exv10w55






Exhibit 10.55




CONFIDENTIAL TREATMENT

REQUESTED PURSUANT TO RULE 24b-2



Certain portions of this exhibit have been omitted pursuant to a request for confidential treatment
under Rule 24b-2 under the Securities Exchange Act of 1934. The omitted materials have been filed
separately with the Securities and Exchange Commission.




 





TRIDENT MICROSYSTEMS (HONG KONG) LIMITED,




as the Borrower



and



TRIDENT MICROSYSTEMS, INC.



and



TRIDENT MICROSYSTEMS (FAR EAST) LTD.



as Guarantors



 




LOAN, GUARANTY AND SECURITY AGREEMENT



Dated as of February 9, 2011



$40,000,000



 



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




 









 





CERTAIN FINANCIAL INSTITUTIONS,




as Lenders



and



BANK OF AMERICA, N.A.,

(ACTING THROUGH ITS SINGAPORE BRANCH),



as Agent



 




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I

	 
	 	 	 	 
	DEFINITIONS; RULES OF CONSTRUCTION

	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Accounting Terms
	 	 	27	 
	Section 1.3 Uniform Commercial Code
	 	 	27	 
	Section 1.4 Certain Matters of Construction
	 	 	27	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	CREDIT FACILITIES

	 
	 	 	 	 
	Section 2.1 Commitment
	 	 	28	 
	Section 2.2 Increase in the Aggregate Commitments
	 	 	30	 
	Section 2.3 Letter of Credit Facility
	 	 	32	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	INTEREST, FEES AND CHARGES

	 
	 	 	 	 
	Section 3.1 Interest
	 	 	35	 
	Section 3.2 Fees
	 	 	36	 
	Section 3.3 Computation of Interest, Fees
	 	 	37	 
	Section 3.4 Reimbursement Obligations
	 	 	37	 
	Section 3.5 Illegality
	 	 	38	 
	Section 3.6 Inability to Determine Rates
	 	 	38	 
	Section 3.7 Increased Costs; Capital Adequacy
	 	 	39	 
	Section 3.8 Mitigation; Option to Terminate
	 	 	40	 
	Section 3.9 Funding Losses
	 	 	40	 
	Section 3.10 Maximum Interest
	 	 	40	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	LOAN ADMINISTRATION

	 
	 	 	 	 
	Section 4.1 Manner of Borrowing and Funding Loans
	 	 	41	 
	Section 4.2 Defaulting Lender
	 	 	43	 
	Section 4.3 Number and Amount of LIBOR Loans; Determination of Rate
	 	 	43	 
	Section 4.4 Borrower as Agent
	 	 	43	 
	Section 4.5 One Obligation
	 	 	43	 
	Section 4.6 Effect of Termination
	 	 	44	 





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE V

	 
	 	 	 	 
	PAYMENTS

	 
	 	 	 	 
	Section 5.1 General Payment Provisions
	 	 	44	 
	Section 5.2 Repayment of Loans
	 	 	44	 
	Section 5.3 Currency Conversion
	 	 	45	 
	Section 5.4 Payment of Other Obligations
	 	 	45	 
	Section 5.5 Marshaling; Payments Set Aside
	 	 	45	 
	Section 5.6 Post-Default Allocation of Payments
	 	 	45	 
	Section 5.7 Application of Payments
	 	 	46	 
	Section 5.8 Loan Account; Account Stated
	 	 	46	 
	Section 5.9 Taxes
	 	 	47	 
	Section 5.10 Lender Tax Information
	 	 	48	 
	Section 5.11 Nature and Extent of Borrower’s Liability
	 	 	48	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	CONDITIONS PRECEDENT

	 
	 	 	 	 
	Section 6.1 Conditions Precedent to Initial Loans
	 	 	50	 
	Section 6.2 Conditions Precedent to All Credit Extensions
	 	 	52	 
	Section 6.3 Post-execution Covenants
	 	 	52	 
	Section 6.4
	 	 	        52	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	COLLATERAL

	 
	 	 	 	 
	Section 7.1 Grant of Security Interest
	 	 	53	 
	Section 7.2 Lien on Deposit Accounts; Cash Collateral
	 	 	54	 
	Section 7.3 Other Collateral
	 	 	55	 
	Section 7.4 No Assumption of Liability
	 	 	55	 
	Section 7.5 Further Assurances
	 	 	55	 
	Section 7.6 Exclusions from Collateral
	 	 	55	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	COLLATERAL ADMINISTRATION

	 
	 	 	 	 
