EX-10.1






Exhibit 10.1




CREDIT AGREEMENT




among




VALUECLICK, INC.,




THE LENDERS NAMED HEREIN,




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,




as Administrative Agent, L/C Issuer, Swing Line Lender and Lead Arranger,




BANK OF THE WEST,




as Documentation Agent,




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,




as Lead Arranger and Sole Bookrunner




Dated as of November 14, 2008




1




TABLE OF CONTENTS



	 	 	 	 	 	 	 	 	 
	ARTICLE I.
	 	INTERPRETATION	 	 	1	 
	1.01.
	 	Definitions	 	 	1	 
	1.02.
	 	GAAP	 	 	26	 
	1.03.
	 	Headings	 	 	27	 
	1.04.
	 	Plural Terms	 	 	27	 
	1.05.
	 	Time	 	 	27	 
	1.06.
	 	Governing Law	 	 	27	 
	1.07.
	 	Construction	 	 	27	 
	1.08.
	 	Entire Agreement	 	 	27	 
	1.09.
	 	Calculation of Interest and Fees	 	 	27	 
	1.10.
	 	References	 	 	28	 
	1.11.
	 	Other Interpretive Provisions	 	 	28	 
	1.12.
	 	Rounding	 	 	28	 
	ARTICLE II.
	 	CREDIT FACILITY	 	 	29	 
	2.01.
	 	Loan Facility.	 	 	29	 
	2.02.
	 	Letters of Credit	 	 	35	 
	2.03.
	 	Swing Line	 	 	43	 
	2.04.
	 	Amount Limitations, Commitment Reductions, Etc.	 	 	46	 
	2.05.
	 	Fees	 	 	47	 
	2.06.
	 	Prepayments	 	 	48	 
	2.07.
	 	Other Payment Terms	 	 	51	 
	2.08.
	 	Loan Accounts; Notes	 	 	52	 
	2.09.
	 	Loan Funding	 	 	53	 
	2.10.
	 	Pro Rata Treatment	 	 	54	 
	2.11.
	 	Change of Circumstances	 	 	55	 
	2.12.
	 	Taxes on Payments	 	 	57	 
	2.13.
	 	Funding Loss Indemnification	 	 	59	 
	2.14.
	 	Security	 	 	59	 
	2.15.
	 	Replacement of the Lenders	 	 	60	 
	ARTICLE III.
	 	CONDITIONS PRECEDENT	 	 	61	 
	3.01.
	 	Initial Conditions Precedent	 	 	61	 
	3.02.
	 	Conditions Precedent to each Credit Event	 	 	61	 
	ARTICLE IV.
	 	REPRESENTATIONS AND WARRANTIES	 	 	61	 
	4.01.
	 	Representations and Warranties	 	 	61	 
	ARTICLE V.
	 	COVENANTS	 	 	69	 
	5.01.
	 	Affirmative Covenants	 	 	69	 
	5.02.
	 	Negative Covenants	 	 	77	 
	5.03.
	 	Financial Covenants	 	 	88	 
	ARTICLE VI.
	 	EVENTS OF DEFAULT	 	 	89	 
	6.01.
	 	Events of Default	 	 	89	 
	6.02.
	 	Remedies	 	 	92	 
	ARTICLE VII.ADMINISTRATIVE AGENT AND RELATIONS AMONG LENDERS
	 	 	94	 
	7.01.
	 	Appointment, Powers and Immunities	 	 	94	 
	7.02.
	 	Reliance by the Administrative Agent	 	 	95	 
	7.03.
	 	Defaults	 	 	95	 
	7.04.
	 	Indemnification	 	 	96	 
	7.05.
	 	Non-Reliance	 	 	96	 
	7.06.
	 	Resignation of the Administrative Agent	 	 	97	 
	7.07.
	 	Collateral Matters	 	 	97	 
	7.08.
	 	Performance of Conditions	 	 	98	 
	7.09.
	 	The Administrative Agent in its Individual Capacity; Other Relationships	 	 	98	 
	7.10.
	 	Collateral Matters/Lender Rate Contracts/Lender Bank Products	 	 	99	 
	ARTICLE VIII.MISCELLANEOUS
	 	 	 	 	 	 	99	 
	8.01.
	 	Notices	 	 	99	 
	8.02.
	 	Expenses	 	 	101	 
	8.03.
	 	Indemnification	 	 	101	 
	8.04.
	 	Waivers; Amendments	 	 	102	 
	8.05.
	 	Successors and Assigns	 	 	105	 
	8.06.
	 	Setoff; Security Interest	 	 	109	 
	8.07.
	 	No Third Party Rights	 	 	109	 
	8.08.
	 	Partial Invalidity	 	 	109	 
	8.09.
	 	Jury Trial	 	 	109	 
	8.10.
	 	Confidentiality	 	 	110	 
	8.11.
	 	Counterparts	 	 	110	 
	8.12.
	 	Consent to Jurisdiction	 	 	110	 
	8.13.
	 	Relationship of Parties	 	 	111	 
	8.14.
	 	Time	 	 	111	 
	8.15.
	 	Waiver of Punitive Damages	 	 	111	 
	8.16.
	 	USA PATRIOT Act	 	 	111	 
	8.17.
	 	Clarification	 	 	111	 






2




SCHEDULES



	 	 	 	 	 
	SCHEDULE I

SCHEDULE 3.01

SCHEDULE 4.01(G)

SCHEDULE 4.01(H)

	 	-

-

-

-
	 	THE LENDERS

CONDITIONS PRECEDENT

LITIGATION

REAL PROPERTY
	SCHEDULE 4.01(J)(II) -
	 	EQUITY SECURITIES
	SCHEDULE 4.01(K)

SCHEDULE 4.01(O)

SCHEDULE 4.01(U)

SCHEDULE 4.01(V)

SCHEDULE 5.02(A)

SCHEDULE 5.02(B)

SCHEDULE 5.02(E)

SCHEDULE 5.02(M)

	 	-

-

-

-

-

-

-

-
	 	MULTIEMPLOYER PLANS

SUBSIDIARIES

INSURANCE

AGREEMENTS WITH AFFILIATES, ETC.

EXISTING INDEBTEDNESS

EXISTING LIENS

EXISTING INVESTMENTS

RESTRICTIVE AGREEMENTS






EXHIBITS



	 	 	 
	EXHIBIT A

EXHIBIT B

EXHIBIT C

EXHIBIT D

EXHIBIT E

EXHIBIT F

EXHIBIT G

EXHIBIT H

EXHIBIT I

EXHIBIT J

EXHIBIT K

EXHIBIT L

EXHIBIT M

EXHIBIT N

	 	NOTICE OF LOAN BORROWING

NOTICE OF CONVERSION

NOTICE OF INTEREST PERIOD SELECTION

NOTICE OF SWING LOAN BORROWING

REVOLVING LOAN NOTE

SWING LOAN NOTE

ASSIGNMENT AGREEMENT

COMPLIANCE CERTIFICATE

COLLATERAL CERTIFICATE

SECURITY AGREEMENT

INTELLECTUAL PROPERTY SECURITY AGREEMENT

CONTROL AGREEMENT

GUARANTY

VALUECLICK INVESTMENT POLICY






CREDIT AGREEMENT




THIS CREDIT AGREEMENT, dated as of November 14, 2008, is entered into by and among: (1)
VALUECLICK, INC., a Delaware corporation (the “Borrower”); (2) each of the financial
institutions party to this Agreement from time to time (each a “Lender” and, collectively,
the “Lenders”); (3) WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”, as
administrative agent for the Lenders (in such capacity, the “Administrative Agent”)), L/C
Issuer and Swing Line Lender. WELLS FARGO BANK, NATIONAL ASSOCIATION has been given the title of
lead arranger and sole bookrunner in connection with this Agreement and BANK OF THE WEST has been
given the title of documentation agent in connection with this Agreement.



RECITALS




A. The Borrower has requested that the Lenders provide the credit facility set forth in this
Agreement to the Borrower.



B. The Lenders are willing to provide such credit facility upon the terms and subject to the
conditions set forth herein.



AGREEMENT




NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants herein
contained, the parties hereto hereby agree as follows:



ARTICLE I. INTERPRETATION.




1.01. Definitions. Unless otherwise indicated in this Agreement or any other Credit
Document, each term set forth below, when used in this Agreement or any other Credit Document,
shall have the respective meaning given to that term below or in the provision of this Agreement or
other document, instrument or agreement referenced below.



“Acquired Person” shall mean a Proposed Target that is the subject of a Permitted
Acquisition after the Closing Date.



“Acquired Portion” shall have the meaning given to that term in Section
2.01(b)(v).



“Administrative Agent” shall have the meaning given to that term in clause (3) of the
introductory paragraph hereof.



“Administrative Agent’s Fee Letter” shall mean the letter agreement dated as of
September 23, 2008 among the Borrower and the Administrative Agent regarding certain fees payable
by the Borrower to the Administrative Agent as expressly indicated therein.



“Affiliate” shall mean, with respect to any Person, (a) each Person that, directly or
indirectly, owns or controls, whether beneficially or as a trustee, guardian or other fiduciary,
ten percent (10%) or more of any class of Equity Securities of such Person, (b) each Person that
controls, is controlled by or is under common control with such Person or any Affiliate of such
Person or (c) each of such Person’s officers, directors, managers, joint venturers and partners;
provided, however, that in no case shall the Administrative Agent or any Lender be
deemed to be an Affiliate of any Loan Party for purposes of this Agreement. For the purpose of
this definition, “control” of a Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of its management or policies, whether through the ownership
of voting securities, by contract or otherwise.



“Agreement” shall mean this Credit Agreement.



“Anti-Terrorism Law” shall mean each of: (a) the Executive Order; (b) the Patriot Act;
(c) the Money Laundering Control Act of 1986, 18 U.S.C. Sect. 1956; and (d) any other Governmental
Rule now or hereafter enacted to monitor, deter or otherwise prevent terrorism or the funding or
support of terrorism.



“Applicable Lending Office” shall mean, with respect to any Lender, (a) in the case of
its Base Rate Loans, its Domestic Lending Office, and (b) in the case of its LIBOR Loans, its
Euro-Dollar Lending Office.



“Applicable Margin” shall mean, with respect to each Loan (and with respect to the
calculation of Letter of Credit fees pursuant to Section 2.02(i)), the per annum margin
which is determined pursuant to the Pricing Grid. The Applicable Margin shall be determined as
provided in the Pricing Grid and may change as set forth in the definition of Pricing Grid.



“Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.



“Assignee Lender” shall have the meaning given to that term in Section
8.05(c).



“Assignment” shall have the meaning given to that term in Section 8.05(c).



“Assignment Agreement” shall have the meaning given to that term in Section
8.05(c).



“Assignment Effective Date” shall have, with respect to each Assignment Agreement, the
meaning set forth therein.



“Assignor Lender” shall have the meaning given to that term in Section
8.05(c).



“Base Rate” shall mean, on any day, the greatest of (a) the Prime Rate in effect on
such day, (b) the Federal Funds Rate for such day plus one and one-half percent (1.50%) and
(c) One Month LIBOR Rate for such day (determined on a daily basis as set forth below) plus
one and one-half percent (1.50%). As used in this definition, “One Month LIBOR Rate” shall
mean, with respect to any interest rate calculation for a Loan or other Obligation bearing interest
at the Base Rate, a rate per annum equal to the quotient (rounded upward if necessary to the
nearest 1/16 of one percent) of (a) the rate per annum referred to as the BBA (British Bankers
Association) LIBOR RATE as reported on Reuters LIBOR page 1, or if not reported by Reuters, as
reported by any service selected by the Administrative Agent, on the applicable day (provided that
if such day is not a Business Day for which a LIBOR Rate is quoted, the next preceding Business Day
for which a LIBOR Rate is quoted) at or about 11:00 a.m., London time (or as soon thereafter as
practicable), for Dollar deposits being delivered in the London interbank eurodollar currency
market for a term of one month commencing on such date of determination, divided by (b) one
minus the Reserve Requirement in effect on such day. If for any reason rates are not available as
provided in clause (a) of the preceding sentence, the rate to be used in clause (a) shall be, at
the Administrative Agent’s discretion (in each case, rounded upward if necessary to the nearest
1/16 of one percent), (i) the rate per annum at which Dollar deposits are offered to the
Administrative Agent in the London interbank eurodollar currency market or (ii) the rate at which
Dollar deposits are offered to the Administrative Agent in, or by the Administrative Agent to major
banks in, any offshore interbank eurodollar market selected by the Administrative Agent, in each
case on the applicable day (provided that if such day is not a Business Day for which Dollar
deposits are offered to the Administrative Agent in the London or such offshore interbank
eurodollar currency market, the next preceding Business Day for which Dollar deposits are offered
to the Administrative Agent in the London or such offshore interbank eurodollar currency market) at
or about 11:00 a.m., London time (or as soon thereafter as practicable) (for delivery on such date
of determination) for a one month term.



“Base Rate Loan” shall mean, at any time, a Revolving Loan which then bears interest
as provided in clause (i) of Section 2.01(d).



“Borrower” shall have the meaning given to such terms in clause (1) of the
introductory paragraph hereof.



“Borrowing” shall mean a Revolving Loan Borrowing or a Swing Loan Borrowing, as the
context may require.



“Business Day” shall mean any day on which (a) commercial banks are not authorized or
required to close in San Francisco, California or New York, New York and (b) if such Business Day
is related to a LIBOR Loan, dealings in Dollar deposits are carried out in the London interbank
market.



“Capital Adequacy Requirement” shall have the meaning given to that term in
Section 2.11(d).



“Capital Asset” shall mean, with respect to any Person, any tangible fixed or capital
asset owned or leased (in the case of a Capital Lease) by such Person, or any expense incurred by
such Person that is required by GAAP to be reported as a non-current asset on such Person’s balance
sheet.



“Capital Leases” shall mean any and all lease obligations that, in accordance with
GAAP, are required to be capitalized on the books of a lessee.



“Cash Collateralize” shall mean to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer, the Swing Line Lender and/or the Lenders,
as applicable, as collateral subject to a first priority, perfected security interest securing the
Obligations or the obligations of a Deteriorating Lender, as applicable, cash or deposit account
balances in an amount equal to the L/C Obligations, Obligations in respect of Swing Line Loan or
obligations of a Deteriorating Lender, as applicable, pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the L/C Issuer or Swing Line Lender,
applicable (which documents are hereby consented to by the Lenders). Derivatives of such term
shall have a corresponding meaning.



“Cash Equivalents” shall mean:



(a) Direct obligations of, or obligations the principal and interest on which are
unconditionally guaranteed by, the United States of America or obligations of any agency of the
United States of America to the extent such 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
thereof;



(b) Certificates of deposit maturing within one year from the date of acquisition thereof
issued by, or normal business bank accounts with, a commercial bank or trust company organized
under the laws of the United States of America or a state thereof or that is a Lender;
provided that (i) such deposits are denominated in Dollars, (ii) such bank or trust company
has capital, surplus and undivided profits of not less than $100,000,000 and (iii) such bank or
trust company has certificates of deposit or other debt obligations rated at least A-1 (or its
equivalent) by Standard and Poor’s Ratings Services or P-1 (or its equivalent) by Moody’s Investors
Service, Inc.;



(c) Open market commercial paper maturing within 270 days from the date of acquisition thereof
issued by a corporation organized under the laws of the United States of America or a state
thereof; provided such commercial paper is rated at least A-1 (or its equivalent) by
Standard and Poor’s Ratings Services or P-1 (or its equivalent) by Moody’s Investors Service, Inc.;



(d) Any repurchase agreement entered into with a commercial bank or trust company organized
under the laws of the United States of America or a state thereof or that is a Lender;
provided that (i) such bank or trust company has capital, surplus and undivided profits of
not less than $100,000,000, (ii) such bank or trust company has certificates of deposit or other
debt obligations rated at least A-1 (or its equivalent) by Standard and Poor’s Ratings Services or
P-1 (or its equivalent) by Moody’s Investors Service, Inc., (iii) the repurchase obligations of
such bank or trust company under such repurchase agreement are fully secured by a perfected
security interest in a security or instrument of the type described in clause (a), (b) or (c) above
and (iv) such security or instrument so securing the repurchase obligations has a fair market value
at the time such repurchase agreement is entered into of not less than 100% of such repurchase
obligations;



(e) Shares of any money market, mutual or similar fund fully insured by the government of the
United States of America or an agency thereof that has all or at least 90% of its assets invested
continuously in the types of investments referred to in clauses (a) through (d) above.



Notwithstanding the foregoing, in no event shall “Cash Equivalents” include auction rate
securities.



“Change of Control” shall mean the occurrence of any one or more of the following:



(a) The Borrower shall cease to own directly or indirectly one hundred percent (100%) of the
Equity Securities of any Subsidiary (other than an Immaterial Subsidiary) other than as a result of
a disposition of a Subsidiary permitted under Section 5.02(c)(vi) or a merger,
consolidation or dissolution otherwise permitted hereunder; or



(b) The acquisition after the Closing Date of ownership, directly or indirectly, beneficially
or of record, by any person or group (within the meaning of the Securities Exchange Act of 1934 and
the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), of
Equity Securities representing more than 25% of the aggregate ordinary voting power represented by
the issued and outstanding Equity Securities of the Borrower, or



(c) The occupation after the Closing Date of a majority of the seats (other than vacant seats)
on the board of directors or other governing body of the Borrower by persons who were neither (i)
nominated by the board of directors or other governing body of the Borrower nor (ii) appointed by
directors or members of such other or other governing body so nominated, or



(d) A “change of control” or “change in control” as defined in any document governing
Indebtedness in amounts referred to in Section 6.01(e) of any Loan Party which gives the
holders of such Indebtedness the right to accelerate or otherwise require payment of such
Indebtedness prior to the maturity date thereof.



“Change of Law” shall have the meaning given to that term in Section 2.11(b).



“Closing Date” shall mean the time and Business Day on which the consummation of all
of the transactions contemplated in Section 3.01 occurs.



“Collateral” shall mean all property in which the Administrative Agent or any Lender
has a Lien to secure the Obligations or the Guaranty. For the avoidance of doubt, the term
“Collateral” shall not include Excluded Assets.



“Collateral Certificate” shall mean a Collateral Certificate in substantially the form
of Exhibit I, appropriately completed and duly executed by the Borrower.



“Commercial Letter of Credit” shall mean any documentary letter of credit issued by
the L/C Issuer under this Agreement; either as originally issued or as the same may be
supplemented, modified, amended, extended, restated or supplanted.



“Commitment Fee” shall have the meaning given to that term in Section 2.05(b).



“Commitment Fee Percentage” shall mean, with respect to the Revolving Loan Commitments
at any time, the per annum percentage which is used to calculate Commitment Fees for such Revolving
Loan Commitments determined pursuant to the Pricing Grid.



“Communications” shall have the meaning set forth in Section 8.01(b).



“Compliance Certificate” shall have the meaning given to that term in
Section 5.01(a)(iii).



“Confidential Information” shall mean information delivered to any Lender or the
Administrative Agent by or on behalf of any Loan Party pursuant to the Credit Documents that is
proprietary or otherwise confidential in nature and that is reasonably marked or otherwise
identified as being confidential information of such Loan Party; provided; however,
that such term does not include information that (a) was publicly known or otherwise known to the
receiving party prior to the time of such disclosure, (b) subsequently becomes publicly known
through no act or omission by the receiving party or any person acting on its behalf, (c) otherwise
becomes known to the receiving party other than through disclosure by any Loan Party or (d)
constitutes financial statements delivered to the Lenders and the Administrative Agent under
Section 5.01(a) that are otherwise publicly available.



“Contingent Obligation” shall mean, with respect to any Person, (a) any Guaranty
Obligation of that Person; and (b) any direct or indirect obligation or liability, contingent or
otherwise, of that Person (i) in respect of any Surety Instrument issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement of drawings or payments,
(ii) as a partner or joint venturer in any partnership or joint venture, (iii) to purchase any
materials, supplies or other property from, or to obtain the services of, another Person if the
relevant contract or other related document or obligation requires that payment for such materials,
supplies or other property, or for such services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (iv) in respect to any Rate Contract that is not entered into in
connection with a bona fide hedging operation that provides offsetting benefits to such Person.
For purposes of this definition, the amount of any Contingent Obligation (other than any Guaranty
Obligation) at any time shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability; provided that in the case of any Guaranty
Obligation, the amount of such Guaranty Obligation shall be calculated as set forth in the last
sentence of the definition of “Guaranty Obligation.”



“Contractual Obligation” of any Person shall mean, any indenture, note, lease, loan
agreement, security, deed of trust, mortgage, security agreement, guaranty, instrument, contract,
agreement or other form of contractual obligation to which such Person is a party or by which such
Person or any of its property is bound.



“Control Agreement” a control agreement among the Borrower or a Guarantor, a
depository bank or securities intermediary, as the case may be, and the Administrative Agent,
substantially in the form of Exhibit L or in such other form as shall be acceptable to the
Administrative Agent.



“Credit Documents” shall mean and include this Agreement, the Notes, the Guaranty, the
Security Documents, each Letter of Credit Application, each Notice of Borrowing, each Notice of
Interest Period Selection, each Notice of Conversion, all Lender Rate Contracts, all documents
related to Lender Bank Products, each Collateral Certificate, the Administrative Agent’s Fee
Letter, and all other documents, instruments and agreements delivered to the Administrative Agent
or any Lender pursuant to Section 3.01 and all other documents, instruments and agreements
delivered by any Loan Party to the Administrative Agent or any Lender in connection with this
Agreement or any other Credit Document on or after the date of this Agreement, including, without
limitation, any amendments, consents or waivers, as the same may be amended, restated, supplemented
or modified from time to time.



“Credit Event” shall mean the making of any Loan (including a Swing Line Loan) and the
making of an L/C Credit Extension. “Credit Event” shall not include the conversion of any Loan
into a LIBOR Loan or a Base Rate Loan or the selection of a new Interest Period for any LIBOR Loan.



“Debtor Relief Laws” shall mean the Bankruptcy Code of the United States of America,
and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Governmental Rules from time to
time in effect affecting the rights of creditors generally.



“Decreasing Lender” shall have the meaning given to that term in Section
2.01(b)(v).



“Default” shall mean an Event of Default or any event or circumstance not yet
constituting an Event of Default which, with the giving of any notice or the lapse of any period of
time or both, would become an Event of Default.



“Default Rate” shall have the meaning given to that term in Section 2.07(c).



“Defaulting Lender” shall mean a Lender which has failed to fund its portion of any
Borrowing, any participations in Letters of Credit or participations in Swing Line Loans required
to be funded by it under this Agreement within one Business Day of the date when due, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a
receivership, bankruptcy or insolvency proceeding.



“De Minimis Accounts” shall mean deposit accounts of the Borrower and the Guarantors
that collectively have an aggregate balance of less than $2,000,000 and that are not subject to a
Control Agreement.



“Designated Person” shall mean any Person who (i) is named on the list of Specially
Designated Nationals or Blocked Persons maintained by the U.S. Department of the Treasury’s Office
of Foreign Assets Control and/or any other similar lists maintained by the U.S. Department of the
Treasury’s Office of Foreign Assets Control pursuant to authorizing statute, executive order or
regulation, (ii) (A) is a Person whose property or interest in property is blocked or subject to
blocking pursuant to Section 1 of the Executive Order or any related legislation or any other
similar executive order(s) or (B) engages in any dealings or transactions prohibited by Section 2
of the Executive Order or is otherwise associated with any such Person in any manner violative of
Section 2 of the Executive Order or (iii)(X) is an agency of the government of a country, (Y) an
organization controlled by a country, or (Z) a Person resident in a country that is subject to a
sanctions program identified on the list maintained by the U.S. Department of the Treasury’s Office
of Foreign Assets Control, or as otherwise published from time to time, as such program may be
applicable to such agency, organization or Person.



“Deteriorating Lender” shall mean (a) a Defaulting Lender or (b) a Lender as to which
(i) the L/C Issuer or Swing Line Lender (as applicable) has a good faith belief that such Lender
has defaulted in fulfilling its obligations under one or more other syndicated credit facilities or
(ii) an entity that controls such Lender has been deemed insolvent or becomes subject to a
receivership, bankruptcy or other similar proceeding. For the purpose of this definition,
“control” of a Lender shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.



“Distributions” shall mean the declaration or (without duplication) payment of any
distributions or dividends (in cash, property or obligations) on, or other payments on account of,
or the setting apart of money for a sinking or other analogous fund for, or the purchase,
repurchase, redemption, retirement or other acquisition of, any Equity Securities of any Loan Party
or of any warrants, options or other rights to acquire the same (or to make any payments to any
Person, such as “phantom membership” or “phantom stock” payments, where the amount is calculated
with reference to the fair market or equity value of any Loan Party), but excluding distributions
or dividends payable solely in membership interests or shares of common stock of any Loan Party.



“Documentation Agent” shall mean Bank of the West in its capacity as documentation
agent in connection with this Agreement.



“Dollars” and “$” shall mean the lawful currency of the United States of
America and, in relation to any payment under this Agreement, same day or immediately available
funds.



“Domestic Lending Office” shall mean, with respect to any Lender, (a) initially, its
office designated as such in Schedule I (or, in the case of any Lender which becomes a
Lender pursuant to Section 2.01(b) or by an assignment pursuant to Section 8.05(c),
its office designated as such in the applicable documentation executed pursuant to those Sections,
as applicable) and (b) subsequently, such other office or offices as such Lender may designate to
the Administrative Agent as the office at which such Lender’s Base Rate Loans will thereafter be
maintained and for the account of which all payments of principal of, and interest on, such
Lender’s Base Rate Loans will thereafter be made.



“Domestic Subsidiary” shall mean each direct or indirect Subsidiary of the Borrower
which is organized under the laws of the United States of America or any state thereof.



“EBITDA” shall mean, for any period, (a) Net Income for such period, plus (b) to the
extent deducted in determining such Net Income for such period, the sum of the following for such
period (without duplication): (i) Interest Expense for such period, (ii) income tax expense of the
Borrower and its Subsidiaries for such period (whether or not payable during that period),
(iii) depreciation and amortization for such period, (iv) non-cash expenses related to stock-based
compensation for such period, (v) non-cash in-process research and development expenses for such
period, (vi) extraordinary or non-recurring non-cash expenses for such period, (vii) transaction
costs and restructuring charges required to be expensed under SFAS 141R and (viii) expenses created
by contingent consideration to the extent required to be expensed under SFAS 141R, and
minus (c) to the extent added in determining such Net Income for such period, the sum of
the following for such period (without duplication): (w) interest income for such period, (x) the
aggregate amount of extraordinary or non-recurring income or gains during such period, (y) non-cash
income or gains for such period, and (z) income created by or relating to contingent consideration
to the extent required under SFAS 141R.



Pro forma credit shall be given for an Acquired Person’s EBITDA as if owned on the first day
of the applicable period; companies (or identifiable business units or divisions) sold, transferred
or otherwise disposed of during any period will be treated as if not owned during the entire
applicable period.



“Effective Amount” shall mean (i) with respect to Revolving Loans and Swing Line Loans
on any date, the aggregate outstanding principal amount thereof after giving effect to (A) any
borrowings and prepayments or repayments of Revolving Loans and Swing Line Loans and (B) with
respect to Swing Line Loans, any risk participation amongst the Lenders, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of
such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings under any Letters of
Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking
effect on such date.



“Eligible Assignee” shall mean (a) any Lender, any Affiliate of any Lender and any
Approved Fund of any Lender; and (b) a Person that is (i) a commercial bank, savings and loan
association or savings bank organized under the laws of the United States of America, or any state
thereof, and having a combined capital and surplus of at least $100,000,000, (ii) a commercial bank
organized under the laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the “OECD”), or a political subdivision of any such country,
and having a combined capital and surplus of at least $100,000,000; provided that such bank
is acting through a branch or agency located in the country in which it is organized or another
country which is also a member of the OECD, (iii) a finance company, insurance company or other
financial institution that is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and having total assets in excess of $100,000,000, or
(iv) a Person that is primarily engaged in the business of commercial lending and that is (x) a
Subsidiary of a Lender, (y) a Subsidiary of a Person of which a Lender is a Subsidiary, or (z) a
Person of which a Lender is a Subsidiary; provided that notwithstanding the foregoing,
“Eligible Assignee” shall not include any Loan Party or any Affiliate of a Loan Party or any
natural person.



“Environmental Damages” shall mean all claims, judgments, damages, losses, penalties,
liabilities (including strict liability), costs and expenses, including costs of investigation,
remediation, defense, settlement and attorneys’ fees and consultants’ fees, that are incurred at
any time (a) as a result of the existence of any Hazardous Material upon, about or beneath any real
property owned by any Loan Party or migrating or threatening to migrate to or from any such real
property, (b) arising from any investigation, proceeding or remediation of any location at which
the Loan Parties or any predecessors are alleged to have directly or indirectly disposed of
Hazardous Materials or (c) arising in any manner whatsoever out of any violation of Environmental
Laws by any Loan Party or with respect to any real property owned or used by any Loan Party.



“Environmental Laws” shall mean the Clean Air Act, 42 U.S.C. Section 7401 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et
seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980
(including the Superfund Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section
9601 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et
seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651; the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine
Safety and Health Act of 1977, 30 U.S.C. Section 801 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; and all other Governmental Rules
relating to the protection of human health and safety and the environment, including all
Governmental Rules pertaining to the reporting, licensing, permitting, transportation, storage,
disposal, investigation or remediation of emissions, discharges, releases, or threatened releases
of Hazardous Materials into the air, surface water, groundwater, or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transportation or
handling of Hazardous Materials.



“Equity Securities” of any Person shall mean (a) all common stock, preferred stock,
participations, shares, partnership interests, limited liability company interests or other equity
interests in and of such Person (regardless of how designated and whether or not voting or
non-voting) and (b) all warrants, options and other rights to acquire any of the foregoing.



“ERISA” shall mean the Employee Retirement Income Security Act of 1974.



“ERISA Affiliate” shall mean any Person which is treated as a single employer with any
Loan Party under Sections 414(b) and (c) of the IRC (and Sections 414(m) and (o) of the IRC for
purposes of the provisions relating to Section 412 of the IRC).



“ERISA Event” shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a “substantial employer” (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA which could reasonably be expected to give rise to any liability with respect to such
withdrawal; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment
as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which could reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon a Loan Party or any ERISA Affiliate.



“Euro-Dollar Lending Office” shall mean, with respect to any Lender, (a) initially,
its office designated as such in Schedule I (or, in the case of any Lender which becomes a
Lender pursuant to Section 2.01(b) or by an assignment pursuant to Section 8.05(c),
its office designated as such in the applicable documentation executed pursuant to those Sections,
as applicable) and (b) subsequently, such other office or offices as such Lender may designate to
the Administrative Agent as the office at which such Lender’s LIBOR Loans will thereafter be
maintained and for the account of which all payments of principal of, and interest on, such
Lender’s LIBOR Loans will thereafter be made.



“Event of Default” shall have the meaning given to that term in Section 6.01.



“Evergreen Letter of Credit” shall have the meaning given to that term in
Section 2.02(b)(iii).



“Excluded Accounts” shall mean (a) the Borrower’s existing Citigroup Auction Rate
Securities Account and any account established in connection with the financing permitted under
Section 5.02(a)(x); provided that in each case, each such account only holds
auction rate securities and (b) any deposit, securities or similar account maintained by a Foreign
Subsidiary.



“Excluded Assets” shall mean (a) any rights or property acquired by any Loan Party
under, or subject to, a lease, contract, or license, if and for so long as the grant of a Lien to
secure the Obligations would constitute or result in (x) the abandonment, invalidation or
unenforceability of any right, title or interest of such Loan Party therein; provided,
however, that at such time as the condition causing such abandonment, invalidation or
unenforceability shall be no longer in effect with respect to any property, such property shall no
longer constitute Excluded Assets or (y) a breach or termination pursuant to the terms of, or a
default under, any such lease, contract, or license (other than to the extent that any restriction
on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409
of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other
applicable Governmental Rules or principles of equity), and (b) the Excluded Accounts.



“Executive Order” shall mean Executive Order No. 13224 on Terrorist Financings: -
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or
Support Terrorism issued on 23rd September, 2001.



“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards to
the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next succeeding such day;
provided, that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate charged to Wells Fargo
on such day on such transactions as determined by the Administrative Agent.



“Federal Reserve Board” shall mean the Board of Governors of the Federal Reserve
System.



“Financial Statements” shall mean, with respect to any accounting period for any
Person, statements of income and cash flows (and, in the case of financial statements in respect of
a fiscal year, statements of retained earnings, or stockholders’ equity or members’ equity or
partners’ capital) of such Person for such period, and a balance sheet of such Person as of the end
of such period, setting forth in each case in comparative form figures for the corresponding period
in the preceding fiscal year if such period is less than a full fiscal year or, if such period is a
full fiscal year, corresponding figures from the preceding annual audited financial statements and,
in each case, corresponding figures from the comparable budgeted and projected figures for such
period, all prepared in reasonable detail and in accordance with GAAP.



“Foreign Plan” shall mean any employee benefit plan maintained or contributed to by
any Loan Party or any ERISA Affiliate which is mandated or governed by any Governmental Rule of any
Governmental Authority other than the United States.



“Foreign Pledge Agreement” shall mean a pledge agreement, charge agreement or similar
agreement in form and substance reasonably acceptable to the Administrative Agent executed by the
Borrower or a Guarantor with respect to a pledge (or equivalent thereof) of Equity Securities of a
Foreign Subsidiary required by the terms of this Agreement.



“Foreign Subsidiary” shall mean each direct or indirect Subsidiary of a Loan Party
which is organized in a jurisdiction other than the United States of America or any state thereof.



“Fund” shall mean any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.



“GAAP” shall mean generally accepted accounting principles and practices as in effect
in the United States of America from time to time, consistently applied.



“Governmental Authority” shall mean any international, domestic or foreign national,
state or local government, any political subdivision thereof, any department, agency, authority or
bureau of any of the foregoing, or any other entity exercising executive, legislative, judicial,
regulatory, tax or administrative functions of or pertaining to government, including, without
limitation, the Federal Trade Commission, the Federal Deposit Insurance Corporation, the Federal
Reserve Board, the Comptroller of the Currency, any central bank or any comparable authority.



“Governmental Authorization” shall mean any permit, license, registration, approval,
finding of suitability, authorization, plan, directive, order, consent, exemption, waiver, consent
order or consent decree of or from, or notice to, action by or filing with, any Governmental
Authority.



“Governmental Charges” shall mean, with respect to any Person, all levies,
assessments, fees, claims or other charges imposed by any Governmental Authority upon such Person
or any of its property or otherwise payable by such Person.



“Governmental Rule” shall mean any law, rule, regulation, ordinance, order, code
interpretation, judgment, decree, directive, Governmental Authorization, guidelines, policy or
similar form of decision of any Governmental Authority.



“Guarantor” shall mean each now existing or hereafter acquired or created direct or
indirect Domestic Subsidiary (other than Immaterial Subsidiaries) which becomes a party to the
Guaranty.



“Guaranty” shall mean the Guaranty Agreement among each direct or indirect Domestic
Subsidiary party thereto, substantially in the form of Exhibit M.



“Guaranty Obligation” shall mean, with respect to any Person, any direct or indirect
liability of that Person with respect to any indebtedness, lease, dividend, letter of credit or
other obligation (the “primary obligations”) of another Person (the “primary obligor”), including
any obligation of that Person, whether or not contingent, (a) to purchase, repurchase or otherwise
acquire such primary obligations or any property constituting direct or indirect security therefor,
or (b) to advance or provide funds (i) for the payment or discharge of any such primary obligation,
or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, or (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation, or (d) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof, provided that the
term “Guaranty Obligation” shall not include endorsements for collection or deposit in the ordinary
course of business. The amount of any Guaranty Obligation shall be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty Obligation is made
or, if not stated or if indeterminable, the maximum liability in respect thereof.



