EX-10.72






Exhibit 10.72



THIS CREDIT AGREEMENT is dated August 2, 2005



BETWEEN:




	 	(1)	 	WARP TECHNOLOGY HOLDINGS, INC., a Nevada corporation (the Company);






	 	(2)	 	THE SUBSIDIARIES OF THE COMPANY listed in Schedule 1 (Original Parties) as original
guarantors (in this capacity the Original Guarantors);






	 	(3)	 	FORTRESS CREDIT CORP. as original lender (in this capacity the Original Lender); and






	 	(4)	 	FORTRESS CREDIT CORP. as Agent (in this capacity the Agent).





IT IS AGREED as follows:




	 	1.	 	INTERPRETATION





	 	 	 
	1.1	 	Definitions
	
 
	 	In this Agreement:







Accession Agreement means an agreement, substantially in the form of Schedule 5 (Form
of Accession Agreement), with such changes as the Agent may approve.




Acquired Subsidiary means Gupta, any Portfolio Company or any Target Company.




Acquisition means the acquisition by a Borrower of any Acquired Subsidiary in
accordance with the Acquisition Documents.




Acquisition Costs means all fees, costs, expenses and stamp, registration or transfer
Taxes incurred by (or required to be paid by) any member of the Group in connection with any
Acquisition including, without limitation, reasonable attorney’ s fees and the fees and
expenses of any broker or finder.




Acquisition Documents means any agreements entered into by a Borrower regarding the
acquisition of any Acquired Subsidiary and all transfer instruments and other instruments
made pursuant thereto, including, in the case of Gupta,




	 	(a)	 	the Purchase Agreement Assignment and Assumption Agreement dated as of October
13, 2004 between Isis and the Company;






	 	(b)	 	the Membership Interest Purchase Agreement dated as of September 2, 2004
between Isis and Gupta Holdings, LLC (as amended and extended); and






	 	(c)	 	the Series C Subscription Agreements dated as of January 31, 2005 between the
Company and the investors identified therein.






Additional Borrower means a member of the Group which becomes a Borrower after the date
of this Agreement.




Additional Guarantor means a member of the Group which becomes a Guarantor after the
date of this Agreement.




Additional Obligor means an Additional Borrower or an Additional Guarantor.




Advance means an advance of all or any part of any Tranche of the Loan.




Affiliate of a person means any other person that directly, or indirectly through one
or more intermediaries, controls or is controlled by or is under common control with that
person.




Agent’s Account means the Agent’s account with LaSalle Bank NA, account number 2090067,
reference “Warp Technology,” or such other account as the Agent shall notify to the Parties
in a notice.




Assignment and Assumption Agreement means an assignment and assumption agreement,
substantially in the form of Schedule 4 (Form of Assignment and Assumption Agreement), with
such changes as the Agent may approve.




Availability Period means, in the case of Tranche A and Tranche B, the period from and
including the date of this Agreement to and including March 31, 2009 and, in the case of
Tranche C, the period from and including the date which is one year after the Closing Date
to and including March 31, 2009.




Available Commitment means, at any time, an amount equal to the Total Commitments as
reduced by the amount of each Advance previously made under this Agreement and any other
cancellation or reduction of the Total Commitments previously made under this Agreement.




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




Borrower means the Company, or an Additional Borrower.




Breakage Costs means the amount (if any) which a Lender is entitled to receive under
Clause 24.3 (Breakage Costs).




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




Capital Expenditures has the meaning assigned to that term in Part 1 of Schedule 15
(Financial Terms and Covenants).




Capital Lease Obligations of any person means the obligations of that person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination, which are required to be classified and
accounted for as capital leases on a balance sheet of that person under GAAP, and the amount
of those obligations shall be the amount capitalized in accordance with GAAP.




Cash means credit balances on any bank or other deposit, savings or current account and
cash in hand.




Cash Equivalents means:




	 	(a)	 	debt securities (denominated in Dollars) issued by the United States of America
or any agency of any thereof and backed by any of the same having not more than one
year to final maturity from the date of acquisition and which are not convertible into
any other form of security;






	 	(b)	 	debt securities (denominated in Dollars) which have not more than one year to
final maturity from the date of acquisition, are not convertible into any other form of
security, are rated at least P1 by Moody’s or A-1 by Standard & Poor’s and are not
issued or guaranteed by any member of the Group; and






	 	(c)	 	such other securities (if any) as are approved in writing by the Agent on
behalf of the Majority Lenders.






Cash Interest Coverage Ratio has the meaning assigned to that term in Part 1 of
Schedule 15 (Financial Terms and Covenants).




Cash Interest Expense has the meaning assigned to that term in Part 1 of Schedule 15
(Financial Terms and Covenants).




Change in Law means:




	 	(a)	 	the adoption of any law or regulation after the date of this Agreement;






	 	(b)	 	a change in any law or regulation or in its interpretation, administration or
application after the date of this Agreement, or






	 	(c)	 	compliance by any Lender with any regulation made or issued after the date of
this Agreement.






Closing Date means the first Utilization Date.




Code means the United States Internal Revenue Code of 1986.




Collateral means all assets of each Obligor.




Collateral Account means each of (i) account in the name of the Company and maintained
at UBS Financial Services, Inc., (ii) account in the name of Gupta and maintained at
Comerica Bank, (iii) account in the name of Gupta and maintained at Comerica Bank, (iv)
account in the name of Gupta and maintained at Comerica Bank, (v) account in the name of
Gupta and maintained at Comerica Bank, (vi) account in the name of Gupta and maintained at
Deutsche Bank, (vii) account in the name of Gupta and maintained at Deutsche Bank, (viii)
account in the name of Gupta and maintained at Deutsche Bank, (ix) account in the name of
Gupta and maintained at Deutsche Bank, (x) account in the name of Warp Solutions, Inc. and
maintained at Chase, (xi) account in the name of Warp Solutions, Inc. and maintained at
JPMorgan Chase, (xii) account in the name of Warp Solutions, Inc. and maintained at JPMorgan
Chase, (xiii) account in the name of Kenosia Corporation and maintained at JPMorgan Chase,
(xiv) account in the name of Warp Solutions, Ltd. and maintained at HSBC, (xv) account in
the name of Spider Software, Inc. and maintained at RBC Royal Bank, (xvi) account in the
name of Gupta Technologies GmbH and maintained at Deutsche Bank, (xvii) account in the name
of Gupta Technologies, Ltd. and maintained at Deutsche Bank, and (xviii) any other bank
accounts or securities accounts held by any Obligor in which such Obligor has granted to the
Agent for the benefit of the Finance Parties a first priority perfected Security Interest.




Commitment means:




	 	(a)	 	for the Original Lender, subject to Clause 2.1 (Facility), the amount set
opposite its name in Schedule 1 (Original Parties) under the heading Commitments; and






	 	(b)	 	for any other Lender, the amount of any Commitment it acquires,






to the extent not cancelled, transferred or reduced under this Agreement.




Compliance Certificate means a certificate, in the form set forth in Schedule 10 or
such other form satisfactory to the Agent, setting out, among other things, reasonably
detailed calculations demonstrating compliance with the financial covenants contained in
Clause 17 (Financial covenants), together with the other information and certifications
required under Clause 16.3 (Compliance Certificate).




Consolidated EBITDA has the meaning assigned to that term in Part 1 of Schedule 15
(Financial Terms and Covenants).




Control Agreement means each Control Agreement, in form and substance satisfactory to
the Agent, to be entered into among an Obligor, the Agent and a deposit bank relating to a
Collateral Account.




Consolidated Total Debt has the meaning assigned to that term in Part 1 of Schedule 15
(Financial Terms and Covenants).




Debt Service has the meaning assigned to that term in Part 1 of Schedule 15 (Financial Terms
and Covenants).




Default means:




	 	(a)	 	an Event of Default; or






	 	(b)	 	an event which would be (with the expiry of a grace period, the giving of
notice or the making of any determination under the Finance Documents or any
combination of them) an Event of Default.






Default Rate means the rate of interest per annum determined in accordance with Clause
8.4 (Interest on overdue amounts).




Depreciation and Amortization has the meaning assigned to that term in Part 1 of
Schedule 15 (Financial Terms and Covenants).




Disposition means any sale, assignment, transfer or other disposition of any property
of any kind or nature (including any shares or other ownership interest in any Acquired
Subsidiary), whether now owned or hereafter acquired, by any Obligor to any other person,
excluding any sale, assignment, transfer or other disposition of any property sold or
disposed of in the ordinary course of business or the issuance and sale of Equity Interests
in the Company.




Disposition Investment means, with respect to any Disposition, the receipt by any
Obligor in connection with such Disposition of any (a) promissory notes or other evidences
of indebtedness, (b) capital stock, bonds, notes, debentures, partnership or other ownership
interests or other securities of any other Person or any agreement to make any such
acquisition (including any “short sale” or any sale of any securities at a time when such
securities are not owned by the Person entering into such sale) or (c) any other deferred
payment.




EBITDA has the meaning assigned to that term in Part 1 of Schedule 15 (Financial Terms and
Covenants).




Environmental Approval means any authorization required by an Environmental Law.




Environmental Claim means any claim by any person in connection with:




	 	(a)	 	a breach, or alleged breach, of an Environmental Law;






	 	(b)	 	any accident, fire, explosion or other event of any type involving an emission
or substance which is capable of causing harm to any living organism or the
environment; or






	 	(c)	 	any other environmental contamination.






Environmental Law means any law or regulation concerning:




	 	(a)	 	the protection of health and safety;






	 	(b)	 	the environment; or






	 	(c)	 	any emission or substance which is capable of causing harm to any living
organism or the environment.






Equity Interests means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity
ownership interests in a person, and any warrants, options or other rights entitling the
holder to purchase or acquire any such equity interest.




ERISA means the United States Employee Retirement Income Security Act of 1974 as
amended.




ERISA Affiliate means any person treated as a single employer with any Obligor for the
purpose of section 414 of the Code.




ERISA Event means:




	 	(a)	 	(i) the occurrence of a reportable event, within the meaning of
Section 4043(c) of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the Pension Benefit
Guaranty Corporation (the PBGC) referred to and defined in ERISA (or any
successor thereto); or






	 	(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 a
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;






	 	(b)	 	the application pursuant to Section 412(d) of the Code or Section 303 of ERISA
for a minimum funding waiver with respect to a Plan;






	 	(c)	 	the provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA);






	 	(d)	 	the cessation of operations at a facility of any Obligor or any ERISA Affiliate
in the circumstances described in Section 4062(e) of ERISA;






	 	(e)	 	the withdrawal by any Obligor or any ERISA Affiliate from a Multiemployer Plan
during a plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA;






	 	(f)	 	the imposition of a lien under Section 302(f) of ERISA with respect to any
Plan;






	 	(g)	 	the adoption of an amendment to a Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA; or






	 	(h)	 	the institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described in Section
4042 of ERISA that constitutes grounds for the termination of, or the appointment of a
trustee to administer, such Plan, provided, however, that the occurrence of the event
or condition described in Section 4042(a)(4) of ERISA shall be an ERISA Event only if
the PBGC has notified any Obligor or ERISA Affiliate that it intends to institute
proceedings to terminate a Plan pursuant to such subsection.






Event of Default means an event specified as such in Clause 19 (Default).




Excess Cash Flow has the meaning assigned to that term in Part 1 of Schedule 15
(Financial Terms and Covenants).




Existing Debt means (i) all of the existing Indebtedness of the Company under the
senior note and warrant purchase agreement dated as of January 31, 2005 between the Company
and the purchasers identified therein and (ii) existing subordinated indebtedness in the
amount of $1,500,000 under the Subordinated Note and Warrant Purchase Agreement which will
be paid in full on the Closing Date. The term Existing Debt does not include the
Subordinated Indebtedness.




Facility means the loan facility made available under this Agreement.




Facility Office means the office notified by a Lender to the Agent:




	 	(a)	 	on or before the date it becomes a Lender;






	 	(b)	 	by not less than five Business Days’ notice; or






	 	(c)	 	as the office through which it will perform its obligations under this
Agreement.






Federal Funds Effective Rate means, for any day, an interest rate per annum equal to
the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if those rates are not so published, the average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the quotations for that day received by
the Agent from three Federal funds brokers of recognized standing selected by it.




Finance Document means:




	 	(a)	 	this Agreement;






	 	(b)	 	each Security Document;






	 	(c)	 	each Request;






	 	(d)	 	each Promissory Note;






	 	(e)	 	the Intercreditor Agreement;






	 	(f)	 	the Collateral Agency Agreement;






	 	(g)	 	the Warrant Agreement;






	 	(h)	 	each Assignment and Assumption Agreement;






	 	(i)	 	each Accession Agreement; or






	 	(j)	 	any other document entered into by an Obligor relating to this Agreement
designated as such by the Agent and the Company.






Finance Party means a Lender or the Agent.




Financial Officer means, with respect to any Obligor, the chief financial officer,
principal accounting officer, treasurer or controller of that Obligor.




Fixed Charge Covenant Ratio has the meaning assigned to that term in Part 1 of Schedule 15
(Financial Terms and Covenants).




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




Group means the Company and its Subsidiaries.




Guarantee means any obligation, contingent or otherwise, guaranteeing or having the
economic effect of guaranteeing any obligation of another person in any manner, whether
directly or indirectly, and including any obligation:




	 	(a)	 	to purchase or pay any obligation or to purchase or provide security for the
payment of any obligation;






	 	(b)	 	to purchase or lease property, securities or services for the purpose of
assuring the payment of any obligation;






	 	(c)	 	to maintain working capital, equity capital or any other financial statement
condition or liquidity of any other person; or






	 	(d)	 	in respect of any letter of credit, letter of guaranty or bond issued to
support any obligation,






except that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.




Guarantor means an Original Guarantor or an Additional Guarantor.




Gupta means Gupta Technologies, LLC.




Hedging Agreement means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement.




Increased Cost means:




	 	(a)	 	an additional or increased cost;






	 	(b)	 	a reduction in the rate of return from the Facility; or






	 	(c)	 	a reduction of an amount due and payable under any Finance Document,






which is incurred or suffered by a Finance Party or any of its Affiliates but only to
the extent attributable to that Finance Party having entered into any Finance Document or
funding or performing its obligations under any Finance Document.




Indebtedness means:




	 	(a)	 	any obligation for borrowed money or with respect to deposits or advances;






	 	(b)	 	any obligation, contingent or otherwise, in respect of a banker’s acceptance;






	 	(c)	 	any obligation evidenced by a bond, note, debenture or other similar
instrument;






	 	(d)	 	any obligation on which interest charges are customarily paid;






	 	(e)	 	any Capital Lease Obligation;






	 	(f)	 	any obligation under a conditional sale or other title retention agreement
relating to property acquired;






	 	(g)	 	any obligation in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of
business);






	 	(h)	 	any Indebtedness of another person secured by (or for which the holder of the
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien
on property owned or acquired by a person, whether or not the Indebtedness secured has
been assumed by that person;






	 	(i)	 	any redeemable preference share;






	 	(j)	 	receivables sold or discounted (otherwise than on a non-recourse basis);






	 	(k)	 	any obligation under a Hedging Agreement or in connection with any other
hedging or derivative transaction, agreement or obligation protecting against or
benefiting from fluctuations in any rate or price (and, except for non-payment of an
amount, the then mark to market value of the derivative transaction will be used to
calculate its amount);






	 	(l)	 	any other transaction (including any forward sale or purchase agreement) which
has the commercial effect of a borrowing (excluding any moneys owed to trade creditors
in the ordinary course of business);






	 	(m)	 	any obligation, contingent or otherwise, in respect of any letter of guarantee,
bond or letter of credit; and






	 	(n)	 	any Guarantee, indemnity or similar assurance against financial loss of any
other person in respect of any item referred to in the above paragraphs.






The Indebtedness of any person shall include the Indebtedness of any other entity to
the extent that person is liable as a result of its ownership interest in or other
relationship with the entity, except to the extent the terms of that Indebtedness provide
that the person is not liable for it.




Intellectual Property Rights means:




	 	(a)	 	any know-how, patent, trade mark, service mark, design, business name, domain
name, topographical or similar right;






	 	(b)	 	any copyright, data base or other intellectual property right; or






	 	(c)	 	any interest (including by way of license) in the above,






in each case whether registered or not, and includes any related application.




Intercreditor Agreement means that certain intercreditor agreement dated as of the date
hereof between the Original Lender, the Subordinated Noteholders, the Company, the
Subsidiaries listed on Schedule 14 (Subsidiaries) of this Agreement and Fortress Credit
Corp. as Collateral Agent.




Interest Expense has the meaning assigned to that term in Part 1 of Schedule 15 (Financial
Terms and Covenants).




Interest Payment Date means each date on which a payment of interest is required
pursuant to Clause 8.3(a) (Payment of interest).




Interest Period means in relation to the Loan, any of those periods mentioned in Clause
8.2 (Interest Periods) or, in relation to any overdue amount, the period determined in
accordance with Clause 8.4 (Interest on overdue amounts).




Interest Rate means, at any time, the rate calculated pursuant to Clause 8.1
(Calculation of interest).




Investment means:




	 	(a)	 	the acquisition (whether for cash, property, services or securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other ownership
interests or other securities of any other person outside the Group or any agreement to
make any such acquisition (including any “short sale” or any sale of securities at a
time when the seller does not own the securities);






	 	(b)	 	the making of any deposit with, or advance, loan or other extension of credit
to, any other person outside the Group (including the purchase of property from another
person subject to an understanding or agreement, contingent or otherwise, to resell the
property to that other person);






	 	(c)	 	the entering into of any Guarantee of, or other contingent obligation with
respect to, Indebtedness or other liability of any other person outside the Group and
(without duplication) any amount committed to be advanced, lent or extended to that
person; or






	 	(d)	 	the entering into of any Hedging Agreement.






ISIS means ISIS Capital Management, LLC.




Kenosia Note means that certain Promissory Note in the aggregate principal amount of
$1,000,000 dated July 1, 2005 by the Company in favor of Bristol Technologies, Inc.




Kenosia Payment Date means the earlier of (i) January 31, 2006 or (ii) the date on which the
Pledgor has paid the full principal amount outstanding under the Kenosia Note.




Kenosia Pledge Agreement means that certain Pledge and Security Agreement dated as of July
1, 2005 by and between the Company and Bristol Technology, Inc. relating to the shares of
Kenosia Corporation.




Lender means:




	 	(a)	 	the Original Lender; or






	 	(b)	 	any person which becomes a Lender after the date of this Agreement.






Lender Rejection means that the Company has requested that the Lenders consider making
an Advance under Tranche B available with respect to a proposed Portfolio Company having a
twelve month trailing EBITDA of $1,000,000 or more and the Agent has notified the Company
that the Lenders are not willing to make such Advance available.




LIBOR means for any Interest Period:




	 	(a)	 	the applicable Screen Rate; or






	 	(b)	 	if no Screen Rate is available for such Interest Period, the arithmetic mean
(rounded upward to four decimal places) of the rates, as supplied to the Agent at its
request, quoted by the Reference Banks to leading banks in the London interbank market,






as of 11.00 a.m., London time, two Business Days prior to the beginning of such
Interest Period, for the offering of deposits in U.S. Dollars for a period comparable to
such Interest Period; provided, however, that for purposes of calculating
the Interest Rate, LIBOR shall at no time be less than a rate equal to 2.65%




Lien means:




	 	(a)	 	any security interest, lien, mortgage, deed of trust, pledge, encumbrance,
charge, assignment, hypothecation or other agreement or arrangement having the effect
of conferring security;






	 	(b)	 	the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing);






	 	(c)	 	in the case of securities, any adverse claim, purchase option, call or similar
right of a third party with respect to those securities; or






	 	(d)	 	any negative pledge or other restriction on assignment, transfer or pledge.






Loan means the aggregate principal amount outstanding from time to time of each
borrowing under this Agreement and any PIK Interest which has been added to such principal
pursuant to Clause 8.3(b) (Payment of interest).




Majority Lenders means, at any time, Lenders:




	 	(a)	 	whose share in the outstanding Loan and whose undrawn Commitments then
aggregate 51% or more of the aggregate of the Loan and all undrawn Commitments of all
the Lenders;






	 	(b)	 	if there is no Loan then outstanding, whose undrawn Commitments then aggregate
51% or more of the Total Commitments; or






	 	(c)	 	if there is no Loan then outstanding and the Total Commitments have been
reduced to zero, whose Commitments aggregated 51% or more of the Total Commitments
immediately before the reduction.






Margin means 9% per annum.




Margin Regulations means Regulations U and X issued by the Board.




Margin Stock has the meaning given to it in the Margin Regulations.




Material Adverse Effect means a material adverse effect on:




	 	(a)	 	the business, assets, operations, prospects or condition, financial or
otherwise, of any Material Group Member or the Group as a whole;






	 	(b)	 	the ability of any Material Group Member or the Group as a whole to perform its
obligations under any Finance Document;






	 	(c)	 	the validity or enforceability of any Finance Document or any Security Interest
purportedly created under any Security Document; or






	 	(d)	 	any material right or remedy of a Finance Party in respect of a Finance
Document.






Material Group Member means any member of the Group listed in Schedule 12 or any member
of the Group that at any time has a 12 month trailing EBITDA which is equal to or greater
than the lesser of (i) US$400,000 and (ii) the amount which is equal to 15% of the 12 month
trailing Consolidated EBITDA.




Maturity Date means four (4) years from the Closing Date.




Multiemployer Plan means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any Obligor or any ERISA Affiliate is making or accruing (or is required to
make or accrue) an obligation to make contributions, or has within any of the preceding five
(5) plan years made or accrued (or was required to make or accrue) an obligation to make
contributions.




Net Cash Proceeds means in the case of any Disposition, the aggregate amount of all
cash payments received by, or paid at the direction of, any Obligor directly or indirectly
in connection with such Disposition, whether at the time of such Disposition or after such
Disposition under deferred payment arrangements or any other arrangement entered into or
received in connection with such Disposition (including Disposition Investments);
provided, that Net Cash Proceeds of any Disposition shall be net of all reasonable
out of pocket fees, costs, expenses and stamp, registration or transfer Taxes incurred and
paid by an Obligor as a result of such Disposition.




Obligor means a Borrower or a Guarantor.




Original Financial Statements means the audited consolidated financial statements of
the Company and its Subsidiaries for the fiscal year ended December 31, 2004 and the
unaudited consolidated financial statements of the Company and its Subsidiaries for the
fiscal quarter and the portion of the fiscal year ended March 31, 2005.




Original Obligor means the Company or an Original Guarantor.




Overdue Interest Rate means, at any time, the Interest Rate at such time plus 3% per
annum.




Party means a party to this Agreement.




Payment Date means each Principal Repayment Date and each Interest Payment Date.