	Section 8.1 Borrowing Base Certificates
	 	 	55	 
	Section 8.2 Administration of Accounts
	 	 	56	 
	Section 8.3 Administration of Inventory
	 	 	57	 
	Section 8.4 Administration of Equipment
	 	 	57	 
	Section 8.5 Administration of Deposit Accounts
	 	 	58	 
	Section 8.6 General Provisions
	 	 	58	 





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 8.7 Power of Attorney
	 	 	60	 
	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 
	Section 9.1 General Representations and Warranties
	 	 	61	 
	Section 9.2 Complete Disclosure
	 	 	66	 
	 
	 	 	 	 
	ARTICLE X

	 
	 	 	 	 
	COVENANTS AND CONTINUING AGREEMENTS

	 
	 	 	 	 
	Section 10.1 Affirmative Covenants
	 	 	67	 
	Section 10.2 Negative Covenants
	 	 	71	 
	Section 10.3 Financial Covenant
	 	 	76	 
	 
	 	 	 	 
	ARTICLE XI

	 
	 	 	 	 
	EVENTS OF DEFAULT; REMEDIES ON DEFAULT

	 
	 	 	 	 
	Section 11.1 Events of Default
	 	 	76	 
	Section 11.2 Remedies upon Default
	 	 	79	 
	Section 11.3 License
	 	 	79	 
	Section 11.4 Setoff
	 	 	80	 
	Section 11.5 Remedies Cumulative; No Waiver
	 	 	80	 
	 
	 	 	 	 
	ARTICLE XII

	 
	 	 	 	 
	GUARANTY

	 
	 	 	 	 
	Section 12.1 Guaranty
	 	 	81	 
	 
	 	 	 	 
	ARTICLE XIII

	 
	 	 	 	 
	AGENT

	 
	 	 	 	 
	Section 13.1 Appointment, Authority and Duties of Agent
	 	 	87	 
	Section 13.2 Agreements Regarding Collateral and Field Examination Reports
	 	 	89	 
	Section 13.3 Reliance By Agent
	 	 	89	 
	Section 13.4 Action Upon Default
	 	 	90	 
	Section 13.5 Ratable Sharing
	 	 	90	 
	Section 13.6 Indemnification of Agent Indemnitees
	 	 	90	 
	Section 13.7 Limitation on Responsibilities of Agent
	 	 	90	 
	Section 13.8 Successor Agent and Co-Agents
	 	 	91	 
	Section 13.9 Due Diligence and Non-Reliance
	 	 	92	 





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 13.10 Replacement of Certain Lenders
	 	 	92	 
	Section 13.11 Remittance of Payments and Collections
	 	 	92	 
	Section 13.12 Agent in its Individual Capacity
	 	 	93	 
	Section 13.13 Agent Titles
	 	 	93	 
	Section 13.14 No Third Party Beneficiaries
	 	 	93	 
	 
	 	 	 	 
	ARTICLE XIV

	 
	 	 	 	 
	BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS

	 
	 	 	 	 
	Section 14.1 Successors and Assigns
	 	 	94	 
	Section 14.2 Participations
	 	 	94	 
	Section 14.3 Assignments
	 	 	95	 
	 
	 	 	 	 
	ARTICLE XV

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	Section 15.1 Consents, Amendments and Waivers
	 	 	95	 
	Section 15.2 Indemnity
	 	 	96	 
	Section 15.3 Notices and Communications
	 	 	97	 
	Section 15.4 Performance of Borrower’s Obligations
	 	 	97	 
	Section 15.5 Credit Inquiries
	 	 	98	 
	Section 15.6 Severability
	 	 	98	 
	Section 15.7 Cumulative Effect; Conflict of Terms
	 	 	98	 
	Section 15.8 Counterparts
	 	 	98	 
	Section 15.9 Entire Agreement
	 	 	98	 
	Section 15.10 Relationship with Lenders
	 	 	98	 
	Section 15.11 No Advisory or Fiduciary Responsibility
	 	 	99	 
	Section 15.12 Confidentiality
	 	 	99	 
	Section 15.13 GOVERNING LAW
	 	 	100	 
	Section 15.14 Consent to Forum; Arbitration
	 	 	100	 
	Section 15.15 Waivers by Obligors
	 	 	101	 
	Section 15.16 Patriot Act Notice
	 	 	102	 
	Section 15.17 Judgment Currency
	 	 	102	 






LIST OF EXHIBITS AND SCHEDULES




	 	 	 	 	 

	Exhibit A Revolver Note
	 	 	 	 
	Exhibit B Assignment and Acceptance
	 	 	 	 
	Exhibit C Assignment Notice
	 	 	 	 
	Exhibit D Long-Term Investment Policy
	 	 	 	 
	 
	 	 	 	 