“Hazardous Materials” shall mean all pollutants, contaminants and other materials,
substances and wastes which are hazardous, toxic, caustic, harmful or dangerous to human health or
the environment, including petroleum and petroleum products and byproducts, radioactive materials,
asbestos, polychlorinated biphenyls and all materials, substances and wastes which are classified
or regulated as “hazardous,” “toxic” or similar descriptions under any Environmental Law.



“Honor Date” shall have the meaning given to that term in Section 2.02(c)(i).



“ICC” shall have the meaning given to that term in Section 2.02(h).



“Immaterial Subsidiary” shall mean any Subsidiary that has (a) less than $1,000,000 in
assets (valued at the greater of book value or fair market value) and (b) less than $1,000,000 in
revenues for the twelve month period most recently ended; provided that any such Subsidiary
that is initially an Immaterial Subsidiary shall cease to be an Immaterial Subsidiary from and
after the date such Subsidiary has (i) assets (valued at the greater of book value or fair market
value) equal to or greater than $1,000,000 or (ii)  revenues equal to or greater than $1,000,000
for the twelve month period most recently ended. Notwithstanding the foregoing, it is understood
and agreed that the following entities are not Immaterial Subsidiaries: Hi-Speed Media, Inc.,
California corporation, Web Marketing Holdings, LLC, a Delaware limited liability company, Web
Clients, LLC, a Delaware limited liability company, I-Deal Direct Interactive, LLC, a Pennsylvania
limited liability company, Mezi Media, Inc., a California corporation, Search123.com, Inc., a
California corporation, Mediaplex, Inc., a Delaware corporation, BeFree, Inc., a Delaware
corporation, Commission Junction, Inc., a Delaware corporation, ValueClick Europe Limited, a
company organized under the laws of the United Kingdom, ValueClick SARL, a company organized under
the laws of France, ValueClick Deutschland GmbH, a company organized under the laws of Germany,
ValueClick AB, a company organized under the laws of Sweden, and ValueClick International Limited,
a company organized under the laws of Ireland.



“Increasing Lenders” shall have the meaning given to that term in Section
2.01(b)(i).



“Indebtedness” of any Person shall mean, without duplication:



(a) All obligations of such Person evidenced by notes, bonds, debentures or other similar
instruments and all other obligations of such Person for borrowed money (including obligations to
repurchase receivables and other assets sold with recourse);



(b) All obligations of such Person for the deferred purchase price of property or services
(including obligations under letters of credit and other credit facilities which secure or finance
such purchase price), except for trade accounts payable; provided that (A) such trade
accounts payable arise in the ordinary course of business and (B) no material part of any such
account is more than ninety (90) days past due;



(c) All obligations of such Person under conditional sale or other title retention agreements
with respect to property acquired by such Person (to the extent of the value of such property if
the rights and remedies of the seller or the lender under such agreement in the event of default
are limited solely to repossession or sale of such property);



(d) All obligations of such Person as lessee under or with respect to Capital Leases and
synthetic leases and all other off-balance sheet financing;



(e) All obligations of such Person, contingent or otherwise, under or with respect to Surety
Instruments;



(f) All net obligations of such Person, contingent or otherwise, under or with respect to Rate
Contracts on a marked to market basis;



(g) All obligations of such Person with respect to letters of credit, whether drawn or
undrawn, contingent or otherwise;



(h) All Guaranty Obligations of such Person with respect to the obligations of other Persons
of the types described in clauses (a) — (g) above; and



(i) All obligations of other Persons of the types described in clauses (a) — (h) above to the
extent secured by (or for which any holder of such obligations has an existing right, contingent or
otherwise, to be secured by) any Lien on any property (including accounts and contract rights) of
such Person, even though such Person has not assumed or become liable for the payment of such
obligations.



For the avoidance of doubt, “Indebtedness” shall not include earn-outs and similar obligations
in respect of acquisitions permitted hereunder.



“Indemnitees” shall have the meaning given to that term in Section 8.03.



“Intellectual Property Security Agreement” shall mean that certain Intellectual
Property Security Agreement, dated as of the date hereof, among the Borrower, each Guarantor party
thereto and the Administrative Agent, substantially in the form of Exhibit K.



“Interest Expense” shall mean, for any period, the sum, for the Loan Parties
(determined on a consolidated basis without duplication in accordance with GAAP), of the following:
(a) all interest, fees, charges and related expenses payable during such period to any Person in
connection with Indebtedness or the deferred purchase price of assets that is treated as interest
in accordance with GAAP, (b) the portion of rent actually paid during such period under Capital
Leases that should be treated as interest in accordance with GAAP and (c) the net amounts payable
(or minus the net amounts receivable) under Rate Contracts accrued during such period
(whether or not actually paid or received during such period).



“Interest Period” shall mean, with respect to any LIBOR Loan, the time periods
selected by the Borrower pursuant to Section 2.01(c) or Section 2.01(e) which
commences on the first day of such Loan or the effective date of any conversion and ends on the
last day of such time period, and thereafter, each subsequent time period selected by the Borrower
pursuant to Section 2.01(f) which commences on the last day of the immediately preceding
time period and ends on the last day of that time period.



“Investment” of any Person shall mean any loan or advance of funds by such Person to
any other Person (other than advances to employees of such Person for moving and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business), any purchase or
other acquisition of any Equity Securities or Indebtedness of any other Person, any capital
contribution by such Person to or any other investment by such Person in any other Person
(including any Guaranty Obligations of such Person and any indebtedness of such Person of the type
described in clause (h) of the definition of “Indebtedness” on behalf of any other Person);
provided, however, that Investments shall not include (a) accounts receivable or
other indebtedness owed by customers of such Person which arose from sales of inventory or goods
and services in the ordinary course of such Person’s business, (b) prepaid expenses of such Person
incurred and prepaid in the ordinary course of business or (c) any payment by the Borrower of
commissions to a third-party web publisher made on behalf of another Loan Party to the extent such
other Loan Party reimburses the Borrower in cash for such payment no later than 30 days after the
Borrower made such payment.



“IRC” shall mean the Internal Revenue Code of 1986.



“Joint Venture” shall mean a joint venture, limited liability company, corporation,
partnership, other entity or other legal arrangement (whether created pursuant to a contract or
conducted through a separate legal entity) formed by a Loan Party and one or more other Persons who
are not Loan Parties.



“L/C Advance” shall mean, with respect to each Lender, such Lender’s participation in
any L/C Borrowing in accordance with its Revolving Proportionate Share.



“L/C Borrowing” shall mean an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving
Loan Borrowing.



“L/C Credit Extension” shall mean, with respect to any Letter of Credit, the issuance
thereof, the amendment thereof, the extension of the expiry date thereof, or the renewal or
increase of the amount thereof.



“L/C Issuer” shall mean Wells Fargo (or Trade Bank, as agent for Wells Fargo) in its
capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder.



“L/C Obligations” shall mean, as at any date of determination, the aggregate undrawn
face amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed
Amounts, including all L/C Borrowings.



“Lead Arranger” shall mean Wells Fargo Bank, National Association, in its capacity as
sole lead arranger in connection with this Agreement.



“Lender” and “Lenders” shall have the meaning given to such terms in clause
(2) of the introductory paragraph hereof and includes the L/C Issuer, the Swing Line Lender, and
each Affiliate of a Lender that is party to a Lender Rate Contract or providing any Lender Bank
Products (unless the context otherwise requires).



“Lender Bank Products” shall mean each and any of the following types of services or
facilities extended to the Borrower by any Lender or any Affiliate of any Lender: (a) commercial
credit cards; (b) cash management services (including controlled disbursement services, ACH
transactions, and interstate depository network services), (c) returned items; and (d) foreign
exchange services and facilities. The obligations with respect to Lender Bank Products shall be
secured by the Liens created by the Security Documents to the extent set forth in
Section 2.14(a).



“Lender Rate Contract(s)” shall mean one or more Rate Contracts with respect to the
Indebtedness evidenced by this Agreement between the Borrower and one or more of the Lenders or
Affiliates of a Lender (but, in each case, only so long as such Person remains a Lender or an
Affiliate of a Person that remains a Lender), on terms acceptable to the Borrower and that Lender
or Lenders (or Affiliate(s)). Each Lender Rate Contract shall be secured by the Liens created by
the Security Documents to the extent set forth in Section 2.14(a).



“Letter of Credit” shall mean any letter of credit issued hereunder. A Letter of
Credit may be a Commercial Letter of Credit or a Standby Letter of Credit.



“Letter of Credit Application” shall mean an application and agreement (including any
master letter of credit agreement) for the issuance or amendment of a letter of credit in the form
from time to time in use by the L/C Issuer.



“Letter of Credit Expiration Date” shall mean the day that is thirty days prior to the
Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).



“Letter of Credit Sublimit” shall mean an amount equal to the lesser of
(a) $10,000,000 and (b) the Total Revolving Loan Commitment. The Letter of Credit Sublimit is part
of, and not in addition to, the Total Revolving Loan Commitment.



“LIBOR Loan” shall mean, at any time, a Revolving Loan which then bears interest as
provided in clause (ii) of Section 2.01(d).



“LIBOR Rate” shall mean, with respect to any Interest Period for the LIBOR Loans in
any Revolving Loan Borrowing consisting of LIBOR Loans, a rate per annum equal to the quotient
(rounded upward if necessary to the nearest 1/16 of one percent) of (a) the rate per annum referred
to as the BBA (British Bankers Association) LIBOR RATE as reported on Reuters LIBOR page 1, or if
not reported by Reuters, as reported by any service selected by the Administrative Agent, on the
second Business Day prior to the first day of such Interest Period at or about 11:00 a.m., London
time (or as soon thereafter as practicable), for delivery on the first day of such Interest Period
for a term comparable to such Interest Period, divided by (b) one minus the Reserve
Requirement for such Loans in effect from time to time. If for any reason rates are not available
as provided in clause (a) of the preceding sentence, the rate to be used in clause (a) shall be, at
the Administrative Agent’s discretion (in each case, rounded upward if necessary to the nearest
1/16 of one percent), (i) the rate per annum at which Dollar deposits are offered to the
Administrative Agent in the London interbank eurodollar currency market or (ii) the rate at which
Dollar deposits are offered to the Administrative Agent in, or by the Administrative Agent to major
banks in, any offshore interbank eurodollar market selected by the Administrative Agent, in each
case on the second Business Day prior to the commencement of such Interest Period at or about 10:00
a.m. (for delivery on the first day of such Interest Period) for a term comparable to such Interest
Period and in an amount approximately equal to the amount of the Loan to be made or funded by the
Administrative Agent as part of such Borrowing. The LIBOR Rate shall be adjusted automatically as
to all LIBOR Loans then outstanding as of the effective date of any change in the Reserve
Requirement.



“Lien” shall mean, with respect to any property, any security interest, mortgage,
pledge, lien, charge or other encumbrance in, of, or on such property or the income therefrom,
including, without limitation, the interest of a vendor or lessor under a conditional sale
agreement, Capital Lease or other title retention agreement, or any agreement to provide any of the
foregoing, and the filing of any effective financing statement or similar instrument under the
Uniform Commercial Code or comparable law of any jurisdiction.



“Loan” shall mean a Revolving Loan or a Swing Line Loan.



“Loan Account” shall have the meaning given to that term in Section 2.08(a).



“Loan Parties” shall mean, collectively, the Borrower and all Subsidiaries of the
Borrower.



“Margin Stock” shall have the meaning given to that term in Regulation U issued by the
Federal Reserve Board.



“Material Adverse Effect” shall mean any event or circumstance that has or could
reasonably be expected to have a material adverse effect on (a) the assets, liabilities, financial
condition, business operations, or performance of the Loan Parties (taken as a whole); (b) the
ability of the Borrower to pay or perform the Obligations in accordance with the terms of this
Agreement and the other Credit Documents or the ability of the Guarantors, collectively, to pay or
perform any portion of their obligations in accordance with the terms of the Guaranty; (c) the
rights and remedies of the Administrative Agent or any Lender under this Agreement, the other
Credit Documents or any related document, instrument or agreement; (d) the Administrative Agent’s
or any Lender’s security interest in the Collateral or the perfection or priority of such security
interests; or (e) the validity or enforceability of any of the Credit Documents.



“Material Contract” shall mean any agreement or arrangement to which any Loan Party is
a party (other than the Credit Documents) with respect to which breach, termination, nonperformance
or failure to renew could reasonably be expected to have a Material Adverse Effect.



“Material Documents” shall mean the (i) articles of incorporation, certificate of
incorporation, certificate of organization, limited liability company agreement, by-laws and other
organizational documents of the Loan Parties and (ii) Material Contracts.



“Maturity” or maturity” shall mean, with respect to any Loan, interest, fee or
other amount payable by the Borrower under this Agreement or the other Credit Documents, the date
such Loan, interest, fee or other amount becomes due, whether upon the stated maturity or due date,
upon acceleration or otherwise.



“Maturity Date” shall mean November 14, 2011.



“Multiemployer Plan” shall mean any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by a Loan Party or any ERISA Affiliate.



“Negative Pledge” shall mean a Contractual Obligation which contains a covenant
binding on Borrower or any of its Subsidiaries that prohibits Liens on any of its Property,
other than (a) any such covenant contained in a Contractual Obligation granting or
relating to a particular Lien or license which affects only the Property that is the subject of
such Lien or license and (b) any such covenant that does not apply to Liens securing the
Obligations.



“Net Condemnation Proceeds” shall mean an amount equal to: (a) any cash payments or
proceeds received by a Loan Party as a result of any condemnation or other taking or temporary or
permanent requisition of any property, any interest therein or right appurtenant thereto, or any
change of grade affecting any property, as the result of the exercise of any right of condemnation
or eminent domain by a Governmental Authority (including a transfer to a Governmental Authority in
lieu or anticipation of a condemnation), minus (b) (i) any actual and reasonable costs incurred by
a Loan Party in connection with any such condemnation or taking (including reasonable fees and
expenses of counsel), and (ii) provisions for all taxes payable as a result of such condemnation,
without regard to the consolidated results of operations of the Loan Parties, taken as a whole.



“Net Income” shall mean with respect to any fiscal period, the net income of the Loan
Parties for such period determined on a consolidated basis in accordance with GAAP, consistently
applied.



“Net Insurance Proceeds” shall mean an amount equal to: (a) any cash payments or
proceeds received by a Loan Party or the Administrative Agent under any casualty policy in respect
of a covered loss thereunder with respect to any property, minus (b) (i) any actual costs
reasonably incurred by a Loan Party in connection with the adjustment or settlement of any claims
of a Loan Party in respect thereof (including fees and expenses of counsel) and (ii) provisions
for all taxes payable as a result of such event without regard to the consolidated results of
operations of Loan Parties, taken as a whole.



“Net Proceeds” shall mean, with respect to any sale of any asset or property by any
Person, the aggregate consideration received by such Person from such sale less the sum of
(i) the actual amount of the fees and commissions payable to Persons other than such Person or any
Affiliate of such Person, the legal expenses and other costs and expenses directly related to such
sale that are to be paid by such Person and (ii) the amount of any Indebtedness (other than the
Obligations) which is secured by such asset and is required to be repaid or prepaid by such Person
as a result of such sale.



“New Lender” shall have the meaning given to that term in Section 2.01(b)(ii).



“Non-Consenting Lender” shall have the meaning given to that term in Section
8.04.



“Nonrenewal Notice Date” shall have the meaning given to that term in
Section 2.02(b)(iii).



“Note” shall mean a Revolving Loan Note or a Swing Loan Note.



“Notice” shall have the meaning set forth in Section 8.01(b).



“Notice of Borrowing” shall mean a Notice of Loan Borrowing or a Notice of Swing Loan
Borrowing.



“Notice of Conversion” shall have the meaning given to that term in Section
2.01(e).



“Notice of Interest Period Selection” shall have the meaning given to that term in
Section 2.01(f)(ii).



“Notice of Loan Borrowing” shall have the meaning given to that term in
Section 2.01(c).



“Notice of Swing Loan Borrowing” shall mean a notice of a Swing Loan Borrowing
pursuant to Section 2.03(b), which, if in writing, shall be substantially in the form of
Exhibit D.



“Obligations” shall mean and include all loans, advances, debts, liabilities and
obligations, howsoever arising, owed or owing by the Borrower to the Administrative Agent or any
Lender (or in the case of any Lender Rate Contract or any Lender Bank Products, any Affiliate of a
Lender, as applicable) of every kind and description (whether or not evidenced by any note or
instrument and whether or not for the payment of money), direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising pursuant to the terms of this
Agreement or any of the other Credit Documents or any Lender Rate Contract, including without
limitation all interest (including interest that accrues after the commencement of any bankruptcy
or other insolvency proceeding by or against the Borrower, whether or not allowed or allowable),
fees, charges, expenses, attorneys’ fees and accountants’ fees chargeable to and payable by the
Borrower hereunder and thereunder.



“Other Taxes” shall have the meaning given to such term in Section 2.12(b).



“Participant” shall have the meaning given to that term in Section 8.05(b).



“Patriot Act” shall mean 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).



“PBGC” shall mean the Pension Benefit Guaranty Corporation.



“Pension Plan” shall mean any “employee pension benefit plan” (as such term is defined
in Section 3(2) of ERISA), other than a Multiemployer Plan and a Foreign Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which
a Loan Party or any ERISA Affiliate contributes or has an obligation to contribute.



“Permitted Acquisition” shall mean any acquisition permitted under
Section 5.02(d)(ii).



“Permitted Acquisition and Stock Repurchase Maximum Amount” shall mean, at any date of
determination, an amount equal to (a) $150,000,000 plus (b) an amount equal to 50% of the
excess (if any) of (i) Net Income for the twelve-month period most recently ended over (ii) all
cash earn-outs and other contingent consideration expected to be paid during the succeeding
twelve-month period.



“Permitted Indebtedness” shall have the meaning given to that term in Section
5.02(a).



“Permitted Liens” shall have the meaning given to that term in Section
5.02(b).



“Permitted Stock Repurchase” shall mean any repurchase of the Equity Securities of the
Borrower permitted under Section 5.02(f)(ii).



“Person” shall mean and include an individual, a partnership, a corporation (including
a business trust), a joint stock company, an unincorporated association, a limited liability
company, a joint venture, a trust or other entity or a Governmental Authority.



“Platform” shall have the meaning set forth in Section 8.01(b).



“Pledged Foreign Subsidiary” shall mean a Foreign Subsidiary of the Borrower or any
Guarantor where the Administrative Agent has received a Foreign Pledge Agreement from the Borrower
or such Guarantor, as applicable, with respect to 100% of the non-voting Equity Securities (within
the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated under the IRC) of such Foreign
Subsidiary and 65% of the voting Equity Securities (within the meaning of Treasury Regulation
Section 1.956-2(c)(2) promulgated under the IRC) of such Foreign Subsidiary and such Foreign Pledge
Agreement is in full force and effect and the Borrower or such Guarantor, as applicable, shall have
satisfied all actions and requirements related to such Foreign Pledge Agreement (including delivery
of stock certificates, where applicable).



“Pledged Intercompany Notes” shall mean original demand promissory notes in favor of
one or more of the Borrower and the Guarantors evidencing intercompany advances pledged to the
Administrative Agent pursuant to the Security Agreement.



“Pricing Grid” shall mean,



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing Grid
	 	 	 	 	Applicable Margin	 	Applicable Margin	 	Commitment Fee
	Tier	 	Total Leverage Ratio	 	for LIBOR Loans	 	for Base Rate Loans	 	Percentage
	1

	 	> 1.50
	 	 	2.25	%	 	 	1.25	%	 	 	0.40	%
	
 
	 	 
	 	

	 	

	 	


	2

	 	> 1.00 < 1.50
	 	 	2.00	%	 	 	1.00	%	 	 	0.35	%
	
 
	 	 
	 	

	 	

	 	


	3

	 	> 0.50 < 1.00
	 	 	1.75	%	 	 	0.75	%	 	 	0.30	%
	
 
	 	 
	 	

	 	

	 	


	4

	 	< 0.50
	 	 	1.50	%	 	 	0.50	%	 	 	0.25	%






Any increase or decrease in the Applicable Margin and Commitment Fee Percentage resulting from
a change in the Total Leverage Ratio shall become effective as of the tenth day immediately
following the date a Compliance Certificate is delivered pursuant to Section 5.01(a)(iii);
provided, however, that if no Compliance Certificate is delivered when due in
accordance with such Section, then Tier 1 shall apply as of the date of the failure to deliver such
Compliance Certificate until such date as the Borrower delivers such Compliance Certificate in form
and substance acceptable to the Administrative Agent and thereafter the Applicable Margin shall be
based on the Total Leverage Ratio indicated on such Compliance Certificate until such time as the
Applicable Margin is further adjusted as set forth in this definition. Notwithstanding anything to
the contrary herein, the Applicable Margin and Commitment Fee Percentage in effect as of the
Closing Date shall be Tier 3 and thereafter until the first adjustment to occur after June 30, 2009
shall be determined based upon Tier 1, 2 or 3 of the Pricing Grid as applicable (during such
period, a Total Leverage Ratio of less than 0.50 shall be deemed to trigger Tier 3 of the Pricing
Grid). If the Total Leverage Ratio reported in any Compliance Certificate shall be determined to
have been incorrectly reported and if correctly reported would have resulted in a higher Applicable
Margin or Commitment Fee Percentage, then the Applicable Margin and Commitment Fee Percentage shall
be retroactively adjusted to reflect the higher rate that would have been applicable had the Total
Leverage Ratio been correctly reported in such Compliance Certificate and the additional amounts
resulting therefrom shall be due and payable upon demand from the Administrative Agent or any
Lender (the Borrower’s obligations to pay such additional amounts shall survive the payment and
performance of all other Obligations and the termination of this Agreement).



“Prime Rate” shall mean the per annum rate of interest most recently announced within
Wells Fargo at its principal office in San Francisco, California as its Prime Rate, with the
understanding that Wells Fargo’s Prime Rate is one of its base rates and serves as the basis upon
which effective rates of interest are calculated for those loans making reference thereto, and is
evidenced by the recording thereof after its announcement in such internal publication or
publications as Wells Fargo may designate. Any change in the Base Rate resulting from a change in
the Prime Rate shall become effective on the Business Day on which each such change in the Prime
Rate occurs.



“Proposed Change” shall have the meaning given to that term in Section 8.04.



“Proposed Target” shall have the meaning given to that term in Section
5.02(d).



“Rate Contract” shall mean any agreement with respect to any swap, cap, collar, hedge,
forward, future or derivative transaction or option or similar agreement involving, or settled by
reference to, one or more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or pricing risk or
value or any similar transaction or any combination of these transactions.



“Receipt Date” shall have the meaning given to that term in Section
2.06(c)(iv).



“Register” shall have the meaning given to that term in Section 8.05(d).



“Reduction Notice” shall have the meaning given to that term in Section
2.04(a).



“Relevant Sale” shall have the meaning given to that term in Section
2.06(c)(iii).



“Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA
and applicable regulations thereunder (other than events for which the thirty (30) day notice
period has been waived).



“Required Lenders” shall mean, at any time, the Lenders whose Revolving Proportionate
Shares then exceed fifty percent (50%) of the total Revolving Proportionate Shares of all Lenders;
provided that at any time any Lender is a Defaulting Lender, such Defaulting Lender shall
be excluded in determining “Required Lenders”, and “Required Lenders” shall mean at such time
non-Defaulting Lenders having total Revolving Proportionate Shares exceeding fifty percent (50%) of
the total Revolving Proportionate Shares of all non-Defaulting Lenders; provided that, in no event
shall Required Lenders consist of fewer than two non-Defaulting Lenders at any time at which there
shall be at least two non-Defaulting Lenders party to this Agreement.



“Requirement of Law” applicable to any Person shall mean (a) the articles or
certificate of incorporation, certificate of organization, limited liability company agreement,
by-laws or other organizational or governing documents of such Person, (b) any Governmental Rule
applicable to such Person, (c) any Governmental Authorization granted by or obtained from any
Governmental Authority or under any Governmental Rule for the benefit of such Person or (d) any
judgment, decision, award, decree, writ or determination of any Governmental Authority or
arbitrator, in each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.



“Reserve Requirement” shall mean, with respect to any day in an Interest Period for a
LIBOR Loan, the aggregate of the maximum of the reserve requirement rates (expressed as a decimal)
in effect on such day for eurocurrency funding (currently referred to as “Eurocurrency liabilities”
in Regulation D of the Federal Reserve Board) maintained by a member bank of the Federal Reserve
System. As used herein, the term “reserve requirement” shall include, without limitation, any
basic, supplemental or emergency reserve requirements imposed on any Lender by any Governmental
Authority.



“Responsible Officer” shall mean, with respect to a Loan Party, the chief executive
officer, president, chief operating officer, chief financial officer, vice president of finance or
treasurer of such Loan Party. Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party and any request or other communication conveyed telephonically or otherwise
by a Responsible Officer of a Loan Party (or any Person reasonably believed by the Administrative
Agent to be a Responsible Officer of a Loan Party) shall be conclusively presumed to have been
authorized by all necessary corporate, company, partnership and/or other action on the part of such
Loan Party and such Responsible Officer (or such Person reasonably believed by the Administrative
Agent to be a Responsible Officer) shall be conclusively presumed to have acted on behalf of such
Loan Party.



“Revolving Loan” shall have the meaning given to that term in Section 2.01(a).



“Revolving Loan Borrowing” shall mean a borrowing by the Borrower consisting of the
Revolving Loans made by each of the Lenders to the Borrower on the same date and of the same Type
pursuant to a single Notice of Loan Borrowing for Revolving Loans.



“Revolving Loan Commitment” shall mean, with respect to each Lender, the Dollar amount
set forth under the caption “Revolving Loan Commitment” opposite such Lender’s name on Part
A of Schedule I, or, if changed in accordance with this Agreement, such Dollar amount
as may be set forth for such Lender in the Register.



“Revolving Loan Note” shall have the meaning given to that term in Section
2.08(b).



“Revolving Proportionate Share” shall mean:



(a) With respect to any Lender so long as the Revolving Loan Commitments are in effect, the
ratio (expressed as a percentage rounded to the eighth digit to the right of the decimal point) of
(i) such Lender’s Revolving Loan Commitment at such time to (ii) the Total Revolving Loan
Commitment at such time; and



(b) With respect to any Lender at any other time, the ratio (expressed as a percentage rounded
to the eighth digit to the right of the decimal point) of (i) the sum of (A) the aggregate
Effective Amount of such Lender’s Revolving Loans, (B) such Lender’s pro rata share of the
Effective Amount of all L/C Obligations, and (C) such Lender’s pro rata share of the aggregate
Effective Amount of all Swing Line Loans to (ii) the sum of (A) the aggregate Effective
Amount of all Revolving Loans and Swing Line Loans and (B) the Effective Amount of all L/C
Obligations.



The initial Revolving Proportionate Share of each Lender is set forth under the caption
“Revolving Proportionate Share” opposite such Lender’s name on Schedule I.



“Security Agreement” shall mean that certain Security Agreement, dated as of the date
hereof, among the Borrower, each Guarantor party thereto and the Administrative Agent ,
substantially in the form of Exhibit J.



“Security Documents” shall mean and include the Security Agreement, the Intellectual
Property Security Agreement, each Control Agreement, each Foreign Pledge Agreement, each pledge
agreement or security agreement delivered in accordance with Section 5.01(i) or
Section 5.01(k), each deed of trust or mortgage and all other instruments, agreements,
certificates, opinions and documents (including Uniform Commercial Code financing statements and
fixture filings) delivered to the Administrative Agent or any Lender in connection with any
Collateral or to secure the Obligations or the obligation of a Guarantor under the Credit
Documents.



“Sole Bookrunner” shall mean Wells Fargo Bank, National Association, in its capacity
as sole bookrunner in connection with this Agreement.



“Solvent” shall mean, with respect to any Person on any date, that on such date
(a) the fair value of the property of such Person on a going concern basis is greater than the fair
value of the liabilities (including contingent, subordinated, matured and unliquidated liabilities)
of such Person, (b) the present fair saleable value of the assets of such Person on a going concern
basis is greater than the amount that will be required to pay the probable liability of such Person
on its debts as they become absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts
and liabilities mature and (d) such Person is not engaged in or about to engage in business or
transactions for which such Person’s property would constitute an unreasonably small capital.



“Standby Letter of Credit” shall mean any of the standby letters of credit issued by
the L/C Issuer under this Agreement, either as originally issued or as the same may be
supplemented, modified, amended, extended, restated or supplanted.



“Subordinated Obligations” shall mean, as of any date of determination (without
duplication), (a) the Indebtedness permitted under Section 5.02(a)(viii) and (b) any other
Indebtedness of the Borrower or its Subsidiaries on that date which has been subordinated in right
of payment to the Obligations in a manner reasonably satisfactory to the Required Lenders
and contains such other protective terms with respect to senior debt (such as amount,
maturity, amortization, interest rate, covenants, defaults, remedies, payment blockage and terms of
subordination) as the Required Lenders may reasonably require.



“Subsidiary” of any Person shall mean (a) any corporation of which more than 50% of
the issued and outstanding Equity Securities having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries, (b) any partnership, joint venture, limited liability company or other association of
which more than 50% of the equity interests having the power to vote, direct or control the
management of such partnership, joint venture or other association is at the time owned and
controlled by such Person, by such Person and one or more of the other Subsidiaries or by one or
more of such Person’s other Subsidiaries or (c) any other Person included in the Financial
Statements of such Person on a consolidated basis. Unless otherwise indicated in this Agreement,
“Subsidiary” shall mean a Subsidiary of a Loan Party.



“Surety Instruments” shall mean all letters of credit (including standby and
commercial), banker’s acceptances, bank guaranties, shipside bonds, surety bonds and similar
instruments.



“Swing Line” shall mean the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.03.



“Swing Line Lender” shall mean Wells Fargo in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



“Swing Line Loan” shall mean the meaning specified in Section 2.03(a).



“Swing Line Settlement Date” shall mean the last Business Day of each calendar week.



“Swing Line Sublimit” shall mean an amount equal to the lesser of (a) $10,000,000 and
(b) the Total Revolving Loan Commitment. The Swing Line Sublimit is part of, and not in addition
to, the Total Revolving Loan Commitment.



“Swing Loan Borrowing” shall mean a borrowing of a Swing Line Loan.



“Swing Loan Note” shall have the meaning given to that term in Section
2.08(d).



“Taxes” shall have the meaning given to such term in Section 2.12(a).



“Termination Value” shall mean, in respect of any one or more Rate Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Rate
Contracts, (a) for any date on or after the date such Rate Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the mark-to-market
value(s) for such Rate Contracts, as determined by the Administrative Agent based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such Rate
Contracts which may include any Lender.



“Total Debt” shall mean all Indebtedness of the Loan Parties on a consolidated basis.



“Total Leverage Ratio” shall mean, at any time, the ratio of (a) Total Debt at such
time, to (b) EBITDA of the Loan Parties on a consolidated basis for the four quarter period ended
as of the end of the most recent fiscal quarter.



“Total Revolving Loan Commitment” shall mean, at any time, One Hundred Million Dollars
($100,000,000) or, if such amount is reduced pursuant to Section 2.04(a) or (b),
the amount to which so reduced and in effect at such time or, if such amount is increased pursuant
to Section 2.01(b), the amount to which it is increased and in effect at such time.



“Trade Bank” shall mean Wells Fargo HSBC Trade Bank, N.A.



“Type” shall mean, with respect to any Loan or Borrowing at any time, the
classification of such Loan or Borrowing by the type of interest rate it then bears, whether an
interest rate based upon the Base Rate or the LIBOR Rate.



“Unfunded Pension Liability” shall mean the excess of a Pension Plan’s benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s
assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to
Section 412 of the IRC for the applicable plan year.



“Unreimbursed Amount” shall have the meaning set forth in Section 2.02(c)(i).



“Unrestricted, Unencumbered Liquid Assets” shall mean (a) unrestricted, unencumbered,
marketable and freely tradeable securities of companies traded on a public securities exchange (not
including auction rate securities) that can be converted to cash within five (5) Business Days, (b)
unrestricted, unencumbered cash and (c) unrestricted, unencumbered Cash Equivalents except, in each
case, for Liens securing the Obligations or any guaranty thereof granted under the Security
Documents in favor of the Administrative Agent. For the avoidance of doubt, the term
“unrestricted” as used above includes, without limitation, being free from any contractual or legal
restriction on sale, including under Rule 144 and Rule 145 issued by the Securities and Exchange
Commission.



“Unused Revolving Commitment” shall mean, at any time, the remainder of (a) the Total
Revolving Loan Commitment at such time minus (b) the sum of the Effective Amount of all
Revolving Loans and the Effective Amount of all L/C Obligations outstanding at such time. For the
avoidance of doubt, Swing Line Loans shall not be counted as Revolving Loans for purposes of
determining the amount of Unused Revolving Commitment.



“Wells Fargo” shall have the meaning given to that term in clause (3) of the
introductory paragraph hereof.



1.02. GAAP. Unless otherwise indicated in this Agreement or any other Credit
Document, all accounting terms used in this Agreement or any other Credit Document shall be
construed, and all accounting and financial computations hereunder or thereunder shall be computed,
in accordance with GAAP applied in a consistent manner with the principles used in the preparation
of the Financial Statements used in Section 4.01(i). If GAAP changes, as applicable,
during the term of this Agreement such that any covenants contained herein would then be calculated
in a different manner or with different components, other than changes in GAAP that require items
to be included in the definition of Indebtedness that were not so required before such change in
GAAP, the Borrower, the Lenders and the Administrative Agent agree to negotiate in good faith to
amend this Agreement in such respects as are necessary to conform those covenants as criteria for
evaluating the Loan Parties’ financial condition to substantially the same criteria as were
effective prior to such change in GAAP; provided, however, that, until the
Borrower, the Lenders and the Administrative Agent so amend this Agreement, all such covenants
shall be calculated in accordance with GAAP, as in effect immediately prior to such change in GAAP.



1.03. Headings. The table of contents, captions and section headings appearing in
this Agreement are included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.



1.04. Plural Terms. All terms defined in this Agreement or any other Credit Document
in the singular form shall have comparable meanings when used in the plural form and vice versa.



1.05. Time. All references in this Agreement and each of the other Credit Documents
to a time of day shall mean San Francisco, California time, unless otherwise indicated.



1.06. Governing Law. Unless otherwise expressly provided in any Credit Document, this
Agreement and each of the other Credit Documents shall be governed by and construed in accordance
with the laws of the State of New York without reference to conflicts of law rules other than
Section 5-1401 of the General Obligations Law of the State of New York. The scope of the foregoing
governing law provision is intended to be all-encompassing of any and all disputes that may be
brought in any court or any mediation or arbitration proceeding and that relate to the subject
matter of the Credit Documents, including contract claims, tort claims, breach of duty claims and
all other common law and statutory claims.



1.07. Construction. This Agreement is the result of negotiations among, and has been
reviewed by, the Borrower, the Lenders, the Administrative Agent and their respective counsel.
Accordingly, this Agreement shall be deemed to be the product of all parties hereto, and no
ambiguity shall be construed in favor of or against the Borrower, any Lender or the Administrative
Agent.