Permitted Encumbrance means:




	 	(a)	 	any Lien imposed by law for Taxes that are not yet due or are being contested
in compliance with Clause 18.5 (Payment of obligations);






	 	(b)	 	any carrier’s, warehouseman’s, mechanic’s, materialman’s, repairman’s or other
similar Lien imposed by law that arises in the ordinary course of business and secures
obligations that are not overdue by more than 30 days or are being contested in
compliance with Clause 18.5 (Payment of obligations);






	 	(c)	 	any pledge or deposit made in the ordinary course of business in compliance
with workers’ compensation, unemployment insurance and other social security laws or
regulations;






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






	 	(e)	 	any easement, zoning restriction, right-of-way or similar encumbrance on real
property imposed by law or arising in the ordinary course of business that does not
secure any monetary obligation and does not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the Company or
any Subsidiary;






	 	(f)	 	any Lien securing Indebtedness permitted by Clause 18.11(b)(vi) (Indebtedness)
that is incurred at the same time as that Indebtedness is incurred;






	 	(g)	 	until the Kenosia Payment Date, any lien on the shares of the Kenosia
Corporation, pursuant to the Kenosia Pledge Agreement; or






	 	(h)	 	any other lien consented to, in writing, by the Agent.






but except as specifically stated in paragraph (f) or paragraph (g) or consented to
pursuant to paragraph (h), expressly excludes any Lien securing Indebtedness.




Permitted Investments means:




	 	(a)	 	direct obligations of, or obligations the principal of and interest on which
are unconditionally guaranteed by, the United States of America (or by any U.S.
governmental agency to the extent the obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year from the
date of acquisition;






	 	(b)	 	investments in commercial paper maturing within 270 days from the date of
acquisition and having, at the date of acquisition, the highest credit rating
obtainable from Standard & Poor’s Ratings Services or from Moody’s Investors Service,
Inc.;






	 	(c)	 	investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any U.S. domestic office
of any commercial bank organized under the laws of the United States of America or any
U.S. State which has a combined capital and surplus and undivided profits of not less
than $250,000,000; and






	 	(d)	 	fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in paragraph (a) above and entered into with a financial
institution satisfying the criteria described in paragraph (c) above.






Permitted Transaction means:




	 	(a)	 	an intra-Group re-organization of a Subsidiary on a solvent basis;






	 	(b)	 	a disposal allowed under Subclause 18.10 (Disposals); or






	 	(c)	 	any other transaction expressly permitted under this Agreement or otherwise
agreed by the Majority Lenders.






PIK Interest has the meaning set forth in Clause 8.3(b) (Payment of interest).




Plan means a Single Employer Plan or a Multiemployer Plan.




Pledge Agreement means each pledge agreement in form and substance satisfactory to the
Agent, to be executed by the Company and any other Obligor which has a subsidiary granting a
first priority security interest in 100% of the Equity Interests held by the Company or such
Obligor.




Portfolio Companies means each company organized in the United States and approved by
the Agent (acting in its sole discretion), whose Equity Interests are to be acquired by a
Borrower, using, inter alia, the proceeds of Tranche B of the Loan.




Principal Repayment Date means the last day of each calendar month occurring during the
Term and the Maturity Date.




Pro Rata Share means:




	 	(a)	 	for the purpose of determining a Lender’s share in the utilization of the
Facility, the proportion which its Commitment bears to all the Commitments; and






	 	(b)	 	for any other purpose on a particular date:






	 	(i)	 	the proportion which a Lender’s share of the Loan (if any) bears
to the Loan;






	 	(ii)	 	if no portion of the Loan is outstanding on that date, the
proportion which its Commitment bears to the Total Commitments on that date; or






	 	(iii)	 	if no portion of the Loan is outstanding on that date and if the
Total Commitments have been cancelled, the proportion which its Commitments bore
to the Total Commitments immediately before being cancelled.






Reference Banks means Citibank N.A., JPMorgan Chase, N.A. and Bank of America N.A. and
any other bank or financial institution appointed as such by the Agent under this Agreement.




Repayment Date means each Principal Repayment Date and each Interest Repayment Date.




Repayment Installment means each installment for repayment of the Loan.




Request means request for an Advance, substantially in the form of Schedule 3 (Form of
Request).




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




Screen Rate means the rate appearing on page 3750 of the Dow Jones Market Service for
U.S. Dollar deposits for the relevant Interest Period. If the relevant page is replaced or
the service ceases to be available, the Agent (after consultation with the Company and the
Lenders) may specify another page or service displaying the appropriate rate.




Security Agreement means each security agreement, in form and substance satisfactory to
the Agent, to be executed by an Obligor granting a first priority security interest in favor
of the Agent with respect to all aspects of such Obligor.




Security Document means:




	 	(a)	 	each Security Agreement;






	 	(b)	 	each Pledge Agreement;






	 	(c)	 	each Control Agreement; and






	 	(d)	 	any other document (including financing statements and trademark or patent
security agreements) evidencing, creating or perfecting a security interest over any
asset of an Obligor to secure any obligation of any Obligor to a Finance Party under
the Finance Documents.






Security Interest means a security interest created by or under a Security Document.




Single Employer Plan means a single employer plan, as defined in Section 4001(a)(15) of
ERISA, that is subject to Title IV of ERISA and that (a) is maintained for the employees of
a Borrower or any ERISA Affiliate or which is subject to the minimum funding requirements of
Section 302 of ERISA or Section 412 of the Code or (b) was so maintained and in respect of
which any Obligor or any ERISA Affiliate could reasonably be expected to have liability
under Section 4069 of ERISA in the event such plan has been or were to be terminated.




Subordinated Indebtedness means the principal amount of $2,500,000.00 which will remain
outstanding after the Closing Date under the Subordinated Note and Warrant Purchase
Agreement.




Subordinated Note and Warrant Purchase Agreement means that certain subordinated note
and warrant purchase agreement dated as of January 31, 2005 between the Company and the
purchasers identified therein.




Subordinated Noteholders means Crestview Capital Master, LLC and DCOFI, LDC.




Subsidiary means an entity of which a person owns directly or indirectly more than 50%
of the Equity Interests, or whose accounts would be consolidated with those of that person
in accordance with GAAP.




Target Company means any publicly traded company or companies organized in the United
States, approved by the Agent (acting in its sole discretion) whose Equity Interests are to
be acquired by a Borrower, using, inter alia, the proceeds of Tranche C of the Loan.




Tax means any tax, levy, impost, duty or other charge or withholding of a similar
nature, including any income, franchise, stamp, documentary, excise or property tax, charge
or levy (in each case, including any related penalty or interest).




Tax Deduction means a deduction or withholding for or on account of Tax from a payment
under a Finance Document other than a Tax described in Clause 10.3(b) (Tax indemnity).




Tax Payment means a payment made by an Obligor to a Finance Party in any way relating
to a Tax Deduction or under any indemnity given by that Obligor in respect of Tax under any
Finance Document.




Term means the period commencing on the Closing Date and ending on the date which is 48
months after the Closing Date.




Total Commitments means the aggregate of the Commitments of all the Lenders.




Total Debt to EBITDA Ratio has the meaning assigned to that term in Part 1 of Schedule
15 (Financial Terms and Covenants).




Tranche means each of Tranche A, Tranche B or Tranche C.




Tranche A means a tranche of the Loan being made available pursuant to Clause 2.1, up
to a maximum amount of $10,000,000.




Tranche B means a tranche of the Loan being made available pursuant to Clause 2.1, up
to a maximum amount of $15,000,000.




Tranche C means a tranche of the Loan being made available pursuant to Clause 2.1, up
to a maximum amount of $25,000,000.




Transaction Documents means the Finance Documents and the Acquisition Documents.




U.S. Dollars, Dollars, U.S. $ and $ refer to the lawful money of the United States of
America.




Utilization Date means each date on which the Facility is utilized.




Warrant Agreement means that certain Warrant Agreement to be entered into between the
Company and the Agent in form and substance satisfactory to the Agent.




Warrants means each of the Warrants to acquire common stock of the Company issued
pursuant to the Warrant Agreement.




Warp Solutions/Spider Cache Business means each of Warp Solutions, Inc., Warp Solutions
Ltd., 6043577 Canada, Inc. and Spider Software, Inc. and the business and operations of such
Persons.




	 	1.2	 	Construction






	 	(a)	 	In this Agreement:






	 	(i)	 	includes and including are not limiting;






	 	(ii)	 	or is not exclusive;






	 	(iii)	 	any pronoun shall include the corresponding masculine, feminine
and neuter forms;






	 	(iv)	 	Clauses are designated by whole numbers, Subclauses are
designated by whole numbers followed by a decimal point and another whole
number, paragraphs are designated by lower case letters in parentheses and
subparagraphs are designated by lower case Roman numerals in parenthesis; and






	 	(v)	 	headings are for convenience only, are not a part of this
Agreement and shall not be used in construing it.






	 	(b)	 	In this Agreement, unless the contrary intention appears, a reference to:






	 	(i)	 	an amendment includes a supplement, modification, waiver,
novation, restatement or re-enactment and amended will be construed accordingly;






	 	(ii)	 	assets includes present and future properties, revenues and
rights of every description;






	 	(iii)	 	an authorization includes an authorization, consent, approval,
resolution, license, franchise, exemption, filing, registration or notarization;






	 	(iv)	 	a Clause, a Subclause, a paragraph, a subparagraph or a Schedule
is a reference to a clause, Subclause, paragraph or subparagraph of, or a
schedule to, this Agreement;






	 	(v)	 	control means the possession, directly or indirectly, of the
power acting alone 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;






	 	(vi)	 	disposal means a sale, transfer, grant, conveyance, lease or
other disposal, whether voluntary or involuntary, and dispose will be construed
accordingly;






	 	(vii)	 	a Finance Document or another document or agreement is a
reference to that Finance Document or other document or agreement as amended,
modified, supplemented, restated or novated;






	 	(viii)	 	financial statements means the balance sheet and related statements of
operations, stockholders’ equity and cash flows of the relevant person as of the
end of and for the relevant period, which shall be both consolidated and
separately stated in the case of the Company and its Subsidiaries;






	 	(ix)	 	a month or months is a reference to a period starting on one day
in a calendar month and ending on the numerically corresponding day in the next
calendar month or the calendar month in which it is to end, except that:






	 	(A)	 	if the numerically corresponding day is not a
Business Day, the period will end on the next Business Day in that month
(if there is one) or the preceding Business Day (if there is not);






	 	(B)	 	if there is no numerically corresponding day in
that month, that period will end on the last Business Day in that month;
and






	 	(C)	 	notwithstanding sub-paragraph (A) above, a period
which commences on the last Business Day of a month will end on the last
Business Day in the next month or the calendar month in which it is to
end, as appropriate.






	 	(x)	 	the term law includes any law, statute, regulation, regulatory
requirement, rule, ordinance, ruling, decision, treaty, directive, order,
guideline, regulation, policy, writ, judgment, injunction or request of any
court or other governmental, inter-governmental or supranational body, entity,
officer or official, fiscal or monetary authority, or other ministry (and their
interpretation, administration and application), whether or not having the force
of law;






	 	(xi)	 	a provision of law is a reference to that provision as extended,
applied, amended or re-enacted and includes any successor law;






	 	(xii)	 	a Default being outstanding means that it has not been remedied
or waived;






	 	(xiii)	 	a Party or any other person includes its successors in interest, permitted
assigns and permitted transferees;






	 	(xiv)	 	a Party will not include that Party if it has ceased to be a
Party under this Agreement;






	 	(xv)	 	a person includes any individual, company, corporation, limited
liability company, unincorporated association or body (including a partnership,
trust, joint venture or consortium), government, state, agency, organization or
other entity whether or not having separate legal personality;






	 	(xvi)	 	a regulation includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law but, if not having
the force of law, being of a type with which any person to which it applies is
accustomed to comply) of any governmental, inter-governmental or supranational
body, officer or official, agency, department or regulatory, self-regulatory or
other authority or organization;






	 	(xvii)	 	a time of day is a reference to New York City, New York time;






	 	(c)	 	Unless expressly provided to the contrary in a Finance Document, a person who
is not a party to a Finance Document may not enforce any of its terms and,
notwithstanding any term of any Finance Document, no consent of any third party is
required for any amendment, variation (including any release or compromise of any
liability), waiver or termination of that Finance Document or any provision of that
Finance Document.






	 	(d)	 	Unless the contrary intention appears:






	 	(i)	 	an amount in U.S. Dollars is payable only in U.S. Dollars;






	 	(ii)	 	a word or expression used in any other Finance Document or in any
notice given in connection with any Finance Document has the same meaning in
that Finance Document or notice as in this Agreement; and






	 	(iii)	 	any obligation of an Obligor under the Finance Documents which
is not a payment obligation remains in force for so long as any payment
obligation of an Obligor is or may be outstanding under the Finance Documents.






	 	(e)	 	Except expressly provided to the contrary and subject to the provisions of
Subclause 16.2 (Form of financial statements), all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time.






	 	2.	 	FACILITY






	 	2.1	 	Facility






Subject to the terms and conditions of this Agreement, the Lenders agree to make
available to the Borrowers a term loan facility in three Tranches in an aggregate amount
equal to the Total Commitments. Notwithstanding the preceding sentence and the mechanics
contained herein relating to Tranche B and Tranche C, the Obligors acknowledge that the
Lenders have not conducted any due diligence with respect to Tranche B or Tranche C (or any
proposed Portfolio Company or Target Company) and that the ultimate decision as to whether
or not to make any Advance of Tranche B or Tranche C available will be made by the Lenders
acting in their sole discretion and that the Lenders are not under any obligation whatsoever
to make any Advances under either Tranche B or Tranche C. The parties also acknowledge that
it may be necessary, prior to the making of any Advance under Tranche B or Tranche C, to
amend certain terms of this Agreement (including Clause 17, the definition of Material Group
Member and Schedules 11, 12 and 13).



	 	 	 
	2.2	 	Nature of a Finance Party's rights and obligations
	
 
	 	Unless otherwise agreed by all the Finance Parties:







	 	(a)	 	the obligations of a Finance Party under the Finance Documents are several;






	 	(b)	 	failure by a Finance Party to perform its obligations does not affect the
obligations of any other Party under the Finance Documents;






	 	(c)	 	no Finance Party is responsible for the obligations of any other Finance Party
under the Finance Documents;






	 	(d)	 	the rights of a Finance Party under the Finance Documents are separate and
independent rights;






	 	(e)	 	a Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce those rights; and






	 	(f)	 	a debt arising under the Finance Documents to a Finance Party is a separate and
independent debt.






	 	3.	 	PURPOSE






	 	3.1	 	Purpose of each Tranche






	 	(a)	 	Tranche A may be used only to refinance the Existing Debt and to pay certain
costs and expenses incurred in connection with the Finance Documents.






	 	(b)	 	Tranche B may be used only to partially fund the acquisition by a Borrower of
one or more Portfolio Companies (including all the Acquisition Costs relating thereto)
and to pay certain costs and expenses incurred in connection with the Finance Documents
and to finance an agreed amount of working capital.






	 	(c)	 	Tranche C may be used only to partially fund the acquisition by a Borrower of
one or more Target Companies (including the Acquisition Costs relating thereto) and to
pay certain costs and expenses incurred in connection with the Finance Documents and to
finance an agreed amount of working capital.





	 	 	 
	3.2	 	No obligation to monitor
	
 
	 	No Finance Party has any obligation to monitor or verify the utilization of the Facility.







	 	4.	 	CONDITIONS PRECEDENT






	 	4.1	 	General conditions precedent






A Request may not be given until the Agent has notified the Company and the Lenders
that it has received all of the documents and evidence set out in Part 1 of Schedule 2
(Conditions precedent) in form and substance satisfactory to the Agent. The Agent will give
this notification to the Company and the Lenders promptly upon being so satisfied.




	 	4.2	 	Additional conditions precedent with respect to certain Advances






In addition to the conditions precedent referred to in Clause 4.1 above, a Request for
any Advance relating to Tranche B or Tranche C may not be given until the Agent has notified
the Company and the Lenders that it has received all of the relevant documents and evidence
set out in Part 2 of Schedule 2 (Conditions precedent) in form and substance satisfactory to
the Agent. The Agent will give this notification to the Company and the Lenders promptly
upon being so satisfied.




	 	4.3	 	Further conditions precedent






The obligations of each Lender to participate in any Advance are subject to the further
conditions precedent that on both the date of the Request and the Utilization Date for that
Advance:




	 	(a)	 	the representations and warranties set forth in Clause 15 (Representations and
warranties) are true and correct in all material respects, except for matters that
speak to a specific time which are true and correct in all material respects only as of
such time; and






	 	(b)	 	no Default is outstanding or would result from the making of such Advance.






	 	4.4	 	Target companies






For the purposes of determining whether or not the conditions precedent in Clause 4.3
(Further conditions precedent) have been met on the Utilization Date (or requested
Utilization Date) for any Advance relating to Tranche B or Tranche C, references in Clauses
15 (Representations and warranties), 16 (Information covenants), 17 (Financial covenants),
18 (General covenants) and 19 (Default) to the Group or to any members of the Group shall be
construed so as to include references to any Portfolio Company or the Target Company, the
acquisition of which will be partially financed by the proceeds of such Advance.




	 	4.5	 	Issuance of Promissory Notes






Simultaneously with the making of any Advance, the Borrowers shall deliver original
Promissory Notes in accordance with the provisions of Clause 5.5 (Evidence of debt).




	 	5.	 	LOANS






	 	5.1	 	Giving of Requests






	 	(a)	 	A Borrower may borrow an Advance by giving to the Agent a duly completed
Request.






	 	(b)	 	Unless the Agent otherwise agrees, the latest time for receipt by the Agent of
a duly completed Request is 11:00 a.m. three Business Days before the Utilization Date.






	 	(c)	 	Unless the Agent otherwise agrees, only one Request may be given and only one
Advance shall be made for each of Tranche A and Tranche C. Unless the Agent otherwise
agrees in writing, up to four Requests may be given and up to four Advances may be made
for Tranche B, provided, that at no time shall the aggregate principal amount
of all Advances for Tranche B exceed US$15,000,000 (not including any PIK Interest
added to the principal of any Advance made under Tranche B). To the extent that the
Lenders do not (for any reason) fund an Advance that is requested in a Request, such
Request shall not count against the limits set forth in this Clause 5.1(c). The
parties acknowledge that the Company may acquire one or more Portfolio Companies or
Target Companies with a single Advance.






	 	(d)	 	Each Request is irrevocable, subject to closing of the relevant Acquisition.






	 	(e)	 	A Request may be made by telephone but must be confirmed promptly by a written
Request delivered in accordance with Clause 34 (Notices). No Finance Party shall have
any liability for any telephonic Request reasonably believed by it to be genuine, and,
the Obligors agree to bear all risk of errors in respect of telephonic Requests.





	 	 	 
	5.2	 	Completion of Requests
	
 
	 	A Request for an Advance will not be regarded as having been duly completed unless:







	 	(a)	 	it identifies the relevant Obligor;






	 	(b)	 	it identifies the Tranche which the Advance applies to;






	 	(c)	 	it specifies the Utilization Date for such Advance and the Utilization Date is
a Business Day falling within the Availability Period;






	 	(d)	 	it specifies the amount of the Advance requested and the amount is not in
excess of the maximum undrawn amount available under the relevant Tranche on the
proposed Utilization Date and in addition the amount of the Advance must be a minimum
of U.S.$1,000,000, except as otherwise agreed by the Agent;






	 	(e)	 	if an Advance is attributable to more than one company, it should identify the
portion of the Advance that is attributable to each such company; and






	 	(f)	 	only one Advance may be requested in a Request.






	 	5.3	 	Interest Periods






	 	(a)	 	The initial Interest Period will commence on the Closing Date and each
subsequent Interest Period will commence on the expiry of its preceding Interest
Period.






	 	(b)	 	Subject to the following provisions of this Clause, each Interest Period will
be one month or any other period agreed by the Company and the Lenders.






	 	(c)	 	Subject to the provisions of Subclause 1.2(b)(ix) (Construction), if an
Interest Period would end on a day other than a Business Day, that Interest Period will
be extended to end on the next Business Day.






	 	(d)	 	In no case may an Interest Period overrun the Maturity Date.






	 	(e)	 	The Agent must notify the relevant Borrower and the Lenders of the duration of
each Interest Period promptly after ascertaining its duration.






	 	5.4	 	Advances






	 	(a)	 	The Agent will promptly notify each Lender of the details of each requested
Advance and the amount of its share in that Advance.






	 	(b)	 	The amount of each Lender’s share of an Advance will be its Pro Rata Share on
the proposed Utilization Date.






	 	(c)	 	No Lender is obliged to participate in an Advance if as a result:






	 	(i)	 	its share in the Loan would exceed its Commitment; or






	 	(ii)	 	the Loan would exceed the Total Commitments.






	 	(d)	 	If the conditions set out in this Agreement have been met, each Lender must
make its share in an Advance available to the Agent for the relevant Borrower by wire
transfer of immediately available funds to the Agent’s Account no later than 12:00 noon
on the Utilization Date. Each Lender will fund each Advance from its Facility Office.






	 	(e)	 	Unless the Agent receives notice from a Lender before the Utilization Date of
an Advance that that Lender will not make available its share of the requested Advance,
the Agent may assume that the Lender has made its share available in accordance with
this Subclause and may make available to the relevant Borrower a corresponding amount.
If a Lender has not in fact made its share of any Advance available to the Agent, then
that Lender and the relevant Borrower severally agree to pay to the Agent immediately
on demand that Lender’s share of the Loan with interest, for each day from and
including the date that amount is made available to the Borrower to but excluding the
date of repayment to the Agent, at:






	 	(i)	 	in the case of the Lender, the Federal Funds Effective Rate; or






	 	(ii)	 	in the case of the relevant Borrower, the Interest Rate.






	 	(iii)	 	Only when a Lender has paid its share of an Advance to the
Agent, will that amount constitute the Lender’s share of the Loan. Borrower
shall not be obligated to pay any Breakage Costs incurred as a result of a
repayment under this Clause 5.4(e).






	 	(f)	 	To the extent any Lender fails to make available its share of a requested
Advance, the Borrower shall not be obligated to borrow any other portion of such
requested Advance.






	 	5.5	 	Evidence of Debt






The Loan shall be evidenced by certain promissory notes in the form of Schedule 6
(collectively, the Promissory Notes). For each Lender making an Advance on any Utilization
Date, the initial principal amount of any Promissory Note issued to it on such Utilization
Date shall be the amount of such Advance actually advanced by it. Promissory Notes will be
registered in the name of the Lender which is the holder of thereof or its nominee. In the
event any Lender names the Agent as its nominee, the Promissory Note issued to the Agent may
be in an initial principal amount equal to the aggregate of the full amount of the Advance
made by the agent, as Lender, and such nominating Lender, provided, that the Agent
shall separately note on its internal records, in accordance with its customary business
practices, the amount of the Advance made by each Lender and, from time to time thereafter,
the amounts of principal and interest paid to each such Lender. It is anticipated that one
Promissory Note will be issued per Advance per Lender (except as indicated in the preceding
sentence), but each Lender shall have the right to consolidate its Promissory Notes or
divide of any of its Promissory Notes into multiple Promissory Notes by canceling the
relevant Promissory Notes in exchange for new Promissory Notes to be issued by the
Borrowers. All Promissory Notes will be equally and ratably secured hereunder, without
preference, priority or distinction on account of the dates or the actual times of the
issuance of the Promissory Notes, so that all Promissory Notes will have the same rights and
preferences under and by virtue of this Agreement.