	Schedule 1.1 Commitments of Lenders
	 	 	 	 
	Schedule 8.5 Deposit Accounts
	 	 	 	 





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



iv









 






	 	 	 	 	 

	Schedule 8.6.1 Business Locations
	 	 	 	 
	Schedule 9.1.4 Names and Capital Structure
	 	 	 	 
	Schedule 9.1.11 Patents, Trademarks, Copyrights and Licenses
	 	 	 	 
	Schedule 9.1.14 Environmental Matters
	 	 	 	 
	Schedule 9.1.15 Restrictive Agreements
	 	 	 	 
	Schedule 9.1.16 Litigation
	 	 	 	 
	Schedule 9.1.18 Pension Plans
	 	 	 	 
	Schedule 9.1.20 Labor Contracts
	 	 	 	 
	Schedule 10.2.2 Existing Liens
	 	 	 	 
	Schedule 10.2.17 Existing Affiliate Transactions
	 	 	 	 





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




v









 





LOAN, GUARANTY AND SECURITY AGREEMENT




          THIS LOAN, GUARANTY AND SECURITY AGREEMENT is dated as of February 9, 2011, among TRIDENT
MICROSYSTEMS (HONG KONG) LIMITED, a Hong Kong limited company, (the “Borrower”), TRIDENT
MICROSYSTEMS, INC, TRIDENT MICROSYSTEMS (FAR EAST) LTD. and the other entities party to this
Agreement from time to time as Guarantors, the financial institutions party to this Agreement from
time to time as lenders (collectively, “Lenders”), and BANK OF AMERICA, N.A. (acting
through its Singapore branch or such other branch or branches as it may designate from time to
time), a national banking association, as agent for the Lenders (“Agent”).




R E C I T A L S:




          Borrower has requested that Lenders provide a credit facility to Borrower to finance
Borrower’s and Guarantors’ mutual and collective business enterprise. Lenders are willing to
provide the credit facility on the terms and conditions set forth in this Agreement.




          Each Guarantor will derive substantial direct and indirect benefits from the revolving credit
facility provided for in this Agreement.




          NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:




ARTICLE I




DEFINITIONS; RULES OF CONSTRUCTION



          Section 1.1 Definitions. As used herein, the following terms have the meanings set forth below:




          Accordion Increase: as defined in Section 2.2.




          Accordion Effective Date: as defined in Section 2.2.




          Account: as defined in the UCC, including all rights to payment for goods sold or
leased, or for services rendered.




          Account Debtor: a Person who is obligated under an Account, Chattel Paper or General
Intangible.




          Accounts Formula Amount: the sum of (a) 85% of the Value of Eligible Accounts owing
from Account Debtors (i) organized under the laws of the United States or Canada or (ii) whose
senior unsecured debt has a rating by S&P of BBB- or better; plus (b) 75% of the Value of
Eligible Accounts owing from Account Debtors that are organized under the laws of a jurisdiction
acceptable to Agent in its sole discretion and (i) whose senior unsecured debt has a rating by S&P
of less than BBB- or (ii) whose senior unsecured debt is not rated.





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




 









 








          Affiliate: with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control with
the Person specified. “Control” means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have correlative meanings.




          Agent: as defined in the preamble to this Agreement.




          Agent Indemnitees: Agent and its officers, directors, employees, Affiliates, agents
and attorneys.




          Agent Professionals: attorneys, accountants, appraisers, auditors, business valuation
experts, environmental engineers or consultants, turnaround consultants, and other professionals
and experts retained by Agent.




          Anti-Terrorism Laws: any laws relating to terrorism or money laundering, including
the Patriot Act.




          Applicable Law: all laws, rules, regulations and governmental guidelines applicable
to the Person, conduct, transaction, agreement or matter in question, including all applicable
statutory law, common law and equitable principles, and all provisions of constitutions, treaties,
statutes, rules, regulations, orders and decrees of Governmental Authorities.




          Applicable Margin: with respect to any Type of Loan, the margin set forth below, as
determined by the Fixed Charge Coverage Ratio for the last Fiscal Quarter:




	 	 	 	 	 	 	 
	Level	 	Ratio	 	Base Rate Loans	 	LIBOR Loans
	I
	 	≥ 1.50	 	1.50%	 	2.25%
	II
	 	≥ 1.25, but < 1.50	 	2.00%	 	2.75%
	III
	 	≥1.00, but < 1.25	 	2.50%	 	3.25%
	IV
	 	< 1.00	 	3.00%	 	3.75%





Until six months after the Closing Date, margins shall be determined as if Level III were
applicable. Thereafter, the margins shall be subject to increase or decrease upon receipt by Agent
pursuant to Section 10.1.2 of the financial statements and corresponding Compliance
Certificate for the last Fiscal Quarter (commencing with the Fiscal Quarter ending March 31, 2011),
which change shall be effective on the first day of the calendar month following receipt. If, by
the first day of a month, any financial statements and Compliance Certificate due in the preceding
month have not been received, then, at the option of Agent or Required Lenders, the margins shall
be determined as if Level IV were applicable, from such day until the first day of the calendar
month following actual receipt.