1.08. Entire Agreement. This Agreement and each of the other Credit Documents, taken
together, constitute and contain the entire agreement of the Borrower, the Lenders and the
Administrative Agent and supersede any and all prior agreements, negotiations, correspondence,
understandings and communications among the parties, whether written or oral, respecting the
subject matter hereof including, except to the extent expressly set forth therein, the commitment
letter dated as of September 23, 2008 between the Borrower and the Administrative Agent but
excluding the Administrative Agent’s Fee Letter.



1.09. Calculation of Interest and Fees. All calculations of interest and fees under
this Agreement and the other Credit Documents for any period (a) shall include the first day of
such period and exclude the last day of such period; provided that any Loan that is repaid
on the same day on which it is made shall bear interest for one day and (b) shall be calculated on
the basis of a year of 360 days for actual days elapsed, except that during any period any Loan
bears interest based upon the Prime Rate, such interest shall be calculated on the basis of a year
of 365 or 366 days, as appropriate, for actual days elapsed.



1.10. References.



(a) References in this Agreement to “Recitals,” “Sections,” “Paragraphs,” “Exhibits” and
“Schedules” are to recitals, sections, paragraphs, exhibits and schedules herein and hereto unless
otherwise indicated.



(b) References in this Agreement or any other Credit Document to any document, instrument or
agreement (i) shall include all exhibits, schedules and other attachments hereto or thereto,
(ii) shall include all documents, instruments or agreements issued or executed in replacement
thereof if such replacement is permitted hereby or thereby, and (iii) shall mean such document,
instrument or agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time if such amendment, modification or
supplement is permitted hereby or thereby.



(c) References in this Agreement or any other Credit Document to any Governmental Rule
(i) shall include any successor Governmental Rule, (ii) shall include all rules and regulations
promulgated under such Governmental Rule (or any successor Governmental Rule), and (iii) shall mean
such Governmental Rule (or successor Governmental Rule) and such rules and regulations, as amended,
modified, codified or reenacted from time to time and in effect at any given time.



(d) References in this Agreement or any other Credit Document to any Person in a particular
capacity (i) shall include any successors to and permitted assigns of such Person in that capacity
and (ii) shall exclude such Person individually or in any other capacity.



1.11. Other Interpretive Provisions. The words “hereof,” “herein” and “hereunder” and
words of similar import when used in this Agreement or any other Credit Document shall refer to
this Agreement or such other Credit Document, as the case may be, as a whole and not to any
particular provision of this Agreement or such other Credit Document, as the case may be. The
words “include” and “including” and words of similar import when used in this Agreement or any
other Credit Document shall not be construed to be limiting or exclusive. In the event of any
inconsistency between the terms of this Agreement and the terms of any other Credit Document, the
terms of this Agreement shall govern.



1.12. Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed in this Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such ratio is expressed in
this Agreement.



	 	 	 
	ARTICLE II.	 	CREDIT FACILITY.
	2.01.

	 	Loan Facility.
	
 
	 	 






(a) Revolving Loan Availability. On the terms and subject to the conditions of this
Agreement, each Lender severally agrees to advance to the Borrower from time to time during the
period beginning on the Closing Date up to, but not including the Maturity Date such loans in
Dollars as the Borrower may request under this Section 2.01(a) (individually, a
“Revolving Loan”); provided, however, that (i) the sum of (A) the Effective
Amount of all Revolving Loans made by such Lender at any time outstanding and (B) such Lender’s
Revolving Proportionate Share of the Effective Amount of all L/C Obligations and all Swing Line
Loans at any time outstanding shall not exceed such Lender’s Revolving Loan Commitment at such time
and (ii) the sum of (A) the Effective Amount of all Revolving Loans made by all the Lenders at any
time outstanding and (B) the Effective Amount of all L/C Obligations and Swing Line Loans at any
time outstanding shall not exceed the Total Revolving Loan Commitment at such time. All Revolving
Loans shall be made on a pro rata basis by the Lenders in accordance with their respective
Revolving Proportionate Shares, with each Revolving Loan Borrowing to be comprised of a Revolving
Loan by each Lender equal to such Lender’s Revolving Proportionate Share of such Revolving Loan
Borrowing. Except as otherwise provided herein, the Borrower may borrow, repay and reborrow
Revolving Loans until the Maturity Date.



(b) Optional Increases.



(i) On the terms and subject to the conditions set forth below, Borrower may, at any time
before the Maturity Date, increase the Total Revolving Loan Commitment; provided that:



(A) after giving effect to the requested increase, the aggregate amount of the increases in
the Total Revolving Loan Commitment shall not exceed $50,000,000;



(B) all required third party consents and approvals shall have been obtained;



(C) there shall be no more than two (2) increases in the Total Revolving Loan Commitment
pursuant to this Section 2.01(b);



(D) prior to the date of any proposed increase, the Total Revolving Loan Commitment shall not
have been decreased pursuant to Section 2.04(a);



(E) each such increase in the Total Revolving Loan Commitment shall be equal to $10,000,000 or
an integral multiple of $5,000,000 in excess thereof;



(F) no Default shall have occurred and be continuing or shall occur as a result of such
increase; and



(G) the Borrower and the Guarantors shall have executed and delivered such documents and
instruments and taken such other actions as may be reasonably requested by the Administrative Agent
in connection with such increases in the Total Revolving Loan Commitment (including documents
related to real property Collateral (if any), insurance endorsements, new or amended Notes, any
related fee letters, documents evidencing the increased Revolving Loan Commitment held by any
applicable Lender, any joinder agreements related to a New Lender, reaffirmations of the Guaranty,
resolutions regarding the increase in the Total Revolving Loan Commitment and related actions taken
by the Borrower and the Guarantors, certified as true and correct by a Responsible Officer and
legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent).



Any request under this Section 2.01(b) shall be submitted by the Borrower to the
Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed
effective date and amount of such increase (and whether such increase shall be an increase in the
Total Revolving Loan Commitment) and be accompanied by a certificate of a Responsible Officer
stating that no Default exists or will occur as a result of such increase. If any fees are to be
paid or offered in connection with such increase, the Administrative Agent (with the consent of
Borrower) may also specify any fees offered to those Lenders (the “Increasing Lenders”)
which agree to increase the amount of their respective Revolving Loan Commitment, which fees may be
variable based upon the amount by which any such Lender is willing to increase the amount of its
Revolving Loan Commitment; no Lender which is not an Increasing Lender shall be entitled to receive
any such fees. No Lender shall have any obligation, express or implied, to offer to increase the
amount of its Revolving Loan Commitment. Only the consent of each Increasing Lender shall be
required for an increase in the amount of the Total Revolving Loan Commitment pursuant to this
Section 2.01(b)(i). No Lender which elects not to increase the amount of its Revolving
Loan Commitment may be replaced in respect of its existing Revolving Loan Commitment as a result
thereof without such Lender’s written consent.



(ii) Each Increasing Lender shall, as soon as practicable after the Borrower has submitted its
request under Section 2.01(b)(i), specify the amount of the proposed increase in its
Revolving Loan Commitment which it is willing to offer. To the extent the increased Revolving Loan
Commitment of the Increasing Lenders is insufficient or there are no Increasing Lenders, the
Borrower may designate new lenders who qualify as Eligible Assignees and which are reasonably
acceptable to the Administrative Agent as additional Lenders hereunder in accordance with this
Section 2.01(b)(ii) (each such new Lender being a “New Lender”), which New Lender
may assume all or a portion of the increase in the amount of the Total Revolving Loan Commitment.
The Borrower shall pay a fee to the Administrative Agent solely for the account of the
Administrative Agent in connection with any such increase as set forth in the Administrative
Agent’s Fee Letter. The Borrower and the Administrative Agent shall have discretion jointly to
adjust the allocation of the increased aggregate principal amount of the Total Revolving Loan
Commitment among Increasing Lenders and New Lenders.



(iii) Each New Lender designated by the Borrower and reasonably acceptable to the
Administrative Agent shall become an additional party hereto as a New Lender concurrently with the
effectiveness of the proposed increase in the amount of the Total Revolving Loan Commitment upon
its execution of an instrument of joinder (which may contain such modifications to this Agreement
and terms and conditions relating thereto as may be necessary to ensure that such Revolving Loan
Commitments are treated as Revolving Loan Commitments for all purposes under the Credit Documents),
in each case prepared by the Administrative Agent and otherwise in form and substance reasonably
satisfactory to the Administrative Agent. Each New Lender shall provide the documentation required
by Section 2.12(e).



(iv) Subject to the foregoing, any increase in the Total Revolving Loan Commitment requested
by the Borrower shall be effective as of the date proposed by the Borrower (the “Increase
Effective Date”) and shall be in the principal amount equal to (i) the amount which the
Increasing Lenders are willing to assume as increases to the amount of their Revolving Loan
Commitments plus (ii) the amount offered by the New Lenders with respect to the Total
Revolving Loan Commitment, in either case as adjusted by the Borrower and the Administrative Agent
pursuant to the last sentence of Section 2.01(b)(ii).



(v) On or prior to the Increase Effective Date, with respect to any increase in the Total
Revolving Loan Commitment, the Administrative Agent shall notify each Lender of the amount required
to be paid by or to such Lender so that the Revolving Loans held by the Lenders on the Increase
Effective Date (before giving effect to any new Revolving Loans made on such date) shall be held by
each Lender pro rata in accordance with the Revolving Loan Commitments of the Lenders as adjusted
pursuant to the last sentence of Section 2.01(b)(ii). Each Lender which is required to
reduce the amount of Revolving Loans held by it (each such Lender, a “Decreasing Lender”)
shall irrevocably assign, without recourse or warranty of any kind whatsoever (except that each
Decreasing Lender warrants that it is the legal and beneficial owner of the Revolving Loans
assigned by it under this Section 2.01(b)(v) and that such Revolving Loans are held by such
Decreasing Lender free and clear of adverse claims), to each Increasing Lender and New Lender
participating in the applicable increase in the Total Revolving Loan Commitment, and each
applicable Increasing Lender and New Lender shall irrevocably acquire from the Decreasing Lenders,
a portion of the principal amount of the Revolving Loans of each Decreasing Lender (collectively,
the “Acquired Portion”) outstanding on the Increase Effective Date (before giving effect to
any new Revolving Loans made on such date) in an amount such that the principal amount of the
Revolving Loans held by each applicable Increasing Lender, New Lender and Decreasing Lender as of
the Increase Effective Date shall be held in accordance with each such Lender’s Revolving
Proportionate Share (if any) as of such date. Such assignment and acquisition shall be effective
on the Increase Effective Date automatically and without any action required on the part of any
party other than the payment by the applicable Increasing Lenders and New Lenders to the
Administrative Agent for the account of the Decreasing Lenders of an aggregate amount equal to the
Acquired Portion, which amount shall be allocated and paid by the Administrative Agent at or before
12:00 p.m. on the Increase Effective Date to the Decreasing Lenders pro rata based upon the
respective reductions in the principal amount of the Revolving Loans held by such Lenders on the
Increase Effective Date (before giving effect to any new Revolving Loans made on such date). Each
of the Administrative Agent and the Lenders shall adjust its records accordingly to reflect the
payment of the Acquired Portion. The payments to be made in respect of the Acquired Portion shall
be made by the applicable Increasing Lenders and New Lenders to the Administrative Agent in Dollars
in immediately available funds at or before 11:00 a.m. on the Increase Effective Date, such
payments to be made by the applicable Increasing Lenders and New Lenders pro rata based upon the
respective increases in the amount of the Revolving Loan Commitments held by such Lenders on the
Increase Effective Date.



(vi) To the extent any of the Revolving Loans acquired by the applicable Increasing Lenders
and New Lenders from the Decreasing Lenders pursuant to Section 2.01(b)(v) above are LIBOR
Loans and the Increase Effective Date is not the last day of an Interest Period for such LIBOR
Loans, the Decreasing Lenders shall be entitled to compensation from the Borrower as provided in
Section 2.13 (as if Borrower had prepaid such Revolving Loans in an amount equal to the
Acquired Portion on the Increase Effective Date).



(c) Notice of Loan Borrowing. The Borrower shall request each Revolving Loan
Borrowing by delivering to the Administrative Agent an irrevocable written notice substantially in
the form of Exhibit A (a “Notice of Loan Borrowing”), duly executed by a
Responsible Officer of the Borrower and appropriately completed (or, in the case of a Notice of
Loan Borrowing for a Revolving Loan Borrowing, shall notify the Administrative Agent by telephone,
to be promptly confirmed by the delivery to the Administrative Agent of a signed Notice of Loan
Borrowing for such Revolving Loan Borrowing, which may be delivered by facsimile), which specifies,
among other things:



(i) The principal amount of the requested Revolving Loan Borrowing, which shall be in the
amount of (A) $5,000,000 or an integral multiple of $1,000,000 in excess thereof in the case of a
Borrowing consisting of Base Rate Loans; or (B) $10,000,000 or an integral multiple of $1,000,000
in excess thereof in the case of a Borrowing consisting of LIBOR Loans;



(ii) In the case of a Revolving Loan Borrowing, whether the requested Revolving Loan Borrowing
is to consist of Base Rate Loans or LIBOR Loans;



(iii) In the case of a Revolving Loan Borrowing, if the requested Revolving Loan Borrowing is
to consist of LIBOR Loans, the initial Interest Periods selected by the Borrower for such LIBOR
Loans in accordance with Section 2.01(f); and



(iv) In the case of a Revolving Loan Borrowing, the date of the requested Revolving Loan
Borrowing, which shall be a Business Day.



The Borrower shall give each Notice of Loan Borrowing for Revolving Loans to the
Administrative Agent not later than 10:00 a.m. at least three (3) Business Days before the date of
the requested Revolving Loan Borrowing in the case of a Revolving Loan Borrowing consisting of
LIBOR Loans and not later than 10:00 a.m. on the date of the requested Revolving Loan Borrowing in
the case of a Revolving Loan Borrowing consisting of Base Rate Loans; provided that if any Lender
reasonably determines that it cannot advance same day Base Rate Loans and such Lender has provided
written notice thereof to the Administrative Agent and the Borrower, then from and after such
notice the Borrower shall give each Notice of Loan Borrowing for Revolving Loans consisting of Base
Rate Loans to the Administrative Agent not later than 10:00 a.m. at least one (1) Business Day
before the date of the requested Revolving Loan Borrowing consisting of Base Rate Loans until such
time as such Lender revokes such notice or ceases to be a Lender under this Agreement. Each Notice
of Loan Borrowing shall be delivered by first-class mail or facsimile to the Administrative Agent
at the office or facsimile number and during the hours specified in Section 8.01;
provided, however, that, if requested by the Administrative Agent, the Borrower
shall promptly deliver to the Administrative Agent the original of any Notice of Loan Borrowing
initially delivered by facsimile. The Administrative Agent shall promptly notify each Lender of
the contents of each Notice of Loan Borrowing for Revolving Loans and of the amount and Type of
(and, if applicable, the Interest Period for) the Revolving Loan to be made by such Lender as part
of the requested Revolving Loan Borrowing. Notwithstanding the foregoing, any Loans advanced on
the Closing Date shall be Base Rate Loans.



(d) Interest Rates. The Borrower shall pay interest on the unpaid principal amount of
each Revolving Loan from the date of such Revolving Loan until paid in full, at one of the
following rates per annum:



(i) During such periods as such Loan is a Base Rate Loan, at a rate per annum equal to the
Base Rate plus the Applicable Margin therefor, such rate to change from time to time as the
Applicable Margin or Base Rate shall change; and



(ii) During such periods as such Loan is a LIBOR Loan, at a rate per annum equal at all times
during each Interest Period for such LIBOR Loan to the LIBOR Rate for such Interest Period plus
the Applicable Margin therefor, such rate to change from time to time during such Interest Period
as the Applicable Margin shall change.



All Revolving Loans in each Revolving Loan Borrowing shall, at any given time prior to
maturity, bear interest at one, and only one, of the above rates. The number of Revolving Loan
Borrowings consisting of LIBOR Loans shall not exceed five (5) in the aggregate at any time.



(e) Conversion of Loans. Subject to Section 2.13, the Borrower may convert
any Revolving Loan Borrowing from one Type of Revolving Loan Borrowing to the other Type;
provided, however, that any conversion of a Base Rate Loan into a LIBOR Loan shall
be in the amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and any
conversion of a LIBOR Loan into a Base Rate Loan shall be in the amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof; provided, further, that no Base
Rate Loan may be converted into a LIBOR Loan after the occurrence and during the continuance of an
Event of Default and provided, further, that any conversion of a LIBOR Loan on any
day other than the last day of the Interest Period therefor shall be subject to the payments
required under Section 2.13. The Borrower shall request such a conversion by delivering to
the Administrative Agent an irrevocable written notice to the Administrative Agent substantially in
the form of Exhibit B (a “Notice of Conversion”), duly executed by a Responsible
Officer of the Borrower and appropriately completed (or shall notify the Administrative Agent by
telephone, to be promptly confirmed by the delivery to the Administrative Agent of a signed Notice
of Conversion, which may be delivered by facsimile), which specifies, among other things:



(i) The Revolving Loan Borrowing which is to be converted;



(ii) The Type of Revolving Loan Borrowing into which such Revolving Loan Borrowing is to be
converted;



(iii) If such Revolving Loan Borrowing is to be converted into a Revolving Loan Borrowing
consisting of LIBOR Loans, the initial Interest Period selected by the Borrower for such LIBOR
Loans in accordance with Section 2.01(f), as applicable; and



(iv) The date of the requested conversion, which shall be a Business Day.



The Borrower shall give each Notice of Conversion to the Administrative Agent not later than
10:00 a.m. at least three (3) Business Days before the date of the requested conversion of a Base
Rate Loan into a LIBOR Loan or at least one (1) Business Day before the date of the requested
conversion of a LIBOR Loan into a Base Rate Loan. Each Notice of Conversion shall be delivered by
first-class mail or facsimile to the Administrative Agent at the office or to the facsimile number
and during the hours specified in Section 8.01; provided, however, that, if
requested by the Administrative Agent, the Borrower shall promptly deliver to the Administrative
Agent the original of any Notice of Conversion initially delivered by facsimile. The
Administrative Agent shall promptly notify each Lender of the contents of each Notice of Conversion
relating to Revolving Loans.



(f) LIBOR Loan Interest Periods.



(i) The initial and each subsequent Interest Period selected by the Borrower for a Revolving
Loan Borrowing consisting of LIBOR Loans shall be one (1), three (3), or six (6) months;
provided, however, that (A) any Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business Day unless such next
Business Day falls in another calendar month, in which case such Interest Period shall end on the
immediately preceding Business Day; (B) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar
month; (C) no Interest Period shall end after the Maturity Date; and (D) no LIBOR Loan shall be
made or continued for an additional Interest Period after the occurrence and during the continuance
of an Event of Default.



(ii) The Borrower shall notify the Administrative Agent of the Borrower’s selection of a new
Interest Period for a Revolving Loan Borrowing by an irrevocable written notice substantially in
the form of Exhibit C (a “Notice of Interest Period Selection”), duly executed by a
Responsible Officer of the Borrower and appropriately completed (or shall notify the Administrative
Agent by telephone, to be promptly confirmed by the delivery to the Administrative Agent of a
signed Notice of Interest Period Selection, which may be delivered by facsimile), not later than
10:00 a.m. at least three (3) Business Days prior to the last day of each Interest Period for a
Revolving Loan Borrowing consisting of LIBOR Loans; provided, however, that no
LIBOR Loan shall be continued for an additional Interest Period after the occurrence and during the
continuance of an Event of Default. Each Notice of Interest Period Selection shall be given by
first-class mail or facsimile to the office or the facsimile number and during the hours specified
in Section 8.01; provided, however, that, if requested by the
Administrative Agent, the Borrower shall promptly deliver to the Administrative Agent the original
of any Notice of Interest Period Selection initially delivered by facsimile. If (A) the Borrower
shall fail to notify the Administrative Agent of the next Interest Period for a Revolving Loan
Borrowing consisting of LIBOR Loans in accordance with this Section 2.01(f) or (B) an Event
of Default has occurred and is continuing on the last date of an Interest Period for any LIBOR
Loan, such LIBOR Loan(s) shall automatically convert to Base Rate Loan(s) on the last day of the
current Interest Period therefor. The Administrative Agent shall promptly notify each Lender of
the contents of each Notice of Interest Period Selection for the Revolving Loans.



(g) Scheduled Payments.



(i) Interest – All Loans . The Borrower shall pay accrued interest on the unpaid
principal amount of each Revolving Loan thereof in arrears (i) in the case of a Base Rate Loan, on
the last Business Day of each fiscal quarter, (ii) in the case of a LIBOR Loan, on the last day of
each Interest Period therefor (and, if any such Interest Period is longer than three (3) months,
every three (3) months after the first day of such Interest Period); and (iii) in the case of all
Loans, at maturity. All interest that is not paid when due shall be due on demand.



(ii) Scheduled Principal Payments — Revolving Loans. The Borrower shall repay the
principal amount of the Revolving Loans on the Maturity Date. The Borrower shall also make the
mandatory prepayments required by Section 2.06(c).



2.02. Letters of Credit.



(a) The Letter of Credit Commitment.



(i) On the terms and subject to the conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.02, (1) from time
to time on any Business Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit in Dollars for the account of the Borrower in support
of the obligations of the Borrower or any other Loan Party, and to amend or renew Letters of
Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts
under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of
Credit issued for the account of the Borrower in support of the obligations of the Borrower or any
other Loan Party; provided that the L/C Issuer shall not be obligated to make any L/C
Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to
participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the
Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations would exceed the
Total Revolving Loan Commitment at such time, (y) the aggregate Effective Amount of the Revolving
Loans of any Lender, plus such Lender’s Revolving Proportionate Share of the Effective
Amount of all L/C Obligations, plus such Lender’s Revolving Proportionate Share of the
Effective Amount of all Swing Line Loans would exceed such Lender’s Revolving Loan Commitment, or
(z) the Effective Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each
Letter of Credit shall be in a form acceptable to the L/C Issuer. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed.



(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:



(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any
Requirement of Law applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall
prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C
Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and
which the L/C Issuer in good faith deems material to it;



(B) subject to Section 2.02(b)(iii), (1) in the case of any Standby Letter of Credit,
the expiry date of such requested Letter of Credit would occur more than twelve months after the
date of issuance or last renewal or (2) in the case of any Commercial Letter of Credit, the expiry
date of such requested Letter of Credit would occur more than 180 days after the date of issuance
or last renewal, in either case unless the Required Lenders have approved such expiry date;



(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved such expiry date;



(D) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer
or the terms and conditions of the applicable Letter of Credit Application;



(E) such Letter of Credit is in a face amount less than $25,000, in the case of a Commercial
Letter of Credit, or $100,000, in the case of any other type of Letter of Credit, or denominated in
a currency other than Dollars;



(F) a default of any Lender’s obligations to fund under Section 2.02(c) exists or any
Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into
arrangements satisfactory to the L/C Issuer with the Borrower or such Lender to eliminate the L/C
Issuer’s risk with respect to such Lender; or



(G) any Lender is at such time a Deteriorating Lender, unless the L/C Issuer has received (as
set forth below) Cash Collateral or similar security satisfactory to the L/C Issuer (in its sole
discretion) from either the Borrower or such Deteriorating Lender in respect of such Deteriorating
Lender’s obligation to fund under Section 2.02(c). The Borrower and/or such Deteriorating
Lender hereby grants to the Administrative Agent, for the benefit of the L/C Issuer, a security
interest in all such Cash Collateral and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, deposit accounts at Wells Fargo and may be invested in Cash Equivalents
reasonably acceptable to the Administrative Agent. If at any time the Administrative Agent
determines that any funds held as Cash Collateral are subject to any right or claim of any Person
other than the Administrative Agent or that the total amount of such funds is less than the
aggregate L/C Obligations in respect of such Deteriorating Lender, the Borrower will, promptly upon
demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate L/C Obligations
over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative
Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter
of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the
extent permitted under applicable Governmental Approvals, to reimburse the L/C Issuer.



(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C
Issuer would have no obligation at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.



(b) Procedures for Issuance and Amendment of Letters of Credit; Evergreen Letters of
Credit.



(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of
the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the
Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 10:00 a.m., at least three Business Days (or such later date
and time as the L/C Issuer may agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which date shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented
by such beneficiary in case of any drawing thereunder; (G) the account party thereunder, and
(H) such other matters as the L/C Issuer may require. In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which date shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.



(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of
confirmation from the Administrative Agent that the requested issuance or amendment is permitted in
accordance with the terms hereof, then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter
into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s
usual and customary business practices. Immediately upon the issuance of each Letter of Credit,
each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the L/C Issuer a participation in such Letter of Credit in an amount equal to the product of such
Lender’s Revolving Proportionate Share times the amount of such Letter of Credit. The
Administrative Agent shall promptly notify each Lender upon the issuance of a Letter of Credit.



(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C
Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has
automatic renewal provisions (each, an “Evergreen Letter of Credit”); provided that
any such Evergreen Letter of Credit must permit the L/C Issuer to prevent any such renewal at least
once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice
Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such renewal. Once an Evergreen Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to
permit the renewal of such Letter of Credit at any time to a date not later than the Letter of
Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any
such renewal if (A) the L/C Issuer would have no obligation at such time to issue such Letter of
Credit in its renewed form under the terms hereof, or (B) it has received notice (which may be by
telephone or in writing) on or before the Business Day immediately preceding the Nonrenewal Notice
Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such
renewal or (2) from the Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 3.02 is not then satisfied. Notwithstanding
anything to the contrary contained herein, the L/C Issuer shall have no obligation to permit the
renewal of any Evergreen Letter of Credit at any time.



(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will
also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter
of Credit or amendment.



(c) Drawings and Reimbursements; Funding of Participations.



(i) Upon any drawing under any Letter of Credit, the L/C Issuer shall notify the Borrower and
the Administrative Agent of the amount to be paid by the L/C Issuer as a result of such drawing and
the date on which payment is to be made by the L/C Issuer to the beneficiary of such Letter of
Credit in respect of such drawing; provided, however, that in the case of
Commercial Letters of Credit, subsequent notification by routine methods shall be deemed sufficient
notice. Not later than 10:00 a.m., on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date of payment, an “Honor Date”), the Borrower shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the amount of such drawing, which may
be effected through the debiting of one or more deposit accounts maintained with the Administrative
Agent. If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and such Lender’s Revolving Proportionate Share thereof. In such
event, the Borrower shall be deemed to have requested a Revolving Loan Borrowing of Base Rate Loans
to be disbursed on the Business Day following the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.01 for the
principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the
Total Revolving Loan Commitment and the conditions set forth in Section 3.02 (other than
the delivery of a Notice of Loan Borrowing for Revolving Loans). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.02(c)(i) may be given by
telephone if immediately confirmed in writing; provided, that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.



(ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice pursuant to
Section 2.02(c)(i) make funds available to the Administrative Agent for the account of the
L/C Issuer at the Administrative Agent’s Office in an amount equal to its Revolving Proportionate
Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.02(c)(iii), each Lender that so makes funds available shall be deemed to have
made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer.



(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Loan
Borrowing because the conditions set forth in Section 3.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in
the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the rate applicable to
Revolving Loans upon the occurrence and during the continuance of an Event of Default. In such
event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.02(c)(ii) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.02.



(iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this Section
2.02(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest
in respect of such Lender’s Revolving Proportionate Share of such amount shall be solely for the
account of the L/C Issuer. For the avoidance of doubt, interest shall accrue beginning on the Honor
Date for any such draw under a Letter of Credit.



(v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the L/C
Issuer for, or participate in, amounts drawn under Letters of Credit, as contemplated by this
Section 2.02(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing. Any such
reimbursement shall not relieve or otherwise impair the obligation of the Borrower to reimburse the
L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit,
together with interest as provided herein.



(vi) If any Lender fails to make available to the Administrative Agent for the account of the
L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.02(c) by the time specified in Section 2.02(c)(ii), the L/C Issuer
shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to the date
on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the
daily Federal Funds Rate. A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.



(d) Repayment of Participations.



(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has
received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with
Section 2.02(c), if the Administrative Agent receives for the account of the L/C Issuer any
payment related to such Letter of Credit (whether directly from the Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative Agent), or any payment
of interest thereon, the Administrative Agent will distribute to such Lender its Revolving
Proportionate Share thereof in the same funds as those received by the Administrative Agent.



(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.02(c)(i) is required to be returned, each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Revolving Proportionate Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the daily Federal Funds Rate.



(e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit, and to repay each L/C Borrowing and each drawing
under a Letter of Credit that is refinanced by a Borrowing of Revolving Loans, shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and the other Credit Documents under all circumstances, including the following:



(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;



(ii) any change in the time, manner or place of payment of, or in any other term of, all or
any of the obligations of the Borrower in respect of any Letter of Credit or any other amendment or
waiver of, or any consent to departure from, all or any of the Credit Documents;



(iii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower or any other Loan Party may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;



(iv) any draft, demand, certificate or other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under such Letter of Credit;



(v) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft
or certificate that does not strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law; or



(vi) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available to,
or a discharge of, the Borrower.



The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.



(f) Role of L/C Issuer. The Borrower and the Lenders agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. Neither the Administrative
Agent nor the L/C Issuer nor any of their respective affiliates, directors, officers, employees,
agents or advisors nor any of the correspondents, participants or assignees of the L/C Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken
or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not, preclude
the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. Neither the Administrative Agent nor the L/C
Issuer nor any of their respective affiliates, directors, officers, employees, agents or advisors
nor any of the correspondents, participants or assignees of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (vi) of Section
2.02(e); provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which are determined by a final,
non-appealable judgment of a court of competent jurisdiction to have arisen from the L/C Issuer’s
gross negligence or willful misconduct or the L/C Issuer’s willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall
not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.



(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing or (ii) if, as of the Letter of Credit Expiration Date, any Letter
of Credit may for any reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the Obligations in an amount equal to 105% of the then Effective
Amount of the L/C Obligations. The Borrower hereby grants the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, a Lien on all such cash and deposit account balances
described in the definition of “Cash Collateralize” as security for the Obligations. Cash
collateral shall be maintained in blocked, non-interest bearing deposit accounts at Wells Fargo or
other institutions satisfactory to it which accounts, in any case, are the subject of control
agreements pursuant to which the Administrative Agent has “control” as such term is used in the
Uniform Commercial Code, sufficient to perfect on a first priority basis a security interest in
such cash collateral. The Lien held by the Administrative Agent in such cash collateral to secure
the Obligations shall be released upon the satisfaction of each of the following conditions: (a) no
Letters of Credit shall be outstanding, (b) all L/C Obligations shall have been repaid in full and
(c) no Default shall have occurred and be continuing.



(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of the “International
Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) shall apply to each Standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce (the “ICC”) at the time
of issuance shall apply to each Commercial Letter of Credit.



(i) Letter of Credit Fees. The Borrower shall pay, to the Administrative Agent for
the account of each Lender in accordance with its Revolving Proportionate Share, a Letter of Credit
fee for each such Letter of Credit for the period from the date of issuance of such Letter of
Credit until the expiry thereof, at a per annum rate equal to the Applicable Margin for LIBOR Loans
(plus two percent (2.00%) upon the occurrence and during the continuation of any Event of Default
until the time when such Event of Default shall have been cured or waived in writing by the
Required Lenders or all the Lenders, as may be required by this Agreement) applicable from time to
time during such period multiplied by the actual daily maximum amount available to be drawn
under such Letter of Credit. Such fee for each Letter of Credit shall be due and payable quarterly
in arrears on the last Business Day of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit and on the Letter of
Credit Expiration Date. Each such fee, when due, shall be fully earned and when paid, shall be
non-refundable. If there is any change in the Applicable Margin for LIBOR Loans during any
quarter, the Applicable Margin used for the calculation of the Letter of Credit fee shall be the
Applicable Margin for LIBOR Loans on each day during such quarter.



(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee in an amount with
respect to each Letter of Credit equal to 0.125% of the amount of such Letter of Credit, due and
payable upon each L/C Credit Extension with respect to such Letter of Credit; provided,
that in the case of an increase in the amount of a Letter of Credit after the issuance thereof,
such fronting fee shall be payable only on the increased amount thereof. In addition, the Borrower
shall pay directly to the L/C Issuer for its own account the customary issuance, transfer,
negotiation, presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such fees
and charges are due and payable on demand and are nonrefundable.



(k) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.



(l) Trade Bank as L/C Issuer. The parties hereto acknowledge and agree that, at its
option, Wells Fargo, as L/C Issuer may arrange for Letters of Credit to be issued by Trade Bank as
agent for Wells Fargo. All parties hereto understand and agree that to the extent any Letters of
Credit are issued by Trade Bank as agent for Wells Fargo, (i) Trade Bank is agent only to Wells
Fargo and not to the Borrower and has no obligations to the Borrower, (ii) the Letters of Credit
issued by Trade Bank will be deemed Letters of Credit issued by the L/C Issuer for all purposes
hereunder and (iii) any of the obligations performed or rights exercised pursuant to or in
connection with the issuance of any Letter of Credit by Trade Bank shall be deemed obligations
performed or rights exercised by Wells Fargo as L/C Issuer. To the extent that the L/C Issuer is
required to provide any notices to, or take any other actions for the benefit of, the
Administrative Agent hereunder, with respect to any Letter of Credit issued by Trade Bank, no such
notice or action shall be required.



2.03. Swing Line.



(a) The Swing Line. On the terms and subject to the conditions set forth herein, the
Swing Line Lender may in its sole and absolute discretion make loans (each such loan, a “Swing
Line Loan”) in Dollars to the Borrower from time to time on any Business Day during the period
from the Closing Date up to but not including the Maturity Date in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Effective Amount of Revolving Loans of the Swing
Line Lender in its capacity as a Lender of Revolving Loans, may exceed the amount of such Lender’s
Revolving Loan Commitment; provided, however, that after giving effect to any Swing
Line Loan, (i) the aggregate Effective Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations shall not exceed the Total Revolving Loan Commitment at such time, and (ii) the
aggregate Effective Amount of the Revolving Loans of any Lender (other than the Swing Line Lender),
plus such Lender’s Revolving Proportionate Share of the Effective Amount of all L/C
Obligations, plus such Lender’s Revolving Proportionate Share of the Effective Amount of
all Swing Line Loans shall not exceed such Lender’s Revolving Loan Commitment, and
provided, further, that the Swing Line Lender shall not make any Swing Line Loan to
refinance an outstanding Swing Line Loan. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Borrower may borrow under this Section 2.03, prepay under
Section 2.06, and reborrow under this Section 2.03. Each Swing Line Loan shall be
a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s
Revolving Proportionate Share times the amount of such Swing Line Loan. Furthermore,
before making any Swing Line Loans (if at such time any Lender is a Deteriorating Lender), the
Swing Line Lender may condition the provision of such Swing Line Loans on its receipt of Cash
Collateral or similar security satisfactory to the Swing Line Lender (in its sole discretion) from
either the Borrower or such Deteriorating Lender in respect of such Deteriorating Lender’s risk
participation in such Swing Line Loans as set forth below. The Borrower and/or such Deteriorating
Lender hereby grants to the Administrative Agent, for the benefit of the Swing Line Lender, a
security interest in all such Cash Collateral and all proceeds of the foregoing. Cash Collateral
shall be maintained in blocked, deposit accounts at Wells Fargo and may be invested in Cash
Equivalents reasonably acceptable to the Administrative Agent. If at any time the Administrative
Agent determines that any funds held as Cash Collateral are subject to any right or claim of any
Person other than the Administrative Agent or that the total amount of such funds is less than the
aggregate risk participation of such Deteriorating Lender in the relevant Swing Line Loan, the
Borrower and/or such Deteriorating Lender will, promptly upon demand by the Administrative Agent,
pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount
equal to the excess of (x) such aggregate risk participation over (y) the total amount of funds, if
any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of
any such right and claim. At such times there are Swing Ling Loans outstanding for which funds are
on deposit as Cash Collateral, such funds shall be applied as and when determined by the Swing Line
Lender, to the extent permitted under applicable Governmental Approvals, to reimburse and otherwise
pay the applicable obligations owing to the Swing Line Lender.