	 	6.	 	REPAYMENT OF THE LOAN






	 	6.1	 	Repayment of the Loan






	 	(a)	 	Principal on the Loan then outstanding shall be due and payable in
installments, payable on the Principal Repayment Dates and in such amounts, as are set
forth in Schedule 7 to this Loan Agreement (as adjusted in accordance with Clause
6.1(b) hereof from time to time), it being understood that no amount of principal is
scheduled to be repaid until the first Principal Repayment Date to occur on or after
the date which is 18 months after the Closing Date.






	 	(b)	 	Schedule 7 hereto and Annex I attached to any Promissory Note outstanding
hereunder shall be adjusted from time to time by the Agent as follows:






	 	(i)	 	On each Utilization Date, on any date that PIK Interest ceases to
be added to the principal amount of the Loan (or any date thereafter that PIK
Interest is to be added to the principal amount of the Loan) and on the date of
each prepayment of the Loan made pursuant to Clause 7 hereof, the Agent shall
make such adjustments to Schedule 7 as are necessary to reflect any additional
Advances or change in the addition of PIK Interest being made on such date or
such prepayment of the Loan as the Agent shall determine are necessary to
accurately reflect the payments of principal due to the Lenders; and






	 	(ii)	 	On each date that PIK Interest ceases to be added to the
principal amount of the Loan (or any date thereafter that PIK Interest is to be
added to the principal amount of the Loan) and on the date of any partial
prepayment (but not prepayment in full) of the principal amount outstanding with
respect to any portion of the Loan made pursuant to Clause 7 (Prepayment and
Cancellation of Commitments) hereof, the Agent shall make such adjustments to
any Annex I to any Promissory Note as are necessary to reflect such charge in
the addition of PIK Interest or such partial prepayment of the Loan as the Agent
shall determine are necessary.






	 	(iii)	 	Absent manifest error, any such adjustments made by the Agent
under this Clause 6.1(b) shall be binding on each Obligor and each Finance Party
and such adjusted Schedule 7 or Annex I shall become part of this Agreement or
the related Promissory Note, respectively, and shall replace any previously
existing Schedule 7 or, with respect to the relevant Promissory Note, Annex I,
without any further act. Agent shall, immediately upon any such adjustment
hereunder, send to Company and any affected Lender copies of any such Schedule 7
or Annex I adjusted hereunder promptly following any such adjustment, together
with the basis for such adjustments in reasonable detail; provided
however, that failure of the Agent to distribute copies of any adjusted
Schedule 7 or Annex I shall not prevent such adjusted Schedule 7 or Annex I from
being binding on each Obligor and each Finance Party. Agent shall not be liable
to any Person for any errors made in connection with the adjustments
contemplated by this Clause 6.1(b) except to the extent caused by the gross
negligence or willful misconduct of Agent.






	 	(c)	 	Each Borrower must jointly and severally repay the outstanding principal amount
of all the Loan in accordance with paragraph (a) above.






	 	(d)	 	Amounts repaid under this Subclause may not be reborrowed.






	 	(e)	 	The Loan must be repaid in full on no later than the Maturity Date.






	 	6.2	 	Application of payments






Repayments under this Clause will be applied first to the repayments of accrued and
unpaid interest (including any accrued PIK Interest which has not already been added to the
principal of the Loan) and second to the repayment of outstanding principal of the Loan.




	 	7.	 	PREPAYMENT AND CANCELLATION OF COMMITMENTS






	 	7.1	 	Mandatory prepayment – illegality






	 	(a)	 	A Lender must notify the Company promptly if it becomes aware that it is
unlawful in any jurisdiction for that Lender to perform any of its obligations under a
Finance Document or to fund or maintain its share in the Loan.






	 	(b)	 	After notification under paragraph (a) above:






	 	(i)	 	each Borrower must repay or prepay the share of that Lender in
the Loan on the date specified in paragraph (c) below; and






	 	(ii)	 	the Commitments of that Lender will be immediately cancelled.






	 	(c)	 	The date for repayment or prepayment of a Lender’s share in the Loan will be
the date specified by the Lender in the notification under paragraph (a) above and
which must not be earlier than the last day of any applicable grace period allowed by
law.






	 	7.2	 	Mandatory prepayments – certain proceeds






The Borrower will be required to reduce the amount of the Loan then outstanding by
repaying the Loan in an amount equal to:




	 	(a)	 	100% of all insurance proceeds payable with respect to any Collateral (the
Insurance Proceeds); provided that the Obligor receiving such Insurance
Proceeds may retain the same to the extent that the Borrower has notified the Agent in
writing that the Obligor intends to apply such Insurance Proceeds to the repair,
restoration or replacement of the affected property (it being understood that to the
extent any Insurance Proceeds intended to be applied to such repair, restoration or
replacement are not in fact applied within sixty days after the date of receipt of such
Insurance Proceeds, then the Borrower shall prepay the Loan in an amount equal to such
unapplied portion of the Insurance Proceeds);






	 	(b)	 	in connection with the sale of shares or any other Equity Interest in any
Acquired Subsidiary, the principal outstanding amount of the Advance made under the
Loan to partially finance the acquisition of such Acquired Subsidiary (which in the
case of Gupta shall be Advance A) or, in the case of any of Advance that related to the
financing of more than one Acquired Subsidiary, the portion of such Advance which is
attributable to the Acquired Subsidiary being sold (as set forth in the relevant
Request or, if not set forth in the relevant request, as determined by the Agent);
provided, that, if a Default has occurred and is continuing, 100% of the Net
Cash Proceeds related to any Disposition shall be applied to repayment of the Loan
under this Clause 7.2(b); and provided, further, that, so long as no
Default has occurred and is continuing, the sale of the Warp Solutions/Spider Cache
Business will not trigger a mandatory prepayment under this clause; and






	 	(c)	 	an amount equal to 85% of the aggregate of all Excess Cash Flows for each
member of the Group (calculated for each period commencing on the later of the Closing
Date or the date on which a prepayment under this subclause (c) was last previously
made and ending on the date immediately prior to a payment under this subclause (c));
provided that no repayment shall be required under this subclause (c) unless prior to
the date which is 9 months after the Closing Date (i) no Advances have been made under
Tranche B and (ii) the Company has not acquired (after the Closing Date and without the
incurrence of any Indebtedness) 100% of the Equity Interests of any new subsidiary
which at the time of acquisition had a twelve month trailing EBITDA of greater than
$1,000,000; provided further that, in the event prepayments are required to be made
under this subclause (c) (assuming Excess Cash Flow is a positive amount) then Borrower
must prepay the loan in full no later than the date which is 21 months after the
Closing Date.






Mandatory prepayments required under Clause 7.2(a) shall be made within one Business
Day of receipt of Insurance Proceeds (except as provided above), mandatory prepayments
required under Clause 7.2(b) shall be made on the same day that Net Cash Proceeds are
received, mandatory prepayments required under Clause 7.2(c), if any, shall be made
quarterly commencing on the date which is 9 months after the Closing Date.




	 	7.3	 	Mandatory prepayment – change of control






	 	(a)	 	A change of control occurs if:






	 	(i)	 	Ron Bienvenu, his immediate family members or any trust, trustee
or other personal representative acting for the benefit of Ron Bienvenu or his
immediate family members, ceases to directly or indirectly own 90% of the issued
and outstanding Equity Interests in the Company currently owned, directly or
indirectly, by Ron Bienvenu, as adjusted to take into account any dividends paid
in additional shares in the company or any stock splits or other similar
adjustments involving the Equity Interests of the Company; provided, however,
that failure of any such Person to exercise any warrants, options or other right
to acquire additional Equity Interests in the Company shall not constitute a
cessation of ownership or control of Equity Interests under this Clause
7.3(a)(i).






	 	(ii)	 	Ron Bienvenu ceases to perform the management functions he
currently performs for the Company or otherwise ceases to be involved in the day
to day management of the Company and is not replaced within 90 days by a person
satisfactory to the Agent, acting in its sole discretion; provided
however, that if Ron Bienvenu ceases to be involved in the day to day
management of the Company due to his death, a change of control will not occur
unless Ron Bienvenu is not replaced within 180 days by a person satisfactory to
the Agent, acting in its sole discretion.






The Company must promptly notify the Agent if it becomes aware of any change in
control.




	 	(b)	 	If a change of control occurs then, if the Majority Lenders so require, the
Agent must, by notice to the Company:






	 	(i)	 	cancel the Total Commitments; and






	 	(ii)	 	declare the Loan, together with accrued interest (including any
PIK Interest which has not previously been added to the principal amount of the
Loan) and all other amounts owing under the Finance Documents, to be immediately
due and payable.





	 	 	 
	7.4

	 	Any such notice will take effect in accordance with its terms.

Voluntary prepayment







	 	(a)	 	Unless required in accordance with the terms of this Agreement or if a Lender
Rejection has occurred, the Loan may not be prepaid during the first twelve months of
the Term. Thereafter, any Borrower may prepay the Loan in accordance with the terms of
this Subclause.






	 	(b)	 	Unless required in accordance with the terms of this Agreement, the Loan may
only be prepaid in whole.






	 	(c)	 	Each relevant Borrower must give the Agent a duly completed notice of its
request to prepay no later than 11:00 a.m. three Business Days before the date of
prepayment.






	 	(d)	 	Each notice given under paragraph (c) above must indicate the prepayment date,
which must be the last day of an Interest Period unless the Majority Lenders permit
otherwise and if the Majority Lenders do so permit, the Borrower shall be obligated to
pay all applicable Breakage Costs.






	 	(e)	 	If a Borrower elects to prepay the Loan pursuant to this Clause 7.4 (Voluntary
prepayment); other than as a result of the occurrence of a Lender Rejection, it shall
pay, in addition to the amount of the Loan then outstanding and all accrued but unpaid
interest (including any accrued PIK Interest not previously added to the principal of
the Loan), a prepayment premium equal to (i) three % of the then outstanding principal
amount of the Loan, if such prepayment occurs on or prior to the date which is 24
months after the Closing Date, (ii) two % of the then outstanding principal amount of
the Loan if such prepayment occurs after the date which is 24 months after the Closing
Date and on or prior to the date which is 36 months after the Closing Date and (iii)
one % of the then outstanding principal amount of the Loan if such prepayment occurs 36
months after the Closing Date. In addition, the relevant Borrower must pay any
Breakage Costs.






	 	(f)	 	Upon prepayment of the Loan under this Clause 7.4, the Total Commitments will
be automatically cancelled.






	 	7.5	 	Automatic cancellation






	 	(a)	 	The Commitments of each Lender will be automatically cancelled at the close of
business on August 30, 2005 if the Closing Date has not occurred on or prior to such
date.






	 	(b)	 	The Commitments of each Lender will be automatically cancelled at the close of
business on the last day of the Availability Period.






	 	7.6	 	Voluntary cancellation






	 	(a)	 	The Company may, after the date which is 12 months after the Closing Date, by
giving not less than five Business Days’ prior irrevocable notice to the Agent, cancel
the unutilized amount of the Total Commitments in whole or in part.






	 	(b)	 	Partial cancellation of the Total Commitments must be in a minimum amount of
U.S.$1,000,000 or such lesser amount as may be undrawn and uncancelled or such other
amount as may be agreed by the Agent (acting on the instructions of the Majority
Lenders).






	 	(c)	 	Any cancellation in part will be applied against the relevant Commitment of
each Lender pro rata.






	 	7.7	 	Involuntary prepayment and cancellation






	 	(a)	 	If an Obligor is, or will be, required to pay to a Lender a Tax Payment or an
Increased Cost, the Company may, while the requirement continues, give notice to the
Agent and the affected Lender:






	 	(i)	 	requesting prepayment and cancellation in respect of that Lender;
or






	 	(ii)	 	requesting that Lender assign and delegate its rights and
obligations to an assignee designated by the Company.






	 	(b)	 	After notification and a request for prepayment and cancellation under
paragraph (a)(i) above:






	 	(i)	 	the Borrowers must repay or prepay that Lender’s share in the
Loan on the date specified in paragraph (c) below; and






	 	(ii)	 	the Commitment of that Lender will be immediately cancelled.






	 	(c)	 	The date for repayment or prepayment of a Lender’s share in the Loan will be
the date specified by the Company in its notification and request under paragraph
(a)(i) above.






	 	(d)	 	The Company may only request an assignment under paragraph (a)(ii) above if:






	 	(i)	 	it has received the prior written consent of the Agent not to be
unreasonably withheld or delayed; and






	 	(ii)	 	in connection with the assignment:






	 	(iii)	 	the assigning Lender receives from the new Lender payment in
full of the outstanding principal amount of its portion of the Loan together
with all accrued and unpaid interest and fees and any other amounts owed to it
under the Finance Documents;






	 	(iv)	 	the new Lender assumes the Commitment of the assigning Lender, as
well as any other obligations of the assigning Lender under the Finance
Documents; and






	 	(v)	 	the assigning Lender assigns to the new Lender its portion of the
Loan and related rights under the Finance Documents;






	 	(vi)	 	the assignment results in a reduction of the Tax Payment or
Increased Costs otherwise payable; and






	 	(vii)	 	the Company bears all reasonable, out-of-pocket costs of the
assignment.






Any assignment under this Subclause must be effected in accordance with Subclause 28.3
(Procedure for assignments by Lenders).




	 	7.8	 	Miscellaneous provisions






	 	(a)	 	Any notice of prepayment and/or cancellation under this Agreement is
irrevocable and must specify the relevant date(s) and the affected Tranche. The Agent
must notify the Lenders promptly of receipt of any such notice.






	 	(b)	 	All prepayments under this Clause 7 (Prepayment and cancellation of
commitments) must be made with accrued interest (including any accrued PIK Interest not
previously added to the principal of the Loan) on the amount prepaid.






	 	(c)	 	The relevant Borrower must pay all Breakage Costs associated with any voluntary
or involuntary (other than in the case of an involuntary prepayment under Clause 7.1)
prepayment of the Loan prior to the end of the Term.






	 	(d)	 	No premium, penalty or fee is payable in respect of any involuntary prepayment
except for any Breakage Costs; provided that no Breakage Costs shall be payable in
respect of prepayments required pursuant to Clause 7.1.






	 	(e)	 	The Majority Lenders may agree to a shorter notice period for a voluntary
prepayment or a voluntary cancellation.






	 	(f)	 	No prepayment or cancellation is allowed except in accordance with the express
terms of this Agreement.






	 	(g)	 	No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.






	 	(h)	 	Any partial prepayment of the Loan will be applied against the remaining
Repayment Installments pro rata.






	 	8.	 	INTEREST






	 	8.1	 	Calculation of interest






The rate of interest payable on the Loan for each Interest Period is the percentage
rate per annum equal to the sum of LIBOR for that Interest Period plus the Margin.




	 	8.2	 	Interest Periods






The period for which the Loan is outstanding shall be divided into successive periods,
the first of which shall start on the Closing Date and end on the Principal Repayment Date
immediately following the Closing Date. Each subsequent Interest Period shall start on the
day immediately succeeding the last day of the Interest Period then ending and shall end on
the immediately following Principal Repayment Date. The last Interest Period shall end on
the Maturity Date.




	 	8.3	 	Payment of interest






	 	(a)	 	On the last day of each Interest Period the Borrower shall pay accrued interest
on the Loan (other than any portion of accrued interest that shall constitute PIK
Interest and which is added to the principal of the Loan pursuant to paragraph (b)
below).






	 	(b)	 	Notwithstanding paragraph (a) and Clause 8.1 (Calculation of interest) above,
but subject to paragraph (c) below, provided, that no Default shall have
occurred and be continuing on the applicable Interest Payment Date, an amount equal to
the regularly scheduled interest payment that would have been due on any Interest
Payment Date (other than the Maturity Date), but assuming solely for this purpose that
such interest payment was calculated using an interest rate of 4% per annum instead of
the Interest Rate, shall be automatically added (such interest so added, the PIK
Interest) to the principal outstanding amount of the Loan, and such PIK Interest shall
itself bear interest, from and after the Interest Payment Date when it became due, at
the Interest Rate. Each automatic addition of PIK Interest to the principal balance of
the Loan pursuant to this paragraph (b) shall be deemed to be an additional extension
of credit by the Lenders and shall constitute a representation and warranty by the
Borrowers on the relevant Interest Payment Date that no Default has occurred and is
continuing on such date. If (i) a Default shall have occurred on or prior to, and be
continuing on, any Interest Payment Date or (ii) the Company has given the Agent prior
written notice that the Company wants to cease having PIK Interest added to the
principal of the Loan on any future Interest Payment Date, no PIK Interest will be
added to the principal outstanding under the Loan and all accrued interest shall be
payable in cash on such Interest Payment Date pursuant to paragraph (a) above.






	 	(c)	 	Upon the repayment or prepayment of the Loan in full, accrued interest
(including any accrued PIK Interest that has not previously been added to the principal
of the Loan) on the Loan is immediately due and payable.






	 	8.4	 	Interest on overdue amounts






	 	(a)	 	If any sum due and payable by any Obligor under the Finance Documents is not
paid on the due date therefor in accordance with the provisions of Clause 13 (Payments)
or if any sum due and payable by any Obligor under any judgment of any court in
connection herewith is not paid on the date of such judgment, the period beginning on
such due date or, as the case may be, the date of such judgment and ending on the date
upon which the obligation of that Obligor to pay such sum (the balance thereof for the
time being unpaid being herein referred to as an unpaid sum) is discharged shall be
divided into successive periods, each of which (other than the first) shall start on
the last day of the period preceding such period and the duration of each of which
shall be selected by the Agent and thereafter notified to the Company and the Lenders.






	 	(b)	 	During each such period relating thereto as is mentioned in paragraph (a) of
this Clause 8.4 an unpaid sum shall bear interest at the rate per annum equal to the
Overdue Interest Rate.






	 	(c)	 	Any interest which shall have accrued under paragraph (b) of this Clause 8.4 in
respect of an unpaid sum shall be due and payable and shall be paid by the relevant
Obligor at the end of the period by reference to which it is calculated.






	 	8.5	 	Notification of rates of interest






The Agent must promptly notify each relevant Party of the determination of a rate of
interest under this Agreement, provided that failure to give such notice shall not affect
any of the obligations of any Obligor under any of the Finance Documents.




	 	8.6	 	Interest rate limitation






	 	(a)	 	If at any time the interest rate applicable to the Loan, together with all
other amounts which are treated as interest on the Loan under applicable law, exceeds
the maximum lawful rate, the interest payable in respect of the Loan, together with all
other amounts treated as interest on the Loan, shall be limited to interest calculated
at the maximum lawful rate. To the extent lawful, any amounts not payable because of
the operation of the preceding sentence will be cumulated and the interest and other
amounts payable in respect of other Loans or periods shall be increased until the
cumulated amount, together with interest on that amount at the Federal Funds Effective
Rate, shall have been received by the Lenders.






	 	(b)	 	The limitation contained in paragraph (a) above shall also apply, and on the
same terms, to any other amount due under the Finance Documents on which interest
accrues.






	 	9.	 	MARKET DISRUPTION






	 	9.1	 	Failure of a Reference Bank to supply a rate






If LIBOR is to be calculated by reference to the Reference Banks but a Reference Bank
does not supply a rate by 12:00 noon, London time, two Business Days prior to the beginning
of the any Interest Period, the applicable LIBOR will, subject as provided below, be
calculated on the basis of the rates of the remaining Reference Banks.




	 	9.2	 	Market disruption






	 	(a)	 	The Agent must promptly notify the Company and the Lenders if the Agent
determines prior to the beginning of any Interest Period that adequate and reasonable
means do not exist for ascertaining LIBOR for that Interest Period (the determination
of the Agent being conclusive absent manifest error).






	 	(b)	 	After notification under paragraph (a) above, the rate of interest on each
Lender’s share in the Loan will be the aggregate of:






	 	(i)	 	the Margin; and






	 	(ii)	 	the rate notified to the Agent by that Lender as soon as
practicable, and in any event before interest is next due to be paid, to be that
which expresses as a percentage rate per annum the cost to that Lender of
funding its share in the Loan from whatever source it may reasonably select.






	 	10.	 	TAXES






	 	10.1	 	General






In this Clause Tax Credit means a credit against any Tax or any relief or remission for
Tax (or its repayment).




	 	10.2	 	Tax gross-up






	 	(a)	 	Each Obligor must make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required by law.






	 	(b)	 	If an Obligor or a Lender is aware that an Obligor must make a Tax Deduction
(or that there is a change in the rate or the basis of a Tax Deduction), it must
promptly notify the Agent. The Agent must then promptly notify the affected Parties.






	 	(c)	 	If a Tax Deduction is required by law to be made by an Obligor or the Agent,
the amount of the payment due from the Obligor will be increased to an amount which
(after making the Tax Deduction) leaves an amount equal to the payment which would have
been due if no Tax Deduction had been required.






	 	(d)	 	If an Obligor is required to make a Tax Deduction, that Obligor must make the
minimum Tax Deduction allowed by law and must make any payment required in connection
with that Tax Deduction within the time allowed by law.






	 	(e)	 	Within 30 days of making either a Tax Deduction or a payment required in
connection with a Tax Deduction, the Obligor making that Tax Deduction must deliver to
the Agent for the relevant Finance Party evidence satisfactory to that Finance Party
(acting reasonably) that the Tax Deduction has been made or (as applicable) the
appropriate payment has been paid to the relevant taxing authority.






	 	10.3	 	Tax indemnity






	 	(a)	 	Except as provided below, the Company indemnifies each Finance Party against
any loss or liability which that Finance Party (in its absolute discretion) determines
will be or has been suffered (directly or indirectly) by that Finance Party for or on
account of Tax in relation to a payment received or receivable (or any payment deemed
to be received or receivable) under a Finance Document or in connection with the
execution, delivery or performance of any Finance Document.






	 	(b)	 	Paragraph (a) above does not apply to any Tax assessed on a Finance Party by
the United States of America or under the laws of the jurisdiction in which:






	 	(i)	 	that Finance Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that Finance Party has a Facility
Office and is treated as resident for tax purposes; or






	 	(ii)	 	that Finance Party’s Facility Office is located in respect of
amounts received or receivable in that jurisdiction,






if that Tax is imposed on or calculated by reference to the net income received or
receivable by that Finance Party. However, any payment deemed to be received or receivable,
including any amount treated as income but not actually received by the Finance Party, such
as a Tax Deduction, will not be treated as net income received or receivable for this
purpose.




	 	(c)	 	A Finance Party making, or intending to make, a claim under paragraph (a) above
must promptly notify the Company of the event which will give, or has given, rise to
the claim.






	 	10.4	 	Non-U.S. Lenders






	 	(a)	 	In this Clause 10.4:






U.S. Obligor means an Obligor that is incorporated or organized under the laws of the
United States of America or any State of the United States of America (including the
District of Columbia).




U.S. person has the meaning given to it in Section 7701(a)(30) of the Code.




	 	(b)	 	Except as provided below, each Lender that is not a U.S. person must supply to
the Agent and each U.S. Obligor the U.S. Internal Revenue Service forms that are
necessary to enable that U.S. Obligor to make payments to that Lender under the Finance
Documents without any deduction or withholding in respect of any Tax in the United
States of America.






