other deed of trust. 



V.



MISCELLANEOUS




     5.1 Trust is Irrevocable. The trust created hereby is irrevocable by the
Trustor.



     5.2 Notices. Any notice or other communication required shall be in writing
addressed to the respective party as set forth below. Notices sent by hand or overnight courier
service, or mailed by certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient), provided, that, in the
case of the Agent or Beneficiary, receipt thereof is confirmed by the Agent or Beneficiary by
telephone or in writing. No notice or communication to the Agent or Beneficiary shall be deemed
received by the Agent or Beneficiary until such notice has been received by a Collateral Agent
Responsible Officer (as defined in the Credit Agreement).



          Notices shall be addressed as follows:




            (i)   If to Trustee:



                                                            

                                                            

                                                            

Attention:                                        

Tel. No.:                                        

Telecopier No.:                                 




            (ii)   If to Trustor:



                                                                                

                                                                                

                                                                                

                                                                                

                                                                                

Attention:                                                            

Tel. No.:                                                            

Telecopier No.:                                                        




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with a copy to:




                                                                                

                                                                                

                                                                                

Attention:                                                             

Tel. No.:                                                             

Telecopier No.:                                                         




            (ii)   If to Agent or Beneficiary:



The Bank of New York



                                                            

                                                            

                                                            

Attention:                                         

Tel. No.:                                         

Telecopier No.:                                    




     5.3 Intentionally Omitted.



     5.4 Covenants Run with Land. All of the covenants of this Deed of Trust
shall run with the land constituting the Premises.



     5.5 GOVERNING LAW. THIS DEED OF TRUST AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCEPT TO THE EXTENT COLORADO LAW NECESSARILY
APPLIES BECAUSE THE PROPERTY IS LOCATED IN COLORADO.



     5.6 Severability. If any provision of this Deed of Trust, or any paragraph,
sentence, clause, phrase, or word, or their application, in any circumstance, is held invalid, the
validity of the remainder of this Deed of Trust shall be construed as if such invalid part were
never included.



     5.7 Non-Waiver. Unless expressly provided in this Deed of Trust to the
contrary, no consent or waiver, express or implied, by any party, to or of any breach or default by
any other party shall be deemed a consent to or waiver of the performance by such defaulting party
of any other obligations or the performance by any other party of the same, or of any other,
obligations.



     5.8 Headings. The headings of sections and paragraphs in this Deed of Trust
are for convenience or reference only and shall not be construed in any way to limit or define the
content, scope, or intent of the provisions.



     5.9 Grammar. As used in this Deed of Trust, the singular shall include the
plural, and masculine, feminine, and neuter pronouns shall be fully interchangeable, where the
context so requires.



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     5.10 Deed in Trust. If title to the Property or any part thereof is now or
hereafter becomes vested in a trustee, any prohibition or restriction against the creation of any
lien on the Property shall be construed as a similar prohibition or restriction against the
creation of any lien on or security interest in the beneficial interest of such trust.



     5.11 Successors and Assigns. This Deed of Trust shall be binding upon
Trustor, its successors, assigns, legal representatives, and all other persons or entities claiming
under or through Trustor. The word “Beneficiary,” when used herein, shall include each of: (i) the
Agent in its capacity as collateral agent for the Lenders; and (ii) the Lenders, together with each
of their successors, assigns and legal representatives.



     5.12 Counterparts. This Deed of Trust may be executed in any number of
separate counterparts, each of which shall collectively and separately constitute one Deed of
Trust.



     5.13 Mortgagee in Possession. Nothing contained in this Deed of Trust shall
be construed as constituting Beneficiary a mortgagee in possession in the absence of the actual
taking of possession of the Property.



     5.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS DEED OF TRUST OR
THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     5.15 No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Deed of Trust. In the event an ambiguity or question of intent or
interpretation arises, this Deed of Trust shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of this Deed of Trust.



     5.16 Reconveyance. If and when Trustor has paid all of the Secured
Indebtedness and has strictly performed and observed all of the agreements, terms, conditions,
provisions and warranties contained herein and in the Credit Agreement and in all of the Loan
Documents and there exist no commitments of the Lenders under the Loan Documents which could give
rise to Secured Indebtedness, Beneficiary, upon the written request of Trustor, will deliver to
Trustee a written request for reconveyance, and will surrender to Trustee for cancellation this
Deed of Trust; however, Beneficiary will have no obligation to deliver the written request until
Beneficiary and the Lenders have been paid by Trustor, in immediately available funds, all escrow,
closing, and recording costs, the costs of preparing and issuing the reconveyance, and any
trustee’s or reconveyance fees. Upon Trustee’s receipt of the written request by Beneficiary and
any other required documents, Trustee will reconvey, without warranty, the Property or that portion
then held. To the extent permitted by law, the reconveyance may describe the grantee as the person
or persons legally entitled and the



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recitals of any matters or facts in any reconveyance will be conclusive proof of the
truthfulness of them. Neither Beneficiary nor Trustee will have any duty to determine the rights of
persons claiming to be rightful grantees of any reconveyance. When the Property has been fully
reconveyed, the last reconveyance will operate as a reassignment of all future Rents of the
Property to the person legally entitled.