(b) Borrowing Procedures. Each Swing Loan Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 11:00 a.m., on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which amount shall be a minimum amount of $100,000 or an integral multiple of $25,000 in
excess thereof, and (ii) the requested borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by the delivery to the Swing Line Lender and the
Administrative Agent of a written Notice of Swing Loan Borrowing, appropriately completed and
signed by a Responsible Officer of the Borrower, which notice may be delivered by facsimile.
Promptly after receipt by the Swing Line Lender of any telephonic Notice of Swing Loan Borrowing,
the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that
the Administrative Agent has also received such Notice of Swing Loan Borrowing and, if not, the
Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents
thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 1:00 p.m., on the date of
the proposed Swing Loan Borrowing (A) directing the Swing Line Lender not to make such Swing Line
Loan as a result of the limitations set forth in the first proviso to the first sentence of
Section 2.03(a), or (B) that one or more of the applicable conditions specified in
Section 3.02 is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 2:00 p.m., on the borrowing date specified in such Notice of
Swing Loan Borrowing, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line Lender in
immediately available funds.



(c) Refinancing of Swing Line Loans.



(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on
behalf of the Borrower (which hereby irrevocably requests the Swing Line Lender to act on its
behalf), under this subsection (c), that each Lender make a Base Rate Loan in an amount equal to
such Lender’s Revolving Proportionate Share of the amount of Swing Line Loans then outstanding.
Such request shall be made in accordance with the requirements of Section 2.01, without
regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans,
but subject to the unutilized portion of the Total Revolving Loan Commitment and the conditions set
forth in Section 3.02. The Swing Line Lender shall furnish the Borrower with a copy of the
applicable Notice of Loan Borrowing for Revolving Loans promptly after delivering such notice to
the Administrative Agent. Each Lender shall make an amount equal to its Revolving Proportionate
Share of the amount specified in such Notice of Loan Borrowing for Revolving Loans available to the
Administrative Agent in immediately available funds for the account of the Swing Line Lender at the
Administrative Agent’s Office not later than 12:00 p.m., on the day specified in such Notice of
Loan Borrowing for Revolving Loans, whereupon, subject to Section 2.03(c)(ii), each Lender
that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.



(ii) If for any reason any Revolving Loan Borrowing cannot be requested in accordance with
Section 2.03(c)(i) or any Swing Line Loan cannot be refinanced by such a Revolving Loan
Borrowing, the Notice of Loan Borrowing for Revolving Loans submitted by the Swing Line Lender
shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its
participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent
for the account of the Swing Line Lender pursuant to Section 2.03(c)(i) shall be deemed
payment in respect of such participation.



(iii) If any Lender fails to make available to the Administrative Agent for the account of the
Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(i), the
Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the Swing Line Lender at a
rate per annum equal to equal to the daily Federal Funds Rate. A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.



(iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund participations
in Swing Line Loans pursuant to this Section 2.03(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line Lender, the Borrower or
any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event
of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the
foregoing. Any such purchase of participations shall not relieve or otherwise impair the
obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.



(d) Repayment of Participations.



(i) At any time after any Lender has purchased and funded a participation in a Swing Line
Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Revolving Proportionate Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the period of time during
which such Lender’s participation was outstanding and funded) in the same funds as those received
by the Swing Line Lender.



(ii) If any payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender, each Lender shall pay to
the Swing Line Lender its Revolving Proportionate Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a
rate per annum equal to the daily Federal Funds Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender.



(e) Interest for Account of Swing Line Lender. Each Swing Line Loan shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at a rate
per annum equal to the Base Rate plus the Applicable Margin for Base Rate Loans. The Swing
Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Loan or participation pursuant to this Section 2.03
to refinance such Lender’s Revolving Proportionate Share of any Swing Line Loan, interest in
respect of such Revolving Proportionate Share shall be solely for the account of the Swing Line
Lender. The Borrower shall pay accrued interest on the unpaid principal amount of each Swing Line
Loan on the last Business Day of each fiscal quarter and at maturity.



(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



2.04. Amount Limitations, Commitment Reductions, Etc.



(a) Optional Reduction or Cancellation of Revolving Loan Commitments. The Borrower
may, upon three (3) Business Days written notice to the Administrative Agent (each a “Reduction
Notice”), permanently reduce the Total Revolving Loan Commitment by the amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof or cancel the Total Revolving Loan Commitment
in its entirety; provided, however, that:



(i) The Borrower may not reduce the Total Revolving Loan Commitment prior to the Maturity
Date, if, after giving effect to such reduction, the Effective Amount of all Revolving Loans, L/C
Obligations and Swing Line Loans then outstanding would exceed the Total Revolving Loan Commitment
as so reduced; and



(ii) The Borrower may not cancel the Total Revolving Loan Commitment prior to the Maturity
Date, if, after giving effect to such cancellation, any Revolving Loan would then remain
outstanding.



Any Reduction Notice shall be irrevocable; provided that any Reduction Notice may state
that such notice is conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or
prior to the specified effective date previously provided in the applicable Reduction Notice) if
such condition is not satisfied.



(b) Mandatory Reduction of Revolving Loan Commitments.



(i) The Total Revolving Loan Commitment shall be automatically and permanently reduced by an
amount equal to the maximum amount that would be required to be applied as a mandatory prepayment
of the Swing Line Loans and the Revolving Loans pursuant to Section 2.06(c)(iii) or (iv) or
Section 2.06(d) if the Effective Amount of such Loans was then equal to the amount of such
Commitment (but without regard to the actual usage of such Commitment), such reduction to be
effective on the date of the required prepayment.



(ii) The Total Revolving Loan Commitment shall be automatically and permanently reduced to
zero on the Maturity Date.



(c) Effect of Revolving Loan Commitment Adjustments. From the effective date of any
reduction or increase of the Total Revolving Loan Commitment, the Commitment Fees payable pursuant
to Section 2.05(b) shall be computed on the basis of the Total Revolving Loan Commitment as
so reduced or increased. Once reduced or cancelled, the Total Revolving Loan Commitment may not be
increased or reinstated without the prior written consent of all Lenders (except as permitted under
Section 2.01(b)). Any reduction of the Total Revolving Loan Commitment pursuant to
Section 2.04(a) shall be applied ratably to reduce each Lender’s Revolving Loan Commitment
in accordance with clause (i) of Section 2.10(a).



2.05. Fees.



(a) Administrative Agent’s Fee; Other Fees. The Borrower shall pay to the
Administrative Agent, for its own account, agent’s fees and other compensation in the amounts and
at the times set forth in the Administrative Agent’s Fee Letter and any fees set forth in any fee
letter or agreement executed in connection with any increase under Section 2.01(b).



(b) Commitment Fee. The Borrower shall pay to the Administrative Agent, for the
ratable benefit of the Lenders as provided in clause (iv) of Section 2.10(a), a commitment
fee (collectively, the “Commitment Fee”) equal to the Commitment Fee Percentage of the
daily average Unused Revolving Commitment for the period beginning on the date of this Agreement
and ending on the Maturity Date. The Borrower shall pay the Commitment Fee in arrears on the last
Business Day in each March, June, September and December (commencing December 31, 2008) and on the
Maturity Date (or if the Total Revolving Commitment is cancelled on a date prior to the Maturity
Date, on such prior date).



2.06. Prepayments.



(a) Terms of All Prepayments. Upon the prepayment of any Loan (whether such
prepayment is an optional prepayment under Section 2.06(b), a mandatory prepayment required
by Section 2.06(c) or a mandatory prepayment required by any other provision of this
Agreement or the other Credit Documents, including a prepayment upon acceleration), the Borrower
shall pay (i) if a LIBOR Loan is being prepaid under Section 2.06(b) or Section
2.06(c), to the Administrative Agent for the account of the Lender that made such LIBOR Loan
all accrued interest to the date of such prepayment on the amount prepaid, (ii) if a prepayment is
made upon acceleration, to the Administrative Agent for the account of the Lender that made such
Loan all accrued interest and fees to the date of such prepayment on the amount prepaid and (iii)
to such Lender if such prepayment is the prepayment of a LIBOR Loan on a day other than the last
day of an Interest Period for such LIBOR Loan, all amounts payable to such Lender pursuant to
Section 2.13.



(b) Optional Prepayments.



(i) At its option, the Borrower may, without premium or penalty but subject to Section
2.13 in the case of LIBOR Loans, upon one (1) Business Day’s notice from the Borrower to the
Administrative Agent in the case of Base Rate Loans or three (3) Business Days’ notice from the
Borrower to the Administrative Agent in the case of LIBOR Loans, prepay the Base Rate Loans in any
Borrowing and all accrued but unpaid interest thereon in part, in a minimum principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, or in whole and prepay the
LIBOR Loans in any Borrowing and all accrued but unpaid interest thereon in part, in a minimum
principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof, or in
whole. Each such notice shall specify the date and amount of such prepayment; provided
that if such prepayment is on any day other than on the last day of the Interest Period applicable
to such LIBOR Loan, the Borrower shall be subject to the payments required by Section 2.13.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein. If no
Default has occurred and is continuing, all prepayments under this Section 2.06(b) which
are applied to reduce the principal amount of the Loans shall be applied to the Loans as directed
by the Borrower. If the Borrower fails to direct the application of any such prepayments, then
such prepayments shall be applied first to the accrued but unpaid interest on and then any
principal of the Swing Line Loans until paid in full, second to the accrued but unpaid interest on
and then any principal of the Revolving Loans until paid in full, and finally to Cash Collateralize
the Obligations in an amount equal to the Effective Amount of the L/C Obligations. In each case,
to the extent possible, such principal payment shall be first applied to prepay Base Rate Loans and
then if any funds remain, to prepay LIBOR Loans; provided that if an Event of Default has
occurred and is continuing at the time any such prepayment is made, the Lenders shall apply such
prepayments to such Obligations as the Administrative Agent may determine in its discretion which
determination shall be effective as to all Lenders (but for regulatory purposes, the Lenders may
apply such payments internally as they shall determine).



(ii) At its option, the Borrower may, upon notice by the Borrower to the Swing Line Lender
(with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided, that (A) such
notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00
p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal
amount of $100,000 or an integral multiple of $25,000 in excess thereof. Each such notice shall
specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.



(c) Mandatory Prepayments. The Borrower shall prepay (or Cash Collateralize, as
applicable) the Obligations as follows:



(i) If, at any time, the Effective Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations then outstanding exceeds the Total Revolving Loan Commitment at such time, the Borrower
shall immediately (A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient
amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a
sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an
amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount
equal to such excess.



(ii) The Borrower shall repay each Swing Line Loan on the earlier to occur of (A) the Swing
Line Settlement Date occurring after such Swing Line Loan is made and (B) the Maturity Date.



(iii) If, at any time after the Closing Date any Loan Party sells or otherwise disposes of any
assets (other than sales permitted under Section 5.02(c)) and the Net Proceeds of such
asset sale or other disposition exceed $25,000,000, the Borrower shall, within four (4) Business
Days after the completion of such sale or other disposition , prepay the Obligations in the manner
set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one
hundred percent (100%) of the Net Proceeds from any such sale or disposition; provided that
so long as the cash portion of the consideration for any such disposed assets is not less than 75%
of all consideration for such disposed assets only the cash portion of such Net Proceeds at the
time of sale will be counted for purposes of any prepayment required under this sentence and the
remaining consideration shall be counted when received as cash; otherwise 100% of all Net Proceeds
(cash and non-cash) shall be counted. Notwithstanding the foregoing, the Borrower shall not be
required to make a prepayment pursuant to this clause (iii) with respect to any sale (a
“Relevant Sale”) if the Borrower advises the Administrative Agent in writing within four
(4) Business Days after the time the Net Proceeds from such Relevant Sale are received that the
applicable Loan Party intends to reinvest all or any portion of such Net Proceeds in replacement
assets to the extent the acquisition of such replacement assets occurs within 180 days after the
date of such Relevant Sale. If the 180-day period provided in the preceding sentence shall elapse
without occurrence of the related acquisition or an Event of Default shall occur prior to
occurrence of the related acquisition, then the Borrower shall immediately prepay the Obligations
in the amount and in the manner described in the first sentence of this clause (iii).



(iv) Not later than four (4) Business Days following the date of receipt (each a “Receipt
Date”) by a Loan Party (or the Administrative Agent) of any Net Insurance Proceeds or Net
Condemnation Proceeds, the Borrower shall prepay the Obligations in the manner set forth in
Section 2.06(d) in an amount equal to the aggregate amount of the sum of such Net Insurance
Proceeds and Net Condemnation Proceeds. Notwithstanding the foregoing, the Borrower shall not be
required to make a prepayment pursuant to this clause (iv) with respect to any particular
Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower advises the Administrative
Agent in writing within four (4) Business Days after the related Receipt Date that it or another
Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds
or Net Condemnation Proceeds derived to the extent such repair, restoration or replacement is
completed within 365 days after the related Receipt Date . If the 365 day period provided in the
preceding sentence shall elapse without the completion of the related repair, restoration or
replacement or an Event of Default shall occur prior to the completion of the related repair,
restoration or replacement, then the Borrower shall immediately prepay the Obligations in the
amount and in the manner described in the first sentence of this clause (iv). If the
Borrower has provided the written notice contemplated by the prior sentence, then until such Net
Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair,
restoration or replacement such proceeds shall be held by the Administrative Agent as collateral.



(v) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment
required under this Section 2.06(c), (A) a certificate signed by the chief financial
officer of the Borrower setting forth in reasonable detail the calculation of the amount of such
prepayment and (B) to the extent practicable, at least three days prior written notice of such
prepayment. Each notice of prepayment shall specify the prepayment date and the Type and principal
amount of each Loan to be prepaid. In the event that the Borrower shall subsequently determine
that the actual amount required to be prepaid was greater than the amount set forth in such
certificate, the Borrower shall promptly make an additional prepayment of the Loans (and/or, if
applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the
amount of such excess, and the Borrower shall concurrently therewith deliver to the Administrative
Agent a certificate signed by the chief financial officer of the Borrower demonstrating the
derivation of the additional amount resulting in such excess.



(d) Application of Loan Prepayments. All prepayments required under Sections
2.06(c)(iii)-(iv) shall be applied as follows: (A) to prepay the Swing Line Loans to the extent
Swing Line Loans are then outstanding, (B) then to prepay the Revolving Loans to the extent
Revolving Loans are then outstanding and (C) otherwise, to Cash Collateralize the Obligations in an
amount equal to the then Effective Amount of the L/C Obligations. Without modifying the order of
application of prepayments set forth in the preceding sentence, all such prepayments shall, to the
extent possible, be first applied to prepay Base Rate Loans and then if any funds remain, to prepay
LIBOR Loans.



2.07. Other Payment Terms.



(a) Place and Manner. All payments to be made by the Borrower under this Agreement or
any other Credit Document shall be made in Dollars without condition or deduction for any
counterclaim, defense, recoupment or setoff. The Borrower shall make all payments due to each
Lender or the Administrative Agent under this Agreement or any other Credit Document by payments to
the Administrative Agent at the Administrative Agent’s office located at the address specified in
Section 8.01, with each payment due to a Lender to be for the account of such Lender and
such Lender’s Applicable Lending Office. The Borrower shall make all payments under this Agreement
or any other Credit Document in lawful money of the United States and in same day or immediately
available funds not later than 12:00 noon on the date due. The Administrative Agent shall promptly
disburse to each Lender each payment received by the Administrative Agent for the account of such
Lender.



(b) Date. Whenever any payment due hereunder shall fall due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of interest or fees, as the case may be.



(c) Default Rate. Upon the occurrence of any Event of Default and continuing until
the time when such Event of Default shall have been cured or waived in writing by the Required
Lenders or all the Lenders (as may be required by this Agreement), the Borrower shall pay interest
on the aggregate, outstanding principal amount of all Obligations hereunder at a per annum rate
equal to the otherwise applicable interest rate plus two percent (2.00%) or, if no such per
annum rate is applicable to any such Obligations, at a per annum rate equal to the Base Rate, plus
the Applicable Margin for Base Rate Loans, plus two percent (2.00%) (the “Default Rate”)
payable on demand. Overdue interest shall itself bear interest at the Default Rate, and shall be
compounded with the principal Obligations daily, to the fullest extent permitted by applicable
Governmental Rules.



(d) Application of Payments. All payments hereunder shall be applied first to unpaid
fees, costs and expenses then due and payable under this Agreement or the other Credit Documents,
second to accrued interest then due and payable under this Agreement or the other Credit Documents
and finally to reduce the principal amount of outstanding Loans and L/C Borrowings. The proceeds
of the Collateral will be applied as set forth in Section 6.02.



(e) Failure to Pay the Administrative Agent. Unless the Administrative Agent shall
have received notice from the Borrower at least one (1) Business Day prior to the date on which any
payment is due to the Lenders hereunder that the Borrower will not make such payment in full, the
Administrative Agent shall be entitled to assume that the Borrower has made or will make such
payment in full to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be paid to the Lenders on such due date an amount equal to
the amount then due such Lenders. If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent, at a per annum rate equal to the Federal Funds
Rate. A certificate of the Administrative Agent submitted to any Lender with respect to any amount
owing by such Lender under this Section 2.07(e) shall be conclusive absent manifest error.



2.08. Loan Accounts; Notes.



(a) Loan Accounts. The obligation of the Borrower to repay the Loans made to it by
each Lender and to pay interest thereon at the rates provided herein shall be evidenced by an
account or accounts maintained by such Lender on its books (individually, a “Loan
Account”), except that any Lender may request that its Loans be evidenced by a note or notes
pursuant to Section 2.08(b) and Section 2.08(c). Each Lender shall record in its
Loan Accounts (i) the date and amount of each Loan made by such Lender, (ii) the interest rates
applicable to each such Loan and the effective dates of all changes thereto, (iii) the Interest
Period for each LIBOR Loan, (iv) the date and amount of each principal and interest payment on each
Loan and (v) such other information as such Lender may determine is necessary for the computation
of principal and interest payable to it by the Borrower hereunder; provided,
however, that any failure by a Lender to make, or any error by any Lender in making, any
such notation shall not affect the Borrower’s Obligations. The Loan Accounts shall be conclusive
absent manifest error as to the matters noted therein. In addition to the Loan Accounts, each
Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and records maintained by
the Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control.



(b) Revolving Loan Notes. If requested by a Lender, such Lender’s Revolving Loans
shall be evidenced by a promissory note in the form of Exhibit E (individually, a
“Revolving Loan Note”) which note shall be (i) payable to the order of such Lender, (ii) in
the amount of such Lender’s Revolving Loan Commitment, (iii) dated the Closing Date and
(iv) otherwise appropriately completed. The Borrower authorizes each Lender to record on the
schedule annexed to such Lender’s Revolving Loan Note the date and amount of each Revolving Loan
made by such Lender and of each payment or prepayment of principal thereon made by the Borrower,
and agrees that all such notations shall be conclusive absent manifest error with respect to the
matters noted; provided, however, that any failure by a Lender to make, or any
error by any Lender in making, any such notation shall not affect the Borrower’s Obligations. The
Borrower further authorizes each Lender to attach to and make a part of such Lender’s Revolving
Loan Note continuations of the schedule attached thereto as necessary. If, because any Lender
designates separate Applicable Lending Offices for Base Rate Loans and LIBOR Loans, such Lender
requests that separate promissory notes be executed to evidence separately such Revolving Loans,
then each such note shall be in the form of Exhibit E, mutatis mutandis to reflect such
division, and shall be (w) payable to the order of such Lender, (x) in the amount of such Lender’s
Revolving Loan Commitment, (y) dated the Closing Date and (z) otherwise appropriately completed.
Such notes shall, collectively, constitute a Revolving Loan Note.



(c) Swing Loan Notes. The Swing Line Lender’s Swing Line Loans shall be evidenced by
a promissory note in the form of Exhibit F (individually, a “Swing Loan Note”)
which note shall be (i) payable to the order of the Swing Line Lender, (ii) in the amount of the
Swing Line Lender’s Swing Line Loans, (iii) dated the Closing Date and (iv) otherwise appropriately
completed.



2.09. Loan Funding.



(a) Lender Funding and Disbursement to the Borrower. Each Lender shall, before noon
on the date of each Borrowing, make available to the Administrative Agent at the Administrative
Agent’s office specified in Section 8.01, in same day or immediately available funds, such
Lender’s Revolving Proportionate Share of such Borrowing. After the Administrative Agent’s receipt
of such funds and upon satisfaction of the applicable conditions set forth in Section 3.02
(and, if such Borrowing is the initial Loan or Letter of Credit, Section 3.01), the
Administrative Agent shall promptly make all funds so received available to the Borrower in like
funds as received by the Administrative Agent either by (i) crediting the joint account of the
Borrower maintained by the Borrower on the books of Wells Fargo with the amount of such funds or
(ii) wire transfer of such funds, in each case in accordance with instructions provided to the
Administrative Agent by the Borrower; provided, however, that if, on the date of
the Borrowing there are Swing Line Loans and/or L/C Borrowings outstanding, then the proceeds of
such Borrowing shall be applied, first, to the payment in full of any such L/C Borrowings,
second, to the payment in full of any such Swing Line Loans, and third, to the
Borrower as provided above.



(b) Lender Failure to Fund. Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Borrowing that such Lender will not make available to
the Administrative Agent such Lender’s Revolving Proportionate Share of such Borrowing, the
Administrative Agent shall be entitled to assume that such Lender has made or will make such
portion available to the Administrative Agent on the date of such Borrowing in accordance with
Section 2.09(a), and the Administrative Agent may on such date, in reliance upon such
assumption, disburse or otherwise credit to the Borrower a corresponding amount. If any Lender
does not make the amount of such Lender’s Revolving Proportionate Share of any Borrowing available
to the Administrative Agent on or prior to the date of such Borrowing, such Lender shall pay to the
Administrative Agent, on demand, interest which shall accrue on such amount from the date of such
Borrowing until such amount is paid to the Administrative Agent at rates equal to the daily Federal
Funds Rate. A certificate of the Administrative Agent submitted to any Lender with respect to any
amount owing by such Lender under this Section 2.09(b) shall be conclusive absent manifest
error with respect to such amount. If the amount of any Lender’s Revolving Proportionate Share of
any Borrowing is not paid to the Administrative Agent by such Lender within three (3) Business Days
after the date of such Borrowing, the Borrower shall repay such amount to the Administrative Agent,
on demand, together with interest thereon, for each day from the date such amount was disbursed to
the Borrower until the date such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to the Loans comprising such Borrowing.



(c) Lenders’ Obligations Several. The failure of any Lender to make the Loan to be
made by it as part of any Borrowing or to fund participations in Letters of Credit and Swing Line
Loans to be funded by it shall not relieve any other Lender of its obligation hereunder to make its
Loan as part of such Borrowing or fund its participations in Letters of Credit and Swing Line
Loans, but no Lender shall be obligated in any way to make any Loan or fund any participation in
Letters of Credit or Swing Line Loans which another Lender has failed or refused to make or
otherwise be in any way responsible for the failure or refusal of any other Lender to make any Loan
required to be made by such other Lender on the date of any Borrowing or to fund any participation
required to be funded by such other Lender.



2.10. Pro Rata Treatment.



(a) Borrowings, Commitment Reductions, Etc. Except as otherwise provided herein:



(i) Each Revolving Borrowing and reduction of the Total Revolving Loan Commitment shall be
made or shared among the Lenders pro rata according to their respective Revolving Proportionate
Shares;



(ii) Each payment of principal on Loans in any Borrowing shall be shared among the Lenders
which made or funded the Loans in such Borrowing pro rata according to the respective unpaid
principal amounts of such Loans then owed to such Lenders;



(iii) Each payment of interest on Loans in any Borrowing shall be shared among the Lenders
which made or funded the Loans in such Borrowing pro rata according to (A) the respective unpaid
principal amounts of such Loans so made or funded by such Lenders and (B) the dates on which such
Lenders so made or funded such Loans;



(iv) Each payment of Commitment Fees and Letter of Credit fees payable under Section
2.02(i) shall be shared among the Lenders with Revolving Loan Commitments (except for
Defaulting Lenders) pro rata according to (A) their respective Revolving Proportionate Shares and
(B) in the case of each Lender which becomes a Lender hereunder after the date hereof, the date
upon which such Lender so became a Lender;



(v) Each payment of interest (other than interest on Loans) shall be shared among the Lenders
and the Administrative Agent owed the amount upon which such interest accrues pro rata according to
(A) the respective amounts so owed such Lenders and the Administrative Agent and (B) the dates on
which such amounts became owing to such Lenders and the Administrative Agent; and



(vi) All other payments under this Agreement and the other Credit Documents (including,
without limitation, fees paid in connection with any amendment, consent, waiver or the like) shall
be for the benefit of the Person or Persons specified.



(b) Sharing of Payments, Etc. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of setoff, or otherwise) on account of
the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it,
in excess of its ratable share of payments on account of the Loans and the L/C Obligations obtained
by all Lenders entitled to such payments, such Lender shall forthwith purchase from the other
Lenders such participations in the Loans and/or participations in L/C Obligations or in Swing Line
Loans as shall be necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase shall be rescinded and
each other Lender shall repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such other Lender’s ratable share (according to the
proportion of (i) the amount of such other Lender’s required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.10(b) may, to
the fullest extent permitted by law, exercise all its rights of payment (including the right of
setoff) with respect to such participation as fully as if such Lender were the direct creditor of
the Borrower in the amount of such participation.



2.11. Change of Circumstances.



(a) Inability to Determine Rates. If, on or before the first day of any Interest
Period for any LIBOR Loan, (i) any Lender shall advise the Administrative Agent that the LIBOR Rate
for such Interest Period cannot be adequately and reasonably determined due to the unavailability
of funds in or other circumstances affecting the London interbank market or (ii) any Lender shall
advise the Administrative Agent that the rate of interest for such Loan does not adequately and
fairly reflect the cost to such Lender of making or maintaining such LIBOR Loan, the Administrative
Agent shall immediately give notice of such condition to the Borrower and the other Lenders. After
the giving of any such notice and until the Administrative Agent shall otherwise notify the
Borrower that the circumstances giving rise to such condition no longer exist, the Borrower’s right
to request the making of, conversion to or a new Interest Period for LIBOR Loans shall be
suspended. Any LIBOR Loans outstanding at the commencement of any such suspension shall be
converted at the end of the then current Interest Period for such LIBOR Loans into Base Rate Loans,
unless such suspension has then ended.



(b) Illegality. If, after the date of this Agreement, the adoption of any
Governmental Rule, any change in any Governmental Rule or the application or requirements thereof
(whether such change occurs in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or administration of any
Governmental Rule by any Governmental Authority, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any Governmental Authority (a “Change of
Law”) shall make it unlawful or impossible for any Lender to make or maintain any LIBOR Loan,
such Lender shall immediately notify the Administrative Agent and the Borrower in writing of such
Change of Law. Upon receipt of such notice, (i) the Borrower’s right to request the making of,
conversion to or a new Interest Period for LIBOR Loans with respect to such Lender shall be
terminated, and (ii) the Borrower shall, at the request of such Lender, either (A) pursuant to
Section 2.01(e), as the case may be, convert any such then outstanding LIBOR Loans of such
Lender into Base Rate Loans at the end of the current Interest Period for such LIBOR Loans or
(B) immediately repay or convert any such LIBOR Loans of such Lender if such Lender shall notify
the Borrower that such Lender may not lawfully continue to fund and maintain such LIBOR Loans. Any
conversion or prepayment of LIBOR Loans made pursuant to the preceding sentence prior to the last
day of an Interest Period for such LIBOR Loans shall be deemed a prepayment thereof for purposes of
Section 2.13. After any Lender notifies the Administrative Agent and the Borrower of such
a Change of Law and until such Lender notifies the Administrative Agent and the Borrower that it is
no longer unlawful or impossible for such Lender to make or maintain a LIBOR Loan, all Revolving
Loans of such Lender shall be Base Rate Loans.



(c) Increased Costs. If, after the date of this Agreement, any Change of Law:



(i) Shall subject any Lender to any tax, duty or other charge with respect to any LIBOR Loan,
or shall change the basis of taxation of payments by the Borrower to any Lender on such a LIBOR
Loan or in respect to such a LIBOR Loan under this Agreement (except for changes in the rate of
taxation on the overall net income of any Lender imposed by its jurisdiction of incorporation or
the jurisdiction in which its principal executive office is located); or



(ii) Shall impose, modify or hold applicable any reserve (excluding any Reserve Requirement or
other reserve to the extent included in the calculation of the LIBOR Rate for any Loans), special
deposit or similar requirement against assets held by, deposits or other liabilities in or for the
account of, advances or loans by, or any other acquisition of funds by any Lender for any LIBOR
Loan; or



(iii) Shall impose on any Lender any other condition related to any LIBOR Loan or such
Lender’s Revolving Loan Commitment;



and the effect of any of the foregoing is to increase the cost to such Lender of making,
renewing, or maintaining any such LIBOR Loan or its Revolving Loan Commitment or to reduce any
amount receivable by such Lender hereunder; then the Borrower shall from time to time, within five
(5) Business Days after demand by such Lender (accompanied by the certificate referred to in the
next sentence), pay to such Lender additional amounts sufficient to reimburse such Lender for such
increased costs or to compensate such Lender for such reduced amounts; provided that the
Borrower shall not be obligated to pay any such amount which arose prior to the date which is 270
days preceding the date of such demand or is attributable to periods prior to the date which is 270
days preceding the date of such demand. A certificate setting forth in reasonable detail the
amount of such increased costs or reduced amounts, submitted by such Lender to the Borrower shall
be conclusive absent manifest error. The obligations of the Borrower under this
Section 2.11(c) shall survive the payment and performance of the Obligations and the
termination of this Agreement.



(d) Capital Requirements. If, after the date of this Agreement, any Lender determines
that (i) any Change of Law affects the amount of capital required or expected to be maintained by
such Lender or any Person controlling such Lender (a “Capital Adequacy Requirement”) and
(ii) the amount of capital maintained by such Lender or such Person which is attributable to or
based upon the Loans, the Letters of Credit, the Revolving Loan Commitments or this Agreement must
be increased as a result of such Capital Adequacy Requirement (taking into account such Lender’s or
such Person’s policies with respect to capital adequacy), the Borrower shall pay to such Lender or
such Person, within five (5) Business Days after demand of such Lender (accompanied by the
certificate referred to in the next sentence), such amounts as such Lender or such Person shall
determine are necessary to compensate such Lender or such Person for the increased costs to such
Lender or such Person of such increased capital; provided that the Borrower shall not be
obligated to pay any such amount which arose prior to the date which is 270 days preceding the date
of such demand or is attributable to periods prior to the date which is 270 days preceding the date
of such demand. A certificate setting forth in reasonable detail the amount of such increased
costs, submitted by any Lender to the Borrower shall be conclusive absent manifest error. The
obligations of the Borrower under this Section 2.11(d) shall survive the payment and
performance of the Obligations and the termination of this Agreement.



2.12. Taxes on Payments.



(a) Payments Free of Taxes. All payments made by the Borrower under this Agreement
and the other Credit Documents shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp, documentary or other taxes,
any duties, or any other levies, imposts, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority (other
than (x) taxes imposed on or measured by the Administrative Agent’s or any Lender’s overall net
income (however denominated), and franchise taxes imposed on the Administrative Agent or such
Lender (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof)
under the laws of which such recipient is organized or in which its principal office is located or,
in the case of any Lender, in which its applicable lending office is located and (y) any branch
profits taxes imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower are located) (all such non-excluded taxes, duties, levies,
imposts, charges, fees, deductions and withholdings being hereinafter called “Taxes”). If
any Taxes are required to be withheld from any amounts payable to the Administrative Agent or any
Lender hereunder or under the other Credit Documents, the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the other Credit
Documents. Whenever any Taxes are payable by the Borrower, as promptly as possible thereafter, the
Borrower shall send to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fail to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the Administrative Agent and the
Lenders for any taxes, interest or penalties that may become payable by the Administrative Agent or
any Lender as a result of any such failure. The obligations of the Borrower under this Section
2.12 shall survive the payment and performance of the Obligations and the termination of this
Agreement.



(b) Other Taxes. In addition, the Borrower shall pay to the relevant taxing authority
in accordance with applicable Governmental Rules, and indemnify and hold the Administrative Agent
and the Lenders harmless from, any present or future stamp, documentary, excise, property, sales or
similar taxes, charges or levies that arise from the delivery or registration of, performance
under, or otherwise with respect to, this Agreement or any other Credit Document (hereinafter
referred to as “Other Taxes”).



(c) Tax Indemnification. The Borrower shall indemnify each Lender and the
Administrative Agent for and hold them harmless against the full amount of Taxes and Other Taxes,
and for the full amount of taxes of any kind imposed by any jurisdiction on amounts payable under
this Section 2.12, imposed on or paid by such Lender or the Administrative Agent (as the
case may be) and any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made within thirty (30)
days from the date such Lender or the Administrative Agent (as the case may be) makes written
demand therefor, which demand shall contain a reasonably detailed statement of the basis and
calculation of the amount demanded.



(d) Evidence of Payment. Within thirty (30) days after the date of any payment of
Taxes or Other Taxes pursuant to Section 2.12(a) or (b), the Borrower shall furnish
to the Administrative Agent, at its address referred to in Section 8.01(a), the original or
a certified copy of a receipt evidencing such payment, to the extent that such receipt is issued
therefor or such other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent.



(e) Withholding Exemption Certificates. On or prior to the date of the initial
Borrowing or, if such date does not occur within thirty (30) days after the date of this Agreement,
by the end of such 30-day period, each Lender on the Closing Date which is not organized under the
laws of the United States of America or a state thereof shall deliver to the Borrower and the
Administrative Agent two duly completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI (or successor applicable form), as the case may be, certifying in each case that
such Lender is entitled to receive payments under this Agreement without deduction or withholding
of any United States federal income taxes. Each Lender agrees (i) promptly to notify the Borrower
and the Administrative Agent of any change of circumstances (including any change in any treaty,
law or regulation) after the Closing Date which would prevent such Lender from receiving payments
hereunder without any deduction or withholding of Taxes and (ii) if such Lender has not so notified
the Borrower and the Administrative Agent of any change of circumstances which would prevent such
Lender from receiving payments hereunder without any deduction or withholding of taxes, then on or
before the date that any certificate or other form delivered by such Lender under this Section
2.12(e) expires or becomes obsolete or after the occurrence of any event requiring a change in
the most recent such certificate or form previously delivered by such Lender, to deliver to the
Borrower and the Administrative Agent a new certificate or form, certifying that such Lender is
entitled to receive payments under this Agreement without deduction or Taxes, but only if and to
the extent such Lender is legally entitled to do so. If (i) there has not occurred any change of
circumstances (including any change in any treaty, law or regulation) after the Closing Date which
would prevent a Lender from receiving payments hereunder without any deduction or withholding of
Taxes and (ii) such Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.15) fails to provide to the Borrower or the Administrative Agent pursuant to this
Section 2.12(e) (or, in the case of an Assignee Lender, Section 8.05(c)) any
certificates or other evidence required by such provision to establish that such Lender is, at the
time it becomes a Lender hereunder, entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, such Lender shall not be
entitled to any indemnification under Section 2.12(a) for any Taxes imposed on such Lender
primarily as a result of such failure, except to the extent that such Lender (or its assignor, if
any) was entitled, at the time such Lender became a Lender hereunder, to receive additional amounts
from the Borrower with respect to such Tax pursuant to Section 2.12(a).