	 	(c)	 	A Lender must comply with its obligations under paragraph (b) above as soon as
practicable after the date it becomes a party hereto or (if later) the date the U.S.
Obligor becomes a party hereto, but in any case prior to the date on which the Agent or
U.S. Obligor would be required by law to make a Tax Deduction with respect to a payment
to such Lender.






	 	(d)	 	A Lender is not obliged to supply any form under paragraph (b) above if it is
unable to do so by reason of any change after the date of this Agreement in (or in the
interpretation, administration or application of) any law or regulation or any
published practice or concession of any relevant taxing authority.






	 	(e)	 	A U.S. Obligor is not obliged to pay any Tax Payment to a Lender to the extent
that the Tax Payment would not have been payable if that Lender had complied with its
obligations under this Clause 10.4.






	 	10.5	 	Amount of Tax Payment






A certificate of a Finance Party as to the amount of a Tax Payment owing to it shall be
presumed correct absent manifest error.




	 	11.	 	INCREASED COSTS






	 	11.1	 	Increased Costs






Except as provided below in this Clause, the Company must pay to a Finance Party the
amount of any Increased Cost incurred by that Finance Party or any of its Affiliates to the
extent resulting from any Change in Law. Increased Costs include those arising from the
imposition, modification or application of:




	 	(a)	 	any reserve, special deposit or similar requirement against assets of, deposits
with or credit extended by any Lender; or






	 	(b)	 	any capital requirements with respect to any Lender (taking into consideration
the policies of the relevant Lender and its Affiliates with respect to capital
adequacy).






	 	11.2	 	Exceptions






The Company need not make any payment for an Increased Cost to the extent that the
Increased Cost is:




	 	(a)	 	compensated for under another Clause or would have been but for an exception to
that Clause;






	 	(b)	 	a Tax on the overall net income of a Finance Party or any of its Affiliates; or






	 	(c)	 	attributable to a Finance Party or its Affiliate failing to comply with any law
or regulation.






	 	11.3	 	Claims






	 	(a)	 	A Finance Party intending to make a claim for an Increased Cost must notify the
Company and the Agent promptly of the circumstances giving rise to, and the amount of,
the claim.






	 	(b)	 	A certificate of a Finance Party setting forth the amount necessary to
compensate that Finance Party or its Affiliates for Increased Costs shall be delivered
to the Company and the Agent and shall be presumed correct absent manifest error. The
Company shall pay the affected Finance Party the amount shown as due in any such
certificate within 10 days after receipt.






	 	(c)	 	Failure or delay on the part of any Finance Party to demand compensation under
this Clause shall not constitute a waiver of that Finance Party’s right to demand
compensation.






	 	12.	 	MITIGATION






	 	12.1	 	Mitigation






	 	(a)	 	Each Finance Party must, in consultation with the Company, take all reasonable
steps to mitigate any circumstances which arise and which result or would result in:






	 	(i)	 	any Tax Payment or Increased Cost being payable to that Finance
Party; or






	 	(ii)	 	that Finance Party being able to exercise any right of prepayment
and/or cancellation under this Agreement by reason of any illegality,






including transferring its rights and obligations under the Finance Documents to an
Affiliate or changing its Facility Office.




	 	(b)	 	Paragraph (a) above does not in any way limit the obligations of any Obligor
under the Finance Documents.






	 	(c)	 	The Company must indemnify each Finance Party for all reasonable, out-of-pocket
costs and expenses reasonably incurred by that Finance Party as a result of any step
taken by it under this Subclause.






	 	(d)	 	A Finance Party is not obliged to take any step under this Subclause if, in the
opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it
or be inconsistent with its regulatory position or internal policies.





	 	 	 
	12.2	 	Conduct of business by a Finance Party
	
 
	 	No term of this Agreement will:







	 	(a)	 	interfere with the right of any Finance Party to arrange its affairs (Tax or
otherwise) in whatever manner it thinks fit;






	 	(b)	 	oblige any Finance Party to investigate or claim any credit, relief, remission
or repayment available to it in respect of Tax or the extent, order and manner of any
claim; or






	 	(c)	 	oblige any Finance Party to disclose any information relating to its affairs
(Tax or otherwise) or any computation in respect of Tax.






	 	13.	 	PAYMENTS






	 	13.1	 	Place






Unless a Finance Document specifies that payments under it are to be made in another
manner, all payments by a Party (other than the Agent) under the Finance Documents must be
made to the Agent’s Account prior to 2:00 p.m. on the date when due. Any payment received
after that time shall be deemed to have been made on the next Business Day.




	 	13.2	 	Funds






Payments under the Finance Documents to the Agent must be made for value on the due
date in immediately available funds.




	 	13.3	 	Distribution






	 	(a)	 	Each payment received by the Agent under the Finance Documents for another
Party must, except as provided below, be made available by the Agent to that Party by
payment (as soon as practicable after receipt) to its account with such office or bank
in New York as it may notify to the Agent for this purpose by not less than five
Business Days’ prior notice.






	 	(b)	 	The Agent may apply any amount received by it for an Obligor in or towards
payment (as soon as practicable after receipt) of any amount due from that Obligor
under the Finance Documents or in or towards the purchase of any amount of any currency
to be so applied.






	 	(c)	 	If any Lender fails to make any payment required to be made by it under the
Finance Documents, the Agent may, in its discretion, apply any amounts received by it
for the account of that Lender to satisfy that Lender’s obligations under the Finance
Documents until all such unsatisfied obligations are fully paid.






	 	(d)	 	Where a sum is paid to the Agent under this Agreement for another Party, the
Agent is not obliged to pay that sum to that Party until it has established that it has
actually received it. However, the Agent may assume that the sum has been paid to it,
and, in reliance on that assumption, make available to that Party a corresponding
amount. If it transpires that the sum has not been received by the Agent, that Party
must immediately on demand by the Agent refund any corresponding amount made available
to it together with interest on that amount from the date of payment to the date of
receipt by the Agent at a rate calculated by the Agent to reflect its cost of funds.






	 	13.4	 	Currency






	 	(a)	 	Unless a Finance Document specifies that payments under it are to be made in a
different manner, the currency of each amount payable under the Finance Documents is
determined under this Clause.






	 	(b)	 	Amounts payable in respect of costs and expenses are payable in the currency in
which they are incurred.






	 	(c)	 	Each other amount payable under the Finance Documents is payable in U.S.
Dollars.






	 	13.5	 	No set-off or counterclaim






All payments made by an Obligor under the Finance Documents must be made without
set-off or counterclaim.




	 	13.6	 	Business Days






	 	(a)	 	If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment will instead be the next Business Day.






	 	(b)	 	During any extension of the due date for payment of any principal under this
Agreement interest is payable on that principal at the rate payable on the original due
date.






	 	13.7	 	Partial payments






	 	(a)	 	If the Agent receives a payment insufficient to discharge all the amounts then
due and payable by the Obligors under the Finance Documents, the Agent must apply that
payment towards the obligations of the Obligors under the Finance Documents in the
following order:






	 	(i)	 	first, in or towards payment pro rata of any unpaid reasonable,
out-of-pocket fees, costs and expenses of the Agent under the Finance Documents;






	 	(ii)	 	secondly, in or towards payment pro rata of any accrued interest
(including any accrued PIK Interest which has not previously been added to the
principal amount of the Loan) or fee due but unpaid under this Agreement;






	 	(iii)	 	thirdly, in or towards payment pro rata of any principal amount
due but unpaid under this Agreement; and






	 	(iv)	 	fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.






	 	(b)	 	This Subclause will override any appropriation made by an Obligor.






	 	14.	 	GUARANTY AND INDEMNITY





	 	 	 
	14.1	 	Guaranty and indemnity
	
 
	 	Each Guarantor irrevocably and unconditionally:







	 	(a)	 	guarantees to each Finance Party punctual payment and performance by each
Obligor of that Obligor’s obligation under the Finance Documents;






	 	(b)	 	undertakes with each Finance Party that whenever an Obligor does not pay any
amount when due under any Finance Document, it will immediately on demand by the Agent
pay that amount as if it were the principal obligor; and






	 	(c)	 	indemnifies each Finance Party on demand against any loss or liability suffered
by it if any obligation guaranteed by the Guarantor is or becomes unenforceable,
invalid or illegal.






The obligations guaranteed by each Guarantor under this Clause and the losses and
liabilities against which each Guarantor indemnifies the Finance Parties under this Clause
are referred to in this Clause, collectively, as the Guaranteed Obligations and, in each
case, include all amounts that would become due but for the operation of the automatic stay
under section 362(a) of the United States Bankruptcy Code of 1978. The guaranty and
indemnity set forth above are referred to in this Clause as this Guaranty.




	 	14.2	 	Continuing guaranty






	 	(a)	 	This Guaranty creates a continuing guaranty and will remain in full force and
effect until the irrevocable and indefeasible payment in full of the ultimate balance
of the Guaranteed Obligations, regardless of any intermediate payment or discharge in
whole or in part.






	 	(b)	 	If, at any time for any reason (including the bankruptcy, insolvency,
receivership, reorganization, dissolution or liquidation of any Guarantor or any other
Obligor or the appointment of any receiver, intervenor or conservator of, or agent or
similar official for, any Guarantor or any other Obligor of any of their respective
properties), any payment received by any Finance Party in respect of the Guaranteed
Obligations is rescinded or avoided or must otherwise be restored or returned by any
Finance Party, this Guaranty will continue to be effective or will be reinstated, if
necessary, as if that payment had not been made.






	 	(c)	 	Each Finance Party may concede or compromise any claim that any payment,
security or other disposition is liable to avoidance or restoration.






	 	14.3	 	Consideration and enforceability






	 	(a)	 	Each Guarantor represents, warrants and agrees that it will receive valuable
direct and indirect benefits as a result of the transactions financed by the Loan.






	 	(b)	 	Each Guarantor acknowledges and agrees that each of the Finance Parties has
acted in good faith in connection with this Guaranty and the transactions contemplated
by this Agreement.






	 	(c)	 	The Parties agree that:






	 	(i)	 	this Guaranty shall be enforceable against each Guarantor to the
maximum extent permitted by the fraudulent transfer laws; and






	 	(ii)	 	the amount recoverable from a Guarantor under this Guaranty shall
be limited so that no obligation or transfer by that Guarantor is subject to
avoidance or turnover under any fraudulent transfer law.






	 	(d)	 	For purposes of this Clause 14.3 and Clause 14.4 (Solvency), fraudulent
transfer laws mean applicable United States bankruptcy and State fraudulent transfer
and conveyance statutes and the related case law, and terms used in this Subclause and
in Clause 14.4 (Solvency) shall be construed in accordance with the applicable
fraudulent transfer laws.





	 	 	 
	14.4	 	Solvency
	
 
	 	Each Guarantor makes the following representations and warranties to each Finance Party.







	 	(a)	 	The sum of the Guarantor’s debts (calculated immediately prior to the execution
of this Agreement by such Guarantor) is less than the value of the Guarantor’s property
(calculated at the less of fair valuation and present fair saleable value).






	 	(b)	 	The capital of the Guarantor is not unreasonably small to conduct its business
as currently conducted or as proposed to be conducted.






	 	(c)	 	The Guarantor has not incurred, does not intend to incur and does not believe
it will incur debts beyond its ability to pay as they mature.






	 	(d)	 	The Guarantor has not made a transfer or incurred an obligation under this
Guaranty with the intent to hinder, delay or defraud any of its present or future
creditors.






	 	(e)	 	For the purposes of this Subclause:






	 	(i)	 	debt means any liability on a claim; and






	 	(ii)	 	claim means:






	 	(A)	 	any right to payment, whether or note that right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured; or






	 	(B)	 	any right to an equitable remedy for breach of
performance if that breach gives rise to a right to payment, whether or
not the right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured.






	 	14.5	 	Nature of each Guarantor’s obligations






Each Guarantor’s obligations under this Guaranty are independent of any obligation of
the other Obligors or any other person, and a separate action or actions may be brought and
prosecuted against each Guarantor under this Guaranty whether or not any action is brought
or prosecuted against the other Obligors or any other person and whether or not the other
Obligors or any other person is joined in any action under this Guaranty. This is a
guaranty of payment and not merely of collection.




	 	14.6	 	Waiver of defenses






	 	(a)	 	The obligations of each Guarantor under this Guaranty will not be affect by,
and each Guarantor irrevocably waives any defense it might have by virtue of, any act,
omission, matter or thing which, but for this Subclause, would reduce, release or
prejudice any of its obligations under this Guaranty, including (whether or not known
to it or any Finance Party);






	 	(i)	 	any time, forbearance, extension or waiver granted to, or
composition or compromise with, an Obligor or any other person;






	 	(ii)	 	the taking, variation, compromise, exchange; renewal or release
of, or refusal or neglect to perfect, take up or enforce, any rights against, or
security over assets of, any Obligor or any other person or any non-presentation
or non-observance of any formality or other requirement in respect of any
instrument or any failure to realize the full value of any security;






	 	(iii)	 	any disability, incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members of status of any Obligor
or any other person;






	 	(iv)	 	any amendment or variation (however fundamental) or restatement,
replacement or novation of a Finance Document or any other document, guaranty or
security so that references to that Finance Document in this Guaranty shall
include each amendment, variation, restatement, replacement or novation;






	 	(v)	 	any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document, guaranty or
security, to the intent that each Guarantor’s obligations under this Guaranty
shall remain in full force and be construed accordingly, as if there were no
unenforceability, illegality or invalidity;






	 	(vi)	 	any avoidance, postponement, discharge, reduction,
non-provability or other similar circumstance affecting any obligation of any
Obligor under a Finance Document resulting from any bankruptcy, insolvency,
receivership, liquidation or dissolution proceedings or from any law, regulation
or order so that each such obligation shall for the purposes of each Guarantor’s
obligations under this Guaranty be construed as if there were no such
circumstance; or






	 	(vii)	 	the acceptance or taking of other guaranties or security for the
Guaranteed Obligations, or the settlement, release or substitution of any
guaranty or security or of any endorse, guarantor or other obligor in respect of
the Guaranteed Obligations.






	 	(b)	 	Each Guarantor unconditionally and irrevocably waives:






	 	(i)	 	diligence, presentment, demand for performance, notice of
nonperformance, protest, notice of protest, notice of dishonor, notice of the
creation of incurring of new or additional indebtedness of the Obligors to the
Finance Parties, notice of acceptance of this Guaranty, and notice of any other
kind whatsoever;






	 	(ii)	 	the filing of any claim with any court in the event of a
receivership, insolvency or bankruptcy;






	 	(iii)	 	the benefit of any statute of limitations affecting any
Obligor’s obligations under the Finance Document or the Guarantor’s obligations
under this Guaranty or the enforcement of this Guaranty; and






	 	(iv)	 	any offset or counterclaim or other right, defense, or claim
based on, or in the nature of, any obligation now or later owed to the Guarantor
by the other Obligors or any Finance Party.






	 	(c)	 	Each Guarantor irrevocably and unconditionally authorizes the Finance Parties
to take any action in respect of the Guaranteed Obligations or any collateral or
guaranties securing them or any other action that might otherwise be deemed a legal or
equitable discharge of a surety, without notice to or the consent of the Guarantor and
irrespective of any change in the financial condition of any Obligor.






	 	14.7	 	Immediate recourse






Each Guarantor waives any right it may have of first requiring any Finance Party (or
any trustee or agent on their behalf) to proceed against or enforce any other rights,
security or other guaranty or claim payment from any other Obligor or any other person
before claiming from the Guarantor under this Guaranty.




	 	14.8	 	Appropriations






Until all amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably and indefeasibly paid in full, each Finance
Party (or any trustee or agent on its behalf) may:




	 	(a)	 	refrain from applying or enforcing any other moneys, security, guaranties or
rights held or received by that Finance Party (or any trustee or agent on its behalf)
in respect of those amounts, or apply and enforce the same in such manner and order as
it sees fit (whether against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and






	 	(b)	 	hold in a suspense account any moneys received from any Guarantor or on account
of that Guarantor’s liability under this Guaranty without liability to pay interest on
those moneys.






	 	14.9	 	Non-competition






Until such time as all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably and indefeasibly paid in
full, each Guarantor shall not after a claim has been made or by virtue of any payment or
performance by it under this Guaranty:




	 	(a)	 	be subrogated to any rights, security or moneys held, received or receivable by
any Finance Party (or any trustee or agent on its behalf) or be entitled to any right
of contribution or indemnity in respect of any payment made or moneys received on
account of the Guarantor’s liability under this Guaranty;






	 	(b)	 	claim, rank, prove or vote as creditor of any other Obligor or its estate in
competition with any Finance Party (or any trustee or agent on its behalf); or






	 	(c)	 	receive, claim or have the benefit of any payment, distribution or security
from or on account of any other Obligor, or exercise any right of set-off as against
any other Obligor,






unless the Agent otherwise consents or directs in writing. Each Guarantor shall hold
in trust for and forthwith pay or transfer to the Agent (or as directed by the Agent) for
the Finance Parties any payment or distribution or benefit of security received by the
contrary to this Subclause.




	 	14.10	 	Additional security






This Guaranty is in addition to and are not in any way prejudiced by any other guaranty
or security now or subsequently held by any Finance Party.




	 	14.11	 	Election of remedies






Each Guarantor understands that the exercise by the Agent and the other Finance Parties
of certain rights and remedies contained in the Finance Documents may affect or eliminate
the Guarantor’s right of subrogation and reimbursement against the other Obligors and that
the Guarantor may therefore incur a partially or totally reimbursable liability under this
Guaranty. Each Guarantor expressly authorizes the Agent and the other Finance Parties to
pursue their rights and remedies with respect to the Guaranteed Obligations in any order or
fashion they deem appropriate, in their sole and discretion, and waives any defense arising
out of the absence, impairment, or loss of any or all rights of recourse, reimbursement,
contribution, exoneration or subrogation or any other rights or remedies of the Guarantor
against any other Obligor, any other person or any security, whether resulting from any
election of rights or remedies by the Agent or the other Finance Parties, or otherwise.




	 	14.12	 	Information concerning the Obligors






Each Guarantor represents and warrants to each Finance Party that the Guarantor is
affiliated with each other Obligor and is otherwise in a position to have access to all
relevant information bearing on the present and continuing creditworthiness of each other
Obligor and the risk that any other Obligor will be unable to pay the Guaranteed Obligations
when due. Each Guarantor waives any requirement that any Finance Party advise the Guarantor
of information known to that Finance Party regarding the financial condition or business of
any other Obligor, or any other circumstance bearing on the risk of non-performance of the
Guaranteed Obligations, and each Guarantor assumes sole responsibility for keeping informed
of the financial condition and business of each other Obligor.




	 	14.13	 	Waiver of subrogation






Notwithstanding anything in Clause 14.9 (Non-competition) above to the contrary, the
Company irrevocably and unconditionally waives, for the benefit of the Finance Parties, and
agrees not to claim or assert after the Agent acting on behalf of the Finance Parties has
exercised its rights under any Security Document made by the Company in favor of the Agent,
any right of subrogation, contribution or indemnity the Company may have against any of its
Subsidiaries as a result of any payment under this Guaranty or in respect of the Guaranteed
Obligations until after such time as all amounts which may be or become payable by the
Obligors under or in connection with the Finance Documents have been irrevocably and
indefeasibly paid in full.




	 	14.14	 	No marshaling






Except to the extent required by applicable law, neither the Agent nor any other
Finance Party will be required to marshal any collateral securing, or any guaranties of, the
Guaranteed Obligations, or to resort to any item of collateral or any guaranty in any
particular order, and the Finance Parties’ rights with respect of any collateral and
guaranties will be cumulative and in addition to all other rights, however existing or
arising. To the extent permitted by applicable law, each Guarantor irrevocably waives, and
agrees that it will not invoke or assert, any law requiring or relating to the marshaling of
collateral or guaranties or any other law which might cause a delay in or impede the
enforcement of the Finance Parties’ rights under this Guaranty or any other agreement.




	 	14.15	 	Maintenance of Liable Capital






	 	(a)	 	To the extent that any guarantee issued by a Guarantor incorporated in Germany
secures liabilities of an affiliated company (verbundenes Unternehmen) within the
meaning of Section 15 et seq. of the German Stock Corporation Act (Aktiengesetz) of
such Guarantor (other than the Guarantor’s Subsidiaries), and the Guarantor is
incorporated in Germany as a GmbH (the German Guarantor), the enforcement of such
Guarantee shall be, at the date hereof and any time hereafter until the full and
complete discharge of any and all amounts outstanding under the Finance Documents,
limited to an amount equal to the net assets of such Guarantor (the calculation of
which shall take into account the captions reflected in Section 266 subsection (2) A, B
and C of the German Commercial Code (HGB Handelsgesetzbuch)) less the sum of (A) the
liabilities of the German Guarantor (the calculation of which shall take into account
the captions reflected in Section 266 sub-section (3) B, C and D of the German
Commercial Code), and (B) the stated share capital (Stammkapital) of the German
Guarantor (the Net Assets)).






	 	(b)	 	For the purposes of the calculation of the Net Assets the following balance
sheet items shall be adjusted as follows:






	 	(i)	 	the amount of any increase of the stated share capital after the
date hereof out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln)
that has been effected without the prior written consent of the Agent shall be
deducted from the stated share capital; and






	 	(ii)	 	loans and other contractual liabilities incurred in violation of
the provisions of the Finance Documents shall be disregarded.






	 	(c)	 	In addition, the German Guarantor shall realize, to the extent legally
permitted and commercially justifiable, in a situation where the German Guarantor’ Net
Assets are less than zero any and all of its assets that are shown in the balance sheet
with a book value (Buchwert) that is significantly lower than the market value of the
assets if the asset is not necessary for the German Guarantor’ s business
(betriebsnotwendig).






	 	(d)	 	The German Guarantor shall be entitled to terminate or limit the scope of the
Guarantee granted hereunder by written notice to the Agent (the Termination Notice) if
it delivers a legal opinion in form and substance satisfactory to the Agent which
specifies:






	 	(i)	 	that the German Guarantor is not allowed to comply with its
guarantee obligations because it would lead to personal or criminal liability of
the managing directors of such German Guarantor or its shareholders’ managing
directors (A) due to a breach of the duty of care vis a vis the respective
company (Rücksichtnahme auf die Eigenbelange der Gesellschaft) or (B) of the
prohibition of a liquidity impairment (existenzvernichtender Eingriff); and






	 	(ii)	 	the amount to which the Guarantee shall be limited to prevent the
circumstances referred to in paragraph (i) above arising.






	 	(e)	 	The delivery of a Termination Notice shall entitle the Finance Parties to
exercise their rights pursuant to Clause 19.16 (Acceleration) in accordance with
paragraph (f) below.






	 	(f)	 	The Termination Notice shall specify the date as of which such termination or
limitation shall become effective, which date shall be at least 30 Business Days after
receipt of the Termination Notice by the Agent (the Effective Date). With effect from
the Effective Date and unless the Finance Parties have exercised any of their rights
pursuant to Clause 19.16 (Acceleration) on or prior to the Effective Date the guarantee
from such German Guarantor shall be terminated or limited to such amount, as the case
may be. For clarification purposes the guarantee shall not be limited if the Finance
Parties exercise any of their rights pursuant to Clause 19.16 (Acceleration) on or
prior to the Effective Date.