     5.17 Compliance with Applicable Law. Anything elsewhere herein contained to
the contrary notwithstanding,




     (a) In the event that any provision in this Deed of Trust shall be
inconsistent with any provision of Colorado law regarding foreclosure (the “Colorado
Foreclosure Law”), the provisions of the Colorado Foreclosure Law shall take precedence
over the provisions of this Deed of Trust, but shall not invalidate or render unenforceable
any other provision of this Deed of Trust that can be construed in a manner consistent with
Colorado Foreclosure Law; and




     (b) If any provision of this Deed of Trust shall grant to Beneficiary
(including Beneficiary acting as a mortgagee-in-possession) or a receiver appointed pursuant
to the provisions of this Deed of Trust, any rights or remedies prior to, upon or following
the occurrence of an Event of Default which are more limited than the rights that would
otherwise be vested in Beneficiary or such receiver under the Colorado Foreclosure Law in
the absence of said provision, Beneficiary and such receiver shall be vested with the rights
granted under the Colorado Foreclosure Law to the full extent permitted by law.



     5.18 Secured Indebtedness to Include Judgments; Other Collateral. The term
“Secured Indebtedness” as defined in this Deed of Trust shall include, without limitation, any
judgment(s) or final decree(s) rendered to collect any money obligations of Trustor to Beneficiary
and/or the Lenders and/or to enforce the performance or collection of all rights, remedies,
obligations, covenants, agreements, conditions, indemnities, representations, warranties, and other
liabilities of the Trustor under this Deed of Trust or any or all of the other Loan Documents. The
obtaining of any judgment by Beneficiary and/or the Lenders (other than a judgment foreclosing this
Deed of Trust) and any levy of any execution under any such judgment upon the Property shall not
affect in any manner or to any extent the lien of this Deed of Trust upon the Property or any part
thereof, or any liens, powers, rights and remedies of Beneficiary and/or the Lenders hereunder, but
such liens, powers, rights and remedies shall continue unimpaired as before until the judgment or
levy is satisfied. Furthermore, Trustor acknowledges and agrees that the Secured Indebtedness is
secured by the Property and various other collateral at the time of execution of this Deed of
Trust. Trustor specifically acknowledges and agrees that the Property, in and of itself, if
foreclosed or realized upon would not be sufficient to satisfy the outstanding amount of the
Secured Indebtedness. Accordingly, Trustor acknowledges that it is in Trustor’s contemplation that
the other collateral pledged to secure the Secured Indebtedness may be pursued by Beneficiary in
separate proceedings in the various states and counties where such collateral may be located and
additionally that Trustor will remain liable for any deficiency judgments in addition to any
amounts Beneficiary and/or the Lenders may realize on sales of other property or any other
collateral given as security for the Secured Indebtedness. Specifically, and without limitation of
the foregoing, it is agreed that it is the intent of the parties hereto that in the event of a
foreclosure of this Deed of Trust, that the Secured Indebtedness shall not be deemed merged into
any judgment of foreclosure, but shall rather remain outstanding to the fullest extent permitted by
applicable law.



     5.19 Survival. Even though the lien of this Deed of Trust shall be released
from the Property subject to Article I, any of the terms and provisions of this Deed of Trust that
are intended to survive shall nevertheless survive the release or satisfaction of this Deed of
Trust whether voluntarily granted by



14









 







Beneficiary or the Lenders, as a result of a judgment upon judicial foreclosure of this Deed
of Trust or in the event a deed in lieu of foreclosure is granted by Trustor to Beneficiary and/or
the Lenders.



     5.20 Agent. The Agent shall have all of the rights, privileges and
immunities granted to the Agent under the Credit Agreement and any of the other Loan Documents (as
defined in the Credit Agreement) to which it is a party, all of which are incorporated herein
mutatis mutandis.



(SIGNATURE PAGE FOLLOWS)




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          IN WITNESS WHEREOF, Trustor has duly signed and delivered this Deed of Trust as of the date
first above written.




     ORMIMAGE SI Opco, Inc.



	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





S-1









 





	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 )	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 )	 SS	 	 	 	 
	COUNTY
OF 

	 	 	 )	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 





          On                     , 20___, before me, the undersigned, a Notary Public in and for said State
personally appeared                                          known to me to be the                                          of
                                        , a                                         , and acknowledged to me that such individual
executed the within instrument on behalf of said corporation.




          WITNESS my hand and official seal.




	 	 	 
	 

	 	 
	 
	 	 
	 
	 

	 	 
	 

	 	Notary Public in and for
	 

	 	said County and State






[SEAL]





S-2









 








EXHIBIT A




LEGAL DESCRIPTION





A-1