(f) Tax Returns. Nothing contained in this Section 2.12 shall require the
Administrative Agent or any Lender to make available any of its tax returns (or any other
information relating to its taxes which it deems to be confidential).



2.13. Funding Loss Indemnification. If the Borrower shall (a) repay, prepay or
convert any LIBOR Loan on any day other than the last day of an Interest Period therefor (whether a
scheduled payment, an optional prepayment or conversion, a mandatory prepayment or conversion, a
payment upon acceleration or otherwise), (b) fail to borrow any LIBOR Loan or for which a Notice of
Loan Borrowing has been delivered to the Administrative Agent (whether as a result of the failure
to satisfy any applicable conditions or otherwise) or (c) fail to convert any Revolving Loans into
LIBOR Loans in accordance with a Notice of Conversion delivered to the Administrative Agent
(whether as a result of the failure to satisfy any applicable conditions or otherwise), the
Borrower shall pay to the appropriate Lender within five (5) Business Days after demand
(accompanied by a certificate of such Lender setting forth in reasonable detail the calculation of
any amount so demanded) a prepayment fee, failure to borrow fee or failure to convert fee, as the
case may be (determined as though 100% of the LIBOR Loan had been funded in the London interbank
eurodollar currency market) equal to the sum of:



(a) $250; plus



(b) the amount, if any, by which (i) the additional interest would have accrued on the amount
prepaid or not borrowed at the LIBOR Rate for LIBOR Loans if that amount had remained or been
outstanding through the last day of the applicable Interest Period exceeds (ii) the interest that
such Lender could recover by placing such amount on deposit in the London interbank eurodollar
currency market for a period beginning on the date of the prepayment or failure to borrow and
ending on the last day of the applicable Interest Period (or, if no deposit rate quotation is
available for such period, for the most comparable period for which a deposit rate quotation may be
obtained); plus



(c) all out-of-pocket expenses incurred by such Lender reasonably attributable to such
payment, prepayment or failure to borrow.



Each Lender’s determination of the amount of any prepayment fee payable under this
Section 2.13 shall be conclusive in the absence of manifest error. The obligations of the
Borrower under this Section 2.13 shall survive the payment and performance of the
Obligations and the termination of this Agreement.



2.14. Security.



(a) Security Documents. The Loans, together with all other Obligations, shall be
secured by the Liens granted by the Borrower under the Security Documents. All obligations of a
Guarantor under the Credit Documents shall be secured by the Liens granted by such Guarantor under
the Security Documents. So long as the terms thereof are in compliance with this Agreement, each
Lender Rate Contract shall be secured by the Lien of the Security Documents (a) on a pari passu
basis to the extent of the associated Termination Value, and (b) to the extent of any excess, on a
basis which is in all respects subordinated to all other Obligations. Lender Bank Products shall
be secured by the Lien of the Security Documents on a basis which is in all respect subordinated to
all other Obligations.



(b) Further Assurances. The Borrower shall deliver, and shall cause each Guarantor to
deliver, to the Administrative Agent such mortgages, deeds of trust, security agreements, pledge
agreements, lessor consents and estoppels (containing appropriate mortgagee and lender protection
language), control agreements, and other instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code financing statements and fixture filings and landlord
waivers) as the Administrative Agent may reasonably request to:



(i) grant, perfect, maintain, protect and evidence security interests in favor of the
Administrative Agent, for the benefit of the Administrative Agent and the Lenders, in any or all
present and future property (other than Excluded Assets, and other than, as to perfection, De
Minimis Accounts) of the Borrower and the Guarantors prior to the Liens or other interests of any
Person, except for Permitted Liens; and



(ii) otherwise establish, maintain, protect and evidence the rights provided to the
Administrative Agent, for the benefit of the Administrative Agent and the Lenders, pursuant to the
Security Documents.



The Borrower shall fully cooperate with the Administrative Agent and the Lenders and perform
all additional acts reasonably requested by the Administrative Agent or any Lender to effect the
purposes of this Section 2.14.



2.15. Replacement of the Lenders. If (a) any Lender shall become a Deteriorating
Lender, (b) any Lender shall suspend its obligation to make or maintain LIBOR Loans pursuant to
Section 2.11(b) for a reason which is not applicable to any other Lender, or (c) any Lender
shall demand any payment under Section 2.11(c), 2.11(d) or 2.12(a) for a
reason which is not applicable to any other Lender, then the Administrative Agent may (or upon the
written request of the Borrower, shall use commercially reasonable efforts to) replace such Lender
(the “affected Lender”), or cause such affected Lender to be replaced, with another lender
(the “replacement Lender”) satisfying the requirements of an Assignee Lender under
Section 8.05(c), by having the affected Lender sell and assign all of its rights and
obligations under this Agreement and the other Credit Documents (including for purposes of this
Section 2.15, participations in L/C Obligations and in Swing Line Loans) to the replacement
Lender pursuant to Section 8.05(c); provided, however, that if the Borrower
seeks to exercise such right, it must do so within sixty (60) days after it first knows or should
have known of the occurrence of the event or events giving rise to such right, and neither the
Administrative Agent nor any Lender shall have any obligation to identify or locate a replacement
Lender for the Borrower (it being expressly agreed that in such circumstances it is the Borrower’s
obligation to identify or locate a replacement Lender that is an Eligible Assignee and is
acceptable to the Administrative Agent). Upon receipt by any affected Lender of a written notice
from the Administrative Agent stating that the Administrative Agent is exercising the replacement
right set forth in this Section 2.15, such affected Lender shall sell and assign all of its
rights and obligations under this Agreement and the other Credit Documents (including for purposes
of this Section 2.15, participations in L/C Obligations and in Swing Line Loans) to the
replacement Lender pursuant to an Assignment Agreement and Section 8.05(c) for a purchase
price equal to the sum of the principal amount of the affected Lender’s Loans so sold and assigned
or such other amount is agreed to by such affected Lender and such replacement Lender), all accrued
and unpaid interest thereon and its ratable share of all fees and other amounts to which it is
entitled.



ARTICLE III. CONDITIONS PRECEDENT.




3.01. Initial Conditions Precedent. The obligations of the Lenders to make the Loans
comprising the initial Borrowing are subject to the satisfaction or waiver of the conditions set
forth on Schedule 3.01 and receipt (or waiver of receipt) by the Administrative Agent, on
or prior to the Closing Date, of each item listed on Schedule 3.01, each in form and
substance satisfactory to the Administrative Agent and each Lender, and with sufficient copies for,
the Administrative Agent and each Lender.



3.02. Conditions Precedent to each Credit Event. The occurrence of each Credit Event
(including the initial Borrowing) is subject to the further conditions that:



(a) The Borrower shall have delivered to the Administrative Agent and, if applicable, the L/C
Issuer or the Swing Line Lender, the Notice of Borrowing or Letter of Credit Application, as the
case may be, for such Credit Event in accordance with this Agreement; and



(b) On the date such Credit Event is to occur and after giving effect to such Credit Event,
the following shall be true and correct:



(i) The representations and warranties of the Loan Parties set forth in Article IV and
in the other Credit Documents are true and correct in all material respects as if made on such date
(except for representations and warranties expressly made as of a specified date, which shall be
true and correct in all material respects as of such date);



(ii) No Default has occurred and is continuing or will result from such Credit Event; and



(iii) No material adverse change in the assets, liabilities, financial condition, business
operations or performance of the Loan Parties (taken as a whole) having occurred since December 31,
2007.



The submission by the Borrower to the Administrative Agent of each Notice of Borrowing and
each Letter of Credit Application shall be deemed to be a representation and warranty by the
Borrower that each of the statements set forth above in this Section 3.02(b) is true and
correct as of the date of such notice.



ARTICLE IV. REPRESENTATIONS AND WARRANTIES.




4.01. Representations and Warranties. In order to induce the Administrative Agent and
the Lenders to enter into this Agreement, the Borrower hereby represents and warrants to the
Administrative Agent and the Lenders for the Borrower and each of the other Loan Parties as
follows:



(a) Due Formation, Qualification, etc. Each Loan Party (i) is a corporation,
partnership or limited liability company duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or formation; (ii) has the power and authority
to own, lease and operate its properties and carry on its business as now conducted; and (iii) is
duly qualified, licensed to do business and in good standing as a foreign corporation, partnership
or limited liability company, as applicable, in each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification or license and
where the failure to be so qualified or licensed, individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect.



(b) Authority. The execution, delivery and performance by each Loan Party of each
Credit Document executed, or to be executed, by such Loan Party and the consummation of the
transactions contemplated thereby (i) are within the power of such Loan Party and (ii) have been
duly authorized by all necessary corporate or company actions on the part of such Loan Party.



(c) Enforceability. Each Credit Document executed, or to be executed, by each Loan
Party has been, or will be, duly executed and delivered by such Loan Party and constitutes, or will
constitute, a legal, valid and binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of creditors’ rights generally and
general principles of equity.



(d) Non-Contravention. The execution and delivery by each Loan Party of the Credit
Documents executed by such Loan Party and the performance and consummation of the transactions
(including the use of loan and letter of credit proceeds) contemplated thereby do not (i) violate
any Requirement of Law applicable to such Loan Party; (ii) violate any provision of, or result in
the breach or the acceleration of, or entitle any other Person to accelerate (whether after the
giving of notice or lapse of time or both), any Contractual Obligation of such Loan Party;
(iii) result in the creation or imposition of any Lien (or the obligation to create or impose any
Lien) upon any property, asset or revenue of such Loan Party (except such Liens as may be created
in favor of the Administrative Agent for the benefit of itself and the Lenders pursuant to this
Agreement or the other Credit Documents) or (iv) violate any provision of any existing law, rule,
regulation, order, writ, injunction or decree of any court or Governmental Authority to which it is
subject, in each case except where such breach or violation could not reasonably be expected to
result in a Material Adverse Effect.



(e) Approvals.



(i) No consent, approval, order or authorization of, or registration, declaration or filing
with, any Governmental Authority or other Person (including, without limitation, the equity holders
of any Person) is required in connection with the borrowing of Loans, the granting of Liens under
the Credit Documents, the execution and delivery of the Credit Documents (or any documents executed
in connection therewith) executed by any Loan Party or the performance or consummation of the
transactions contemplated hereby and thereby, except for those which have been made or obtained and
are in full force and effect.



(ii) All Governmental Authorizations necessary to the operations of the Loan Parties have been
duly obtained and are in full force and effect without any known conflict with the rights of others
and free from any unduly burdensome restrictions, except where any such failure to obtain such
Governmental Authorizations or any such conflict or restriction could not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect. No Loan Party has
received any written notice or other written communications from any Governmental Authority
regarding (i) any revocation, withdrawal, suspension, termination or modification of, or the
imposition of any material conditions with respect to, any Governmental Authorization, or (ii) any
other limitations on the conduct of business by any Loan Party, except where any such revocation,
withdrawal, suspension, termination, modification, imposition or limitation could not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse Effect.



(iii) No Governmental Authorization is required for either (x) the pledge or grant by any Loan
Party as applicable of the Liens purported to be created in favor of the Administrative Agent in
connection herewith or any other Credit Document or (y) the exercise by the Administrative Agent of
any rights or remedies in respect of any Collateral (whether specifically granted or created
pursuant to any of the Security Documents or created or provided for by any Governmental Rule),
except for (1) such Governmental Authorizations that have been obtained and are in full force and
effect and fully disclosed to Administrative Agent in writing, (2) filings or recordings
contemplated in connection with this Agreement or any Security Document, and (3) Governmental
Authorizations, if any, required in connection with dispositions of Collateral at the time of such
disposition.



(f) No Violation or Default. No Loan Party is in violation of or in default with
respect to (i) any Requirement of Law applicable to such Person or (ii) any Contractual Obligation
of such Person (nor is there any waiver in effect which, if not in effect, could result in such a
violation or default), where, in each case, such violation or default could reasonably be expected
to have a Material Adverse Effect. Without limiting the generality of the foregoing, no Loan Party
(A) has violated any Environmental Laws, (B) has any liability under any Environmental Laws or
(C) has received notice or other communication of an investigation or is under investigation by any
Governmental Authority having authority to enforce Environmental Laws, where such violation,
liability or investigation could reasonably be expected to have a Material Adverse Effect. No
Default has occurred and is continuing.



(g) Litigation. Except as set forth in Schedule 4.01(g), no actions
(including derivative actions), suits, proceedings (including arbitration proceedings or mediation
proceedings) or investigations are pending or threatened against any Loan Party at law or in equity
in any court, arbitration proceeding or before any other Governmental Authority which (i) could
reasonably be expected to (alone or in the aggregate) have a Material Adverse Effect or (ii) seek
to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party
of the Credit Documents (or any documents executed in connection therewith) or the transactions
contemplated thereby.



(h) Real Property, Etc.



(i) All real property owned or leased by the Loan Parties as of the date hereof is described
(including, as to real property owned, a legal description) in Schedule 4.01(h). The Loan
Parties own and have good and marketable title, or a valid leasehold interest in, all their
respective properties and assets as reflected in the most recent Financial Statements delivered to
the Administrative Agent (except those assets and properties disposed of in the ordinary course of
business or otherwise in compliance with this Agreement since the date of such Financial
Statements) and all respective assets and properties acquired by the Loan Parties since such date
(except those disposed of in the ordinary course of business or otherwise in compliance with this
Agreement), except  in each case, such defects in title that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Such assets and properties are subject
to no Lien, except for Permitted Liens. Except as could not reasonably be expected to have a
Material Adverse Effect, each of the Loan Parties has complied in all material respects with all
material obligations under all material leases to which it is a party and enjoys peaceful and
undisturbed possession under such leases.



(ii) No Loan Party (A) has violated any Environmental Laws, (B) has any liability under any
Environmental Laws or (C) has received notice or other communication of an investigation or is
under investigation by any Governmental Authority having authority to enforce Environmental Laws,
where such violation, liability or investigation could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. Each Loan Party’s use and operation of its
business properties are in compliance with all applicable Governmental Rules, including all
applicable land use and zoning laws, except to the extent that non-compliance could not reasonably
be expected to have a Material Adverse Effect.



(i) Financial Statements. The Financial Statements of the Loan Parties which have
been delivered to the Administrative Agent (i) are in accordance with the books and records of the
Loan Parties, which have been maintained in accordance with good business practice; (ii) have been
prepared in conformity with GAAP; and (iii) fairly present in all material respects the financial
conditions and results of operations of the Loan Parties as of the date thereof and for the period
covered thereby. No Loan Party has any Contingent Obligations, liability for taxes or other
outstanding obligations which, in any such case, are material in the aggregate, except as disclosed
in the audited Financial Statements for the fiscal year ended December 31, 2007 and unaudited
Financial Statements for the fiscal year to date ended as of September 30, 2008, furnished by each
Loan Party to the Administrative Agent prior to the date hereof, or in the Financial Statements
delivered to the Administrative Agent pursuant to clause (i) or (ii) of Section 5.01(a)
(except those Contingent Obligations, liabilities for taxes and other outstanding obligations
incurred in the ordinary course of business or otherwise in compliance with this Agreement since
the date of such Financial Statements).



(j) Creation, Perfection and Priority of Liens; Equity Interests .



(i) As of the Closing Date (or as of the date any Loan Party becomes party to the Credit
Documents after the Closing Date, as to such Loan Party), (x) the execution and delivery of the
Security Documents by the Loan Parties, together with the filing of any Uniform Commercial Code
financing statements and the recording of the U.S. Patent and Trademark Office filings and U.S.
Copyright Office filings delivered to the Administrative Agent for filing and recording, and as of
the date delivered, the recording of any mortgages or deeds of trust delivered to the
Administrative Agent for recording (but not yet recorded), are effective to create in favor of the
Administrative Agent for the benefit of itself and the Lenders, as security for the Obligations, a
valid and, to the extent such Liens may be perfected by such filings and recordations, perfected
first priority Lien on all of the Collateral as of the Closing Date (or as of the date any Loan
Party becomes party to the Credit Documents after the Closing Date, as to such Loan Party) (subject
only to Permitted Liens), and (y) all filings and, to the extent requested by the Administrative
Agent, other actions necessary or desirable to perfect and maintain the perfection and first
priority status of such Liens have been duly made or taken and remain in full force and effect. In
the case of deposit accounts and accounts with any securities intermediary maintained in the United
States of America and pledged to the Administrative Agent under the Security Agreement, when the
Control Agreements have been duly executed and delivered by the Borrower or applicable Guarantor,
the Administrative Agent and the applicable depository bank or securities intermediary, as the case
may be, the Security Agreement (together with such Control Agreements) shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of such Borrower or
Guarantor in such Collateral, as security for the Obligations, in each case prior and superior to
the Lien of any other Person.



(ii) All outstanding Equity Securities of the Loan Parties are duly authorized, validly
issued, fully paid and non-assessable. Except as set forth on Schedule 4.01(j)(ii), as of
the date hereof there are no outstanding subscriptions, options, conversion rights, warrants or
other agreements or commitments of any nature whatsoever (firm or conditional) obligating the Loan
Parties to issue, deliver or sell, or cause to be issued, delivered or sold, any additional Equity
Securities of the Loan Parties, or obligating the Loan Parties to grant, extend or enter into any
such agreement or commitment. All Equity Securities of the Loan Parties have been offered and sold
in compliance with all federal and state securities laws and all other Requirements of Law, except
where any failure to comply could not reasonably be expected to have a Material Adverse Effect.



(k) ERISA. Except as set forth on Schedule 4.01(k):



(i) Based upon the actuarial assumptions specified for funding purposes in the latest
valuation of each Pension Plan that any Loan Party or any ERISA Affiliate maintains or contributes
to, or has any obligation under, the aggregate benefit liabilities of such Pension Plan within the
meaning of Section 4001 of ERISA did not exceed the aggregate value of the assets of such Pension
Plan. Neither any Loan Party nor any ERISA Affiliate has any liability with respect to any
post-retirement benefit under any employee welfare plan (as defined in Section 3(1) of ERISA),
other than liability for health plan continuation coverage described in Part 6 of Title I(B) of
ERISA, which liability for health plan continuation coverage could not have a Material Adverse
Effect.



(ii) Each Pension Plan complies, in both form and operation, in all material respects, with
its terms, ERISA and the IRC, and no condition exists or event has occurred with respect to any
such Pension Plan which would result in the incurrence by any Loan Party or any ERISA Affiliate of
any material liability, fine or penalty. Each Pension Plan, related trust agreement, arrangement
and commitment of any Loan Party or any ERISA Affiliate is legally valid and binding and in full
force and effect. No Pension Plan is being audited or investigated by any government agency or is
subject to any pending or threatened claim or suit. No Loan Party or ERISA Affiliate has engaged
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the IRC with respect to
any Pension Plan which would result in the incurrence by any Loan Party or ERISA Affiliate of any
material liability.



(iii) None of the Loan Parties and the ERISA Affiliates contributes to or has any material
contingent obligations to any Multiemployer Plan. None of the Loan Parties and the ERISA
Affiliates has incurred any material liability (including secondary liability) to any Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer Plan under Section
4201 of ERISA or as a result of a sale of assets described in Section 4204 of ERISA. None of the
Loan Parties and the ERISA Affiliates has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of Section 4241 or Section 4245 of ERISA
or that any Multiemployer Plan intends to terminate or has been terminated under Section 4041A of
ERISA.



(iv) No Loan Party has (A) engaged in any transaction prohibited by any Governmental Rule
applicable to any Foreign Plan; (B) failed to make full payment when due of all amounts due as
contributions to any Foreign Plan; or (C) otherwise failed to comply with the requirements of any
Governmental Rule applicable to any Foreign Plan, where singly or cumulatively, the above could
reasonably be expected to have a Material Adverse Effect.



(l) Margin Stock; Other Regulations. No Loan Party owns any Margin Stock which, in
the aggregate, would constitute a substantial part of the assets of the Borrower or the Loan
Parties (taken as a whole), and not more than 25% of the value (as determined by any reasonable
method) of the assets of any Loan Party is represented by Margin Stock, and no proceeds of any Loan
or any Letter of Credit will be used, whether directly or indirectly, to purchase, acquire or carry
any Margin Stock or to extend credit, directly or indirectly, to any Person for the purpose of
purchasing or carrying any Margin Stock (other than for a Permitted Stock Repurchase or Permitted
Acquisition, in each case, consummated in compliance with this Agreement and applicable
Governmental Rules). No Loan Party is subject to regulation under the Investment Company Act of
1940, the Federal Power Act, the Interstate Commerce Act, any state public utilities code or to any
other Governmental Rule limiting its ability to incur indebtedness.



(m) Trademarks, Patents, Copyrights and Licenses. The Loan Parties each possess and
either own, or have the right to use to the extent required, all necessary trademarks, trade names,
copyrights, patents, patent rights and licenses which are material to the conduct of their
respective businesses as now operated. The Loan Parties each conduct their respective businesses
without infringement or, to the Borrower’s knowledge, claim of infringement of any trademark, trade
name, trade secret, service mark, patent, copyright, license or other intellectual property rights
of any other Person (which is not a Loan Party), except where such infringement or claim of
infringement could not reasonably be expected to have a Material Adverse Effect. There is no
infringement or, to the Borrower’s knowledge, claim of infringement by others of any material
trademark, trade name, trade secret, service mark, patent, copyright, license or other intellectual
property right of the Borrower or any of the other Loan Parties, except where such infringement or
claim of infringement could not reasonably be expected to have a Material Adverse Effect. Each of
the patents, trademarks, trade names, service marks and copyrights owned by any Loan Party as of
the date hereof and which is registered with any Governmental Authority is set forth on the
schedules to the Intellectual Property Security Agreement.



(n) Governmental Charges. The Loan Parties have filed or caused to be filed all tax
returns which are required to be filed by them. The Loan Parties have paid, or made provision for
the payment of, all taxes and other Governmental Charges which have or may have become due pursuant
to said returns or otherwise, except such Governmental Charges, if any, which are being contested
in good faith by appropriate proceedings and as to which adequate reserves (determined in
accordance with GAAP) have been established. Proper and accurate amounts have been withheld by
each Loan Party from its employees for all periods in full and complete compliance with the tax,
social security and unemployment withholding provisions of applicable federal, state, local and
foreign law and such withholdings have been timely paid to the respective Governmental Authorities.
No Loan Party has executed or filed with the Internal Revenue Service or any other Governmental
Authority any agreement or other document extending, or having the effect of extending, the period
for assessment or collection of any taxes or Governmental Charges.



(o) Subsidiaries, Etc. Schedule 4.01(o) (as supplemented by the Borrower in a
notice delivered pursuant to Section 5.01(a)(vii)) sets forth each of the Subsidiaries of
each Loan Party, its jurisdiction of organization, the classes of its Equity Securities, the number
of Equity Securities of each such class issued and outstanding, the percentages of Equity
Securities of each such class owned directly or indirectly by each Loan Party and whether such Loan
Party owns such Equity Securities directly or, if not, the Subsidiary of such Loan Party that owns
such Equity Securities and the number of Equity Securities and percentages of Equity Securities of
each such class owned directly or indirectly by such Loan Party (except in each case for
information not yet required to be updated pursuant to Section 5.01(a)(vii)). Except as
set forth on Schedule 4.01(o) (as supplemented as set forth above), none of the Loan
Parties currently has any Subsidiaries (except in each case for information not yet required to be
updated pursuant to Section 5.01(a)(vii)). All of the outstanding Equity Securities of
each such Subsidiary indicated on Schedule 4.01(o) as owned by each Loan Party are owned
beneficially and of record by such Loan Party free and clear of all adverse claims, except as a
result of any dispositions permitted under Section 5.02(c)(vi) or any mergers or
dissolutions permitted hereunder.



(p) Solvency, Etc. The Loan Parties are, on a consolidated basis, Solvent, and after
the execution and delivery of the Credit Documents and the consummation of the transactions
contemplated thereby, the Loan Parties, on a consolidated basis, will be Solvent.



(q) Labor Matters. There are no disputes presently subject to grievance procedure,
arbitration or litigation under any of the collective bargaining agreements, employment contracts
or employee welfare or incentive plans to which any Loan Party is a party, and there are no
strikes, lockouts, work stoppages or slowdowns, or, to the knowledge of the Borrower,
jurisdictional disputes or organizing activities occurring or threatened which alone or in the
aggregate could have a Material Adverse Effect.



(r) No Material Adverse Effect. Since December 31, 2007, no event has occurred and no
condition exists which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.



(s) Accuracy of Information Furnished; Compliance with Material Documents.



(i) The Credit Documents and the other certificates, statements and information (excluding
projections) furnished by the Loan Parties to the Administrative Agent and the Lenders in
connection with the Credit Documents and the transactions contemplated thereby, taken as a whole,
do not contain any untrue statement of a material fact and do not omit to state any material fact
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading. All projections furnished by the Loan Parties to the Administrative Agent and the
Lenders in connection with the Credit Documents and the transactions contemplated thereby have been
prepared in good faith on the basis of information and assumptions that the Borrower believed to be
reasonable as of the date such material was prepared (it being understood that the projections are
subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s
control, and that no assurance can be given that the projections will be realized).



(ii) The copies of the Material Documents which have been delivered to the Administrative
Agent in accordance with Section 3.01 are true, correct and complete copies of the
respective originals thereof, as in effect on the Closing Date, and no amendments or modifications
have been made to the Material Documents, except as set forth by documents delivered to the
Administrative Agent in accordance with said Section 3.01 or otherwise permitted under
Section 5.02(l). Except as permitted by Section 5.02(l), none of the Material
Documents has been terminated and each of the Material Documents is in full force and effect.
Except as permitted by Section 5.02(l) or as would not have a Material Adverse Effect, none
of the Loan Parties is in default in the observance or performance of any of its material
obligations under the Material Documents and each Loan Party has taken all action required to be
taken as of the Closing Date to keep unimpaired its rights thereunder (other than possible defaults
which may be the subject of any litigation referred to in Schedule 4.01(g)).



(t) Brokerage Commissions. No person is entitled to receive any brokerage commission,
finder’s fee or similar fee or payment in connection with the extensions of credit contemplated by
this Agreement as a result of any agreement entered into by any Loan Party.



(u) Policies of Insurance. The properties of the Loan Parties are insured with
financially sound (to Borrower’s knowledge) and reputable insurance companies not Affiliates of the
Loan Parties, in such amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties in localities
where the Loan Parties operate. Schedule 4.01(u) sets forth a true and complete listing of
all insurance maintained by the Loan Parties as of the Closing Date. As of the date hereof, such
insurance has not been terminated and is in full force and effect, and each of the Loan Parties has
taken all action required to be taken as of the date of this Agreement to keep unimpaired its
rights thereunder.



(v) Agreements with Affiliates and Other Agreements. Except as disclosed on
Schedule 4.01(v), no Loan Party has entered into and, as of the date of the applicable
Credit Event does not contemplate entering into, any material agreement or contract with any
Affiliate of any Loan Party, except upon terms at least as favorable to such Loan Party as an
arms-length transaction with unaffiliated Persons, based on the totality of the circumstances or as
otherwise permitted under Section 5.02(j). No Loan Party is a party to or is bound by any
Contractual Obligation or is subject to any restriction under its respective charter or formation
documents, which could not reasonably be expected to have a Material Adverse Effect.



(w) Foreign Assets Control, Etc.



(i) No Loan Party (i) is, or is controlled by, a Designated Person; (ii) has received funds or
other property from a Designated Person; or (iii) is in breach of or is the subject of any action
or investigation under any Anti-Terrorism Law. No Loan Party engages or will engage in any
dealings or transactions, or is or will be otherwise associated, with any Designated Person. Each
Loan Party and each of its Subsidiaries are in compliance, in all material respects, with the
Patriot Act. Each Loan Party has taken reasonable measures to ensure compliance with the
Anti-Terrorism Laws including the requirement that (i) no Person who owns any direct or indirect
interest in any Loan Party is a Designated Person, (ii) funds invested directly or indirectly in
any Loan Party are derived from legal sources.



(ii) No portion of the proceeds of any Loan, L/C Credit Extension or other credit made
hereunder has been or will be used, directly or indirectly for, and no fee, commission, rebate or
other value has been or will be paid to, or for the benefit of, any governmental official,
political party, official of a political party or any other Person acting in an official capacity
in violation of any applicable Governmental Rules, including the U.S. Foreign Corrupt Practices Act
of 1977, as amended.



(x) Permitted Stock Repurchase(s). The actions of the Loan Parties in connection with
any Permitted Stock Repurchase and any and all transactions entered into or consummated by a Loan
Party in connection with such Permitted Stock Repurchase (including the purchase of the stock of
the Borrower) will be and have been consummated in accordance with applicable Governmental Rules
(including, without limitation, the General Corporation Law of the State of Delaware).



ARTICLE V. COVENANTS.




5.01. Affirmative Covenants. So long as any Loan or L/C Obligation remains unpaid, or
any other Obligation remains unpaid or unperformed, or any portion of any Commitment remains in
force, the Borrower will comply, and will cause compliance by the other Loan Parties, with the
following affirmative covenants, unless the Required Lenders shall otherwise consent in writing:



(a) Financial Statements, Reports, etc. The Borrower shall furnish to the
Administrative Agent and each Lender the following, each in such form and such detail as the
Administrative Agent or the Required Lenders shall request:



(i) As soon as available and in no event later than forty-five (45) days after the last day of
each quarter (other than the last quarter of the Borrower’s fiscal year), copies of the Financial
Statements of the Loan Parties (prepared on a consolidated basis) and the balance sheets and
statements of income of the Loan Parties (prepared on a consolidating basis) for such quarter
(beginning with the quarter ending March 31, 2009 and thereafter) and for the fiscal year to date,
each certified by the president, chief executive officer, chief operating officer or chief
financial officer of the Borrower to present fairly in all material respects the financial
condition, results of operations and other information reflected therein and to have been prepared
in accordance with GAAP (subject to normal year-end audit adjustments and the absence of
footnotes), which Financial Statements and balance sheets and statements of income shall be
accompanied by a narrative (as set forth in the related Form 10-Q) from management of the Borrower
which discusses results;



(ii) As soon as available and in no event later than ninety (90) days after the close of
fiscal year 2008 and each fiscal year thereafter, copies of the Financial Statements of the Loan
Parties (prepared on a consolidated basis) and the balance sheets and statements of income of the
Loan Parties (prepared on a consolidating basis), audited (as to the consolidated Financial
Statements) by an independent certified public accountants of recognized national standing
acceptable to the Administrative Agent, which Financial Statements shall be accompanied by a
narrative (as set forth in the related Form 10-K) from management of the Borrower which discusses
results and (B) copies of the unqualified opinions and, to the extent delivered, management letters
delivered by such accountants in connection with all such Financial Statements and prepared in
accordance with GAAP;



(iii) Contemporaneously with the Financial Statements for each quarter and each year end
required by the foregoing clauses (i) and (ii), a compliance certificate of the president, chief
executive officer, chief operating officer or chief financial officer of the Borrower in
substantially the form of Exhibit H (a “Compliance Certificate”) which (A) states
that no Default has occurred and is continuing, or, if any such Default has occurred and is
continuing, a statement as to the nature thereof and what action the Borrower proposes to take with
respect thereto, (B) sets forth, for the quarter or year covered by such Financial Statements or as
of the last day of such quarter or year (as the case may be), the calculation of the financial
ratios and tests provided in Section 5.03, and (C) sets forth information and computations
related to Sections 5.01(i), 5.02(a), 5.02(b), 5.02(d), 5.02(e) and 5.02(f) of this
Agreement and any other provisions of the Credit Documents required to be included in such
Compliance Certificate;



(iv) As soon as possible and in no event later than five (5) Business Days after any Loan
Party knows of the occurrence or existence of (A) any ERISA Event, (B) any threatened (in writing)
or actual litigation, suits, claims, disputes or investigations against any Loan Party involving
potential monetary damages payable by any Loan Party of $2,000,000 or more (alone or in the
aggregate) or in which injunctive relief or similar relief is sought, which relief, if granted,
could have a Material Adverse Effect, (C) any other event or condition (including (I) breach or
non-performance of, or any default under, a Contractual Obligation of the Borrower or any
Guarantor; (II) any dispute, litigation, investigation, proceeding or suspension between the
Borrower or any Guarantor and any Governmental Authority; or (III) the commencement of, or any
material development in, any litigation or proceeding affecting the Borrower or any Guarantor,
including pursuant to any applicable Environmental Laws) which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect; (D) any Default or any
default under any Subordinated Obligations, the statement of a Responsible Officer of the Borrower
setting forth details of such event, condition, default or Default and the action which the
Borrower proposes to take with respect thereto, or (E) any material change in accounting policies
of or financial reporting practices by the applicable Loan Party. Each notice pursuant to this
Section 5.01(a)(iv) shall be accompanied by a statement of a Responsible Officer of the
Borrower setting forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this
Section 5.01(a)(iv) shall describe with particularity any and all provisions of this
Agreement or other Credit Document that have been breached;



(v) As soon as available, and in any event not later than thirty (30) days after the
commencement of each fiscal year of the Borrower, the budget and projected financial statements of
the Loan Parties (on a consolidated basis) for such fiscal year (detailed on a quarterly basis)
prepared on a basis consistent with historical financial statements, including, in each case,
projected balance sheets, statements of income and statements of cash flow of the Loan Parties (on
a consolidated basis), all in reasonable detail and with assumptions and in any event to include
quarterly projections of the Borrower’s compliance with each of the covenants set forth in
Section 5.03 of this Agreement;



(vi) As soon as possible and in no event later than five (5) Business Days prior to the
occurrence of any event or circumstance that would require a prepayment pursuant to Section
2.06(c), the statement of the president, chief executive officer, chief operating officer or
chief financial officer of the Borrower setting forth the details thereof;



(vii) As soon as possible and in no event later than ten (10) days after such establishment,
acquisition or issuance, written notice of the establishment or acquisition by a Loan Party of any
new Subsidiary or the issuance of any new Equity Securities of any existing Loan Party (other than
the Borrower);



(viii) As soon as possible and in no event later than five (5) Business Days after the receipt
thereof by a Loan Party, a copy of any notice, summons, citations or other written communications
concerning any actual, alleged, suspected or threatened material violation of any Environmental
Law, or any liability of a Loan Party for Environmental Damages;



(ix) As soon as possible and in no event later than ten (10) days after the acquisition by any
Loan Party of any leasehold or ownership interest in real property, a written supplement to
Schedule 4.01(h);



(x) As soon as possible after the sending or filing thereof, copies of any proxy statements,
financial statements or reports that the Borrower has made generally available to its shareholders;
copies of any regular, periodic and special reports or registration statements or prospectuses that
Borrower files with the Securities and Exchange Commission or any other Governmental Authority, or
any securities exchange; and copies of any press releases or other statements made available by the
Borrower to the public concerning material changes to or developments in the business of such
Borrower; and



(xi) Contemporaneously with the Financial Statements for each quarter and each year end
required by the foregoing clauses (i) and (ii), the notices of security interest described in
Section 4(a) of the Intellectual Property Security Agreement with respect to the period covered by
such financial statements and the notices described in Section 4(h) and Section 4(k) of the
Intellectual Property Security Agreement with respect to the period covered by such financial
statements;



(xii) Such other instruments, agreements, certificates, opinions, statements, documents and
information relating to the properties, operations or condition (financial or otherwise) of the
Loan Parties, and compliance by the Borrower with the terms of this Agreement and the other Credit
Documents as the Administrative Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 5.01(a) may be delivered
electronically and, if so delivered, shall be deemed to have been delivered on the date on which
such documents are posted on the Borrower’s behalf on IntraLinks or another relevant website, if
any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided that: (i)
upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such
documents to the Administrative Agent for further distribution to each Lender until a written
request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower
shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting
of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely
accessing posted documents or requesting delivery of paper copies of such documents from the
Administrative Agent and maintaining its copies of such documents and the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower with any
such request for delivery.