	 	(g)	 	This Clause shall not apply to the extent any amounts due and payable under the
guarantee relate to monies which have been on-lent or otherwise passed on to that
German Guarantor or any of its Subsidiaries to the extent still outstanding at the time
the demand is made against such German Guarantor.






	 	15.	 	REPRESENTATIONS AND WARRANTIES






	 	15.1	 	Representations and warranties






The representations and warranties set out in this Clause are made by each Obligor or
(if it so states) the Company to each Finance Party. The representations and warranties set
out in this Clause shall be subject to the exceptions, if any, contained in Schedule 11.



	 	 	 	 	 
	15.2	 	Status	 	 
	
 
	 	 	 	Each of it and its Subsidiaries:







	 	(a)	 	is duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization;






	 	(b)	 	has the power to own its assets and carry on its business as it is being
conducted; and






	 	(c)	 	is qualified to do business and in good standing in each jurisdiction where
qualification is required, except where such failure would not have a Material Adverse
Effect.






	 	15.3	 	Powers and authority






It has the power to enter into and perform, and has taken all necessary action to
authorize the entry into and performance of, the Transaction Documents to which it is or
will be a party and the transactions contemplated by those Transaction Documents.




	 	15.4	 	Legal validity






Each Finance Document to which it is a party has been duly executed and delivered by it
and is its legally binding, valid and enforceable obligation, except as enforceability may
be limited by:




	 	(a)	 	bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors’ rights; or






	 	(b)	 	the application of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).






	 	15.5	 	Non-conflict






The entry into and performance by it of, and the transactions contemplated by, the
Transaction Documents do not conflict with:




	 	(a)	 	any law or regulation applicable to it;






	 	(b)	 	its or any of its Subsidiaries’ constitutional documents; or






	 	(c)	 	any agreement or document which is binding upon it or any of its Subsidiaries
or any of its or its Subsidiaries’ assets, except where such failure could not
reasonably be expected to have a Material Adverse Effect.






	 	15.6	 	No default






	 	(a)	 	No Default is outstanding or will result from the execution of, or the
performance of any transaction contemplated by, any Finance Document; and






	 	(b)	 	To the best of its knowledge, no other event is outstanding which constitutes a
breach or default under any document which is binding on it or any of its Subsidiaries
or any of its or its Subsidiaries’ assets to an extent or in a manner which is
reasonably likely to have a Material Adverse Effect.






	 	15.7	 	Authorizations






Except for filings in respect of the Security Interests created under the Security
Documents, all authorizations and filings required in connection with the entry into,
performance, validity and enforceability of, and the transactions contemplated by, the
Transaction Documents have been obtained or effected (as appropriate) and are in full force
and effect, except where such failure could not reasonably be expected to have a Material
Adverse Effect.




	 	15.8	 	Financial statements






Its audited annual financial statements and unaudited quarterly financial statements
most recently delivered to the Facility Agent (which, in the case of the Company at the date
of this Agreement, are the Original Financial Statements):




	 	(a)	 	have been prepared in accordance with accounting principles and practices
generally accepted in its jurisdiction of incorporation, consistently applied; and






	 	(b)	 	present fairly in all material respects its financial condition and results of
operations and cash flows (consolidated, if applicable) as at the date and for the
periods indicated in those financial statements,






	 	(c)	 	subject to normal year-end audit adjustments and the absence of footnotes in
the case of quarterly financial statements.






	 	15.9	 	No material adverse change






There has been no material adverse change in the consolidated financial condition or in
the business, assets, operations, prospects or condition, financial or otherwise, of the
Group, taken as a whole, since the date of the Original Financial Statements.




	 	15.10	 	Litigation






No litigation, arbitration or administrative proceedings are current or pending or, to
its knowledge, threatened, which, if adversely determined, are reasonably likely to have a
Material Adverse Effect.




	 	15.11	 	Properties






Each of it and its Subsidiaries has good title to, or valid leasehold interests in, all
its real and personal property material to its business, subject only to Liens permitted by
Clause 18.9 (Negative pledge) and except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize its properties
for their intended purposes. The Company owns directly or indirectly 100% of the
outstanding Equity Interests in each of the entities listed in Schedule 14 (Subsidiaries).



	 	 	 
	15.12	 	Intellectual property
	
 
	 	Each of it and its Subsidiaries:







	 	(a)	 	is the sole legal and beneficial owner of or has licensed to it all the
Intellectual Property Rights which are material in the context of its business and
which are required by it in order to carry on its business in all material respects as
it is being conducted (and all such Intellectual Property Rights are identified in
Schedule 13);






	 	(b)	 	has taken all formal or procedural actions (including payment of fees) required
to maintain those Intellectual Property Rights which are material in the context of its
business and which are required by it in order to carry on its business in all material
respects as it is being conducted;






	 	(c)	 	none of those Intellectual Property Rights is being infringed, nor (to its
knowledge) is there any threatened infringement of any of those Intellectual Property
Rights, in any material respect; and






	 	(d)	 	does not, in carrying on its business, infringe any Intellectual Property
Rights of any third party in any respect which could reasonably be expected to result
in a Material Adverse Effect.






	 	15.13	 	Compliance with laws and agreements






Each of it and its Subsidiaries is in compliance with all laws and regulations
applicable to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be excepted to result in a Material Adverse Effect.




	 	15.14	 	Taxes






Each of it and its Subsidiaries has timely filed or caused to be filed all Tax returns
and reports required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except:




	 	(a)	 	Taxes that are being contested in good faith by appropriate proceedings and for
which the affected person has set aside on its books adequate reserves; or






	 	(b)	 	to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.






	 	15.15	 	Disclosure






	 	(a)	 	The Company has disclosed in writing to the Finance Parties, or provided copies
to the Agent of, all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, information relating to environmental
matters and to its ERISA Plans, and all matters known to it, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse Effect.






	 	(b)	 	No report, financial statement or certificate furnished by or on behalf of the
Obligors to the Finance Parties in connection with the negotiation, performation or
administration of the Finance Documents contains any material misstatement of fact or
omits to state any material fact necessary to make the statements in that information,
in the light of the circumstances under which they were made, not misleading, except
that, with respect to projected financial information, the Company represents only that
this information was prepared in good faith based upon assumptions believed to be
reasonable at the time they were prepared.






	 	(c)	 	Schedule 8 (Material Agreements) contains a true, complete and accurate list of
all material agreements or contracts (together with any amendments or supplements
thereto) relating to the business or operations of the Company or any Acquired
Subsidiary and the Company has delivered fully executed copies of all such agreements
and contracts that the Agent has requested to the Agent.






	 	(d)	 	Schedule 13 (Intellectual Property Rights) contains a true, accurate and
complete list of all Intellectual Property Rights owned or licensed by any member of
the Group;






	 	(e)	 	Schedule 14 (Subsidiaries) contains a true, accurate and complete list of all
Subsidiaries of any member of the Group;






	 	(f)	 	all material information provided to a Finance Party by or on behalf of the
Company, any Borrower, any Portfolio Company or the Target Company in connection the
transactions contemplated by the Finance Documents (including any information relating
to any Acquisition and/or any Portfolio Company and any information provided in
connection with any due diligence or background check conducted by the Agent relating
to any officer, manager or board member of any Obligor) or the Target Company is to the
best of its knowledge (after due inquiry) accurate in all material respects and, in
light of the circumstances under which there were made, not misleading in any material
respect;






	 	(ii)	 	all projections provided to any Finance Party have been prepared
in good faith on the basis of assumptions which were reasonable at the time at
which they were prepared and supplied and were not misleading in any material
respect; and






	 	(iii)	 	neither the Company, nor any Borrower, nor to the best of the
Company’s knowledge (after due inquiry) any Portfolio Company nor the Target
Company has omitted to disclose any information which would make any of the
information or projections referred to in subparagraphs (d)(i) and (ii) above
misleading in any material respect.






	 	15.16	 	United States laws






	 	(a)	 	In this Subclause:






Anti-Terrorism Law means each of:




	 	(i)	 	Executive Order No. 13224 of September 23, 2001 – Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten To
Commit, or Support Terrorism (the Executive Order);






	 	(ii)	 	the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law
107-56 (commonly known as the USA Patriot Act);






	 	(iii)	 	the Money Laundering Control Act of 1986, Public Law 99-570; and






	 	(iv)	 	any similar law enacted in the United States of America
subsequent to the date of this Agreement.






holding company has the meaning given to it in the United States Public Utility Holding
Company Act of 1935.




investment company has the meaning given to it in the United States Investment Company
Act of 1940.




public utility has the meaning given to it in the United States Federal Power Act of
1920.




Restricted Party means any person listed:




	 	(a)	 	in the Annex to the Executive Order;






	 	(b)	 	on the Specially Designated Nationals and Blocked Persons list maintained by
the Office of Foreign Assets Control of the United States Department of the Treasury;
or






	 	(c)	 	in any successor list to either of the foregoing.






	 	(d)	 	Neither it nor any of its Subsidiaries is:






	 	(i)	 	a holding company or subject to regulation under the United
States Public Utility Holding Company Act of 1935;






	 	(ii)	 	a public utility or subject to regulation under the United States
Federal Power Act of 1920;






	 	(iii)	 	required to be registered as an investment company or subject to
regulation under the United States Investment Company Act of 1940; or






	 	(iv)	 	subject to regulation under any United States Federal or State
law or regulation that limits its ability to incur or guarantee indebtedness.






	 	(e)	 	To the best of its knowledge, neither it nor any of its Affiliates:






	 	(i)	 	is, or is controlled by, a Restricted Party;






	 	(ii)	 	has received funds or other property from a Restricted Party; or






	 	(iii)	 	is in breach of or is the subject of any action or investigation
under any Anti-Terrorism Law.






	 	(f)	 	Each of it and its Affiliates has taken reasonable measures to ensure
compliance with the Anti-Terrorism Laws.






	 	15.17	 	Assets of Gupta Technologies GmbH






The Company represents and warrants that the list of assets set forth on Schedule 16
(Assets of Gupta Technologies GmbH) includes all material assets of Gupta Technologies GmbH.




	 	15.18	 	Shares held by Ron Bienvenu






Ron Bienvenu currently owns (directly or indirectly) 2,041,325 shares of common stock in the
Company.




	 	15.19	 	Aggregate number of shares






As of the Closing Date, the aggregate number of shares of common stock representing 100% of
the fully diluted capital stock of the Company is 42,180,839.




	 	15.20	 	Acquisition Documents






	 	(a)	 	To the best of its knowledge, no representation or warranty given by any party
in the Acquisition Documents is, in light of the circumstances under which they were
made, untrue or misleading in any material respect.






	 	(b)	 	The Acquisition Documents contain all the terms of the Acquisition to which
they relate and the transactions referred to in such Acquisition Documents.






	 	15.21	 	Times for making representations






	 	(a)	 	The representations set out in this Clause are made by each Original Obligor on
the date of this Agreement.






	 	(b)	 	Unless a representation is expressed to be given at a specific date, each
representation is deemed to be repeated by:






	 	(i)	 	each Additional Obligor and the Company on the date that
Additional Obligor becomes an Obligor; and






	 	(ii)	 	each Obligor on the date of each Request and on each Utilization
Date.






	 	(c)	 	When a representation is repeated, it is applied to the circumstances existing
at the time of repetition.






	 	16.	 	INFORMATION COVENANTS






	 	16.1	 	Financial statements






	 	(a)	 	The Company must supply to the Agent in sufficient copies for all the Lenders:






	 	(i)	 	its audited annual consolidated financial statements as of the
end of and for each of its fiscal years;






	 	(ii)	 	its unaudited consolidated quarterly financial statements as of
the end of and for each of its fiscal quarters and the then elapsed portion of
its fiscal year;






	 	(iii)	 	annual financial documents summarizing the financial position of
each Obligor as of the end of and for each of its fiscal years including profit
and loss statements, cash flow statements and comparisons of budgeted to actual
financial performance; and






	 	(iv)	 	quarterly financial documents summarizing the financial position
of each Obligor as of the end of and for each of its fiscal quarters and the
then elapsed portion of its fiscal year including profit and loss statements,
cash flow statements and comparisons of budgeted to actual financial
performance.






	 	(b)	 	All financial statements must be supplied as soon as they are available and:






	 	(i)	 	in the case of the Company’s audited consolidated financial
statements, within 120 days;






	 	(ii)	 	in the case of the Company’s unaudited consolidated quarterly
financial statements, within 60 days;






	 	(iii)	 	in the case of each Obligor’s annual financial documents, within
120 days; and






	 	(iv)	 	in the case of each Obligor’s quarterly financial documents with
60 days,





	 	 	 
	16.2

	 	of the end of the relevant financial period.

Form of financial statements







	 	(a)	 	All audited annual financial statements must set forth in each case in
comparative form the figures for the previous year and must be reported on by the
Company’s current auditors, Mahoney Cohen & Company, CPA, P.C., or other independent
public accountants of recognized national standing acceptable to the Majority Lenders.
The accountants’ report must contain no “going concern” or similar qualification or
exception or any qualification or exception as to the scope of the audit and must state
that the relevant financial statements present fairly in all material respects the
financial condition and results of operations of the relevant person or persons (on a
consolidated basis in the case of the Company and its Subsidiaries) in accordance with
GAAP consistently applied.






	 	(b)	 	All unaudited quarterly financial statements must set forth in each case in
comparative form the figures for (or, in the case of the balance sheet, as of the end
of) the corresponding period or periods of the previous fiscal year and must be
certified by a Financial Officer of the Obligor (or of the Company, in the case of the
consolidated financial statements of the Company and its Subsidiaries) to which the
financial statements relate as presenting fairly in all material respects the financial
condition and results of operations of that person or persons (on a consolidated basis
in the case of the Company and its Subsidiaries) in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of footnotes.






	 	(c)	 	If, after the date of this Agreement, there occurs a change in GAAP, the
Company or the Majority Lenders may request an amendment to any provision of this
Agreement to eliminate the effect of that change or its application on the operation of
that provision of this Agreement, and the Parties will enter into the discussions
described in paragraph (e) below, but that provision shall be interpreted on the basis
of GAAP as in effect and applied immediately before the change became effective until
and unless an agreement is reached under paragraph (e) below.






	 	(d)	 	The Company must notify the Agent of any material change (whether arising from
a change in GAAP or otherwise) in the manner in which its audited consolidated
financial statements are prepared. The Company must supply to the Agent:






	 	(i)	 	a full description of the change; and






	 	(ii)	 	sufficient information to enable the Finance Parties to make a
proper comparison between the financial position shown by the set of financial
statements prepared on the changed basis and its most recent audited
consolidated financial statements delivered to the Agent under this Agreement.






	 	(e)	 	If requested by the Company or the Majority Lenders, the Parties will enter
into discussions for a period of not more than 30 days with a view to agreeing any
amendments required to be made to this Agreement to place the Company and the Lenders
in the same position as they would have been in if the change in GAAP and/or the change
in the manner in which the Company’s audited consolidated financial statements are
prepared had not occurred. Any agreement between the Company and the Agent will be,
with the prior consent of the Majority Lenders (not to be unreasonably withheld),
binding on all the Parties.






	 	(f)	 	If no agreement is reached under paragraph (e) above, the Company must supply
with each set of its financial statements another set of its financial statements
prepared on the same basis as the Original Financial Statements, and the provisions of
this Agreement will continue to be interpreted on the basis of the financial statements
prepared on the same basis as the Original Financial Statements. In the event that the
parties are unable to reach agreement under paragraph (e) above and the Company is
required to prepare alternative financial statements, the Company may upon sixty (60)
days notice to the Agent prepay the obligations hereunder without penalty.






	 	16.3	 	Compliance Certificate






	 	(a)	 	The Company must supply to the Agent a Compliance Certificate with each set of
its financial statements sent to the Agent under this Agreement.






	 	(b)	 	Each Compliance Certificate must be signed by a Financial Officer of the
Company, who must certify as to the accuracy and completeness of its contents, in all
material respects, based on the financial information of the Company.






	 	(c)	 	A Compliance Certificate supplied with its audited annual consolidated
financial statements must be accompanied by a certificate of its auditors stating
whether they obtained, during the course of their examination, knowledge of any
Default; provided however, that this certificate need not be supplied if (i)
the auditors confirm in writing that as a matter of policy or practice they do not
supply certificates of this nature for any of their clients, or (ii) the auditors would
charge an additional fee of more than US$5,000 for providing such certificate.






	 	(d)	 	Each Compliance Certificate must also:






	 	(i)	 	state whether a Default has occurred and, if so, contain the
information required under Clause 16.5 (Notice of material events); and






	 	(ii)	 	state whether a change described in Clause 16.2(d) (Form of
financial statements) has occurred, and if so, describe that change and its
effect on the accompanying financial statements.






	 	16.4	 	Information – miscellaneous






The Company must supply to the Agent, in sufficient copies for all the Lenders if the
Agent so requests:




	 	(a)	 	copies of all documents sent by the Company to all of its shareholders (or any
class of them) or its creditors generally or any class of them at the same time as they
are sent;






	 	(b)	 	promptly after they become publicly available, copies of (or notice as to where
publicly available) all periodic and other reports, proxy statements and other
materials filed by the Company or any Affiliate with the U.S. Securities Exchange
Commission (or any successor) or with any national securities exchange;






	 	(c)	 	promptly on request, a list of the then current Subsidiaries;






	 	(d)	 	promptly on request, such further information regarding the financial
condition, business and operations of the Group or any Obligor, or compliance with the
terms of the Finance Documents, as any Finance Party through the Agent may reasonably
request;






	 	(e)	 	without prejudice to any restrictions contained herein on the ability of an
Obligor to enter into any agreements or contracts, fully executed copies of all
material agreements or contracts (together with any amendments or supplements thereto)
that relate to the business or operation of the Company or any Acquired Subsidiary; and






	 	(f)	 	promptly upon becoming aware of them, details of any claim or potential claim
in an amount of $200,000 or more made by or against a member of the Group under any
Acquisition Document and any allegation of breach of any Acquisition Document by any
party to that Acquisition Document that could reasonably be expected to result in a
claim or potential claim involving an amount of $200,000 or more.





	 	 	 
	16.5	 	Notice of material events
	
 
	 	The Company must furnish to the Agent prompt written notice of:







	 	(a)	 	any litigation, arbitration or administrative proceedings which are current or
pending or, to its knowledge, threatened and which could reasonably be expected to, if
adversely determined, have a Material Adverse Effect;






	 	(b)	 	of the terms of any settlement or verdict reached in connection with the
pending litigation between Gupta Technologies, S.A. de C.V. and a division of the
Mexico City government;






	 	(c)	 	any ERISA Event that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect; and






	 	(d)	 	any Environmental Claim current or pending or, to its knowledge, threatened or
any circumstances reasonably likely to result in an Environmental Claim which, if
substantiated, is reasonably likely to either have a Material Adverse Effect or result
in any liability for a Finance Party.






	 	(e)	 	Any other development that results in, or could reasonably be expected to
result in, a Material Adverse Effect, except any development which is a matter of
general public knowledge that has a material adverse affect on the technology industry
as a whole.






Each notice delivered this Subclause shall be accompanied by a statement of a Financial
Officer of the Company, setting forth the details of the event or development requiring that
notice and any action taken or proposed to be taken by the Company or other Obligor, as the
case may be, with respect to that event or development.




	 	16.6	 	Notification of Default






	 	(a)	 	Unless the Agent has already been so notified by another Obligor, each Obligor
must notify the Agent of any Default (and the steps, if any, being taken to remedy it)
promptly upon becoming aware of its occurrence.






	 	(b)	 	Promptly on request by the Agent, the Company must supply to the Agent a
certificate, signed by a Financial Officer of the Company, certifying that no Default
is outstanding or, if a Default is outstanding, specifying the Default and the steps,
if any, being taken to remedy it.





	 	 	 
	16.7	 	Fiscal year
	16.8

	 	The Company must not change its fiscal year.

Exceptions







The covenants in Clause 16 shall be subject to the exceptions, if any, included in Schedule
11.




	 	17.	 	FINANCIAL COVENANTS






The Company will not permit the Group to fail to comply with the covenants set forth in
Part 2 of Schedule 15 (Financial Terms and Covenants).




	 	18.	 	GENERAL COVENANTS






	 	18.1	 	General






Each Obligor agrees to be bound by the covenants set out in this Clause relating to it
and, where the covenant is expressed to apply to each member of the Group, each Obligor must
ensure that each of its Subsidiaries performs that covenant.




	 	18.2	 	Existence






Each member of the Group must maintain its legal existence and all rights, licenses and
franchises material to the conduct of its business, except that this provision shall not
prohibit a Permitted Transaction.




	 	18.3	 	Authorizations






Each Obligor must promptly obtain, maintain and comply with the terms of any
authorization required under any law or regulation to enable it to perform its obligations
under, or for the validity or enforceability of, any Finance Document.




	 	18.4	 	Compliance with laws






Each member of the Group must comply in all respects with all laws to which it is
subject where failure to do so could reasonably be expected to result in a Material Adverse
Effect.




	 	18.5	 	Payment of obligations






Each member of the Group must pay its obligations, including Tax liabilities, that, if
not paid, could reasonably be expected to result in a Material Adverse Effect before the
same shall become delinquent or in default, except where:




	 	(a)	 	the validity or amount of the obligation is being contested in good faith by
appropriate proceedings;






	 	(b)	 	the member has set aide on its books adequate reserves with respect to the
obligation in accordance with GAAP; and






	 	(c)	 	the failure to make payment pending the contest could not reasonably be
expected to result in a Material Adverse Effect.






	 	18.6	 	Maintenance of properties






Each member of the Group must keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted.




	 	18.7	 	Books and records






Each member of the Group must keep proper books, records and accounts in which full,
true and correct entries are made of all dealings and transactions in relation to its
business and activities.




	 	18.8	 	Inspection rights






Each member of the Group must permit any representatives designated by the Agent, upon
reasonable prior written notice, to visit and inspect (at the Borrower’s reasonable expense)
its properties, to examine and make extracts from its books, records and accounts, and to
discuss its affairs, finances and condition with its officers and independent accountants,
during normal business hours and as often as reasonably requested; provided that, unless a
Default has occurred and is continuing, the Company shall not be liable for more than one
inspection per property during any calendar year.




	 	18.9	 	Negative pledge






	 	(a)	 	Except as provided below, no member of the Group may create or allow to exist
any Lien on any of its assets.






	 	(b)	 	Paragraph (a) does not apply to:






	 	(i)	 	any Security Interest created or perfected by the Security
Documents; or






	 	(ii)	 	any Permitted Encumbrance.






	 	(c)	 	No member of the Group may:






	 	(i)	 	sell, transfer or otherwise dispose of any of its assets on terms
where it is or may be leased to or re-acquired or acquired by a member of the
Group or any of its related entities; or






	 	(ii)	 	sell, transfer or otherwise dispose of any of its receivables on
recourse terms,






in circumstances where the transaction is entered into primarily as a method of raising
Indebtedness or of financing the acquisition of an asset.