The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the
Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower
hereunder (the “Borrower Materials”) by posting the Borrower Materials on one or more
Platforms and (b) certain of the Lenders may be “public-side” Lenders (i.e. Lenders that do not
wish to receive non-public information with respect to the Loan Parties or their securities) (each,
a “Public Lender”). The Borrower hereby agrees that if at any time the Borrower is the
issuer of any outstanding debt or equity securities that are registered or issued pursuant to a
private offering or is actively contemplating issuing any such securities it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may be distributed to
the Public Lenders and that (w) all Borrower Material that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof, (x) by marking Borrower Materials
“PUBLIC” the Borrower shall be deemed to have authorized the Administrative Agent, the L/C Issuer
and the Lenders to treat such Borrower Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the Loan Parties or
their securities for purposes of United States Federal and state security laws (provided,
however, that to the extent such Borrower Materials constitute Confidential Information,
they shall be treated as set forth in Section 8.10); (y) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform designated “Public
Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that
are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor”.



(b) Books and Records. The Loan Parties shall at all times keep proper books of
record and account in which full, true and correct entries will be made of their transactions in
accordance with GAAP.



(c) Inspections. The Loan Parties shall permit the Administrative Agent and each
Lender, or any agent or representative thereof, upon reasonable notice and during normal business
hours so long as no Event of Default shall have occurred and be continuing and otherwise at any
time as the Administrative Agent and any Lender may determine with or without prior notice to the
Borrower, to visit and inspect any of the properties and offices of the Loan Parties, to conduct
audits of any or all of the Collateral, to examine the books and records of the Loan Parties and
make copies thereof, and to discuss the affairs, finances and business of the Loan Parties with,
and to be advised as to the same by, their officers, auditors and accountants, all at such times
and intervals as the Administrative Agent or any Lender may request, all at the Borrower’s expense;
provided that, excluding any such visits and inspections during the continuation of an
Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the
Administrative Agent and the Lenders under this Section 5.01(c) and only one exercise of
such rights in any calendar year by the Administrative Agent shall be at the Borrower’s expense;
provided, further that when an Event of Default exists, the Administrative Agent or
any Lender (or any of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower. So long as no Event of Default has occurred and is
continuing, the Administrative Agent and the Lenders shall use commercially reasonably efforts to
give the Borrower the opportunity to participate in any discussions with the Borrower’s independent
public accountants. Notwithstanding anything to the contrary in this Section 5.01(c), none
of the Loan Parties will be required to disclose, permit the inspection, examination or making
copies or abstracts of, or discussion of, any document, information or other matter that (i)
constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect
of which disclosure to the Administrative Agent or any Lender (or their respective representatives
or contractors) is prohibited by applicable law or any binding non-disclosure provisions entered
into in the ordinary course of business or (iii) is subject to attorney-client or similar privilege
or constitutes attorney work product.



(d) Insurance. The Loan Parties shall:



(i) Carry and maintain (A) insurance during the term of this Agreement of the types and in the
amounts customarily carried from time to time by others engaged in substantially the same business
as such Person and operating in the same geographic area as such Person, including, but not limited
to, fire, public liability, property damage and worker’s compensation and (B) if requested by the
Administrative Agent, flood insurance with respect to real property Collateral in amounts and
subject to deductibles and other terms as customarily carried from time to time by others engaged
in substantially the same business as such Person and operating in the same geographic area as such
Person, but in any event with such provisions and amounts required to comply with applicable
Governmental Rules regarding real property Collateral.



(ii) Furnish to any Lender, upon written request, full information as to the insurance
carried;



(iii) Carry and maintain each policy for such insurance with (A) a company which is rated A or
better by A.M. Best and Company at the time such policy is placed and at the time of each annual
renewal thereof or (B) any other insurer which is satisfactory to the Administrative Agent; and



(iv) Obtain and maintain endorsements acceptable to the Administrative Agent for such
insurance (including form 438BFU or equivalent) naming the Administrative Agent and the Lenders as
an additional insured and naming the Administrative Agent as mortgagee and as lender’s loss payee
and including lender’s loss payable endorsements;



provided, however, that if any Loan Party shall fail to maintain insurance in
accordance with this Section 5.01(d), or if any Loan Party shall fail to provide the
required endorsements with respect thereto, the Administrative Agent shall have the right (but
shall be under no obligation) to procure such insurance and the Borrower agrees to reimburse the
Administrative Agent for all costs and expenses of procuring such insurance.



(e) Governmental Charges. Each Loan Party shall promptly pay and discharge when due
 all taxes and other Governmental Charges prior to the date upon which penalties accrue thereon,
which in each case, if unpaid, could be reasonably likely to have a Material Adverse Effect, except
such taxes and other Governmental Charges as may in good faith be contested or disputed, or for
which arrangements for deferred payment have been made; provided that in each such case
appropriate reserves are maintained in accordance with GAAP and no material property of any Loan
Party is at impending risk of being seized, levied upon or forfeited.



(f) Use of Proceeds. The Borrower shall use the proceeds of the Revolving Loans (i)
to pay fees and expenses incurred in connection with this Agreement; (ii) to finance Permitted
Acquisitions and Permitted Stock Repurchases and (iii) (together with Letters of Credit issued
hereunder) to provide for the working capital and general corporate purpose needs of the Loan
Parties. No part of the proceeds of any Loan or any Letter of Credit shall be used, whether
directly or indirectly, (A) to purchase, acquire or carry any Margin Stock (other than for a
Permitted Stock Repurchase or Permitted Acquisition, in each case, consummated in compliance with
this Agreement and applicable Governmental Rules) or (B) for any purpose that entails a violation
of any of the regulations of the Federal Reserve Board, including Regulations T, U, and X.



(g) General Business Operations. Each of the Loan Parties shall (i) except as
otherwise permitted under Section 5.02(d)(i), preserve, renew and maintain in full force
its corporate, partnership or limited liability company existence and good standing under the
Governmental Rules of the jurisdiction of its organization and all of its rights, licenses, leases,
qualifications, privileges, franchises and other authority reasonably necessary to the conduct of
its business, provided that the Loan Parties shall be permitted to dissolve Immaterial
Subsidiaries from time to time in the Loan Parties’ reasonable business judgment, (ii) conduct its
business activities in compliance with all Requirements of Law in all material respects and, except
as could not reasonably be expected to have a Material Adverse Effect, all Contractual Obligations
applicable to such Person, (iii) keep all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted and from time to time make, or cause
to be made, all necessary and proper repairs, except, in each case, where any failure, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (iv) maintain, preserve and protect all of its rights to enjoy and use material trademarks,
trade names, service marks, patents, copyrights, licenses, leases, franchise agreements and
franchise registrations necessary to its business and (v) conduct its business in an orderly manner
without voluntary material interruption. No Loan Party shall reincorporate or reorganize itself
under the laws of any jurisdiction other than the jurisdiction in which it is incorporated or
organized as of the Closing Date (or the date it became a Loan Party) unless (A) the Administrative
Agent shall hold a perfected, first priority security interest in and Lien on all of the assets of
such reincorporated or reorganized entity (subject to Permitted Liens) and (B) the Administrative
Agent shall have received thirty (30) days prior written notice.



(h) Compliance with Laws . Each Loan Party shall comply with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority (including, without
limitation, all Environmental Laws), noncompliance with which could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and the inventory of each Loan Party
shall comply with the Fair Labor Standards Act.



(i) New Subsidiaries. The Borrower shall, at its own expense promptly, and in any
event (i) within ten (10) Business Days after the formation or acquisition of any Domestic
Subsidiary (other than an Immaterial Subsidiary) or after any Domestic Subsidiary that is an
Immaterial Subsidiary ceases to be an Immaterial Subsidiary and (ii) within thirty (30) days (as
such time period may be extended by the Administrative Agent) after the formation or acquisition of
any Foreign Subsidiary (other than an Immaterial Subsidiary) or after any Foreign Subsidiary that
is an Immaterial Subsidiary ceases to be an Immaterial Subsidiary: (A) notify the Administrative
Agent of such event in writing (to the extent notice has not already been provided in accordance
with Section 5.01(a)(vii)), (B) cause each Domestic Subsidiary (other than an Immaterial
Subsidiary but including each Domestic Subsidiary that ceases to be an Immaterial Subsidiary) and
each other Loan Party (other than a Foreign Subsidiary or an Immaterial Subsidiary), as applicable,
to become a party to the Guaranty, the Security Agreement, the Intellectual Property Security
Agreement and each other applicable Security Document in accordance with the terms thereof, execute
additional Security Documents (including a Foreign Pledge Agreement, as applicable) if reasonably
requested by the Administrative Agent and amend the Security Documents as appropriate in light of
such event to pledge to the Administrative Agent for the benefit of itself and the Lenders (1) 100%
of the Equity Securities of each such Person which becomes a Domestic Subsidiary and (2) 100% of
the non-voting Equity Securities (within the meaning of Treasury Regulation Section 1.956-2(c)(2)
promulgated under the IRC) and 65% of the voting Equity Securities (within the meaning of Treasury
Regulation Section 1.956-2(c)(2) promulgated under the IRC) of each such Person which becomes a
Foreign Subsidiary (other than an Immaterial Subsidiary) that is owned directly by the Borrower or
a Domestic Subsidiary (provided that, if, as a result of any change in the tax laws of the
United States of America after the date of this Agreement, the pledge by any Loan Party of any
additional Equity Securities in any such Foreign Subsidiary to the Administrative Agent, on behalf
of itself and the Lenders, under the Security Documents could not reasonably be expected to result
in an increase in the aggregate net consolidated tax liabilities of the Loan Parties, then,
promptly after the change in such laws, all such additional Equity Securities shall be so pledged
under the Security Documents) and execute and deliver all documents or instruments required
thereunder or appropriate to perfect the security interest created thereby, (C) except in the case
of an Immaterial Subsidiary, deliver (or cause the appropriate Person to deliver) to the
Administrative Agent all certificates and other instruments constituting Collateral thereunder free
and clear of all adverse claims, accompanied by undated stock powers or other instruments of
transfer executed in blank (and take such other steps as may be requested by the Administrative
Agent to perfect the Administrative Agent’s first priority Lien in such Collateral consisting of
Equity Securities in compliance with any applicable laws of jurisdictions outside of the United
States of America), (D) cause each document (including each Uniform Commercial Code financing
statement and each filing with respect to intellectual property owned by each new Domestic
Subsidiary (other than an Immaterial Subsidiary)) required by law or requested by the
Administrative Agent to be filed, registered or recorded in order to create in favor of the
Administrative Agent for the benefit of the Lenders a valid, legal and perfected first-priority
security interest in and lien on the Collateral (subject to Permitted Liens) subject to the
Security Documents to be so filed, registered or recorded and evidence thereof delivered to the
Administrative Agent, (E) if requested by the Administrative Agent, deliver an opinion of counsel
in form and substance satisfactory to the Administrative Agent with respect to each new Domestic
Subsidiary (other than an Immaterial Subsidiary), and/or the pledge of the Equity Securities of
each Domestic Subsidiary and Foreign Subsidiary and the matters set forth in this Section and (F)
deliver to the Administrative Agent the same organization documents, resolutions, certificates,
lien searches and other matters set forth in Schedule 3.01(b) and (e) with respect to such
New Subsidiary as required to be delivered with respect to the Borrower on the date hereof, in form
and substance satisfactory to Administrative Agent.



(j) Appraisals. During the existence of an Event of Default or upon the written
request of any Lender acting pursuant to any Requirement of Law, the Borrower agrees that the
Administrative Agent may, at the expense of the Borrower, commission an appraisal of any real
property (i) to which any Loan Party holds legal title and (ii) which is encumbered by any Security
Document.



(k) Additional Collateral. If at any time from and after the Closing Date any Loan
Party acquires any fee interest in real property with a value in excess of $5,000,000, such Loan
Party shall deliver to the Administrative Agent upon the request of the Required Lenders (for
the avoidance of doubt, the real property Collateral required under this Agreement shall not
include the real property assets located at 25 East Easy Street, Simi Valley, California 93065), at
its own expense, promptly all documentation and information in form and substance reasonably
satisfactory to the Administrative Agent (including surveys, environmental reports and
environmental indemnities) to assist the Administrative Agent in obtaining deeds of trust or
mortgages on such additional real property and ALTA policies of title insurance, with such
endorsements as the Administrative Agent may reasonably require, issued by a company and in form
and substance satisfactory to the Administrative Agent, in an amount equal to the principal amount
of the Total Revolving Loan Commitment at such time), insuring the Administrative Agent’s Lien on
such additional real property Collateral to be of first priority, subject only to such exceptions
as the Administrative Agent shall approve in its discretion, with all costs thereof to be paid by
such Loan Party.



(l) Post-Closing Matters — Foreign Pledge Agreements. No later than 60 days after the
Closing Date (as such time period may be extended by the Administrative Agent), the Borrower shall
(i) provide the Administrative Agent with a fully executed and delivered Foreign Pledge Agreements
regarding a pledge of 100% of the non-voting Equity Securities (within the meaning of Treasury
Regulation Section 1.956-2(c)(2) promulgated under the IRC) and 65% of the voting Equity Securities
(within the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated under the IRC) of each
of ValueClick Europe Limited, a company organized under the laws of the United Kingdom, ValueClick
SARL, a company organized under the laws of France, ValueClick Deutschland GmbH, a company
organized under the laws of Germany, ValueClick AB, a company organized under the laws of Sweden,
and ValueClick International Limited, a company organized under the laws of Ireland, (ii) deliver
(or cause the appropriate Person to deliver) to the Administrative Agent all stock certificates and
other instruments constituting Collateral thereunder free and clear of all adverse claims,
accompanied by undated stock powers or other instruments of transfer executed in blank (and take
such other steps as may be requested by the Administrative Agent to perfect the Administrative
Agent’s Lien in such Collateral consisting of Equity Securities in compliance with any applicable
laws of jurisdictions outside of the United States of America, (iii) cause each document required
by law or requested by the Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent for the benefit of the Lenders a valid, legal and
perfected first-priority security interest in and lien on the Collateral subject to the Security
Documents to be so filed, registered or recorded and evidence thereof delivered to the
Administrative Agent, (iv) if applicable, deliver evidence satisfactory to the Administrative Agent
that the constitutional documents of ValueClick Europe Limited, a company organized under the laws
of the United Kingdom, ValueClick SARL, a company organized under the laws of France, ValueClick
Deutschland GmbH, a company organized under the laws of Germany, ValueClick AB, a company organized
under the laws of Sweden, and ValueClick International Limited, a company organized under the laws
of Ireland, have been amended to remove the discretion of the directors to refuse to register a
transfer of shares and other changes reasonably requested by the Administrative Agent and
(v) deliver certificates, resolutions, and opinions of counsel with respect to such pledges and the
matters set forth in this Section 5.01(l) and such other documentation reasonably requested
by the Administrative Agent, in each case, in form and substance reasonably satisfactory to the
Administrative Agent.



(m) Post-Closing Matters — Control Agreements. No later than 60 days after the
Closing Date (as such time period may be extended by the Administrative Agent), the Borrower shall
deliver to the Administrative Agent fully executed control agreements in form and substance
reasonably acceptable to the Administrative Agent with respect to each account (other than Excluded
Accounts and De Minimis Accounts and accounts for which a Control Agreement was delivered as of the
Closing Date) of the Borrower and the Guarantors existing as of the Closing Date with any bank,
savings association, financial institution, securities intermediary or similar financial
intermediary maintaining any such account.



5.02. Negative Covenants. So long as any Loan or L/C Obligation remains unpaid, or
any other Obligation remains unpaid or unperformed, or any portion of any Commitment remains in
force, the Borrower will comply, and will cause compliance by the other Loan Parties, with the
following negative covenants, unless the Required Lenders shall otherwise consent in writing:



(a) Indebtedness. None of the Loan Parties shall create, incur, assume or permit to
exist any Indebtedness or engage in any off-balance sheet finance transaction or other similar
transaction except for the following (“Permitted Indebtedness”):



(i) Indebtedness of the Loan Parties under the Credit Documents;



(ii) Indebtedness of the Loan Parties listed in Schedule 5.02(a) and existing on the
date of this Agreement and any Indebtedness of the Loan Parties under initial or successive
refinancings of any Indebtedness permitted by this clause (ii); provided that (A) the
principal amount of any such refinancing does not exceed the principal amount of the Indebtedness
being refinanced except by an amount equal to unpaid accrued interest and premium thereon
plus other reasonable amounts paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing commitments unutilized
thereunder and (B) the material terms and provisions of any such refinancing (including maturity,
redemption, prepayment, default and, if applicable, subordination provisions) are no less favorable
to the applicable Loan Party and the Lenders than the Indebtedness being refinanced;



(iii) (A) Indebtedness of the Loan Parties under Rate Contracts entered into with respect to
the Loans; provided that (x) all such Rate Contracts are entered into in connection with
bona fide hedging operations and not for speculation and (y) the aggregate notional principal
amount under all such Rate Contracts described in this clause (A) does not at any time exceed the
expected average Effective Amount of the Loans as determined by the Borrower in its reasonable
business judgment and (B) Indebtedness of the Loan Parties under Rate Contracts entered into with
respect to currencies; provided that (x) all such Rate Contracts are entered into in
connection with bona fide hedging operations and not for speculation and (y) the aggregate notional
principal amount under all such Rate Contracts described in this clause (B) does not exceed the
Total Revolving Loan Commitment at any time;



(iv) Indebtedness of the Loan Parties with respect to surety, appeal, indemnity, performance
or other similar bonds in the ordinary course of business (including surety or similar bonds issued
in connection with the stay of a proceeding of the type described in Section 6.01(h));



(v) Guaranty Obligations of any Loan Party in respect of Permitted Indebtedness of any other
Loan Party;



(vi) Indebtedness owing to any other Loan Parties; provided that the Investment
constituting such Indebtedness is permitted by Section 5.02(e)(iii);



(vii) purchase money Indebtedness and Capital Lease obligations in an aggregate principal
amount not to exceed $10,000,000 at any one time outstanding;



(viii) unsecured Indebtedness incurred after the Closing Date; provided that (A) such
Indebtedness is subordinated in right of payment to the Obligations in a manner reasonably
satisfactory to the Administrative Agent and the Required Lenders and the terms of such
Indebtedness and the documentation for such Indebtedness are reasonably acceptable to the
Administrative Agent and the Required Lenders (but in any event, the maturity of such Indebtedness
shall be no earlier than a date that is six (6) months after the Maturity Date and such
Indebtedness shall have no principal payments prior to a date that is six (6) months after the
Maturity Date) and such acceptance shall have been evidenced in writing and (B) after giving effect
to the incurrence of such Indebtedness, the Total Leverage Ratio shall not exceed, and shall not be
projected to exceed during the term of this Agreement, 2.00:1.00 and the Administrative Agent shall
have received a certificate and projections from the Borrower demonstrating satisfaction of such
condition;



(ix) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the
Borrower following the Closing Date, which Indebtedness is in existence at the time such Person
becomes a Subsidiary and is not created in connection with or in contemplation of such Person
becoming a Subsidiary; provided that (A) the aggregate principal amount of all such
Indebtedness in the aggregate shall not exceed $5,000,000 at any time outstanding and (B) the
Borrower shall be in compliance with the financial covenants set forth in this Agreement on a pro
forma basis after giving effect to such Person becoming a Subsidiary of the Borrower;



(x) Indebtedness of the Borrower owing to Citigroup Global Markets Inc. under that certain
Express Creditline Revolving Loan Agreement, dated on or about September 10, 2008, between the
Borrower and Citigroup Global Markets Inc. as in effect on the Closing Date in an aggregate
principal amount outstanding at any time not to exceed $22,000,000 and secured solely by liens
permitted under Section 5.02(b)(xvi);



(xi) Indebtedness of Foreign Subsidiaries in an aggregate principal amount outstanding at any
time not to exceed $10,000,000 (or the dollar equivalent thereof at the time of incurrence);
provided that the Borrower shall be in compliance with the financial covenants set forth in
this Agreement on a pro forma basis after giving effect to the Indebtedness under this clause (xi);
and



(xii) Indebtedness of the Borrower in an aggregate principal amount outstanding at any time
not to exceed $500,000 in respect of Irrevocable Letter of Credit No. NZS596264 issued by Wells
Fargo Bank, National Association (in its individual capacity and not as L/C Issuer hereunder) and
extensions and renewals of such letter of credit; and



(xiii) other Indebtedness in an aggregate principal amount at any time outstanding not to
exceed $5,000,000; provided that the Borrower shall be in compliance with the financial
covenants set forth in this Agreement on a pro forma basis after giving effect to the Indebtedness
under this clause (xiii).



(b) Liens. No Loan Party shall create, incur, assume or permit to exist any Lien or
Negative Pledge on or with respect to any of its assets or property of any character, whether now
owned or hereafter acquired, except for the following (“Permitted Liens”):



(i) Liens in favor of the Administrative Agent or any Lender securing the Obligations and
Negative Pledges under the Credit Documents;



(ii) Liens listed in Schedule 5.02(b) and existing on the date of this Agreement and
any replacement Liens (covering the same or a lesser scope of property) in respect of replacement
Indebtedness permitted under Section 5.02(a)(ii);



(iii) Liens for taxes or other Governmental Charges not at the time delinquent or thereafter
payable without penalty or being contested in good faith by appropriate proceedings and have not
proceeded to judgment; provided that adequate reserves for the payment thereof have been
established in accordance with GAAP and no property of any Loan Party is subject to impending risk
of loss or forfeiture by reason of nonpayment of the obligations secured by such Liens;



(iv) statutory Liens, possessory liens of carriers, warehousemen, materialmen, mechanic’s
liens and landlord liens, arising in the ordinary course of business with respect to obligations
which are not delinquent or are being contested in good faith by appropriate proceedings,
provided that, if delinquent, adequate reserves have been set aside with respect thereto in
accordance with GAAP and, by reason of nonpayment, no property of any Loan Party is subject to a
material impending risk of loss or forfeiture;



(v) Deposits under workers’ compensation, unemployment insurance and social security laws or
to secure the performance of bids, tenders, contracts (other than for the repayment of borrowed
money) or leases, or to secure statutory obligations of surety, appeal or customs bonds or to
secure indemnity, performance or other similar bonds in the ordinary course of business;



(vi) Purchase money Liens and associated Negative Pledges incurred with respect to property
acquired using the proceeds of Indebtedness and Capital Leases permitted under Sections
5.02(a)(vii) and 5.02(a)(xi);



(vii) Liens incurred in connection with the extension, renewal or refinancing of the
Indebtedness secured by the Liens described in clause (ii) or (vi) above; provided that any
extension, renewal or replacement Lien (A) is limited to the property covered by the existing Lien
and (B) secures Indebtedness which is no greater in amount and has material terms no less favorable
to the Lenders than the Indebtedness secured by the existing Lien;



(viii) leases or subleases and licenses or sublicenses granted to others (in the ordinary
course of business ) not interfering in any material respect with the ordinary conduct of the
business or operations of any Loan Party;



(ix) easements, rights-of-way, restrictions, minor defects, encroachments or irregularities in
title and other similar charges or encumbrances not interfering in any material respect with the
ordinary conduct of the business of any Loan Party;



(x) deposits in the ordinary course of business to secure liabilities to insurance carriers,
lessor, utilities and other service providers;



(xi) bankers liens and rights of setoff with respect to customary depository arrangements
entered into in the ordinary course of business;



(xii) Liens arising by reason of security for surety or appeal bonds in the ordinary course of
business of any Loan Party;



(xiii) Liens consisting of pledges or deposits to secure obligations under workers’
compensation laws or similar legislation, including Liens of judgments thereunder which are not
currently dischargeable;



(xiv) Liens consisting of pledges or deposits of property to secure performance in connection
with operating leases made in the ordinary course of business, provided the aggregate value of all
such pledges and deposits (excluding the property subject to such lease) in connection with any
such lease does not at any time exceed 10% of the annual fixed rentals payable under such lease;



(xv) Liens consisting of deposits of property to secure bids made with respect to, or
performance of, contracts (other than contracts creating or evidencing an extension of credit to
the depositor);



(xvi) Liens and Negative Pledges on auction rate securities (and related securities accounts
to the extent used solely to hold such auction rate securities) owned by the Borrower as of the
Closing Date and pledged to Citigroup Global Markets Inc. as of the Closing Date under that certain
Express Creditline Revolving Loan Agreement, dated on or about September 10, 2008, between the
Borrower and Citigroup Global Markets Inc. as in effect on the Closing Date securing Indebtedness
permitted under Section 5.02(a)(x); provided that it is understood and agreed that
the Borrower shall not open any additional accounts with Citigroup Global Markets Inc. (or any
successor or assigns) so long as the Express Creditline Revolving Loan Agreement, dated on or about
September 10, 2008, or any similar documentation between the Borrower and Citigroup Global Markets
Inc. remains in effect;



(xvii) Liens on the assets of a Person that becomes a Subsidiary of the Borrower following the
Closing Date as described in Section 5.02(a)(ix) that exist at the time becomes a
Subsidiary of the Borrower and that secure Indebtedness permitted under Section 5.02(a)(ix)
(and related Negative Pledges);



(xviii) Negative Pledges arising under contracts for the sale of assets, including customary
restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of the Equity Interests or
assets of such Subsidiary;



(xix) Liens on cash collateral of the Borrower in an aggregate principal amount outstanding at
any time not to exceed $512,000 (plus interest accruing thereon) pledged to Wells Fargo Bank,
National Association (in its individual capacity and not as L/C Issuer hereunder) to secure the
Indebtedness described in Section 5.02(a)(xii); and



(xx) other Liens securing obligations (excluding Indebtedness) in an aggregate principal
amount at any time outstanding not to exceed $2,000,000;



provided, however, that the foregoing exceptions shall not permit any Lien in any
Equity Securities issued by any Loan Party except for Liens in favor of the Administrative Agent
securing the Obligations (or any guaranty thereof).



(c) Asset Dispositions. No Loan Party shall, directly or indirectly, sell, lease,
convey, transfer or otherwise dispose (including, without limitation, via any sale and leaseback
transaction) of any of its assets or property, whether now owned or hereafter acquired, except for
the following:



(i) Sales by the Loan Parties of inventory in the ordinary course of their businesses;



(ii) Sales by the Loan Parties of damaged, worn or obsolete equipment in the ordinary course
of their businesses;



(iii) Sales or other dispositions by any Loan Party of Investments permitted by clause (i) of
Section 5.02(e) for not less than fair market value; provided that the proceeds of
such sale or other disposition are retained as working capital with such Loan Party or used for
other general corporate purposes not prohibited hereunder;



(iv) (A) Sales or other dispositions of assets and property by and among the Borrower and any
Domestic Subsidiaries, (B) sales or other dispositions of assets and property by and among any
Foreign Subsidiaries and (C) sales or other dispositions of assets and property by and among the
Borrower, any Domestic Subsidiaries and any Foreign Subsidiaries provided that the assets (valued
at the greater of book value or fair market value) that are sold or disposed of by the Borrower or
a Domestic Subsidiary to a Foreign Subsidiary shall count towards the limitation set forth in the
proviso to Section 5.02(e)(iii) and shall only be permitted to the extent in compliance
with such proviso to Section 5.02(e)(iii);



(v) Licenses and sublicenses of intellectual property owned by or licensed to any Loan Party
to any third party in the ordinary course of business;



(vi) Sales or other dispositions of assets and property by the Loan Parties to other Persons
(other than other Loan Parties) not otherwise permitted under this Section 5.02(c);
provided that (i) at the time of such sale or other disposition (other than any such sale
or other disposition made pursuant to a legally binding commitment entered into at a time when no
Default exists), no Default shall exist or would result from such sale or other disposition, and
(ii) all sales and other dispositions under this Section 5.02(c)(vi) shall not exceed
$10,000,000 in the aggregate during the term of this Agreement; and



(vii) Sales and other dispositions of Investments in Joint Ventures to the extent required by,
or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in
joint venture arrangements and similar binding arrangements.



(d) Mergers, Acquisitions, Etc. No Loan Party shall reorganize, recapitalize or
consolidate with or merge into any other Person or permit any other Person to merge into it,
acquire any Person as a new Subsidiary or acquire all or substantially all of the assets of any
other Person, except for the following:



(i) (A) the Borrower and the other Loan Parties may merge with each other; provided
that (1) no Default shall have occurred and be continuing or would result after giving effect to
any such merger, (2) in any such merger involving the Borrower and another Loan Party, the Borrower
is the surviving Person, and (3) in any such merger involving a Guarantor and another Loan Party
(other than the Borrower), such Guarantor is the surviving Person; and (B) a merger or
consolidation of a Person with or into the Borrower, with or into a Guarantor, or with or into a
Pledged Foreign Subsidiary which constitutes an acquisition permitted by
Section 5.02(d)(ii); provided that no Default shall have occurred and be continuing
or would result after giving effect to any such merger;



(ii) Acquisitions by the Borrower, a Guarantor, or a Pledged Foreign Subsidiary of any Person
or the assets of a Person as a new Subsidiary or of all or substantially all of the assets of any
other Person or identifiable business unit or division of any other Person (in each case, the
“Proposed Target”); provided that:



(A) No Default has occurred and is continuing on the date of, or will result after giving
effect to, any such acquisition (actually and on a pro forma basis);



(B) The Proposed Target is in the same line of business as the Borrower or a line of business
substantially related thereto;



(C) The acquisition of the Proposed Target shall be completed as a result of an arm’s length
negotiation (i.e. on a non-hostile basis);



(D) The acquisition of the Proposed Target shall be consummated, in all material respects, in
accordance with all applicable Governmental Rules;



(E) The Proposed Target’s earnings before interest, taxes, depreciation and amortization
(calculated in the same manner as EBITDA) for the last twelve months ending as of closing of such
acquisition (as to such Proposed Target, the “Acquisition EBITDA”) is not less than
negative $5,000,000 and such Proposed Target’s Acquisition EBITDA when added to the Acquisition
EBITDA of each previously acquired Proposed Target with negative Acquisition EBITDA is not less
than negative $10,000,000;



(F) The Borrower has delivered to the Administrative Agent at least 15 calendar days prior to
the closing date of such proposed acquisition: (1) written notice of such proposed acquisition,
(2) financial statements of the subject of such acquisition (or, in the case of assets constituting
less than all of the assets of a Person, the equivalent of financial statements with respect to
such assets) to the extent available, but in no event for less than the immediately preceding
twelve months, and (3) for each acquisition when the total consideration exceeds $10,000,000, pro
forma financial statements reflecting the combined projected performance of the Loan Parties during
the 12 months immediately following consummation of such transaction, certified to the
Administrative Agent and the Lenders as being the good faith projections of the Borrower, in form
and detail reasonably acceptable to the Administrative Agent, which projections shall show that
such acquisition will not result in any Default hereunder;



(G) The Borrower shall be in compliance with the financial covenants set forth in this
Agreement on a pro forma basis after giving effect to the acquisition of the Proposed Target as of
the last day of the fiscal quarter most recently ended;



(H) The Administrative Agent shall prior to the proposed acquisition date have received a
Compliance Certificate evidencing pro forma compliance as described in clause (G) above;



(I) The aggregate consideration after the date hereof for all acquisitions of Proposed Targets
organized or domiciled under the law of any jurisdiction outside the United States shall not
exceed $100,000,000 (or the dollar equivalent thereof determined, as to any acquisition, at the
time of such acquisition);



(J) The Administrative Agent shall hold a perfected, first priority security interest in and
lien on all of the assets acquired by the Borrower or a Guarantor in such transaction (including
but not limited to the assets of the Proposed Target (unless it is, or is acquired by, a Foreign
Subsidiary), subject only to Permitted Liens and, if the Proposed Target survives such transaction
as a separate Subsidiary, any Equity Securities in the Proposed Target to the extent required by
and, in connection with any Foreign Subsidiary, within the time frame set forth in Section
5.01(i)) (it being understood that if those Equity Securities are Margin Stock, then the Loan
Parties shall retire or otherwise cause such Equity Securities to no longer retain their status as
Margin Stock immediately following such acquisition);



(K) If such Proposed Target remains a separate Subsidiary, all action required of the Loan
Parties under Section 5.01(i) shall be completed substantially concurrently with the
consummation of such acquisition; and



(L) The aggregate amount of consideration paid or payable in cash or other property in
connection with such acquisition (including seller notes, “earn-out” and other contingent
consideration (if contingent, determined as if such “earn-out” or other contingent consideration
will be earned, due and payable) calculated at the greater of (i) the maximum stated or
determinable amount thereof, or if not stated or if indeterminable, the maximum amount thereof
estimated in good faith by the Borrower and (ii) the amounts paid in respect thereof), when taken
together with the aggregate amount of consideration paid or payable in cash or other property in
connection with each other Permitted Acquisition consummated on or after the Closing Date and with
each Permitted Stock Repurchase consummated on or after the Closing Date shall not exceed the
Permitted Acquisition and Stock Repurchase Maximum Amount as of the date of such acquisition.



(e) Investments. None of the Loan Parties shall make any Investment except for
Investments in the following:



(i) Investments by the Loan Parties in deposit accounts, securities accounts consistent with
the investment policy attached hereto as Exhibit N, cash and Cash Equivalents (but
excluding any auction rate securities other than auction rate securities owned by the Borrower as
of the Closing Date); provided that, for Investments of the Borrower and each Guarantor
(other than Excluded Accounts and De Minimis Accounts), such Investments are subject to a Control
Agreement; provided further that, with respect to the existing accounts described
in Section 5.01(m), a Control Agreement shall not be required prior to the due date set
forth in Section 5.01(m) and, with respect to the accounts described in
Section 5.02(o), a Control Agreement shall not be required prior to the due date set forth
in Section 5.02(o);



(ii) Investments listed in Schedule 5.02(e) existing on the date of this Agreement;



(iii) Investments by the Loan Parties in each other (including such Investments set forth on
Schedule 5.02(e)); provided that any Investments constituting Indebtedness shall be
evidenced by one or more Pledged Intercompany Notes subject to a first perfected security interest
in favor of the Administrative Agent and in the Administrative Agent’s possession; provided
further that Investments made on or after the Closing Date (including any loans or
advances) by the Loan Parties made directly or indirectly in any Foreign Subsidiaries and
Immaterial Subsidiaries in reliance on this clause (iii) (together with any sales or other
dispositions by the Borrower or a Domestic Subsidiary to a Foreign Subsidiary made in reliance on
Section 5.02(c)(iv)) may not exceed $5,000,000 in the aggregate at any one time as to any
individual Foreign Subsidiary or $10,000,000 in the aggregate at any one time as to all Foreign
Subsidiaries and Immaterial Subsidiaries;



(iv) Investments consisting of loans to employees, officers and directors in the ordinary
course of business in an aggregate amount not exceeding $2,000,000 at any one time outstanding;



(v) Investments permitted by Section 5.02(d);



(vi) In addition to Investments otherwise expressly permitted by this Section 5.02(e)
(provided no Event of Default then exists or results therefrom), Investments by the Loan Parties in
Joint Ventures in an aggregate amount (valued at cost) not to exceed $15,000,000 in the aggregate
as to all such Joint Ventures since the date of this Agreement;



(vii) Other Investments in an aggregate amount outstanding at any time not to exceed
$5,000,000; and



(viii) Investments received in connection with the settlement of a bona fide dispute with
another Person after making reasonable efforts to collect cash in respect thereof.



(f) Distributions, Redemptions, Etc. No Loan Party shall reorganize, recapitalize or
make any Distributions or set apart any sum for any such purpose except as follows:



(i) Any Subsidiary of the Borrower may pay dividends on its Equity Securities to the Borrower
or any intervening Subsidiary;



(ii) The Borrower may make Distributions to repurchase Equity Securities of the Borrower so
long as all the following conditions are met as of the date of such repurchase: (A) in connection
with any Credit Event related to such repurchase (1) the conditions precedent in Section
3.02 are satisfied (including Section 3.02(a)),  and (2) the representations and
warranties in Section 4.01(y) are true and correct in all material respects, (B) no Default
would result from any such repurchase, (C) the Borrower shall be in compliance with Section 5.03 on
a pro forma basis after giving effect to such repurchase, (D) such repurchase does not and will not
result in a violation of any of the regulations of the Federal Reserve Board, including Regulations
T, U and X, (E) the aggregate amount of consideration paid or payable in cash or other property in
respect of such repurchase when added to the aggregate amount of consideration paid or payable in
cash or other property for all such repurchases and Permitted Acquisitions consummated on or after
the Closing Date does not exceed the Permitted Acquisition and Stock Repurchase Maximum Amount as
of such date, and (F) in connection with any purchase or series of related purchases for aggregate
consideration of $10,000,000 or more, the Administrative Agent shall have received within 5
Business Days thereafter a Compliance Certificate demonstrating the pro forma compliance required
by clause (C) above and certifying that the conditions in clauses (A) – (E) are satisfied as of the
date of such repurchase; and



(iii) Any Loan Party may make repurchases of its Equity Interests deemed to occur upon
exercise of stock options or warrants if such Equity Interests represent a portion of the exercise
price of such options or warrants or withholding of shares of restricted stock upon vesting.



(g) Change in Business. No Loan Party shall engage, either directly or indirectly
through Affiliates, in any business other than the same line of business of the Borrower as of the
Closing Date or a line of business substantially related thereto except in immaterial respects.



(h) Payments of Indebtedness, Etc. No Loan Party shall:



(i) pay or prepay any principal, premium, interest or any other amount (including sinking
fund payments) with respect to any Subordinated Obligation (except payments expressly permitted by
the subordination provisions thereof (as approved by the Administrative Agent and the Required
Lenders pursuant to Section 5.02(a)(viii)) and other payments expressly approved in writing
by the Required Lenders), or redeem purchase, defease, acquire or otherwise satisfy (or offer to
redeem, purchase, acquire or otherwise satisfy) any Subordinated Obligations; or make any payment
or deposit any monies, securities or other property with any trustee or other Person that has the
effect of providing for the satisfaction (or assurance of any satisfaction) of any Subordinated
Obligations prior to the date when due or otherwise to provide for the defeasance of any
Subordinated Obligations; or



(ii) supplement, modify, amend, restate, extend or otherwise change the terms of any document,
instrument or agreement evidencing or governing any Subordinated Obligations or the Indebtedness
described in Section 5.02(a)(x).



(i) ERISA.



(i) No Loan Party nor any ERISA Affiliate shall (A) adopt or institute any Pension Plan;
(B) take any action which will result in the partial or complete withdrawal, within the meanings of
Sections 4203 and 4205 of ERISA, from a Multiemployer Plan; (C) engage or permit any Person to
engage in any transaction prohibited by Section 406 of ERISA or Section 4975 of the IRC involving
any Pension Plan or Multiemployer Plan which would subject a Loan Party or any ERISA Affiliate to
any tax, penalty or other liability including a liability to indemnify; (D) incur or allow to exist
any accumulated funding deficiency (within the meaning of Section 412 of the IRC or Section 302 of
ERISA); (E) fail to make full payment when due of all amounts due as contributions to any Pension
Plan or Multiemployer Plan; (F) fail to comply with the requirements of Section 4980B of the IRC or
Part 6 of Title I(B) of ERISA; or (G) adopt any amendment to any Pension Plan which would require
the posting of security pursuant to Section 401(a)(29) of the IRC, where singly or cumulatively,
the above could have a Material Adverse Effect.



(ii) No Loan Party shall (A) engage in any transaction prohibited by any Governmental Rule
applicable to any Foreign Plan; (B) fail to make full payment when due of all amounts due as
contributions to any Foreign Plan; or (C) otherwise fail to comply with the requirements of any
Governmental Rule applicable to any Foreign Plan, where singly or cumulatively, the above could
have a Material Adverse Effect.



(j) Transactions With Affiliates. No Loan Party shall enter into or permit to exist
any material Contractual Obligation with any Affiliate (other than any other Loan Party) or engage
in any other transaction with any Affiliate (other than any other Loan Party) except (a) salary,
bonus, fees, employee stock option and other compensation arrangements (including customary
indemnities) with directors or officers in the ordinary course of business, (b) any transaction
permitted under Section 5.02(e) and (c) transactions upon overall terms at least as
favorable to such Loan Party as an arms-length transaction with unaffiliated Persons.



(k) Accounting Changes. No Loan Party shall change (i) its fiscal year (currently
January 1 through December 31) or (ii) its accounting practices except as required or permitted by
GAAP.



(l) Amendment of Material Documents. No Loan Party shall agree to amend, modify,
terminate, supplement or replace any Material Document or any document executed and delivered in
connection therewith, in each case in a manner which would adversely affect the interests of the
Administrative Agent and the Lenders in any material manner; provided that it is understood that a
Loan Party that is a corporation may amend its bylaws to conform substantially to the form of
bylaws delivered by Commission Junction, Inc. on the Closing Date (for a Delaware corporation) and
by Hi-Speed Media, Inc. on the Closing Date (for a California corporation). No Loan Party shall
agree to any provision in, or amendment of, a limited liability company agreement or partnership
agreement that materially adversely affects the perfection of the security interest of the
Administrative Agent in any pledged partnership interests or pledged limited liability company
interests pledged by such Loan Party under the Credit Documents.



(m) Restrictive Agreements. No Loan Party shall agree to any restriction or
limitation (other than as set forth in this Agreement or the other Credit Documents) on the making
of Distributions or the transferring of assets from any Loan Party to another Loan Party except
pursuant to (i) contractual encumbrances or restrictions in effect on the Closing Date and
identified on Schedule 5.02(m), (ii) Negative Pledges permitted under
Section 5.02(b), (iii) applicable law or any applicable rule, regulation or order, (iv) any
agreement or other instrument of a Person acquired by any Loan Party in existence at the time of
such acquisition (but not created in contemplation thereof), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other than the acquired
Person and its Subsidiaries, or the property or assets of the acquired Person and its Subsidiaries,
(v) restrictions on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business, (vi) customary provisions in joint venture
agreements and other similar agreements relating solely to such joint venture, (vi) customary
provisions contained in leases or licenses of intellectual property and other agreements, in each
case, entered into in the ordinary course of business, (vii) any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (i) through (vii) of this
Section 5.02(m); provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more restrictive with respect to such
encumbrance and other restrictions taken as a whole than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.



(n) Joint Ventures. No Loan Party shall enter into or maintain any interest in any
Joint Venture; provided, however, that the Loan Parties may enter into and maintain
an interest in Joint Ventures if (A) the aggregate Investment by the Loan Parties in all Joint
Ventures is permitted by Section 5.02(e)(vi), (B) the business of such Joint Venture is in
the same line of business as the Borrower or a line of business substantially related thereto and
(C) such additional Joint Venture is a corporation, limited liability company or other limited
liability entity.



(o) Accounts. No Loan Party shall fail to deliver to the Administrative Agent within
30 days after opening such account (or, as applicable, within 30 days after any account ceases to
be a De Minimis Account) fully executed control agreements in form and substance reasonably
acceptable to the Administrative Agent with respect to each account (other than Excluded Accounts
and De Minimis Accounts) of the Loan Parties opened following the Closing Date with any bank,
savings association, financial institution, securities intermediary or similar financial
intermediary in which cash or other property will be deposited; provided that (i) with
respect to the account which holds the cash collateral described in Section 5.02(b)(xix)
and only so long as such account only holds such cash collateral, such 30 days period shall begin
after the letter of credit described in Section 5.02(a)(xii) has expired or is terminated
and (ii) nothing herein shall limit the provisions of Section 5.01(m) with respect to
accounts existing as of the Closing Date for which a Control Agreement was not delivered as of the
Closing Date.



5.03. Financial Covenants. So long as any Loan or L/C Obligation remains unpaid, or
any other Obligation remains unpaid or unperformed, or any portion of any Commitment remains in
force, the Borrower will comply, and will cause compliance, with the following financial covenants,
unless the Required Lenders shall otherwise consent in writing:



(a) Total Leverage Ratio. If the Borrower incurs any Subordinated Obligations
pursuant to Section 5.02(a)(viii) above, then from and after the date of the first such
incurrence, the Borrower shall not permit the Total Leverage Ratio at any time to be greater than
2.00:1.00.



(b) Minimum EBITDA. The Borrower shall not permit, as of the last day of any fiscal
quarter, the EBITDA of the Loan Parties on a consolidated basis for the twelve (12) month period
ending thereon, to be less than the amount set opposite the applicable date below:



	 	 	 	 	 
	Date

	 	EBITDA

	December 31, 2008

	 	$	130,000,000	 
	March 31, 2009

	 	$	130,000,000	 
	June 30, 2009

	 	$	130,000,000	 
	September 30, 2009

	 	$	130,000,000	 
	December 31, 2009

	 	$	130,000,000	 
	March 31, 2010

	 	$	130,000,000	 
	June 30, 2010

	 	$	130,000,000	 
	September 30, 2010

	 	$	130,000,000	 
	December 31, 2010 (and each fiscal quarter end thereafter, as

applicable)

	 	

$140,000,000







(c) Minimum Unrestricted, Unencumbered Liquid Assets. The Borrower shall not permit
(i) the aggregate amount of Unrestricted, Unencumbered Liquid Assets owned by the Loan Parties at
any time to be less than $60,000,000; or (ii) the aggregate amount of Unrestricted, Unencumbered
Liquid Assets located in the United States and owned by the Borrower and the Guarantors at any time
to be less than $30,000,000; provided that if the Borrower increases the Total Revolving
Loan Commitment pursuant to Section 2.01(b), the amount in clause (i) above shall increase
from $60,000,000 to $70,000,000.



ARTICLE VI. EVENTS OF DEFAULT.




6.01. Events of Default. The occurrence or existence of any one or more of the
following shall constitute an “Event of Default” hereunder:



(a) Non-Payment. Any Loan Party shall (i) fail to pay when due any principal of any
Loan or any L/C Obligation (including any amount due in respect thereof under the Guaranty) or
(ii) fail to pay within five (5) Business Days after the same becomes due, any interest, fees or
other amounts payable under the terms of this Agreement or any of the other Credit Documents
(including any amount due under any Lender Rate Contract or with respect to any Lender Bank Product
and, to the extent not included in clause (i), the Guaranty); or



(b) Specific Defaults. Any Loan Party shall fail to observe or perform any covenant,
obligation, condition or agreement set forth in Section 5.01(a) (other than clause (xi) of
Section 5.01(a)), Section 5.01(f), Section 5.01(h), Section
5.01(i), Section 5.01(k), Section 5.01(l), Section 5.01(m), Section
5.02 or Section 5.03; or



(c) Other Defaults. Any Loan Party shall fail to observe or perform any other
covenant, obligation, condition or agreement contained in this Agreement or any other Credit
Document and such failure shall continue for thirty (30) days after the date of such failure; or



(d) Representations and Warranties. Any representation, warranty, certificate,
information or other statement (financial or otherwise) made or furnished by or on behalf of any
Loan Party to the Administrative Agent or any Lender in or in connection with this Agreement or any
of the other Credit Documents, or as an inducement to the Administrative Agent or any Lender to
enter into this Agreement, shall be false, incorrect, incomplete or misleading in any material
respect when made or furnished; or



(e) Cross-Default. (i) Any Loan Party shall fail to make any payment on account of
any Indebtedness or Contingent Obligation of such Person (other than the Obligations) when due
(whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and such
failure shall continue beyond any period of grace provided with respect thereto, if the amount of
such Indebtedness or Contingent Obligation exceeds $5,000,000 or (ii) any Loan Party shall
otherwise fail to observe or perform any agreement, term or condition contained in any agreement or
instrument relating to any Indebtedness or Contingent Obligation of such Person (other than the
Obligations), or any other event shall occur or condition shall exist, if the effect of such
failure, event or condition is to cause, or permit the holder or holders thereof to cause,
Indebtedness and/or Contingent Obligations of any Loan Party (other than the Obligations) in an
aggregate amount exceeding $5,000,000 to become redeemable, due, liquidated or otherwise payable
(whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and/or to
be secured by cash collateral; or



(f) Insolvency; Voluntary Proceedings. Any Loan Party shall (i) apply for or consent
to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) be unable, or admit in writing its inability, to pay its
debts generally as they mature, (iii) make a general assignment for the benefit of its or any of
its creditors, (iv) be dissolved or liquidated in full or in part, (v) become insolvent (as such
term may be defined or interpreted under any applicable statute), (vi) commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent
to any such relief or to the appointment of or taking possession of its property by any official in
an involuntary case or other proceeding commenced against it, or, in each case, any analogous
procedure or step is taken in any jurisdiction; or



(g) Involuntary Proceedings. Proceedings for the appointment of a receiver, trustee,
liquidator or custodian of any Loan Party or of all or a substantial part of the property thereof,
or an involuntary case or other proceedings seeking liquidation, reorganization or other relief
with respect to any Loan Party or the debts thereof under any bankruptcy, insolvency or other
similar law now or hereafter in effect shall be commenced and an order for relief entered or such
proceeding shall not be dismissed or discharged within sixty (60) days of commencement, or, in each
case, any analogous procedure or step is taken in any jurisdiction; or



(h) Judgments. (i) One or more judgments, orders, decrees or arbitration awards
requiring any Loan Party to pay an aggregate amount of $ 5,000,000 or more (exclusive of amounts
covered by insurance issued by an insurer not an Affiliate of the Borrower and otherwise satisfying
the requirements set forth in Section 5.01(d)) shall be rendered against any Loan Party in
connection with any single or related series of transactions, incidents or circumstances and the
same shall not be satisfied, vacated or stayed for a period of twenty (20) consecutive days; or
(ii) any judgment, writ, assessment, warrant of attachment, tax lien or execution or similar
process shall be issued or levied against a part of the property of any Loan Party with an
aggregate value in excess of $5,000,000 and the same shall not be released, stayed, vacated or
otherwise dismissed within thirty (30) days after issue or levy; or



(i) Credit Documents. Any Credit Document or any material term thereof shall cease to
be, or be asserted by any Loan Party not to be, a legal, valid and binding obligation of such Loan
Party enforceable in accordance with its terms or shall otherwise cease to be in full force and
effect; or



(j) Security Documents. Any Lien intended to be created by any Security Document
shall at any time be invalidated, subordinated or otherwise cease to be in full force and effect,
for whatever reason, or any security interest purported to be created by any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a valid, first priority
(except as expressly otherwise provided in this Agreement or such Security Document) perfected Lien
in the Collateral covered thereby, or any Loan Party (other than the Borrower or an Immaterial
Subsidiary) shall issue, create or permit to be outstanding any Equity Securities which shall not
be subject to a first priority perfected Lien under the Security Documents (other than Equity
Securities not required to be pledged under the Credit Documents); or



(k) ERISA. Any Reportable Event which the Administrative Agent reasonably believes in
good faith constitutes grounds for the termination of any Pension Plan by the PBGC or for the
appointment of a trustee by the PBGC to administer any Pension Plan shall occur and be continuing
for a period of thirty (30) days or more after notice thereof is provided to the Borrower by the
Administrative Agent, or any Pension Plan shall be terminated within the meaning of Title IV of
ERISA or a trustee shall be appointed by the PBGC to administer any Pension Plan; or



(l) Change of Control. Any Change of Control shall occur; or



(m) Involuntary Dissolution or Split Up. Any order, judgment or decree shall be
entered against any Loan Party decreeing its involuntary dissolution or split up and such order
shall remain undischarged and unstayed for a period in excess of sixty (60) days; or



(n) Other Default. The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Credit Document) under any other Credit Document; or



(o) Material Adverse Change. A material adverse change in the assets, liabilities,
financial condition, business operation or performance of the Borrower and the Loan Parties taken
as a whole since December 31, 2007.



(p) Guarantors. Any Guarantor shall repudiate or purport to revoke the Guaranty; or



(q) Designated Person. Any Loan Party shall become a Designated Person; or



(r) Subordinated Obligations. Any trustee, agent or representative for the holders
of, or the holders of the principal amount of any series or tranche of any Subordinated Obligations
in an amount sufficient to give them the right to exercise (or cause the exercise of) remedies or
to cause the trustee, agent or other representative of such holders to take action in respect of,
any Subordinated Obligations assert(s) in writing that any such Subordinated Obligations (or any
portion thereof) is not subordinated to the Obligations in accordance with its terms or the
applicable subordination agreement (in the case of such other Subordinated Obligations), or a final
judgment is entered by a court of competent jurisdiction that any Subordinated Obligations (or any
portion thereof) is not subordinated in accordance with its terms or the applicable subordination
agreement (in the case of such other Subordinated Obligations) to the Obligations; or



(s) Unfunded Pension Liabilities. The aggregate amount of Unfunded Pension
Liabilities of the Loan Parties shall exceed $5,000,000.



6.02. Remedies. At any time after the occurrence and during the continuance of any
Event of Default (other than an Event of Default referred to in Section 6.01(f) or
6.01(g)), the Administrative Agent may or shall, upon instructions from the Required
Lenders, by written notice to the Borrower, (a) terminate the Revolving Loan Commitments, any
obligation of the L/C Issuer to make L/C Credit Extensions and the obligations of the Lenders to
make Loans, and/or (b) declare all or a portion of the outstanding Obligations (other than in
connection with Lender Rate Contracts or Lender Bank Products) payable by the Borrower to be
immediately due and payable and require that the Borrower Cash Collateralize the Obligations in an
amount equal to 105% of the then Effective Amount of the L/C Obligations, in each case, without
presentment, demand, protest or any other notice of any kind, all of which are hereby expressly
waived, anything contained herein or in the Notes to the contrary notwithstanding . Upon the
occurrence or existence of any Event of Default described in Section 6.01(f) or
6.01(g), immediately and without notice, (1) the Revolving Loan Commitments, any obligation
of the L/C Issuer to make L/C Credit Extensions and the obligations of the Lenders to make Loans
shall automatically terminate, (2) the obligation of the Borrower to Cash Collateralize the
Obligations in an amount equal to 105% of the then Effective Amount of the L/C Obligations shall
automatically become effective, which amounts shall be immediately pledged and delivered to the
Administrative Agent as security for the Obligations and (3) all outstanding Obligations payable by
the Borrower hereunder shall automatically become immediately due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything
contained herein or in the Notes to the contrary notwithstanding. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default, the Administrative Agent may
exercise any other right, power or remedy available to it under any of the Credit Documents or
otherwise by law, either by suit in equity or by action at law, or both. Notwithstanding anything
to the contrary in the Credit Documents, (i) all Cash Collateral pledged by the Borrower (other
than Cash Collateral pledged as contemplated by Section 2.03(a) in connection with Swing
Line Loans) shall first be applied to reimburse the L/C Issuer as contemplated by the last sentence
of Section 2.02(a)(ii)(G), then such Cash Collateral shall be applied to the remaining L/C
Obligations and then to the remaining Obligations in the manner set forth below and (ii) all Cash
Collateral pledged by the Borrower as contemplated by Section 2.03(a) in connection with
Swing Line Loans shall first be applied to reimburse and otherwise pay the applicable obligations
owing to the Swing Line Lender as contemplated by the last sentence of Section 2.03(a),
then such Cash Collateral shall be applied to the remaining Obligations of the Borrower in
connection with the Swing Line Loans and then to the remaining Obligations in the manner set forth
below.



The proceeds of any sale, disposition or other realization upon all or any part of the Collateral
(subject to the prior sentence with respect to Cash Collateral) shall be distributed by the
Administrative Agent in the following order of priorities:



First, to the Administrative Agent in an amount sufficient to pay in
full the costs and expenses of the Administrative Agent in connection with
such sale, disposition or other realization, including all fees, costs,
expenses, liabilities and advances incurred or made by the Administrative
Agent in connection therewith, including, without limitation, attorneys’
fees and costs;



Second, to the Lenders in an amount equal to accrued interest then due
and payable under this Agreement and the other Credit Documents (except for
Lender Rate Contracts and Lender Bank Products);



Third, pari passu and ratably, to (i) the Lenders in an amount equal to
the principal amount of the outstanding Loans and L/C Borrowings and to Cash
Collateralize the remaining L/C Obligations on a pro rata basis in
accordance with the then outstanding principal amount of the Loans and L/C
Obligations (with the portion allocated to the Revolving Loans, Swing Line
Loans and L/C Obligations to be applied first to repay the Swing Line Loans
in full, second to repay the Revolving Loans in full and then to Cash
Collateralize the Obligations in an amount equal to the then Effective
Amount of all L/C Obligations) and (ii) to the Lender(s) and Affiliates
thereof to whom obligations are owed in connection with any Lender Rate
Contract the terms of which comply with the Credit Agreement to the extent
of the associated Termination Value of such Lender Rate Contract, and such
proceeds will not be applied to the extent of any excess over such
Termination Value in connection with any Lender Rate Contact, until the
Obligations (other than obligations under this clause (ii)) have been paid
in full and the Revolving Loan Commitments have been terminated;



Fourth, to the Administrative Agent, the Lenders and the L/C Issuer in
an amount equal to any other Obligations which are then unpaid (other than
any Obligations related to Lender Rate Contracts and Lender Bank Products);



Fifth, to the Lenders and Affiliates thereof in an amount equal to any
other Obligations related to Lender Rate Contracts the terms of which comply
with the Credit Agreement, which are then unpaid;



Sixth, to the Lenders and Affiliates thereof in an amount equal to any
Secured Obligations related to Lender Bank Products which are then unpaid;
and



Finally, upon payment in full of all of the Obligations, to the persons
legally entitled thereto.



	 	 	 
	ARTICLE VII.

	 	ADMINISTRATIVE AGENT AND RELATIONS AMONG LENDERS.
	
 
	 	 
	7.01.

	 	Appointment, Powers and Immunities.
	
 
	 	 






(a) Each Lender (on its own behalf or on behalf of any Affiliate of such Lender that is party
to a Lender Rate Contract or providing Lender Bank Products) hereby appoints and authorizes the
Administrative Agent to act as its agent hereunder and under the other Credit Documents with such
powers as are expressly delegated to the Administrative Agent by the terms of this Agreement and
the other Credit Documents, together with such other powers as are reasonably incidental thereto.
Each Lender (on its own behalf and on behalf of any Affiliate of such Lender that is party to a
Lender Rate Contract or providing Lender Bank Products) hereby authorizes the Administrative Agent
to take such action on its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers as are set forth herein or therein, together with such other
powers as are reasonably incidental thereto. The Documentation Agent, Sole Bookrunner and Lead
Arranger shall not have any duties or responsibilities or any liabilities under this Agreement or
any other Credit Documents and any amendments, consents, waivers or any other actions taken in
connection with this Agreement or the other Credit Documents shall not require the consent of the
Documentation Agent, Sole Bookrunner or Lead Arranger in such capacity. The Administrative Agent
shall not have any duties or responsibilities except those expressly set forth in this Agreement or
in any other Credit Document, be a trustee for any Lender (or any Affiliate of such Lender that is
party to a Lender Rate Contract or providing Lender Bank Products) or have any fiduciary duty to
any Lender (or any Affiliate of such Lender that is party to a Lender Rate Contract or providing
Lender Bank Products). Notwithstanding anything to the contrary contained herein the
Administrative Agent shall not be required to take any action which is contrary to this Agreement
or any other Credit Document or any applicable Governmental Rules. Neither the Administrative
Agent nor any Lender shall be responsible to any other Lender for any recitals, statements,
representations or warranties made by any Loan Party contained in this Agreement or in any other
Credit Document, for the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Credit Document or for any failure by any Loan Party to perform its
obligations hereunder or thereunder. The Administrative Agent may employ agents and
attorneys-in-fact and shall not be responsible to any Lender for the negligence or misconduct of
any such agents or attorneys-in-fact selected by it with reasonable care. Neither the
Administrative Agent nor any of its directors, officers, employees, agents or advisors shall be
responsible to any Lender for any action taken or omitted to be taken by it or them hereunder or
under any other Credit Document or in connection herewith or therewith, except to the extent
determined by a final, non-appealable judgment of a court of competent jurisdiction to have arisen
from its or their own gross negligence or willful misconduct. Except as otherwise provided under
this Agreement, the Administrative Agent shall take such action with respect to the Credit
Documents as shall be directed by the Required Lenders or in the absence of such direction, such
action as the Administrative Agent in good faith deems advisable under the circumstances.



(b) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith until such time (and except for so long) as the
Administrative Agent may agree at the request of the Required Lenders to act for the L/C Issuer
with respect thereto; provided, however, that the L/C Issuer shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this Article VII with respect
to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and the application and agreements for letters of
credit pertaining to the Letters of Credit as fully as if the term “Administrative Agent” as used
in this Article VII included the L/C Issuer with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to the L/C Issuer.



7.02. Reliance by the Administrative Agent. The Administrative Agent, the L/C Issuer
and the Swing Line Lender shall be entitled to rely upon any certificate, notice or other document
(including any cable, telegram, facsimile or telex) believed by it in good faith to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or Persons (including
any certificate, notice or other document from a Loan Party that a sale, transfer, or other
disposition of Collateral is permitted by Section 5.02(c)), and upon advice and statements
of legal counsel, independent accountants and other experts selected by the Administrative Agent
with reasonable care. As to any other matters not expressly provided for by this Agreement, the
Administrative Agent shall not be required to take any action or exercise any discretion, but shall
be required to act or to refrain from acting upon instructions of the Required Lenders and shall in
all cases be fully protected by the Lenders in acting, or in refraining from acting, hereunder or
under any other Credit Document in accordance with the instructions of the Required Lenders (or all
Lenders if required by Section 8.04), and such instructions of the Required Lenders (or all
the Lenders as the case may be) and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders.



7.03. Defaults. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default unless the Administrative Agent has received a written
notice from a Lender or the Borrower, referring to this Agreement, describing such Default and
stating that such notice is a “Notice of Default”. If the Administrative Agent receives such a
notice of the occurrence of a Default, the Administrative Agent shall give prompt notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to such Default as shall
be reasonably directed by the Required Lenders; provided, however, that until the
Administrative Agent shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Lenders. Notwithstanding anything
in the contrary contained herein, the order and manner in which the Lenders’ rights and remedies
are to be exercised (including, without limitation, the enforcement by any Lender of its Note)
shall be determined by the Required Lenders in their sole discretion.



7.04. Indemnification. Without limiting the Obligations of the Borrower hereunder,
each Lender agrees to indemnify the Administrative Agent, ratably in accordance with its Revolving
Proportionate Share of all Obligations and Revolving Loan Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out of this Agreement
or any documents contemplated by or referred to herein or therein or the transactions contemplated
hereby or thereby or the enforcement of any of the terms hereof or thereof; provided,
however, that no Lender shall be liable for any of the foregoing to the extent determined
by a final, non-appealable judgment of a court of competent jurisdiction to have arisen from the
Administrative Agent’s gross negligence or willful misconduct. The Administrative Agent shall be
fully justified in refusing to take or in continuing to take any action hereunder unless it shall
first be indemnified to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such action. The
obligations of each Lender under this Section 7.04 shall survive the payment and
performance of the Obligations, the termination of this Agreement and any Lender ceasing to be a
party to this Agreement (with respect to events which occurred prior to the time such Lender ceased
to be a Lender hereunder).



7.05. Non-Reliance. Each Lender represents that it has, independently and without
reliance on the Administrative Agent, or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the business, prospects,
management, financial condition and affairs of the Loan Parties and its own decision to enter into
this Agreement and agrees that it will, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own appraisals and decisions in taking or not taking action under
this Agreement. Neither the Administrative Agent nor any of its affiliates nor any of their
respective directors, officers, employees, agents or advisors shall (a) be required to keep any
Lender informed as to the performance or observance by any Loan Party of the obligations under this
Agreement or any other document referred to or provided for herein or to make inquiry of, or to
inspect the properties or books of any Loan Party; (b) have any duty or responsibility to disclose
to or otherwise provide any Lender, and shall not be liable for the failure to disclose or
otherwise provide any Lender, with any credit or other information concerning any Loan Party which
may come into the possession of the Administrative Agent or that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates in any capacity, except for
notices, reports and other documents and information expressly required to be furnished to the
Lenders by the Administrative Agent hereunder; or (c) be responsible to any Lender for (i) any
recital, statement, representation or warranty made by any Loan Party or any officer, employee or
agent of any Loan Party in this Agreement or in any of the other Credit Documents, (ii) the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any Credit
Document, (iii) the value or sufficiency of the Collateral or the validity or perfection of any of
the liens or security interests intended to be created by the Credit Documents, or (iv) any failure
by any Loan Party to perform its obligations under this Agreement or any other Credit Document.



7.06. Resignation of the Administrative Agent. The Administrative Agent may resign at
any time by giving thirty (30) days prior written notice thereof to the Borrower and the Lenders.
Upon any such resignation, the Required Lenders shall have the right to appoint a successor
Administrative Agent, which successor Administrative Agent shall be reasonably acceptable to the
Borrower; provided, however, that the Borrower shall have no right to approve a
successor Administrative Agent if an Event of Default has occurred and is continuing. Upon the
acceptance of any appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from the duties and obligations thereafter arising
hereunder; provided that the retiring Administrative Agent shall be discharged from the
duties and obligations arising hereunder from and after the end of such thirty (30) day period even
if no successor has been appointed. If no such successor has been appointed, the Required Lenders
shall act as the Administrative Agent hereunder. After any retiring Administrative Agent’s
resignation hereunder as the Administrative Agent, the provisions of this Article VII shall
continue in effect for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent. The successor Administrative Agent (or if there
is no successor, one of the Lenders appointed by the Required Lenders that accepts such
appointment) shall also simultaneously replace the then existing Administrative Agent and the then
existing Administrative Agent shall be fully released as “L/C Issuer” and “Swing Line Lender”
hereunder pursuant to documentation in form and substance reasonably satisfactory to the then
existing Administrative Agent.



7.07. Collateral Matters.



(a) The Administrative Agent is hereby authorized by each Lender, without the necessity of any
notice to or further consent from any Lender, and without the obligation to take any such action,
to take any action with respect to any Collateral or any Security Document which may from time to
time be necessary to perfect and maintain perfected the Liens of the Security Documents.



(b) The Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion, to release (and to execute and deliver such documents, instruments and agreements as
the Administrative Agent may deem necessary to release) any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the Revolving Loan Commitments and
the full Cash Collateralization of the then outstanding L/C Obligations and the payment in full of
all Loans and all other Obligations payable under this Agreement and under the other Credit
Documents; (ii) constituting property of the Loan Parties which is sold, transferred or otherwise
disposed of in connection with any transaction not prohibited by this Agreement or the Credit
Documents; (iii) constituting property leased to the Loan Parties under an operating lease which
has expired or been terminated in a transaction not prohibited by this Agreement or the Credit
Documents or which will concurrently expire and which has not been and is not intended by the Loan
Parties to be, renewed or extended; (iv) consisting of an instrument, if the Indebtedness evidenced
thereby has been paid in full; or (v) if approved or consented to by those of the Lenders required
by Section 8.04. Upon request by the Administrative Agent, the Lenders will confirm in
writing the Administrative Agent’s authority to release particular types or items of Collateral
pursuant to this Section 7.07.



(c) In addition, so long as no Event of Default has occurred and is continuing, upon written
request therefore from the Borrower (together with documentation evidencing the need therefore (in
form and substance reasonably acceptable the Administrative Agent)) the Administrative Agent, at
its option and in its discretion, may pay (and execute and deliver such documents, instruments and
agreements as the Administrative Agent may deem necessary to pay) to the Borrower any insurance or
condemnation proceeds to the extent such proceeds were received in respect of any event resulting
in damage, destruction or condemnation of any individual item of property leased by a Loan Party in
an amount equal to the lesser of (i) the amount of such insurance or condemnation proceeds received
in respect of such damage, destruction or condemnation of such individual item of property and
(ii) the amount of such insurance or condemnation proceeds required to be paid over to the Person
(other than a Loan Party) that leased such item of property to the applicable Loan Party in respect
of such damage, destruction or condemnation of such individual item of property. The Lenders
irrevocably authorize the Administrative Agent to do the foregoing so long as the Administrative
Agent has not received or issued a written notice of an Event of Default.



(d) Unless all the Lenders otherwise consent in writing, any and all cash collateral for the
Obligations shall be released to the Borrower, to the extent not applied to the Obligations, only
if (i) the Revolving Loan Commitments have been terminated (ii) all Obligations have been paid in
full and are no longer outstanding, including, without limitation, any L/C Obligations or any other
contingent obligations.



7.08. Performance of Conditions. For the purpose of determining fulfillment by the
Borrower and the other Loan Parties of conditions precedent specified in Sections 3.01 and
3.02 only, each Lender shall be deemed to have consented to, and approved or accepted, or to be
satisfied with each document or other matter sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required under Article 3 to be consented
to, or approved by or acceptable or satisfactory to, that Lender, unless an officer of the
Administrative Agent who is responsible for the transactions contemplated by the Credit Documents
shall have received written notice from that Lender prior to the making of the requested Loan or
the issuance of the requested Letter of Credit specifying its objection thereto and either (i) such
objection shall not have been withdrawn by written notice to the Administrative Agent or (ii) in
the case of any condition to the making of a Loan, that Lender shall not have made available to the
Administrative Agent that Lender’s Revolving Proportionate Share of such Loan or Letter of Credit.



7.09. The Administrative Agent in its Individual Capacity; Other Relationships. The
Administrative Agent and its affiliates may make loans to, issue letters of credit for the account
of, accept deposits from and generally engage in any kind of banking or other business with any
Loan Party and its Affiliates as though the Administrative Agent were not the Administrative Agent,
L/C Issuer or Swing Line Lender hereunder. With respect to Loans, if any, made by the
Administrative Agent in its capacity as a Lender, the Administrative Agent in its capacity as a
Lender shall have the same rights and powers under this Agreement and the other Credit Documents as
any other Lender and may exercise the same as though it were not the Administrative Agent, L/C
Issuer or Swing Line Lender, and the terms “Lender” or “Lenders” shall include the Administrative
Agent in its capacity as a Lender. The Administrative Agent shall not be deemed to hold a
fiduciary, trust or other special relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise
exist against the Administrative Agent.



7.10. Collateral Matters/Lender Rate Contracts/Lender Bank Products. Each Lender on
its own behalf on behalf of its Affiliates understands and agrees that (a) counterparties to Lender
Rate Contracts and Lender Bank Products will have the benefits of the Collateral as set forth in
the Credit Documents so long as such counterparty is a Lender or an Affiliate of a Person that is a
Lender and (b) if the Obligations are repaid as described in Section 7.07, the Collateral
will be released as described in Section 7.07 and such Lender and its Affiliates will no
longer have the benefits of the Collateral.



	 	 	 
	ARTICLE VIII.

	 	MISCELLANEOUS.
	
 
	 	 
	8.01.

	 	Notices.
	