	 	18.10	 	Disposals






	 	(a)	 	Except as provided below, no member of the Group may, either in a single
transaction or in a series of transactions and whether related or not, dispose of all
or any part of its assets.






	 	(b)	 	Paragraph (a) does not apply to any disposal:






	 	(i)	 	made in the ordinary course of business of the disposing entity;






	 	(ii)	 	of assets in exchange for other assets comparable or superior as
to type, value and quality;






	 	(iii)	 	of obsolete or worn-out equipment or other property no longer
used or useful in its business;






	 	(iv)	 	of the Warp Solutions/Spider Cache Business;






	 	(v)	 	due to the dissolution of Gupta Technologies S.A. de C.V.; or






	 	(vi)	 	of an Acquired Subsidiary provided, that the Net Sale
Proceeds of such disposal equal or exceed the then outstanding principal amount
of the Advance which related to such Acquired Subsidiary and such Net Sale
Proceeds were applied to the prepayment of the Loan in accordance with Clause
7.2 (Mandatory prepayments – certain proceeds).






	 	18.11	 	Indebtedness






	 	(a)	 	Except as provided below, no member of the Group may incur any Indebtedness.






	 	(b)	 	Paragraph (a) does not apply to:






	 	(i)	 	any Indebtedness incurred under the Finance Documents;






	 	(ii)	 	any Indebtedness owed by a member of the Group to another member
of the Group;






	 	(iii)	 	any Indebtedness provided by the Original Lender or any of its
Affiliates;






	 	(iv)	 	any Indebtedness which is immediately applied to the payment in
full of all amounts owing under or in connection with this Agreement or the
other Finance Documents;






	 	(v)	 	the redeemable preference shares identified and described in
Schedule 9 and any other redeemable preference shares issued after the Closing
Date which by their express terms are not redeemable prior to the Maturity Date;






	 	(vi)	 	any Indebtedness (including under finance or capital leases)
relating to the acquisition of equipment or computers in the ordinary course,
provided that the aggregate outstanding Indebtedness relating to all such items
acquired by members of the Group does not exceed US$250,000 at any time;






	 	(vii)	 	the Subordinated Indebtedness; or






	 	(viii)	 	any other Indebtedness expressly approved in writing by the Lenders (acting in
their sole discretion).






	 	18.12	 	Change of business






The Company must ensure that no substantial change is made to the general nature of the
business of the Company or the Group from that carried on at the date of this Agreement.




	 	18.13	 	Subsidiaries






The Company must ensure that each Subsidiary of the Company is a Guarantor under this
Agreement and must cause each Subsidiary of the Company to grant to the Agent for the
benefit of the Finance Parties a valid and enforceable perfected first priority security
interest in that Subsidiary’s assets, securing all obligations of the Obligors under the
Finance Documents except to the extent priority is affected as a result of a Permitted
Encumbrance.




	 	18.14	 	Mergers






No Obligor may enter into any merger (other than mergers where such Obligor is the
surviving entity and which are otherwise expressly permitted under this Agreement),
amalgamation, demerger or reconstruction or liquidate, wind up or dissolve itself other than
in a Permitted Transaction.




	 	18.15	 	Investments and acquisitions






	 	(a)	 	Except as provided below, no member of the Group may make any Investment or
acquisition.






	 	(b)	 	Paragraph (a) does not apply to:






	 	(i)	 	operating deposit accounts with banks which are Collateral
Accounts;





	 	 	 
	(ii)

(iii)

(iv)

	 	Permitted Investments which are held in a Collateral Account;

Investments by the Company in its Subsidiaries;

Investments by any Subsidiary in its Subsidiaries;







	 	(v)	 	any Acquisition;






	 	(vi)	 	the acquisition of assets in the ordinary course of business
which are required for the day to day operations of an Obligor; or






	 	(vii)	 	any acquisition permitted pursuant to subclause (d) below.






	 	(c)	 	The amount of any Investment for purposes of determining compliance with this
Subclause shall not be reduced by reason of any write-down or write-off of that
Investment.






	 	(d)	 	The Company or any wholly-owned Subsidiary of the Company may acquire any
business, assets or stock of another person (by purchase of shares or assets, by merger
or consolidation or otherwise) if:






	 	(i)	 	the acquisition is financed 100% by means of equity investment
and does not involve any Obligor incurring any Indebtedness which is not
expressly permitted under Clause 18.11 (Indebtedness);






	 	(ii)	 	the assets will be owned by the Company or a wholly-owned
Subsidiary of the Company in the case of an acquisition of assets;






	 	(iii)	 	the acquired entity shall become a wholly-owned Subsidiary of
the Company or of a wholly-owned Subsidiary of the Company and will become a
Guarantor under this Agreement in the case of an acquisition of stock;






	 	(iv)	 	the Company or a wholly-owned Subsidiary of the Company shall be
the surviving entity in the case of an acquisition by merger or consolidation;
and






	 	(v)	 	immediately, prior to the acquisition and after giving effect to
the acquisition:






	 	(vi)	 	no Default shall have occurred and be continuing; and






	 	(vii)	 	the Company shall be in compliance with Clause 17 (Financial
covenants).






	 	(e)	 	Notwithstanding Clauses 18.15 (a) – (d), neither Gupta Technologies GmbH nor
Gupta Technologies, S.A. de C.V. may acquire any assets or the business or stock of
another person with an aggregate value greater than US$100,000 unless immediately
following such acquisition or acquisitions, the Agent has a perfected security
interest in such business, assets or stock.






	 	18.16	 	Restricted Payments






No member of the Group may declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except:




	 	(a)	 	the Company may declare and pay dividends with respect to its Equity Interests
that are payable solely in additional shares of its common stock;






	 	(b)	 	so long as no Default has occurred and is continuing, direct or indirect wholly
owned Subsidiaries of the Company may declare and pay upstream dividends to the
Company;






	 	(c)	 	the Company may make the payments required under that certain Promissory Note
of the Company to Bristol Technology, Inc., dated as of July 1, 2005 in the aggregate
principal amount of $1,000,000; and






The Company may not agree to any amendment or modification to its Series C preferred
 shares which could increase the amount of dividends required to be paid thereon prior to the
Maturity Date.




	 	18.17	 	Intellectual property rights






	 	(a)	 	Except as provided below, each member of the Group must:






	 	(i)	 	make any registration and pay any fee or other amount which is
necessary to retain and protect the Intellectual Property Rights which are
material to the business of a member of the Group;






	 	(ii)	 	record its interest in those Intellectual Property Rights;






	 	(iii)	 	take such steps as are necessary and commercially reasonable
(including the institution of legal proceedings) to prevent third parties
infringing those Intellectual Property Rights;






	 	(iv)	 	not use or permit any such Intellectual Property Right to be used
in a way which may, or take or omit to take any action which may, have a
material adverse effect on the existence or value of such Intellectual Property
Right; and






	 	(v)	 	not grant any license in respect of those Intellectual Property
Rights.






	 	(b)	 	Paragraph (a)(v) above does not apply to:






	 	(i)	 	license arrangements entered into between members of the Group
for so long as they remain members of the Group; or






	 	(ii)	 	license arrangements entered into in the ordinary course of its
business.






	 	18.18	 	Transactions with Affiliates






No member of the Group may sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in
any other transactions with, any of its Affiliates, except:




	 	(a)	 	in the ordinary course of business at prices and on terms and conditions not
less favorable to it than could be obtained on an arm’s-length basis from unrelated
third parties;






	 	(b)	 	transactions between or among the Company and its wholly-owned Subsidiaries not
involving any other Affiliate; and






	 	(c)	 	any Restricted Payment permitted by Clause 18.16 (Restricted payments).






	 	18.19	 	Restrictive agreements






	 	(a)	 	No member of the Group may, directly or indirectly, enter into, incur or permit
to exist any agreement or other arrangement that prohibits, restricts or imposes any
condition upon:






	 	(i)	 	the ability of the Company or any Subsidiary of the Company to
create, incur or permit to exist any Lien upon any of its property or assets
that is required under any Finance Document; or






	 	(ii)	 	the ability of any Subsidiary of the Company to guarantee
Indebtedness of the Company or any other Subsidiary of the Company under this
Agreement.






	 	(b)	 	Paragraph (a) does not apply to restrictions or conditions:






	 	(i)	 	imposed by law or by any Finance Document; or






	 	(ii)	 	that are customary, are contained in an agreement relating to the
sale of a Subsidiary, apply only to that Subsidiary and permit the sale.






	 	(c)	 	Subparagraph (a)(i) does not apply to restrictions or conditions:






	 	(i)	 	relating to secured Indebtedness permitted by this Agreement and
applying only to the assets securing that Indebtedness; or






	 	(ii)	 	that are customary and contained in leases and other contracts
restricting the assignment of those leases and contracts.






	 	18.20	 	Environmental matters






Each member of the Group must ensure that it is, and has been, in compliance with all
Environmental Law and Environmental Approvals applicable to it, where failure to do so is
reasonably likely to have a Material Adverse Effect or results in any liability for a
Finance Party.




	 	18.21	 	Insurance






Each member of the Group must maintain, with financially sound and reliable insurance
companies, insurance in such amounts and against such risks as companies engaged in the same
or similar businesses and operating in the same or similar locations normally maintain,
which shall name the Finance Parties as additional insured of all liability policies and
name the Agent as sole loss payee of any property or casualty policies. Each insurer must
agree (i) to give at least 30 days’ notice to the Agent if such insurer proposes to
repudiate, rescind or cancel any policy or to treat any policy as voided in whole or part
and (ii) that each member of the Group is free to assign all amounts payable to it under
each of its insurance policies and all of its rights in connection with such amounts in
favor of the Agent.



	 	 	 
	18.22	 	Use of proceeds
	
 
	 	No Obligor may:







	 	(a)	 	extend credit for the purpose, directly or indirectly, of buying or carrying
Margin Stock;






	 	(b)	 	use any part of the Loan, directly or indirectly, to buy or carry Margin Stock
or for any other purpose in violation of the Margin Regulations; or






	 	(c)	 	use any part of the Loan to acquire any security in violation of section 13 or
14 of the United States Securities Exchange Act of 1934.






	 	18.23	 	ERISA






	 	(a)	 	Each Obligor must promptly upon becoming aware of it notify the Agent of:






	 	(i)	 	any ERISA Event;






	 	(ii)	 	the termination of or withdrawal from, or any circumstances
reasonably likely to result in the termination of or withdrawal from, any Plan
subject to Title IV of ERISA; and






	 	(iii)	 	a claim or other communication alleging material non-compliance
with any law or regulation relating to any Plan.






	 	(b)	 	Each Obligor and its ERISA Affiliates must be, and remain, in compliance in all
respects with all laws and regulations relating to each of its Plans, where failure to
do so is reasonably likely to have a Material Adverse Effect.






	 	(c)	 	Each of the Obligors and its ERISA Affiliates must ensure that no event or
condition exists at any time in relation to a Plan which is reasonably likely to result
in the imposition of a Security Interest on any of its assets or which is reasonably
likely to have a Material Adverse Effect.






	 	18.24	 	Bank Accounts






No member of the Group may open or maintain any account or enter into any banking
relationship with any branch of any bank or other financial institution providing similar
services other than a bank or financial institution which is acceptable to the Agent and
which has entered into a control agreement or has received and acknowledged any notices to
the extent required by any Security Document.




	 	18.25	 	Security






Each Obligor must, and shall procure that each Subsidiary, on acquiring any asset or
establishing any account over which the Security Agent would not immediately and effectively
have a perfected first priority security interest under the then existing Security Documents
(except to extent priority is affected as a result of a Permitted Encumbrance), execute and
deliver to the Security Agent such further or additional Security Documents in relation to
such assets as the Majority Lenders may reasonably require and in form and substance
satisfactory to them.




	 	(a)	 	Each Obligor shall execute and deliver to the Security Agent such further or
additional Security Documents in such form as the Majority Lenders shall require
creating an effective perfected first priority Security Interest over the shares in any
entity which becomes a member of the Group after the Closing Date.






	 	(b)	 	Each Obligor shall, and shall procure that each other relevant member of the
Group which is its Subsidiary shall, at its own expense, execute and do all such
assurances, acts and things as the Agent may reasonably require:






	 	(i)	 	for registering any Security Documents in any required register
and for perfecting or protecting the security intended to be afforded by the
Security Documents; and






	 	(ii)	 	if the Security Documents have become enforceable following an
Event of Default, for facilitating the realization of all or any part of the
assets which are subject to the Security Documents and the exercise of all
powers, authorities and discretions vested in the Security Agent or in any
receiver of all or any part of those assets,






and in particular shall execute all transfers, conveyances, assignments and
releases of that property whether to the Security Agent or to its nominees and give
all notices, orders and directions which the Security Agent may reasonably think
expedient.




	 	(c)	 	On each date that a Security Document is entered into after the Closing Date,
each Obligor shall procure that the documents listed in Part 3 of Schedule 2
(Conditions Precedent Documents) in respect of the Obligor entering into such Security
Document are delivered to the Agent.






	 	18.26	 	Acquisition Documents






	 	(a)	 	The Company shall promptly pay (or shall procure that there is promptly paid)
all amounts payable by the Company (or any member of the Group) under the Acquisition
Documents as and when the same become due (save to the extent being contested by a
member of the Group in good faith and where adequate reserves are being maintained for
any such payment).






	 	(b)	 	The Company must take, and must procure that each member of the Group takes,
all commercially reasonable steps to protect, maintain and enforce its rights and
pursue any material claims or remedies it has under the Acquisition Documents.






	 	18.27	 	Accounts






	 	(a)	 	Each Obligor shall, and shall procure that all other members of the Group
shall, at all times (i) keep all Cash and Cash Equivalents of such Obligors or member
of the Group in a Collateral Account, (ii) ensure that a Control Agreement relating to
each Collateral Account is in full force and effect and (iii) not open or maintain any
bank account or securities account which is not a Collateral Account.






	 	(b)	 	Notwithstanding subclause 18.27(a), any Collateral Account maintained at
JPMorgan Chase shall not be required to have a Control Agreement in full force and
effect provided that (i) the balance in each such Collateral Account less amounts of up
to US$5,000 necessary to cover outstanding checks is transferred to UBS Financial
Services, Inc. or such other financial institution that is reasonably acceptable to the
Agent within 10 Business Days following the Closing Date, (ii) a Control Agreement
relating to each such transferred Collateral Account is in full force and effect within
10 Business Days following the Closing Date and (iii) all Collateral Accounts currently
maintained at JPMorgan Chase are closed within 30 Business Days.






	 	18.28	 	Subordinated Indebtedness






No member of the Group may purchase, redeem, retire or otherwise acquire for value, or
set apart any money for a sinking, defeasance or other analogous fund for the purchase,
redemption, retirement or other acquisition of, or make any voluntary payment or prepayment
of the principal of or interest on, or any other amount owing in respect of, the
Subordinated Indebtedness, except for regularly scheduled payments, prepayments or
redemptions of principal and interest required under the terms of the instruments evidencing
the Subordinated Indebtedness and except that all Subordinated Indebtedness may be prepaid
in full out of the proceeds of any new equity contributions made in the Company which were
not intended to be used in connection with the financing of an Acquisition.




	 	19.	 	DEFAULT





	 	 	 
	19.1	 	Events of Default
	19.2

	 	Each of the events set out in this Clause is an Event of Default.

Non-payment







	 	(a)	 	An Obligor does not pay any principal of, or interest on, the Loan when and as
the same shall become due and payable by it.






	 	(b)	 	Any Obligor does not pay any fee or other amount (other than an amount referred
to in paragraph (a) above) payable by it under the Finance Documents when and as the
same shall become due and payable by it and in the manner required under the Finance
Documents, and the non-payment shall continue unremedied for a period of five or more
Business Days.






	 	19.3	 	Breach of other obligations






	 	(a)	 	An Obligor does not comply with any term of Clause 17 (Financial covenants) or
Clauses 18.10, 18.11, 18.12, 18.14, 18.16, 18.27 or 18.28; or






	 	(b)	 	an Obligor does not comply with any other term of the Finance Documents not
already referred to in paragraph (a) above, unless the non-compliance:






	 	(i)	 	is capable of remedy; and






	 	(ii)	 	is remedied within twenty days (or such longer period of time if
non-compliance is of a nature then can not be remedied in 20 days, but in no
event to exceed 60 days) of the earlier of the Agent giving notice and the
Obligor becoming aware of the non-compliance.






	 	19.4	 	Misrepresentation






A representation or warranty made or repeated by an Obligor in any Finance Document or
any Compliance Certificate is incorrect when made or deemed to be repeated.



	 	 	 
	19.5	 	Cross-default
	
 
	 	Any of the following occurs in respect of a member of the Group:







	 	(a)	 	any of its Indebtedness is not paid when due (after the expiry of any
originally applicable grace period);






	 	(b)	 	any of its Indebtedness:






	 	(i)	 	becomes prematurely due and payable;






	 	(ii)	 	is placed on demand;






	 	(iii)	 	is required to be repurchased, redeemed or defeased; or






	 	(iv)	 	is capable of being declared by a creditor to be prematurely due
and payable, being placed on demand or being required to be repurchased,
redeemed or defeased,






in each case, as a result of a breach, default or event of default (howsoever
described); or




	 	(c)	 	any commitment for its Indebtedness is cancelled or suspended as a result of a
breach, default or event of default (howsoever described),






unless the amount of Indebtedness falling within all or any of paragraphs (a)-(c) above
is less than U.S.$250,000 or its equivalent, in the aggregate.




	 	19.6	 	Judgments






One or more judgments for the payment of money in an aggregate amount in excess of
U.S.$250,000, or its equivalent, shall be rendered against one or more members of the Group
and the same shall remain undischarged for a period of 45 days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of any member of the Group to enforce any such judgment.




	 	19.7	 	ERISA






An ERISA Event shall have occurred that, in the opinion of the Majority Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably be expected
to result in a Material Adverse Effect.




	 	19.8	 	Environmental claims






A reasonable basis shall exist to assert, or there shall be asserted, against the
Company or any of its Subsidiaries, or any predecessor in interest of the Company or any of
its Subsidiaries, an Environmental Claim that, in the judgment of the Majority Lenders, is
reasonably likely to be determined adversely to the Company or any of its Subsidiaries and
the liability of the Company or any of its Subsidiaries arising as a result of that
Environmental Claim is reasonably likely to have a Material Adverse Effect.



	 	 	 
	19.9	 	Insolvency
	
 
	 	Any of the following occurs in respect of a Material Group Member:







	 	(a)	 	it is, or is deemed for the purposes of any law to be:






	 	(i)	 	unable to pay its debts as they become due; or






	 	(ii)	 	insolvent;






	 	(b)	 	it admits its inability to pay its debts as they become due;






	 	(c)	 	it fails generally to pay its debts as they become due;






	 	(d)	 	by reason of actual or anticipated financial difficulties, it begins
negotiations with any creditor for the rescheduling of any of its Indebtedness; or






	 	(e)	 	a moratorium is declared in respect of any of its Indebtedness.






If a moratorium occurs in respect of any Material Group Member, the ending of the
moratorium will not remedy any Event of Default caused by the moratorium. For the avoidance
of doubt, in determining the solvency of any Guarantor, the amount of its debt attributable
to its guaranty hereunder is subject to the limitation set forth in Clause 14.3(c).



	 	 	 
	19.10	 	Insolvency proceedings
	
 
	 	Any of the following occurs in respect of a Material Group Member:







	 	(a)	 	it makes a general assignment for the benefit of creditors;






	 	(b)	 	it commences a voluntary case or proceeding under the United States Bankruptcy
Code of 1978;






	 	(c)	 	an involuntary case or proceeding under the United States Bankruptcy Code of
1978 is commenced against it and is not controverted within 30 days or is not dismissed
or stayed within 90 days after commencement of the case;






	 	(d)	 	any step is taken with a view to a moratorium or a composition, assignment or
similar arrangement with any of its creditors;






	 	(e)	 	a meeting of its shareholders, directors or officers is convened for the
purpose of considering any resolution for, to petition for or to file documents with a
court or any registrar for, its winding-up, administration or dissolution (other than a
dissolution that is part of a Permitted Transaction) or any such resolution is passed;






	 	(f)	 	any person presents a petition, or files documents with a court or any
registrar (other than a petition or documents relating to a case or proceeding
described in paragraph (b) or (c) above), for its winding-up, administration or
dissolution (other than a dissolution that is part of a Permitted Transaction), and
this petition is not contested in good faith and with due diligence or is not
discharged or struck out within 30 days;






	 	(g)	 	an order for relief or any order for its winding-up, administration or
dissolution (other than a dissolution that is part of a Permitted Transaction) is made;






	 	(h)	 	any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager,
receiver, administrative receiver, administrator or similar officer is appointed in
respect of it or any of its assets;






	 	(i)	 	its shareholders, directors or officers request the appointment of, or give
notice of their intention to appoint, a liquidator, trustee in bankruptcy, judicial
custodian, compulsory manager, receiver, administrative receiver, administrator or
similar officer;






	 	(j)	 	any other analogous step or procedure is taken in any jurisdiction; or






	 	(k)	 	it takes any action for the purpose of effecting any action or event described
in this Subclause or consents to any such action or event.






	 	19.11	 	Creditors’ process






Any attachment, sequestration, distress, execution or analogous event affects any
asset(s) of a member of the Group, having an aggregate value of at least U.S.$250,000, or
its equivalent, and is not discharged within fourteen days.




	 	19.12	 	Cessation of business






A Material Group Member is dissolved or ceases, or threatens to cease, to carry on
business except as part of a Permitted Transaction.




	 	19.13	 	Effectiveness of Finance Documents






	 	(a)	 	It is or becomes unlawful for any Obligor to perform any of its obligations
under the Finance Documents.






	 	(b)	 	Any Finance Document is not effective or is alleged by an Obligor to be
ineffective for any reason.






	 	(c)	 	An Obligor repudiates a Finance Document or evidences an intention to repudiate
a Finance Document.






	 	(d)	 	Any Security Interest is not, or ceases to be, a valid and enforceable
perfected first-priority security interest in favor of the Agent in the collateral
intended to be covered.





	 	 	 
	19.14	 	Ownership of the Obligors
	19.15

	 	An Obligor (other than the Company) is not or ceases to be a Subsidiary of the Company.

Material Adverse Effect







Any event or series of events occurs which is reasonably likely to have a Material
Adverse Effect.




	 	19.16	 	Acceleration






	 	(a)	 	If an Event of Default described in Clause 19.9 (Insolvency) or 19.10
(Insolvency proceedings) occurs, the Total Commitments will, if not already cancelled
under this Agreement, be immediately and automatically cancelled and all amounts
outstanding under the Finance Documents will be immediately and automatically due and
payable.






	 	(b)	 	If any Event of Default (other than an Event of Default described in paragraph
(a) above) is outstanding, the Agent may, and must if so directed by the Majority
Lenders:






	 	(i)	 	if not already cancelled under this Agreement, cancel the Total
Commitments; and/or





	 	 	 
	(ii)

	 	declare that all or part of any amounts outstanding under the Finance Documents are:
	(iii)

(iv)

	 	immediately due and payable; and/or

payable on demand by the Agent acting on the instructions of the Majority Lenders.







	 	(c)	 	Any amount that becomes or is declared due and payable under this Subclause
shall become due and payable immediately, without presentment, demand, protest or any
notice of any kind, all of which are expressly and irrevocably waived by each Obligor.






	 	19.17	 	Rescission of Acquisition Documents






Any party to any of the Acquisition Documents rescinds or purports to rescind or
repudiates or purports to repudiate any of those agreements or instruments in whole or in
part where to do so would in the opinion of the Majority Lenders (acting reasonably)
materially and adversely affect the interests of the Lenders under the Finance Documents.




	 	20.	 	SECURITY






	 	20.1	 	Agent as security agent






Unless expressly provided to the contrary, the Agent holds any security created by a
Security Document as agent for the Finance Parties.



	 	 	 
	20.2	 	Responsibility
	
 
	 	The Agent is not liable or responsible to any other Finance Party for:







	 	(a)	 	any failure in perfecting or protecting the security created by any Security
Document;






	 	(b)	 	any other action taken or not taken by it in connection with Security Document.






	 	20.3	 	Title






In connection with any enforcement or otherwise, the Agent may accept, directly or
through a nominee, without enquiry, the title (if any) an Obligor may have to any asset over
which security is intended to be created by any Security Document.




	 	20.4	 	Investments






Except as otherwise provided in any Security Document, all moneys received by the
Agent under a Security Document may be invested in the name of, or under the control of, the
Agent in any investments selected by the Agent. Additionally, those moneys may be placed
on deposit in the name of, or under the control of, the Agent at any bank or institution
(including itself) and upon such terms as it may think fit. This Subclause does not impose
any duty on the Agent to invest, or to pay or receive interest on, any moneys received by
it under a Security Document.



	 	 	 
	20.5	 	Approval
	20.6

	 	Each Finance Party confirms its approval of each Security Document.

Release of security







	 	(a)	 	If:






	 	(i)	 	a Guarantor ceases to be a member of the Group; or






	 	(ii)	 	a Guarantor is released from all its obligations under the
Finance Documents,






in a manner allowed by this Agreement, any security created by that Guarantor over its
assets under the Security Documents will be released.




	 	(b)	 	If a disposal of any asset subject to security created by a Security Document
is made to a person (which is and will remain) outside the Group in the following
circumstances:






	 	(i)	 	the Majority Lenders agree to the disposal;






	 	(ii)	 	the disposal is allowed by the terms of the Finance Documents and
will not result or could not reasonably be expected to result in any breach of
any term of any Finance Document; or






	 	(iii)	 	the disposal is being effected in connection with the
enforcement of a Security Document,






the asset being disposed of will be released from any security over it created by a
Security Document. However, the proceeds of any disposal (or an amount corresponding to
them) must be applied in accordance with the requirements (if any) of the Finance Documents.




	 	(c)	 	If the Agent is satisfied that a release is allowed under this Subclause, the
Agent must execute (at the request and expense of the relevant Obligor) any document
which is reasonably required to achieve that release. Each other Finance Party
irrevocably authorizes the Agent to execute any such document.






	 	20.7	 	Agent as Joint and Several Creditor






	 	(a)	 	Each of the Obligors and each of the Finance Parties agree that the Agent shall
be the joint and several creditor (together with the relevant Finance Party) of each
and every obligation of any Obligor towards each of the Finance Parties under this
Agreement, and that accordingly the Agent will have its own independent right to demand
performance by the relevant Obligor of those obligations. However, any discharge of
any such obligation to one of the Agent or a Finance Party shall, to the same extent,
discharge the corresponding obligation owing to the other.






	 	(b)	 	Without limiting or affecting the Agent’s rights against any Obligor (whether
under this paragraph or under any other provision of the Finance Documents), the Agent
agrees with each other Finance Party (on a several and divided basis) that, subject as
set out in the next sentence, it will not exercise its rights as a joint and several
creditor with a Finance Party except with the consent of the relevant Finance Party.
However, for the avoidance of doubt, nothing in the previous sentence shall in any way
limit the Agent’s right to act in the protection or preservation of rights under or to
enforce any Security Document as contemplated by this Agreement, the Intercreditor
Agreement and/or the relevant Security Document (or to do any act reasonably incidental
to any of the foregoing).






	 	21.	 	THE AGENT






	 	21.1	 	Appointment and duties of the Agent






	 	(a)	 	Each Finance Party (other than the Agent) irrevocably appoints the Agent to act
as its agent under the Finance Documents.






	 	(b)	 	Each Finance Party irrevocably authorizes the Agent to:






	 	(i)	 	perform the duties and to exercise the rights, powers and
discretions that are specifically given to it under the Finance Documents,
together with any other incidental rights, powers and discretions; and






	 	(ii)	 	execute each Finance Document that is to be executed by the Agent
on behalf of or for the Finance Parties.






	 	(c)	 	The Agent has only those duties which are expressly specified in the Finance
Documents. Those duties are solely of a mechanical and administrative nature.






	 	21.2	 	No fiduciary duties






Nothing in the Finance Documents makes the Agent a trustee or fiduciary for any other
Party or any other person. The Agent does not need to hold in trust any moneys paid to it
for a Party or be liable to account for interest on those moneys.




	 	21.3	 	Individual position of the Agent






	 	(a)	 	As long as it is also a Lender, the Agent has the same rights and powers under
the Finance Documents as any other Lender and may exercise those rights and powers as
though it were not the Agent.






	 	(b)	 	The Agent and its Affiliates may:






	 	(i)	 	carry on any business with any Obligor or its related entities
(including acting as an agent or a trustee for any other financing); and






	 	(ii)	 	retain any profits or remuneration it receives under the Finance
Documents or in relation to any other business it carries on with any Obligor or
its related entities.






	 	21.4	 	Reliance






	 	(a)	 	The Agent may:






	 	(i)	 	rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the proper person;






	 	(ii)	 	rely on any statement or direction (including any statement or
direction made orally or by telephone) made by any person regarding any matters
which may reasonably be assumed to be within his knowledge, within his power to
verify or within his authority to make, as applicable;






	 	(iii)	 	engage, pay for and rely on professional advisers and experts
selected by it (including those representing a Party other than the Agent); and






	 	(iv)	 	act under the Finance Documents through its personnel and agents.






	 	(b)	 	The Agent shall be fully protected and shall not be liable for any action taken
or not taken by it in accordance with the advice of legal counsel, independent
accountants or other professional advisers or experts selected by it.






	 	21.5	 	Majority Lenders’ instructions






	 	(a)	 	The Agent is fully protected if it acts on the instructions of the Majority
Lenders in the exercise of any right, power or discretion or any matter not expressly
provided for in the Finance Documents. Any such instructions given by the Majority
Lenders will be binding on all the Lenders, except for instructions as to which Clause
26.2 (Exceptions) applies. In the absence of instructions, the Agent may act as it
considers to be in the best interests of all the Lenders.






	 	(b)	 	The Agent may assume that unless it has received notice to the contrary, any
right, power, authority or discretion vested in any Party or the Majority Lenders has
not been exercised.






	 	(c)	 	The Agent may require the receipt of security satisfactory to it, whether by
way of payment in advance, bond, indemnity or otherwise, against any liability or loss
which it may incur in complying with the instructions of the Majority Lenders.






	 	21.6	 	Responsibility






	 	(a)	 	The Agent is not responsible to any other Finance Party for the adequacy,
accuracy or completeness of:






	 	(i)	 	any Finance Document or any other document; or






	 	(ii)	 	any statement or information (whether written or oral) made in or
supplied in connection with any Finance Document.






	 	(b)	 	Without affecting the responsibility of any Obligor for information supplied by
it or on its behalf in connection with any Finance Document, each Lender confirms that
it:






	 	(i)	 	has made, and will continue to make, its own independent
appraisal of all risks arising under or in connection with the Finance Documents
(including the financial condition and affairs of each Obligor and its related
entities and the nature and extent of any recourse against any Party or its
assets); and






	 	(ii)	 	has not relied exclusively on any information provided to it by
the Agent in connection with any Finance Document.






	 	21.7	 	Exclusion of liability






	 	(a)	 	The Agent is not liable or responsible to any other Finance Party for any
action taken or not taken by it in connection with any Finance Document.






	 	(b)	 	No Party (other than the Agent) may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it might have against the Agent
or in respect of any act or omission of any kind by that officer, employee or agent in
connection with any Finance Document. Any officer, employee or agent of the Agent may
rely on this Subclause and enforce its terms.






	 	21.8	 	Default






	 	(a)	 	The Agent is not obliged to monitor or enquire whether a Default has occurred
or to monitor the performance or observance of any covenant or other provision of the
Finance Documents. The Agent is not deemed to have knowledge of the occurrence of a
Default.






	 	(b)	 	If the Agent:






	 	(i)	 	receives written notice from a Party referring to this Agreement,
describing a Default and stating that the event is a Default; or






	 	(ii)	 	is aware of the non-payment of any principal or interest or any
fee payable to a Lender or the Agent under this Agreement,





	 	 	 
	21.9

	 	it must promptly notify the Lenders.

Information







	 	(a)	 	The Agent must promptly forward to the person concerned the original or a copy
of any document which is delivered to the Agent by a Party for that person.






	 	(b)	 	The Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.






	 	(c)	 	Except as provided above, the Agent has no duty:






	 	(i)	 	either initially or on a continuing basis to provide any Lender
with any credit or other information concerning the risks arising under or in
connection with the Finance Documents (including any information relating to the
financial condition or affairs of any Obligor or its related entities or the
nature or extent of recourse against any Party or its assets) whether coming
into its possession before, on or after the date of this Agreement, in its
capacity as Agent or otherwise; or






	 	(ii)	 	unless specifically requested to do so by a Lender in accordance
with a Finance Document, to request any certificate or other document from any
Obligor.






	 	(d)	 	In acting as the Agent, the agency division of the Agent is treated as a
separate entity from its other divisions and departments. Any information acquired by
the Agent which, in its opinion, is acquired by it otherwise than in its capacity as
the Agent may be treated as confidential by the Agent and will not be treated as
information possessed by the Agent in its capacity as such.






	 	(e)	 	The Agent is not obliged to disclose to any person any confidential information
supplied to it by or on behalf of a member of the Group solely for the purpose of
evaluating whether any waiver or amendment is required in respect of any term of the
Finance Documents.






	 	(f)	 	Each Obligor irrevocably authorizes the Agent to disclose to the other Finance
Parties any information which, in its opinion, is received by it in its capacity as the
Agent.






	 	21.10	 	Indemnities






	 	(a)	 	Without limiting the liability of any Obligor under the Finance Documents, each
Lender must indemnify the Agent for that Lender’s Pro Rata Share of any loss or
liability incurred by the Agent in acting as the Agent.






	 	(b)	 	The Agent may deduct from any amount received by it for a Lender any amount due
to the Agent from that Lender under this Subclause or any other provision of any
Finance Document that has not been paid after demand by the Agent.






	 	21.11	 	Compliance






The Agent may refrain from doing anything (including disclosing any information) which
might, in its opinion, constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person, and may do anything which, in its opinion, is
necessary or desirable to comply with any law or regulation.




	 	21.12	 	Resignation of the Agent






	 	(a)	 	The Agent may resign by giving notice to the Lenders and the Company, in which
case the Majority Lenders may appoint a successor Agent.






	 	(b)	 	If no successor Agent has been appointed under paragraph (a) above and accepted
its appointment within 30 days after notice of resignation was given, the Agent may
appoint a successor Agent.






	 	(c)	 	The person(s) appointing a successor Agent must, if practicable, consult with
the Company prior to the appointment.






	 	(d)	 	Any successor Agent must have an office in the City of New York.






	 	(e)	 	The resignation of the Agent and the appointment of any successor Agent will
both become effective only when the successor Agent notifies all the Parties that it
accepts its appointment. On giving the notification, the successor Agent will succeed
to the position, and all the rights, powers and duties, of the Agent and the term Agent
will mean the successor Agent.






	 	(f)	 	The retiring Agent must, at its own cost, make available to the successor Agent
such documents and records and provide such assistance as the successor Agent may
reasonably request for the purposes of performing its functions as the Agent under the
Finance Documents.






	 	(g)	 	Upon its resignation becoming effective, this Clause will continue to benefit
the retiring Agent in respect of any action taken or not taken by it in connection with
the Finance Documents while it was the Agent, and, subject to paragraph (f) above, it
will have no further obligations under any Finance Document.






	 	(h)	 	The Majority Lenders may, by notice to the Agent, require it to resign under
paragraph (a) above.






	 	21.13	 	Relationship with Lenders






	 	(a)	 	The Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and as acting through its Facility Office until it has received not less than
five Business Days’ prior notice from that Lender to the contrary.






	 	(b)	 	The Agent may at any time, and must if requested to do so by the Majority
Lenders, convene a meeting of the Lenders.






	 	21.14	 	Register






The Finance Parties intend that the interest payments under this Agreement qualify as a
“portfolio interest” obligation within the meaning of the Code. Interests in the Loan
(Interests) are registered with the Agent as to both the principal and interest and may be
transferred by a Finance Party to any third person only by surrendering the Interest and any
instrument evidencing the Interest and the issuance by the transferring party of a new
instrument to the transferee, as required under U.S. Treasury Regulations Section
1.871-14(c). The Agent or its agent shall maintain, or cause to be maintained, a register
within the meaning of U.S. Treasury Regulations Section 5(f).103-1(c) on which it will
record:




	 	(a)	 	the name, address, wire transfer details and other contact details of each
Finance Party;






	 	(b)	 	the Facility Office of each Lender;






	 	(c)	 	the Commitments of each Lender; and






	 	(d)	 	the outstanding principal amount of the Loan (including the amount of PIK
Interest added to the principal balance of the Loan from time to time hereunder).






	 	(e)	 	The Agent shall treat each person whose name is recorded in such register
pursuant to the terms hereof as the applicable holder of the Interest for all purposes
under this Agreement. The Agent shall furnish a copy of such register to a Finance
Party upon request. Entries in the register shall be conclusive and binding, absent
manifest error.






	 	21.15	 	Notice period






Where this Agreement specifies a minimum period of notice to be given to the Agent, the
Agent may, at its discretion, accept a shorter notice period.




	 	22.	 	EVIDENCE AND CALCULATIONS






	 	22.1	 	Accounts






	 	(a)	 	Accounts and records maintained by a Finance Party in connection with this
Agreement (including records evidencing the amount, interest rate or any Interest
Period) are conclusive evidence, absent manifest error, of the matters to which they
relate for the purpose of this Agreement and for the purpose of any litigation or
arbitration proceedings.






	 	(b)	 	The failure of any Finance Party to maintain the accounts and records referred
to in paragraph (a) above will not affect the obligation of the relevant Borrower to
repay the Loan and to pay other amounts due under the terms of this Agreement.






	 	22.2	 	Certificates and determinations






Any certification or determination by a Finance Party of a rate or amount under the
Finance Documents will be, in the absence of manifest error, conclusive evidence of the
matters to which it relates.




	 	22.3	 	Calculations






Any interest or fee accruing under this Agreement accrues from day to day and is
computed on the basis of the actual number of days elapsed and a year of 360 days.




	 	23.	 	FEES





	 	 	 
	23.1	 	Commitment Fee
	
 
	 	The Company must pay a commitment fees to the Agent for each Lender as follows:







	 	(a)	 	on the Closing Date, a fee equal to $500,000; and






	 	(b)	 	on each Utilization Date, a fee equal to 1 per cent of the total amount of the
Loan being advanced to a Borrower on such Utilization Date.






	 	23.2	 	Unused Facility Fee






The Company must pay to the Agent for the account of each Lender an unused facility fee
which shall accrue at a rate equal to 0.5% per annum on the undrawn, uncancelled amount of
each Lender’s Commitment during the period commencing on the Closing Date, in the case of
Tranche A and Tranche B or, in the case of Tranche C, the earlier of (i) the one year
anniversary of the Closing Date and (ii) the first Utilization Date on which an Advance is
made under Tranche C, until the earlier of the last day of the Availability Period and the
date on which all Commitments have been cancelled in full. This unused facility fee shall
be payable (i) quarterly in arrears commencing on the date which is three months after the
Closing Date and (ii) on the earlier of the last day of the Availability Period and the date
on which all Commitments have been cancelled in full. In the event any Advance is made
under Tranche C prior to the date which is one year after the Closing Date, the Company must
pay to the Agent on the Utilization Date for such Advance, a fee equal to the amount of
unused facility fee that would have accrued under this clause 23.2 had the accrual of the
unused facility fee relating to Tranche C commenced on the Closing Date.




	 	23.3	 	Payment of Fees






The payment of all fees owing under this Clause 23 shall be irrevocable and
non-refundable and shall be made on the date due and in immediately available funds at the
Agent’s Account or such other account as the Agent may direct in writing.




	 	24.	 	INDEMNITIES AND BREAKAGE COSTS






	 	24.1	 	Currency indemnity






	 	(a)	 	The currency in which an amount is expressed to be payable, and the place where
that amount is to be paid, under the terms of the Finance Documents are of the essence
of the transactions represented by the Finance Documents, and no obligation under the
Finance Documents shall be discharged or satisfied unless and until the relevant
Finance Party has received the full amount payable in respect of that obligation in the
currency and in the place specified in the Finance Documents.






	 	(b)	 	The Company, as an independent obligation, indemnifies each Finance Party
against any actual, out of pocket loss or liability which that Finance Party incurs as
a consequence of:






	 	(i)	 	that Finance Party receiving an amount in respect of an Obligor’s
liability under the Finance Documents; or






	 	(ii)	 	that liability being converted into a claim, proof, judgment or
order,






in a currency other than the currency in which the amount is expressed to be payable,
or in a place other than the place where that amount is to be paid, under the relevant
Finance Document.




	 	(c)	 	Unless otherwise required by law, each Obligor waives any right it may have in
any jurisdiction to pay any amount under the Finance Documents in a currency other than
that in which it is expressed to be payable.






	 	24.2	 	Other indemnities






	 	(a)	 	Subject to subclause (b) below, the Company indemnifies the Finance Parties and
their respective affiliates, directors, officers, representatives and agents from and
against all claims, litigation, liabilities, obligations, losses (excluding any loss in
the value of the Warrants or shares of stock issued upon the exercise of any Warrant),
damages, penalties, judgments, costs and expenses of any kind (including reasonable
attorney’s fees and expenses) which may be imposed on, incurred by or asserted against
any of them by any person (including any Finance Party) to the extent relating to or
arising out of:






	 	(i)	 	the execution, delivery or performance of the Finance Documents;





	 	 	 
	(ii)

(iii)

(iv)

	 	the use of any part of the Loan;

any Acquisition Document or any Acquisition;

any Environmental Liability;







	 	(v)	 	any Default; or






	 	(vi)	 	any exercise or enforcement of rights or remedies under this
Agreement.






	 	(b)	 	The Company will not be liable to an indemnified party to the extent any
liability results from that indemnified party’s breach of this agreement, gross
negligence or willful misconduct.






	 	(c)	 	Subject to subclause (b) above, the Company indemnifies the Agent against any
out-of-pocket loss, liability, cost or expense incurred by the Agent as a result of:






	 	(i)	 	investigating any event which the Agent reasonably believes to be
a Default; or






	 	(ii)	 	acting or relying on any notice which the Agent reasonably
believes to be genuine, correct and appropriately authorized.






	 	24.3	 	Breakage Costs






	 	(a)	 	Each Borrower indemnifies each Lender against, and agrees to pay each Lender
promptly on demand the amount of, any loss, liability, reasonable cost or expense
(collectively, Breakage Costs) which that Lender incurs as a consequence of:






	 	(i)	 	the prepayment (including as a result of an Event of Default) of
the Loan on any date other than the last day of the Interest Period;






	 	(ii)	 	any failure by an Obligor to pay any amount due under a Finance
Document on its due date (taking into account any applicable grace periods);






	 	(iii)	 	the failure (or delay) by an Obligor to borrow, convert or
continue any part of the Loan after a Request has been delivered with respect
thereto (including as a result of the failure (or delay) of an Acquisition to
close);






	 	(iv)	 	the Loan (or part of the Loan) not being prepaid in accordance
with a notice of prepayment; or






	 	(v)	 	the assignment, at the request of the Company under Clause 7.7
(Involuntary payment and cancellation), of the Loan or any part of the Loan.






	 	(b)	 	Breakage Costs shall be deemed to include the amount (if any) determined by the
relevant Lender by which:






	 	(i)	 	the interest which that Lender would have received for the period
from the date of receipt of any part of its share in the Loan or an overdue
amount to the last day of the applicable Interest Period or term on overdue
amount if the principal or overdue amount received had been paid on the last day
of such Interest Period or term,






exceeds




	 	(ii)	 	the amount which that Lender would be able to obtain by placing
an amount equal to the amount received by it on deposit with a leading bank in
the appropriate interbank market for a period starting on the Business Day
following receipt and ending on the last day of the applicable Interest Period.






	 	(c)	 	Each Lender must supply to the Agent for the relevant Borrower details of the
amount of any Breakage Costs claimed by it under this Subclause, and each Lender’s
calculation of its Breakage Costs shall be presumed correct absent manifest error.






	 	24.4	 	Waiver of consequential damages






To the extent permitted by applicable law, no Obligor shall assert, and each Obligor
waivers, any claim against any Finance Party, 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 result of, this Agreement or any agreement, instrument or
transaction contemplated by this Agreement, the funding or failure to fund the Loan or any
part of the Loan or the use of the proceeds of any the Loan or any part of the Loan.




	 	25.	 	EXPENSES






	 	25.1	 	Initial costs






The Company must pay to the Agent the amount of all out-of-pocket costs and expenses
(including legal fees and expenses) reasonably incurred by it in connection with the
negotiation, preparation, printing and execution of the Transaction Documents.




	 	25.2	 	Subsequent costs






The Company must pay to the Agent the amount of all costs and expenses (including legal
fees and expenses) reasonably incurred by it in connection with:




	 	(a)	 	the negotiation, preparation, printing and execution of any Finance Document
(other than an Assignment and Assumption Agreement) executed after the date of this
Agreement; or






	 	(b)	 	any amendment, waiver or consent requested by or on behalf of an Obligor or
specifically allowed by this Agreement, or any workout or restructuring, or any
requested or proposed workout or restructuring, of the obligations under this
Agreement.






	 	25.3	 	Enforcement costs






The Company must pay to each Finance Party the amount of all costs and expenses
(including legal fees and expenses) incurred by it in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.




	 	25.4	 	Brokers Fees or Commissions






The Company shall pay all fees and commissions of any broker (including Duncan Capital)
in connection with the transactions contemplated by this Agreement. The Agent confirms
that, to the best of its knowledge, no broker (other than Duncan Capital) is owed fees or
commissions in connection with the transactions contemplated by this Agreement.




	 	26.	 	Amendments and waivers






	 	26.1	 	Procedure






	 	(a)	 	Except as provided in this Clause, any term of the Finance Documents may be
amended or waived with the agreement of the Company and the Majority Lenders. The
Agent may effect, on behalf of any Finance Party, an amendment or waiver allowed under
this Clause.