 
	 	 






(a) Except as otherwise provided herein, all notices, requests, demands, consents,
instructions or other communications to or upon the Borrower, any Lender or the Administrative
Agent under this Agreement or the other Credit Documents shall be in writing and faxed, mailed or
delivered, if to the Borrower or to the Administrative Agent, the L/C Issuer or the Swing Line
Lender, at its respective facsimile number or address set forth below or, if to any Lender, at the
address or facsimile number specified for such Lender in Part B of Schedule I (or
to such other facsimile number or address for any party as indicated in any notice given by that
party to the other parties). All such notices and communications shall be effective (a) when sent
by an overnight courier service of recognized standing, on the second Business Day following the
deposit with such service; (b) when mailed, first-class postage prepaid and addressed as aforesaid
through the United States Postal Service, upon receipt; (c) when delivered by hand, upon delivery;
and (d) when sent by facsimile transmission, upon confirmation of receipt; provided,
however, that any notice delivered to the Administrative Agent, the L/C Issuer or the Swing
Line Lender under Article II shall not be effective until actually received by such Person.



The Administrative Agent,




the L/C Issuer and the


Swing Line Lender: For Notices of Borrowing, Notices of Conversion and Notices of Interest
Period Selection:




Wells Fargo Bank, National Association




201 Third Street, 8th Floor




MAC Mail A0187-08A




San Francisco, California 94103




Attention: Alandra Fernandez


Tel. No. (415) 477-5339


Fax No. (415) 546-6353




For all other notices, with a copy to:




Wells Fargo Bank, National Association




3 Palo Alto Square Suite 150


Palo Alto, California 94306


Attention: Jamie Riggs, AVP/Credit Relationship Manager


Tel. No. (650) 846-2423


Fax No. (650) 493-2053



	 	 	 
	The Borrower:

30699 Russell Ranch Road

Attention: John Pitstick

	 	ValueClick, Inc.



Suite 250

Westlake Village, CA 91362



Tel. No. (818) 575-4758

Fax No. (818) 575-4503






Each Notice of Borrowing, Notice of Conversion and Notice of Interest Period Selection shall be
given by the Borrower to the Administrative Agent’s office located at the address referred to above
during the Administrative Agent’s normal business hours; provided, however, that
any such notice received by the Administrative Agent after 10:00 a.m. on any Business Day shall be
deemed received by the Administrative Agent on the next Business Day. In any case where this
Agreement authorizes notices, requests, demands or other communications by the Borrower to the
Administrative Agent or any Lender to be made by telephone or facsimile, the Administrative Agent
or any Lender may conclusively presume that anyone purporting to be a person designated in any
incumbency certificate or other similar document received by the Administrative Agent or a Lender
is such a person.



(b) The Borrower agrees that the Administrative Agent may make any material delivered by the
Borrower to the Administrative Agent, as well as any amendments, waivers, consents, and other
written information, documents, instruments and other materials relating to the Borrower or any
other Loan Party, or any other materials or matters relating to this Agreement, the other Credit
Documents or any of the transactions contemplated hereby (collectively, the
“Communications”) available to the Lenders by posting such notices on an electronic
delivery system (which may be provided by the Administrative Agent, an Affiliate of the
Administrative Agent, or any Person that is not an Affiliate of the Administrative Agent), such as
IntraLinks, The Debt Exchange, Inc. or a substantially similar electronic system (the
“Platform”). The Borrower acknowledges that (i) the distribution of material through an
electronic medium is not necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided “as is” and “as available” and
(iii) neither the Administrative Agent nor any of its Affiliates warrants the accuracy,
completeness, timeliness, sufficiency, or sequencing of the Communications posted on the Platform.
The Administrative Agent and its Affiliates expressly disclaim with respect to the Platform any
liability for errors in transmission, incorrect or incomplete downloading, delays in posting or
delivery, or problems accessing the Communications posted on the Platform and any liability for any
losses, costs, expenses or liabilities that may be suffered or incurred in connection with the
Platform except for liability determined by a final, non-appealable judgment of a court of
competent jurisdiction to be due to the Administrative Agent’s gross negligence or willful
misconduct or a breach of its obligations hereunder. No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other code defects, is
made by the Administrative Agent or any of its Affiliates in connection with the Platform. Each
Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying
that any Communication has been posted to the Platform shall for purposes of this Agreement
constitute effective delivery to such Lender of such information, documents or other materials
comprising such Communication. Each Lender agrees (i) to notify, on or before the date such Lender
becomes a party to this Agreement, the Administrative Agent in writing of such Lender’s e-mail
address to which a Notice may be sent (and from time to time thereafter to ensure that the
Administrative Agent has on record an effective e-mail address for such Lender) and (ii) that any
Notice may be sent to such e-mail address.



8.02. Expenses. The Borrower shall pay on demand, whether or not any Credit Event
occurs hereunder, (a) all reasonable fees and expenses, including reasonable syndication expenses,
travel expenses, attorneys’, consultants’ and experts’ fees and expenses incurred by the
Administrative Agent in connection with the syndication of the facility provided hereunder, the
preparation, negotiation, execution and delivery of, and the exercise of its duties under, this
Agreement and the other Credit Documents, and the preparation, negotiation, execution and delivery
of amendments, waivers, consents, modifications and supplements related to the Credit Documents,
(b) all reasonable fees and expenses of the Administrative Agent in connection with the use of any
Platform and (c) all fees and expenses, including attorneys’ fees and expenses, incurred by the
Administrative Agent and the Lenders in the enforcement or attempted enforcement of any of the
Obligations or in preserving any of the Administrative Agent’s or the Lenders’ rights and remedies
(including, without limitation, all such fees and expenses incurred in connection with any
“workout” or restructuring affecting the Credit Documents or the Obligations or any bankruptcy or
similar proceeding involving any Loan Party). The obligations of the Borrower under this
Section 8.02 shall survive the payment and performance of the Obligations and the
termination of this Agreement.



8.03. Indemnification. To the fullest extent permitted by law, and in addition to any
other indemnity set forth in the Credit Documents, the Borrower agrees to protect, indemnify,
defend and hold harmless the Administrative Agent, the L/C Issuer, the Swing Line Lender, the
Lenders and their Affiliates and their respective directors, officers, employees, attorneys,
agents, trustees and advisors (collectively, “Indemnitees”) from and against any and all
liabilities, obligations, losses, damages, penalties, judgments, costs, disbursements, claims or
expenses of any kind or nature and from any suits, claims or demands (including in respect of or
for attorneys’ fees and other expenses) arising on account of or in connection with any matter or
thing or action or failure to act by Indemnitees, or any of them, arising out of or relating to
(a) the Credit Documents or any transaction contemplated thereby or related thereto, including the
making of any Loans, the funding of any Unreimbursed Amounts and any use by the Borrower of any
proceeds of the Loans or the Letters of Credit, (b) any Environmental Damages, (c) any claims for
brokerage fees or commissions in connection with the Credit Documents or any transaction
contemplated thereby or in connection with the Borrower’s failure to conclude any other financing,
and to reimburse each Indemnitee on demand for all reasonable legal and other expenses incurred in
connection with investigating or defending any of the foregoing, (d) the use of any Platform or (e)
any and all excise, sales or other similar taxes which may be payable or determined to be payable
with respect to any of the Collateral or in connection with any of the transactions contemplated by
this Security Documents, including any penalties, claims or other losses resulting from any delay
in paying such excise, sales or other similar taxes; provided, however, that
nothing contained in this Section 8.03 shall obligate the Borrower to protect, indemnify,
defend or hold harmless any Indemnitee against any such liabilities, obligations, losses, damages,
penalties, judgments, costs, disbursements, claims or expenses “Losses”) to the extent
determined by a final, non-appealable judgment of a court of competent jurisdiction to have arisen
from the gross negligence or willful misconduct of such Indemnitee or a breach of such Indemnitee’s
obligations under this Agreement. Upon receiving knowledge of any suit, claim or demand asserted
by a third party that the Administrative Agent or any Lender believes is covered by this indemnity,
the Administrative Agent or such Lender shall give the Borrower notice of the matter and the
Administrative Agent or such Lender may select its own counsel or request that the Borrower defend
such suit, claim or demand, with legal counsel satisfactory to the Administrative Agent or such
Lender as the case may be, at the Borrower’s sole cost and expense; provided,
however, that the Administrative Agent or such Lender shall not be required to so notify
the Borrower and the Administrative Agent or such Lender shall have the right to defend, at the
Borrower’s sole cost and expense, any such matter that is in connection with a formal proceeding
instituted by any Governmental Authority having authority to regulate or oversee any aspect of the
Administrative Agent’s or such Lender’s business or that of its Affiliates. The Administrative
Agent or such Lender may also require the Borrower to defend the matter. Notwithstanding the
foregoing provisions, the Indemnitees will be entitled to employ counsel separate from counsel for
the Borrower and for any other party in such action if any such Indemnitee reasonably determines
that a conflict of interest or other reasonable basis exists which makes representation by counsel
chosen by the Borrower not advisable, all at the Borrower’s expense. In the event an Indemnitee
(or any of its officers, directors or employees) appears as a witness in any action or proceeding
brought against the Borrower in which an Indemnitee is not named as a defendant, the Borrower
agrees to reimburse such Indemnitee for all out-of-pocket expenses incurred by it (including fees
and expenses of counsel) in connection with its appearing as a witness. Any failure or delay of
the Administrative Agent or any Lender to notify the Borrower of any such suit, claim or demand
shall not relieve the Borrower of its obligations under this Section 8.03. No Indemnitee
referred to above shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed to such unintended recipients by such Indemnitee
through telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby
other than for direct or actual damages resulting from the gross negligence or willful misconduct
of such Indemnitee or a breach of such Indemnitee’s obligations under this Agreement as determined
by a final and non-appealable judgment of a court of competent jurisdiction. The obligations of
the Borrower under this Section 8.03 shall survive the payment and performance of the
Obligations and the termination of this Agreement.



8.04. Waivers; Amendments. Any term, covenant, agreement or condition of this
Agreement or any other Credit Document may be amended or waived, and any consent under this
Agreement or any other Credit Document may be given, if such amendment, waiver or consent is in
writing and is signed by the Borrower and the Required Lenders (or the Administrative Agent on
behalf of the Required Lenders with the written approval of the Required Lenders);
provided, however, that:



(a) (I) Any amendment, waiver or consent which would (i) amend the definition of “Required
Lenders”, or modify in any other manner the number or percentage of the Lenders required to make
any determinations or to waive any rights under, or to modify any provision of, this Agreement
(other than “Required Lenders”), (ii) increase the Total Revolving Loan Commitment (except as
contemplated by Section 2.01(b)), (iii) extend the Maturity Date, (iv) reduce the principal
of or interest on any Loan or L/C Borrowing or any fees or other amounts payable for the account of
the Lenders hereunder, (v) extend any date fixed for any payment of the principal of or interest on
any Loans or any fees or other amounts payable for the account of the Lenders, (vi) amend this
Section 8.04 or Section 2.10, (vii) release any Loan Party (except in connection
with a disposition permitted by Section 5.02(c)(vi)), (viii) increase the dollar amounts in
Section 2.01(b), or (ix) amend the definition of “Permitted Acquisition and Stock
Repurchase Maximum Amount” so as to increase the amount that would be calculated under such
definition, must be in writing and signed or approved in writing by all of the Lenders and (II) any
amendment which would amend Section 5.03 so as to increase any applicable maximum or
decrease any applicable minimum thereunder, in each case, by an amount equal to or greater than 15%
of the applicable maximum or minimum as in effect on the Closing Date, must be in writing and
signed or approved in writing by all of the Lenders;



(b) Any amendment, waiver or consent which releases any Guaranty or any substantial part of
the Collateral must be in writing and signed or approved in writing by all Lenders, except that (i)
any such release in connection with a sale or other disposition of Collateral authorized by
Section 5.02(c) may be executed by the Administrative Agent and shall not require the
approval of any Lenders and (ii) any amendment, waiver or consent which modifies the terms of
Section 5.02(c) (including any modification relating to the prepayment of proceeds from any
such sale or other disposition) shall require the consent of the Required Lenders;



(c) Any amendment, waiver or consent which would amend the definition of “Required Lenders”
must be in writing and signed or approved in writing by all of the Lenders;



(d) Any amendment, waiver or consent which increases or decreases the Revolving Proportionate
Share of any Lender must be in writing and signed by such Lender (other than any such document that
implements the provisions of Section 2.01(b);



(e) Any amendment, waiver or consent which affects the rights or duties of the Swing Line
Lender under this Agreement must be in writing and signed by the Swing Line Lender;



(f) Any amendment, waiver or consent which affects the rights or duties of the L/C Issuer
under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or
to be issued by it must be in writing and signed by the L/C Issuer; and



(g) Any amendment, waiver or consent which affects the rights or obligations of the
Administrative Agent must be in writing and signed by the Administrative Agent.



No failure or delay by the Administrative Agent or any Lender in exercising any right under this
Agreement or any other Credit Document shall operate as a waiver thereof or of any other right
hereunder or thereunder nor shall any single or partial exercise of any such right preclude any
other further exercise thereof or of any other right hereunder or thereunder. Unless otherwise
specified in such waiver or consent, a waiver or consent given hereunder shall be effective only in
the specific instance and for the specific purpose for which given. The Lenders may condition the
giving or making of any amendment, waiver or consent of any term, covenant, agreement or condition
of this Agreement or any other Credit Document on payment of a fee by the Borrower.



In connection with any such proposed amendment, modification, waiver or termination requiring the
consent of all Lenders (such proposed amendment, modification, waiver or termination, a
“Proposed Change”), if the consent of the Required Lenders is obtained, but the consent of
other Lenders whose consent is required is not obtained (any such Lender whose consent is not
obtained as described in this Section 8.04 being referred to as a “Non-Consenting
Lender”), then, so long as the Lender that is acting as the Administrative Agent is not a
Non-Consenting Lender, at the Borrower’s request, the Lender that is acting as the Administrative
Agent or an Eligible Assignee that is acceptable to the Administrative Agent shall have the right
with the Administrative Agent’s consent and in the Administrative Agent’s sole discretion (but
shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting
Lender agrees that it shall, upon the Administrative Agent’s request, sell and assign to the Lender
that is acting as the Administrative Agent or such Eligible Assignee, all of its rights and
obligations under this Agreement and the other Credit Documents (including for purposes of this
paragraph, the Revolving Loan Commitments, the Revolving Loans, L/C Advances, and participations in
Swing Line Loans) for an amount equal to the principal balance of all Revolving Loans, L/C Advances
and aggregate amounts funded under Section 2.03(c)(ii) in respect of Swing Line Loans, by
the Non-Consenting Lender and all accrued interest and fees with respect thereto through the date
of sale (or such other amounts as may be agreed upon by the Non-Consenting Lender and the
assignee). In such event, such Non-Consenting Lender agrees to execute an Assignment Agreement to
reflect such purchase and sale, but regardless of whether such Assignment Agreement is executed,
such Non-Consenting Lender’s rights hereunder, except rights under Section 8.03 with
respect to actions prior to such date, shall cease from and after the date of tender by the
purchaser of the amount of the purchase price.



The parties hereto acknowledge that the Borrower will (and other Loan Parties may) execute Foreign
Pledge Agreements after the Closing Date. The Borrower hereby agrees to enter into any amendment
reasonably requested by the Administrative Agent in connection with any such Foreign Pledge
Agreement with such provisions as the Administrative Agent reasonably deems necessary or advisable
(including parallel debt provisions). Notwithstanding anything in this Section 8.04 to the
contrary, the Lenders further agree that that the Administrative Agent on behalf of the Required
Lenders is hereby authorized to execute and deliver such amendments related to Foreign Pledge
Agreements from time to time and any other necessary documents to the Borrower as contemplated by
this paragraph.



8.05. Successors and Assigns.



(a) Binding Effect. This Agreement and the other Credit Documents shall be binding
upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, all future
holders of the Notes and their respective successors and permitted assigns, except that no Loan
Party may assign or transfer any of its rights or obligations under any Credit Document without the
prior written consent of the Administrative Agent and each Lender. Any purported assignment or
transfer by a Loan Party in violation of the foregoing shall be null and void.



(b) Participations. Any Lender may, without notice to or consent of the Borrower, at
any time sell to one or more banks or other financial institutions (“Participants”)
participating interests in all or a portion of any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender under this Agreement and
the other Credit Documents (including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans). In the event of any such sale by a Lender of participating
interests, such Lender’s obligations under this Agreement shall remain unchanged, such Lender shall
remain solely responsible for the performance thereof, such Lender shall remain the holder of its
Notes for all purposes under this Agreement and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which any such sale is effected may
require the selling Lender to obtain the consent of the Participant in order for such Lender to
agree in writing to any amendment, waiver or consent of a type specified in clause (i), (ii),
(iii), (iv), (v) or (vii) of Section 8.04(a) or, to the extent requiring the consent of all
Lenders, Section 8.04(b) but may not otherwise require the selling Lender to obtain the
consent of such Participant to any other amendment, waiver or consent hereunder. The Borrower
agrees that if amounts outstanding under this Agreement and the other Credit Documents are not paid
when due (whether upon acceleration or otherwise), each Participant shall, to the fullest extent
permitted by law, be deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement and any other Credit Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under this Agreement or
any other Credit Documents; provided, however, that (i) no Participant shall
exercise any rights under this sentence without the consent of the Administrative Agent, (ii) no
Participant shall have any rights under this sentence which are greater than those of the selling
Lender and (iii) such rights of setoff shall be subject to the obligation of such Participant to
share the payment so obtained with all of the Lenders as provided in Section 2.10(b). The
Borrower also agrees that any Lender which has transferred any participating interest in its
Commitment or Loans shall, notwithstanding any such transfer, be entitled to the full benefits
accorded such Lender under Sections 2.11, 2.12 and 2.13, as if such Lender
had not made such transfer.



(c) Assignments. Any Lender may, at any time, sell and assign to any Lender or any
Eligible Assignee (individually, an “Assignee Lender”) all or a portion of its rights and
obligations under this Agreement and the other Credit Documents (including for purposes of this
subsection (c), participations in L/C Obligations and in Swing Line Loans) (such a sale and
assignment to be referred to herein as an “Assignment”) pursuant to an assignment agreement
in substantially the form of Exhibit G (an “Assignment Agreement”), executed by
each Assignee Lender and such assignor Lender (an “Assignor Lender”) and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided,
however, that:



(i) Without the written consent of the Administrative Agent and, if no Event of Default has
occurred and is continuing, the Borrower (which consent of the Administrative Agent and the
Borrower shall not be unreasonably withheld or delayed), no Lender may make any Assignment to any
Assignee Lender which is not, immediately prior to such Assignment, a Lender hereunder or an
Affiliate thereof or Approved Fund as to such Lender;



(ii) Without the written consent of (1) the Administrative Agent, (2) if such Assignment would
result in the Assignee Lender becoming a Lender, the L/C Issuer and the Swing Line Lender, and (3)
if no Event of Default has occurred and is continuing, the Borrower (which consents shall not be
unreasonably withheld or delayed), no Lender may make any Assignment to any Assignee Lender
(I) that is less than Five Million Dollars ($5,000,000) in the aggregate or (II)  if, after giving
effect to such Assignment, the Commitment or Loans of such Lender or such Assignee Lender would be
less than Five Million Dollars ($5,000,000) (except that, in each case, a Lender may make an
Assignment which reduces its Commitment or Loans to zero without the written consent of the
Borrower and the Administrative Agent except to the extent such written consent is required by
clause (i) above and clause (iii) below); and



(iii) Without the written consent of the Administrative Agent and, if no Default has occurred
and is continuing, the Borrower (which consent of the Administrative Agent and the Borrower shall
not be unreasonably withheld or delayed), no Lender may make any Assignment which does not assign
and delegate an equal pro rata interest in such Lender’s Revolving Loans, Revolving Loan Commitment
and all other rights, duties and obligations of such Lender under this Agreement and the other
Credit Documents.



Upon such execution, delivery, acceptance and recording of each Assignment Agreement, from and
after the Assignment Effective Date determined pursuant to such Assignment Agreement, (A) each
Assignee Lender thereunder shall be a Lender hereunder with a Revolving Loan Commitment and Loans
as set forth on Attachment 1 to such Assignment Agreement and shall have the rights, duties and
obligations of such a Lender under this Agreement and the other Credit Documents, and (B) the
Assignor Lender thereunder shall be a Lender with a Revolving Loan Commitment and Loans as set
forth on Attachment 1 to such Assignment Agreement or, if the Revolving Loan Commitment and Loans
of the Assignor Lender have been reduced to $0, the Assignor Lender shall cease to be a Lender and
to have any obligation to make any Loan; provided, however, that any such Assignor
Lender which ceases to be a Lender shall continue to be entitled to the benefits of any provision
of this Agreement which by its terms survives the termination of this Agreement. Each Assignment
Agreement shall be deemed to amend Schedule I to the extent, and only to the extent,
necessary to reflect the addition of each Assignee Lender, the deletion of each Assignor Lender
which reduces its Revolving Loan Commitment and Loans to $0 and the resulting adjustment of
Revolving Loan Commitment and Loans arising from the purchase by each Assignee Lender of all or a
portion of the rights and obligations of an Assignor Lender under this Agreement and the other
Credit Documents. On or prior to the Assignment Effective Date determined pursuant to each
Assignment Agreement, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for the surrendered Revolving Loan Note of the Assignor Lender
thereunder, a new Revolving Loan Note to each Assignee Lender thereunder that requests such a note
(with each new Revolving Loan Note to be in an amount equal to the Revolving Loan Commitment
assumed by such Assignee Lender) and, if the Assignor Lender is continuing as a Lender hereunder, a
new Revolving Loan Note to the Assignor Lender if so requested by such Assignor Lender (with the
new Revolving Loan Note to be in an amount equal to the Revolving Loan Commitment retained by it).
Each such new Revolving Loan Note shall be dated the Closing Date, and each such new Note shall
otherwise be in the form of the Note replaced thereby. The Notes surrendered by the Assignor
Lender shall be returned by the Administrative Agent to the Borrower marked “Replaced”. Each
Assignee Lender which was not previously a Lender hereunder and which is not incorporated under the
laws of the United States of America or a state thereof shall, within three (3) Business Days of
becoming a Lender, deliver to the Borrower and the Administrative Agent two duly completed copies
of United States Internal Revenue Service Form W-8BEN or W-8ECI (or successor applicable form), as
the case may be, certifying in each case that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal income taxes, but only
if and to the extent such Lender is legally entitled to do so and if such Lender is unable to, such
Lender (other than an assignee pursuant to a request by the Borrower under Section 2.15)
shall not be entitled to indemnification for Taxes under Section 2.12 greater than that to
which its assignor was entitled immediately preceding such Assignment.



Notwithstanding anything to the contrary contained herein, if at any time Wells Fargo assigns all
of its Revolving Loan Commitment and Loans pursuant to subsection (c) above, Wells Fargo may, (i)
upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon five
Business Days’ notice to the Borrower, terminate the Swing Line. In the event of any such
resignation as L/C Issuer or termination of the Swing Line, the Borrower shall be entitled to
appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Wells Fargo as L/C Issuer or the termination of the Swing Line, as
the case may be. Wells Fargo shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund participations in Unreimbursed Amounts pursuant
to Section 2.02(c)). If Wells Fargo terminates the Swing Line, it shall retain all the
rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it
and outstanding as of the effective date of such termination, including the right to require the
Lenders to make Base Rate Loans or fund participations in outstanding Swing Line Loans pursuant to
Section 2.03(c).



(d) Register. The Administrative Agent shall maintain at its address referred to in
Section 8.01 a copy of each Assignment Agreement delivered to it and a register (the
“Register”) for the recordation of the names and addresses of the Lenders and the Revolving
Loan Commitment or Loans of each Lender from time to time. The entries in the Register shall be
conclusive in the absence of manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as the owner of the Loans
recorded therein for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.



(e) Registration. Upon its receipt of an Assignment Agreement executed by an Assignor
Lender and an Assignee Lender (and, to the extent required by Section 8.05(c), by the
Borrower and the Administrative Agent) together with payment to the Administrative Agent by
Assignor Lender of a registration and processing fee of $3,500, the Administrative Agent shall
(i) promptly accept such Assignment Agreement and (ii) on the Assignment Effective Date determined
pursuant thereto record the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower. The Administrative Agent may, from
time to time at its election, prepare and deliver to the Lenders and the Borrower a revised
Schedule I reflecting the names, addresses and respective Revolving Loan Commitment or
Loans of all Lenders then parties hereto (and in any event Schedule I shall be deemed
amended to reflect any assignment consummated pursuant to the terms of this Agreement or upon any
Lender becoming a party to this Agreement by any other means (including pursuant to a joinder as
contemplated by Section 2.01(b)).



(f) Confidentiality. Subject to Section 8.10, the Administrative Agent and
the Lenders may disclose the Credit Documents and any financial or other information relating to
the Loan Parties to each other or to any potential Participant or Assignee Lender.



(g) Pledges to Federal Reserve Banks; Other Pledges of Notes. Notwithstanding any
other provision of this Agreement, any Lender may at any time assign all or a portion of its rights
under this Agreement and the other Credit Documents to a Federal Reserve Bank. No such assignment
shall relieve the assigning Lender from its obligations under this Agreement and the other Credit
Documents. In the case of any Lender that is a Fund, such Lender may (i) assign or pledge all or
any portion of the Loans held by it (and Notes evidencing such Loans) to the trustee under any
indenture to which such Lender is a party in support of its obligations to the trustee for the
benefit of the applicable trust beneficiaries, or (ii) pledge all or any portion of the Loans held
by it (and Notes evidencing such Loans) to its lenders for collateral security purpose; provided,
however, no such pledgee under clause (i) or (ii) shall become a Lender hereunder (by foreclosure,
transfer in lieu of foreclosure or otherwise) unless and until it complies with the assignment
provisions of this Agreement to become a Lender hereunder and has received all consents required
hereunder.



(h) True Sale. All participations in the Obligations or any portion thereof, whether
pursuant to provisions hereof or otherwise, are intended to be “true sales” for purposes of
financial reporting in accordance with Statement of Financial Accounting Standards No. 140.
Accordingly, the L/C Issuer or any Lender that sells or is deemed to have sold a participation in
the Obligations (including any participations in Letters of Credit and/or Loans, any participations
described in clause (b) above and any participations under Section 2.10(b)) (each a
“Participation Seller”) hereby agrees that if such Participation Seller receives any
payment in respect of the Obligations to which such participation relates through the exercise of
setoff by such Participation Seller against the Borrower or any other obligor, then such
Participation Seller agrees to promptly pay to the participating party in such participation such
participant’s pro rata share of such setoff (after giving effect to any sharing with the Lenders
under Section 2.10(b) hereof).



(i) Additional Forms. If required by applicable Governmental Rules or otherwise
deemed prudent by the Administrative Agent, the Borrower and each Lender shall prepare, execute and
deliver a completed Form U-1 (or Form G-3, as applicable) for each Lender (and, if applicable, for
each Participant, in which case the applicable Lender shall cause its Participant to satisfy the
requirements of this Section).



8.06. Setoff; Security Interest.



(a) Setoffs By Lenders. In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, with the prior consent of the Administrative
Agent but without prior notice to or consent of the Borrower, any such notice and consent being
expressly waived by the Borrower to the extent permitted by applicable Governmental Rules, upon the
occurrence and during the continuance of an Event of Default, to set-off and apply against the
Obligations any amount owing from such Lender to the Borrower. The aforesaid right of set-off may
be exercised by such Lender against the Borrower or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver or execution, judgment or attachment
creditor of the Borrower or against anyone else claiming through or against the Borrower or such
trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, or
execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off may
not have been exercised by such Lender at any prior time. Each Lender agrees promptly to notify
the Borrower after any such set-off and application made by such Lender; provided, that the
failure to give such notice shall not affect the validity of such set-off and application.



(b) Security Interest. As security for the Obligations, the Borrower hereby grants to
the Administrative Agent and each Lender, for the benefit of the Administrative Agent and the
Lenders, a continuing security interest in any and all deposit accounts or moneys of the Borrower
now or hereafter maintained with such Lender. Each Lender shall have all of the rights of a
secured party with respect to such security interest.



8.07. No Third Party Rights. Nothing expressed in or to be implied from this
Agreement is intended to give, or shall be construed to give, any Person, other than the parties
hereto and their permitted successors and assigns hereunder, any benefit or legal or equitable
right, remedy or claim under or by virtue of this Agreement or under or by virtue of any provision
herein.



8.08. Partial Invalidity. If at any time any provision of this Agreement is or
becomes illegal, invalid or unenforceable in any respect under the law or any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions of this Agreement nor the
legality, validity or enforceability of such provision under the law of any other jurisdiction
shall in any way be affected or impaired thereby.



8.09. Jury Trial. EACH OF THE BORROWER, THE LENDERS AND THE ADMINISTRATIVE AGENT, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE GOVERNMENTAL RULES, HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT.



8.10. Confidentiality. Neither any Lender nor the Administrative Agent shall disclose
to any Person any Confidential Information, except that any Lender or the Administrative Agent may
disclose any such information (a) to its own directors, officers, employees, auditors, counsel and
other advisors and to its Affiliates; (b) to any other Lender, the Trade Bank or the Administrative
Agent; (c) which is otherwise known or available to the public or which is otherwise known to the
receiving party prior to the time such Confidential Information was delivered to any Lender or the
Administrative Agent; (d) if required or appropriate in any report, statement or testimony
submitted to any Governmental Authority having or claiming to have jurisdiction over such Lender or
the Administrative Agent; (e) if required in response to any summons or subpoena; (f) in connection
with any enforcement by the Lenders and the Administrative Agent of their rights under this
Agreement or the other Credit Documents or any litigation among the parties relating to the Credit
Documents or the transactions contemplated thereby; (g) to comply with any Requirement of Law
applicable to such Lender or the Administrative Agent; (h) to any Assignee Lender or Participant or
any prospective Assignee Lender or Participant; provided that such Assignee Lender or
Participant or prospective Assignee Lender or Participant agrees to be bound by the provisions of
(or provisions substantially similar to) this Section 8.10; or (i) otherwise with the prior
consent of such Loan Party; provided, however, that any disclosure made in
violation of this Agreement shall not affect the obligations of the Loan Parties under this
Agreement and the other Credit Documents. Nothing in this Section 8.10 shall limit the use
of any Platform as described in Section 8.01(b).



8.11. Counterparts. This Agreement may be executed in any number of identical
counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a
complete, executed original for all purposes. Transmission by facsimile, “pdf” or similar
electronic copy of an executed counterpart of this Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart. Any party hereto may request an original counterpart of
any party delivering such electronic counterpart.



8.12. Consent to Jurisdiction. Each of the parties to this Agreement irrevocably
submits to the non-exclusive jurisdiction of the courts of the State of New York and the courts of
the United States of America located in New York, New York and agrees that any legal action, suit
or proceeding arising out of or relating to this Agreement or any of the other Credit Documents may
be brought against such party in any such courts. Final judgment against any party in any such
action, suit or proceeding shall be conclusive and may be enforced in any other jurisdiction by
suit on the judgment, a certified or exemplified copy of which shall be conclusive evidence of the
judgment, or in any other manner provided by law. Nothing in this Section 8.12 shall
affect the right of any party to commence legal proceedings or otherwise sue any other party in any
other appropriate jurisdiction, or concurrently in more than one jurisdiction, or to serve process,
pleadings and other papers upon any other party in any manner authorized by the laws of any such
jurisdiction. The Borrower agrees that process served either personally or by registered mail
shall, to the extent permitted by law, constitutes adequate service of process in any such suit.
Each of the parties to this Agreement irrevocably waives to the fullest extent permitted by
applicable Governmental Rules (a) any objection which it may have now or in the future to the
laying of the venue of any such action, suit or proceeding in any court referred to in the first
sentence above; (b) any claim that any such action, suit or proceeding has been brought in an
inconvenient forum; (c) its right of removal of any matter commenced by any other party in the
courts of the State of New York to any court of the United States of America; (d) any immunity
which it or its assets may have in respect of its obligations under this Agreement or any other
Credit Document from any suit, execution, attachment (whether provisional or final, in aid of
execution, before judgment or otherwise) or other legal process; and (e) any right it may have to
require the moving party in any suit, action or proceeding brought in any of the courts referred to
above arising out of or in connection with this Agreement or any other Credit Document to post
security for the costs of any party or to post a bond or to take similar action.



8.13. Relationship of Parties. The relationship between the Borrower, on the one
hand, and the Lenders and the Administrative Agent, on the other, is, and at all times shall
remain, solely that of borrower and lenders. Neither the Lenders nor the Administrative Agent
shall under any circumstances be construed to be partners or joint venturers of the Borrower or any
of its Affiliates; nor shall the Lenders nor the Administrative Agent under any circumstances be
deemed to be in a relationship of confidence or trust or a fiduciary relationship with the Borrower
or any of its Affiliates, or to owe any fiduciary duty to the Borrower or any of its Affiliates.
The Lenders and the Administrative Agent do not undertake or assume any responsibility or duty to
the Borrower or any of its Affiliates to select, review, inspect, supervise, pass judgment upon or
otherwise inform the Borrower or any of its Affiliates of any matter in connection with its or
their property, any security held by the Administrative Agent or any Lender or the operations of
the Borrower or any of its Affiliates. The Borrower and each of its Affiliates shall rely entirely
on their own judgment with respect to such matters, and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by any Lender or the
Administrative Agent in connection with such matters is solely for the protection of the Lenders
and the Administrative Agent and neither the Borrower nor any of its Affiliates is entitled to rely
thereon.



8.14. Time. Time is of the essence as to each term or provision of this Agreement and
each of the other Credit Documents.



8.15. Waiver of Punitive Damages. Notwithstanding anything to the contrary contained
in this Agreement, the Borrower hereby agrees that it shall not seek from the Lenders or the
Administrative Agent punitive damages under any theory of liability.



8.16. USA PATRIOT Act. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance with the Patriot
Act.



8.17. Clarification. Notwithstanding anything to the contrary, the parties hereto
understand and agree that Wells Fargo is acting in various capacities under this Agreement and the
other Credit Documents and therefore shall be permitted to fulfill its roles and manage its various
duties hereunder in such manner as Wells Fargo sees fit and, for the avoidance of doubt, in lieu of
sending notices to itself when acting in different capacities Wells Fargo may keep internal records
regarding all such communications, notices and actions related to this Agreement and the other
Credit Documents in accordance with its past practice.



[The first signature page follows.]




3




IN WITNESS WHEREOF, the Borrower, the Lenders, the Administrative Agent, the L/C Issuer
and the Swing Line Lender have caused this Agreement to be executed as of the day and year first
above written.




BORROWER:




VALUECLICK, INC.,


a Delaware corporation



	 	 	 
	By: /s/ JOHN PITSTICK__

	 

	Name:

Title:

	 	John Pitstick

CFO







	 	 	ADMINISTRATIVE AGENT, L/C ISSUER AND SWING LINE
LENDER:






WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, L/C Issuer and Swing Line
Lender



	 	 	 
	By: /s/ JAMIE RIGGS____

	 

	Name:

Title:

	 	Jamie Riggs

AVP/Credit Relationship Manager







	 	 	THE LENDERS:






WELLS FARGO BANK, NATIONAL ASSOCIATION



	 	 	 
	By: /s/ JAMIE RIGGS____

	 

	Name:

Title:

	 	Jamie Riggs

AVP/Credit Relationship Manager











4




	 	 	BANK OF THE WEST





	 	 	 
	By: /s/ RICHARD TICO_____

	 

	Name:

Title:

	 	Richard Tico

Vice President











5




	 	 	UNION BANK OF CALIFORNIA, N.A.





	 	 	 
	By: /s/ RAFAEL VISTAN_____

	 

	Name:

Title:

	 	Rafael Vistan

Vice President







6