	 	(b)	 	The Agent must promptly notify the other Parties of any amendment or waiver
effected by it under paragraph (a) above. Any such amendment or waiver is binding on
all the Parties.






	 	26.2	 	Exceptions






	 	(a)	 	An amendment or waiver which relates to:






	 	(i)	 	the definition of Majority Lenders in Clause 1.1 (Definitions);






	 	(ii)	 	an extension of the date of payment of any amount to a Lender
under the Finance Documents or increase the amount of PIK Interest;






	 	(iii)	 	a reduction in any Margin, or a reduction in the amount of any
payment of principal, interest, fees or other amounts payable to a Lender under
the Finance Documents;






	 	(iv)	 	an increase in, or an extension of, a Commitment or the Total
Commitments;






	 	(v)	 	a release of an Obligor;





	 	 	 
	(vi)

(vii)

(viii)

	 	a term of a Finance Document which expressly requires the consent of each Lender;

the release of a material portion of the collateral subject to the Security Documents;

Clause 31 (Pro Rata sharing);







	 	(ix)	 	the right of a Lender to assign or transfer its rights or
obligations under the Finance Documents in accordance with Clause 28
(Assignments and changes to the Parties); or






	 	(x)	 	this Clause,






may only be made with the consent of all the Lenders.




	 	(b)	 	An amendment or waiver which relates to the rights or obligations of the Agent
may only be made with the consent of the Agent.






	 	26.3	 	Waivers and remedies cumulative






	 	(a)	 	The rights of each Finance Party under the Finance Documents:






	 	(i)	 	may be exercised as often as necessary;






	 	(ii)	 	are cumulative and not exclusive of its rights under the general
law; and






	 	(iii)	 	may be waived only in writing and specifically.






	 	(b)	 	Delay in exercising or non-exercise of any right is not a waiver of that right.






	 	(c)	 	Any waiver, consent or amendment shall be affective only in the specific
instance and for the specific purpose for which it was given and shall not entitle any
Obligor to any further or subsequent waiver, consent or amendment.






	 	27.	 	SUCCESSORS AND ASSIGNS






This Agreement shall be binding on and inure to the benefit of the Parties and their
respective successors and permitted assigns.




	 	28.	 	ASSIGNMENTS AND CHANGES TO THE PARTIES






	 	28.1	 	Assignments and transfers by Obligors






No Obligor may assign, transfer or delegate any of its rights or obligations under the
Finance Documents without the prior written consent of all the Lenders, and any purported
assignment, transfer or delegation in violation of this provision shall be void and of no
effect.




	 	28.2	 	Requirements for assignments by Lenders






	 	(a)	 	A Lender (the Existing Lender) may, subject to the following provisions of this
Subclause, at any time assign, transfer or delegate any of its rights and obligations
under the Finance Documents to one or more of its Affiliates, or one or more banks or
financial institutions or to a fund or other entity which is regularly engaged in or
established for the purpose of making, purchasing or investing in loans, securities or
other financial assets (the New Lender).






	 	(b)	 	Unless the assignment is to another Lender or unless the Company and the Agent
otherwise agree, an assignment of part of a Commitment by an Existing Lender must be in
a minimum amount of U.S.$1,000,000.






	 	(c)	 	Each partial assignment must be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under the Finance Documents.






	 	(d)	 	The consent of the Agent is required for any assignment or transfer unless the
New Lender is another Lender or an Affiliate of a Lender. The consent of the Agent
must not be unreasonably withheld or delayed.






	 	28.3	 	Procedure for assignments by Lenders






	 	(a)	 	In this Subclause:






Transfer Date means, with respect to an assignment by an Existing Lender under this
Clause, the effective date specified in the Assignment and Assumption Agreement relating to
that assignment.




	 	(b)	 	An assignment is effected if:






	 	(i)	 	the Existing Lender and the New Lender execute and deliver to the
Agent a duly completed Assignment and Assumption Agreement;






	 	(ii)	 	the Agent executes it; and






	 	(iii)	 	the Agent enters the name of the New Lender and the particulars
concerning the assigned interests in the register referred to in Clause 21.14
(Register).






	 	(c)	 	The Agent must, as soon as reasonably practicable:






	 	(i)	 	execute and deliver an Assignment and Assumption Agreement
delivered to it and which appears on its face to be in order; and






	 	(ii)	 	enter the name of the New Lender and the details of the assigned
interests in the register referred to in Clause 21.14 (Register).






	 	(d)	 	Each Party (other than the Existing Lender and the New Lender) irrevocably
authorizes the Agent to execute any duly completed Assignment and Assumption Agreement
on its behalf.






	 	(e)	 	As of the Transfer Date:






	 	(i)	 	the New Lender will assume the rights and obligations of the
Existing Lender assigned in the Assignment and Assumption Agreement in
substitution for the Existing Lender;






	 	(ii)	 	the Existing Lender will be released from those obligations and
cease to have those rights; and






	 	(iii)	 	any reference in this Agreement to Lender will include the New
Lender.






	 	28.4	 	Limitation of responsibility of Existing Lender






	 	(a)	 	Except as expressly agreed to the contrary in the relevant Assignment and
Assumption Agreement, an Existing Lender is not responsible to a New Lender for the
legality, validity, adequacy, accuracy, completeness or performance of:






	 	(i)	 	any Finance Document or any other document; or






	 	(ii)	 	any statement or information (whether written or oral) made in or
supplied in connection with any Finance Document,






and any representations or warranties implied by law are excluded.




	 	(b)	 	Each New Lender confirms to, and agrees with, the Existing Lender and the other
Finance Parties that:






	 	(i)	 	it has made, and will continue to make, its own credit decisions
and its own independent appraisal of all risks arising under or in connection
with the Finance Documents (including the financial condition and affairs of
each Obligor and its related entities and the nature and extent of any recourse
against any Party or its assets) in connection with its participation in this
Agreement;






	 	(ii)	 	it has not relied exclusively on any information supplied to it
by the Existing Lender in connection with any Finance Document; and






	 	(iii)	 	neither the Existing Lender nor any Finance Party has any
responsibility with respect to the financial condition of any Obligor or the
performance or observance by any Obligor if its obligations under the Finance
Documents.





	 	 	 
	28.5	 	Costs resulting from change of Lender or Facility Office
	
 
	 	If:







	 	(a)	 	a Lender assigns or transfers any of its rights and obligations under the
Finance Documents or changes its Facility Office; and






	 	(b)	 	as a result of circumstances existing at the date the assignment, transfer or
change occurs, an Obligor would be obliged to pay a Tax Payment or an Increased Cost,






then, unless the assignment, transfer or change is made by a Lender to mitigate any
circumstances giving rise to the Tax Payment, Increased Cost or a right to be prepaid and/or
cancelled by reason of illegality, the Obligor need only pay that Tax Payment or Increased
Cost to the same extent that it would have been obliged to if no assignment, transfer or
change had occurred.




	 	28.6	 	Participations






	 	(a)	 	Any Lender (a participating Lender) may, without the consent of the Company,
the Agent or any other person, sell participations to one or more banks, financial
institutions or other entities (each a participant) in all or a portion of that
Lender’s rights and obligations under this Agreement and the other Finance Documents
(including all or a portion of its Commitments or the Loan).






	 	(b)	 	In connection with any participation under paragraph (a) above:






	 	(i)	 	the participating Lender’s obligations under this Agreement and
the other Finance Documents must remain unchanged;






	 	(ii)	 	the participating Lender must remain solely responsible to the
other Parties for the performance of those obligations;






	 	(iii)	 	the other Parties shall continue to deal solely and directly
with the participating Lender in connection with all consents and other matters
relating to this Agreement and the other Finance Documents; and






	 	(iv)	 	any agreement or instrument under which a Lender sells a
participation must provide that the participating Lender retains the sole right
to enforce this Agreement and the other Finance Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Finance Document, except that the agreement or instrument may provide that
the participating Lender will not, without the consent of the participant, agree
to any amendment, modification or waiver described in Clause 26.2(a)
(Exceptions) that affects the participant.






	 	(c)	 	Subject to paragraph (d) below, the Company agrees that each participant shall
be entitled to the benefits of Clauses 10 (Taxes) and 11 (Increased Costs) to the same
extent as if it were a Lender and had acquired its interest by assignment under this
Clause.






	 	(d)	 	A participant shall not be entitled to receive any greater Tax Payment or
Increased Cost than the participating Lender would have been entitled to receive with
respect to the participation sold to the participant, unless the sale of the
participation to the participant is made with the Company’s prior written consent. A
participant that would be a non-U.S. Lender if it were a Lender shall not be entitled
to the benefits of Clause 10 (Taxes) unless the Company is notified of the
participation sold to that participant and that participant agrees, for the benefit of
the Company, to comply with Clause 10.4 (Non-U.S. Lenders) as though it were a Lender.






	 	28.7	 	Certain pledges






Any Lender may at any time pledge or grant a security interest in all or any portion of
its rights under this Agreement to secure obligations of that Lender, including any pledge
or assignment to a U.S. Federal Reserve Bank, and the provisions this Clause (other than the
provisions of this Subclause) shall not apply to any such pledge or grant of a security
interest.




	 	28.8	 	No assignments to the Obligors or Affiliates






Anything in this Clause to the contrary notwithstanding, no Lender may assign or
participate any interest in any Commitment or the Loan to any Obligor or any Affiliate of an
Obligor without the prior consent of each other Lender.




	 	28.9	 	Additional Obligors






	 	(a)	 	If a Subsidiary of the Company is to become an Additional Obligor, then the
Company must (following consultation with the Agent) deliver to the Agent the relevant
documents and evidence listed in Part 3 of Schedule 2 (Conditions precedent).






	 	(b)	 	The prior consent of all the Lenders is required if a Subsidiary is to become
an Additional Borrower.






	 	(c)	 	The relevant Subsidiary will become an Additional Obligor when the Agent
notifies the other Finance Parties and the Company that it has received all of the
documents and evidence referred to in paragraph (a) above in form and substance
satisfactory to it. The Agent must give this notification as soon as reasonably
practicable.






	 	(d)	 	Delivery of an Accession Agreement, executed by the relevant Subsidiary and the
Company, to the Agent constitutes confirmation by that Subsidiary and the Company that
the representations and warranties set forth in Clause 15 (Representations and
warranties) are then true and correct.






	 	29.	 	DISCLOSURE OF INFORMATION






	 	(a)	 	Each Finance Party must keep confidential any proprietary or confidential
information supplied to it by or on behalf of any Obligor in connection with the
Finance Documents. However, a Finance Party is entitled to disclose information:






	 	(i)	 	which is publicly available, other than as a result of a breach
by that Finance Party of this Clause, or which becomes available to a Finance
Party on a nonconfidential basis from a source other than an Obligor;





	 	 	 
	(ii)

(iii)

(iv)

	 	in connection with any legal or arbitration proceedings;

if required to do so under any law or regulation;

to a governmental, banking, taxation or other regulatory authority;







	 	(v)	 	to its professional advisers;






	 	(vi)	 	in connection with the enforcement of its rights or the exercise
of its remedies under any Finance Document;





	 	 	 
	(vii)

(viii)

(ix)

	 	to the extent allowed under paragraph (b) below;

to another Party to this Agreement; or

with the agreement of the Company.







	 	(b)	 	A Finance Party may disclose to an Affiliate or any person with whom it may
enter, or has entered into, any kind of assignment, transfer, participation or other
agreement in relation to the Finance Documents (a participant):






	 	(i)	 	a copy of any Finance Document; and






	 	(ii)	 	any information which that Finance Party has acquired under or in
connection with any Finance Document.






However, before an Affiliate or a participant may receive any confidential information,
it must agree with the Parties to keep that information confidential on the terms of
paragraph (a) above.




	 	(c)	 	Any information received from an Obligor after the date of this Agreement must
be clearly identified at the time of delivery as confidential in order to benefit from
the provisions of this Clause.






	 	(d)	 	Any person required to maintain the confidentiality of information as provided
in this Clause shall be considered to have complied with its obligation to do so if
that person has exercised the same degree of care to maintain the confidentiality of
that information as the person would accord to its own confidential information.






	 	(e)	 	This Clause supersedes any previous confidentiality undertaking given by a
Finance Party in connection with this Agreement prior to it becoming a Party.






	 	30.	 	SET-OFF






	 	(a)	 	A Finance Party may, without notice or demand (both of which are expressly and
irrevocably waived by each Obligor to the extent permissible under applicable law), set
off any matured obligation owed to it by an Obligor under the Finance Documents against
any obligation (including all deposits — general or special, time or demand,
provisional or final — and all credits, indebtedness or claims) owed by that Finance
Party to that Obligor, regardless of whether or not the obligation being set-off is
matured and regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Finance Party may
convert either obligation at a market rate of exchange in its usual course of business
for the purpose of the set-off.






	 	(b)	 	The rights of each Finance Party under this Clause are in addition to any other
rights and remedies (including any banker’s lien or other rights of set-off) which that
Finance Party may have by contract, under applicable law or otherwise.






	 	31.	 	PRO RATA SHARING






	 	(a)	 	If at any time a Lender, by exercising any right of set-off or counterclaim or
otherwise, obtains payment in respect of its Loans greater than its Pro Rata Share of
the payments at that time received by all Lenders (or the Agent on their behalf), then
that Lender will purchase (for cash at face value) participations in the Loan of other
Lenders to the extent necessary so that the benefit of all payments shall be shared by
the Lenders ratably in accordance with their respective Pro Rata Shares.






	 	(b)	 	If any participations are purchased and all or any portion of the payment
giving rise to those participations is recovered from the Lender that sold those
participations, those participations shall be rescinded and the purchase price restored
to the extent of the recovery from the Lender, without interest.






	 	(c)	 	The provisions of this Clause shall not be construed to apply to any payment
made by any Obligor in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any part of the Loan to any assignee or participant (other than to the
Company or any Subsidiary or Affiliate of the Company, as to which the provisions of
this Subclause shall apply).






	 	(d)	 	Each Obligor consents to the provisions of this Clause and agrees, to the
extent it may effectively do so under applicable law, that any Lender acquiring a
participation under this Clause may exercise against that Obligor rights of set-off and
counterclaim with respect to that participation as fully as if the Lender were a direct
creditor of that Obligor in the amount of that participation.






	 	32.	 	SEVERABILITY






If a term of a Finance Document is or becomes illegal, invalid or unenforceable in any
jurisdiction, that will not affect:




	 	(a)	 	the legality, validity or enforceability in that jurisdiction of any other term
of the Finance Documents; or






	 	(b)	 	the legality, validity or enforceability in other jurisdictions of that or any
other term of the Finance Documents.






	 	33.	 	COUNTERPARTS






Each Finance Document may be executed in any number of counterparts. This has the same
effect as if the signatures on the counterparts were on a single copy of the Finance
Document.




	 	34.	 	NOTICES






	 	34.1	 	In writing






Except as otherwise expressly provided in a Finance Document, any communication in
connection with each Finance Document must be in writing and must be given in person (by
courier service or otherwise) or by fax.




	 	34.2	 	Contact details






	 	(a)	 	Except as provided below, the contact details of each Party for all
communications in connection with the Finance Documents are those notified by that
Party for this purpose to the Facility Agent on or before the date it becomes a Party.






	 	(b)	 	The contact details of the Company for this purpose are:





	 	 	 	 	 
	 
	 	Address:Warp Technology Holdings, Inc.

	 
	 	151 Railroad Ave.
	 
	 	Greenwich, CT 06830

	Telephone Number:
	 	 	203-422-2950	 
	Fax number:
	 	 	203-422-5329	 
	Attention:
	 	Chief Legal Officer and Chief Executive Officer








	 	(c)	 	The contact details of the Agent for this purpose are:






Address: Fortress Credit Corp



	 	 	 	 	 	 	 	 	 
	 
	 	1251 Avenue of the Americas	 	 	 	 
	 
	 	New York, NY  10020
	 	 	 	 
	Attention:
	 	John King
	 	 	 	 
	 	 	Chief Financial Officer, Drawbridge Special Opportunities Fund

	Telephone:
	 	 	212-515-4608	 	 	 	 	 
	Facsimile:
	 	 	212-798-6099	 	 	 	 	 
	With a copy to:
	 	 	 	 	 	 	 	 
	 
	 	Address:
	 	Northlight Financial LLC







	 	 	 	 	 
	 
	 	1330 Avenue of the Americas
	 
	 	40th Floor
	   New York, NY  10019

	Facsimile:
	 	 	212-247-0002	 







	 	(d)	 	The contact details of each Lender are set out in Schedule 1 (Original Parties)
or in the Assignment and Assumption Agreement by which that person becomes a Lender
under this Agreement.






	 	(e)	 	Any Party may change its contact details by giving five Business Days’ notice
to the Agent or (in the case of the Agent) to the other Parties.






	 	(f)	 	Where a Party nominates a particular department or officer to receive a
communication, a communication will not be effective if it fails to specify that
department or officer.






	 	34.3	 	Effectiveness






	 	(a)	 	Except as provided below, any communication in connection with a Finance
Document will be deemed to be given as follows:






	 	(i)	 	if delivered in person, at the time of delivery; and






	 	(ii)	 	if by fax, when sent with confirmation of transmission.






	 	(b)	 	A communication given under paragraph (a) above but received on a non-working
day or after business hours in the place of receipt will only be deemed to be given on
the next working day in that place.






	 	34.4	 	Obligors






	 	(a)	 	All communications under the Finance Documents to or from an Obligor must be
sent through the Agent.






	 	(b)	 	All communications under the Finance Documents to or from an Obligor (other
than the Company) must be sent through the Company.






	 	(c)	 	Each Obligor (other than the Company) irrevocably appoints the Company to act
as its agent:






	 	(i)	 	to give and receive all communications under the Finance
Documents;






	 	(ii)	 	to supply all information concerning itself to any Finance Party;
and






	 	(iii)	 	to sign all documents under or in connection with the Finance
Documents.






	 	(d)	 	Any communication given to the Company in connection with a Finance Document
will be deemed to have been given also to the other Obligors.






	 	(e)	 	The Agent may assume that any communication made by the Company is made with
the consent of each other Obligor.






	 	35.	 	LANGUAGE






	 	(a)	 	Any notice given in connection with a Finance Document must be in English.






	 	(b)	 	Any other document provided in connection with a Finance Document must be:






	 	(i)	 	in English; or






	 	(ii)	 	(unless the Facility Agent otherwise agrees) accompanied by a
certified English translation. In this case, the English translation prevails
unless the document is a statutory or other official document.






	 	36.	 	GOVERNING LAW






This Agreement, the relationship between the Parties and any claim or dispute (whether
sounding in contract, tort, statute or otherwise) relating to this Agreement or that
relationship shall be governed by and construed in accordance with law of the State of New
York including section 5-1401 of the New York General Obligations Law but excluding any
other conflict of law rules that would lead to the application of the law of another
jurisdiction.




	 	37.	 	ENFORCEMENT






	 	37.1	 	Jurisdiction






	 	(a)	 	Each Obligor irrevocably submits to the exclusive jurisdiction of any New York
State or U.S. Federal court sitting in the City and County of New York for the
settlement of any dispute in connection with any Finance Document.






	 	(b)	 	The New York courts are the most appropriate and convenient courts to settle
any such dispute and each Obligor waives objection to those courts on the grounds of
inconvenient forum or otherwise in relation to proceedings in connection with any
Finance Document.






	 	(c)	 	This Clause is for the benefit of the Finance Parties only. To the extent
allowed by law, a Finance Party may take:






	 	(i)	 	proceedings in any other court; and






	 	(ii)	 	concurrent proceedings in any number of jurisdictions.






	 	37.2	 	Service of process






	 	(a)	 	The Company consents to receive service of process in any proceedings before
any court located in the State of New York by either registered mail or courier service
delivered to its address provided in Clause 34 (Notices).






	 	(b)	 	Each Obligor other than the Company irrevocably appoints the Company (and the
Company irrevocably accepts such appointment) as its agent for service of process in
any proceedings before any court located in the State of New York.






	 	(c)	 	If any person appointed as process agent is unable for any reason to act as
agent for service of process, the Company (on behalf of all the Obligors) must
immediately appoint another agent on terms acceptable to the Agent. Failing this, the
Agent may appoint another agent for this purpose.






	 	(d)	 	Each Obligor agrees that failure by a process agent to notify it of any process
will not invalidate the relevant proceedings.






	 	(e)	 	This Clause does not affect any other method of service allowed by law.





	 	 	 
	37.3	 	Waiver of immunity
	
 
	 	Each Obligor irrevocably and unconditionally:







	 	(a)	 	agrees not to claim any immunity from proceedings brought by a Finance Party
against it in relation to a Finance Document and to ensure that no such claim is made
on its behalf;






	 	(b)	 	consents generally to the giving of any relief or the issue of any process in
connection with those proceedings; and






	 	(c)	 	waives all rights of immunity in respect of it or its assets.






	 	37.4	 	Waiver of trial by jury






EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
IN CONNECTION WITH ANY FINANCE DOCUMENT OR ANY TRANSACTION CONTEMPLATED BY ANY FINANCE
DOCUMENT. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.




	 	38.	 	SURVIVAL






The provisions of Clauses 10 (Taxes), 11 (Increased Costs), 20 (Security), 21 (The
Agent), 24 (Indemnities and Breakage Costs), 25 (Expenses), 36 (Governing law) and 37
(Enforcement) and this Clause shall survive execution and delivery of this Agreement, the
making and repayment of the Loan, the expiration or termination of the Commitments and the
termination of this Agreement.




	 	39.	 	COMPLETE AGREEMENT






The Finance Documents contain the complete agreement between the Parties on the matters
to which they relate and supersede all prior commitments, agreements and understandings,
whether written or oral, on those matters.




This Agreement has been entered into on the date stated at the beginning of this
Agreement.



SIGNATORIES




	 	 	 
	 	 	Company
	Name:

Title:

	 	WARP TECHNOLOGY HOLDINGS, INC.

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized
	 
	 	 
	Name:

Title:

Name:

Title:

Name:

Title:

Name:

Title:

Name:

Title:

Name:

Title:

Name:

Title:

Name:

Title:

Name:

Title:

	 	Original Guarantors

GUPTA TECHNOLOGIES, LLC

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized

WARP SOLUTIONS, INC.

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized

WARP SOLUTIONS, LTD.

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized

6043577 CANADA, INC.

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized

SPIDER SOFTWARE, INC.

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized

GUPTA TECHNOLOGIES, LTD.

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized

GUPTA TECHNOLOGIES GmbH

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized

GUPTA TECHNOLOGIES S.A. de C.V.

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized

KENOSIA CORPORATION

By:/s/ Brian Sisko

Brian Sisko

Duly Authorized
	 
	 	 
	Title:

	 	Original Lender

FORTRESS CREDIT CORP.

By:/s/ Marc K. Furstein

Name: Marc K. Furstein

Chief Operating Officer
	 
	 	 
	Title:

	 	Agent

FORTRESS CREDIT CORP.

By:/s/ Marc K. Furstein

Name: Marc K. Furstein

Chief Operating Officer