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





2









 








          Approved Fund: any Person (other than a natural person) that is engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
its ordinary course of activities, and is administered or managed by a Lender, an entity that
administers or manages a Lender, or an Affiliate of either.




          Asset Disposition: a sale, lease, license, consignment, transfer or other disposition
of Property of an Obligor, including a disposition of Property in connection with a sale-leaseback
transaction or synthetic lease.




          Assignment and Acceptance: an assignment agreement between a Lender and Eligible
Assignee, in the form of Exhibit B.




          Assuming Lender: as defined in Section 2.2.




          Assumption Agreement: as defined in Section 2.2.




          Availability: the Borrowing Base minus the principal balance of all Loans.




          Availability Block: means $5,000,000; provided that commencing with the month
immediately succeeding the month in which Agent receives a Compliance Certificate and the related
financial statement reflecting the Fixed Charge Coverage Ratio for the prior twelve months greater
than 1.0 to 1.0 and provided that no Default or Event of Default exists, such $5,000,000 shall be
reduced over a four consecutive month period to zero with a reduction of $1,250,000 to be effective
on the first day of each such month.




          Availability Reserve: the sum (without duplication) of (a) the Rent and Charges
Reserve; (b) the LC Reserve; (c) the Bank Product Reserve; (d) the aggregate amount of liabilities
secured by Liens (other than Purchase Money Liens) upon Collateral that are senior to Agent’s Liens
(but imposition of any such reserve shall not waive an Event of Default arising therefrom); (e) the
Availability Block; (f) the Dilution Reserve; and (g) such additional reserves, in such amounts and
with respect to such matters, as Agent in its Credit Judgment may elect to impose from time to
time.




          Bank of America: Bank of America, N.A. (acting through its Singapore branch or such
other branch or branches as it may designate from time to time), a national banking association,
and its successors and assigns.




          Bank of America Indemnitees: Bank of America and its officers, directors, employees,
Affiliates, agents and attorneys.




          Bank Product: any of the following products, services or facilities extended to
Parent, Borrower or any Subsidiary by a Lender or any of its Affiliates: (a) Cash Management
Services; (b) products under Hedging Agreements; (c) commercial credit card and merchant card
services; and (d) leases and other banking products or services as may be requested by Parent,
Borrower or any Subsidiary, other than Letters of Credit; provided, however, that
for any of the



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





3









 







foregoing to be included as an “Obligation” for purposes of a distribution under Section
5.6.1, the applicable Secured Party (other than Bank of America or any of its Affiliates) and
Obligor must have previously provided written notice to Agent of (i) the existence of such Bank
Product, and (ii) the maximum dollar amount of obligations arising thereunder to be included as a
Bank Product Reserve (“Bank Product Amount”), and (iii) the methodology to be used by such
parties in determining the Bank Product Debt owing from time to time. The Bank Product Amount may
be changed from time to time upon written notice to Agent by the Secured Party and Obligor. No
Bank Product Amount may be established or increased at any time that a Default or Event of Default
exists, or if a reserve in such amount would cause an Overadvance.




          Bank Product Amount: as defined in the definition of Bank Product.




          Bank Product Debt: Debt and other obligations of an Obligor (or any Subsidiary
thereof) relating to Bank Products.




          Bank Product Reserve: the aggregate amount of reserves established by Agent from time
to time in its discretion in respect of Bank Product Debt.




          Bankruptcy Code: Title 11 of the United States Code.




          Base Rate: for any day, a per annum rate equal to the greater of (a) the Prime Rate
for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) LIBOR for a 30 day
interest period as determined on such day, plus 1.0%.




          Base Rate Loan: a Loan that bears interest based on the Base Rate.




          Board of Governors: the Board of Governors of the Federal Reserve System.




          Borrowed Money: with respect to any Obligor, without duplication, its (a) Debt that
(i) arises from the lending of money by any Person to such Obligor, (ii) is evidenced by notes,
drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a
type upon which interest charges are customarily paid (excluding accrued liabilities incurred in
the Ordinary Course of Business, income taxes payable, short term payables due to Affiliates for
the payment of goods and services incurred in the Ordinary Course of Business and trade payables
incurred in the Ordinary Course of Business), or (iv) was issued or assumed as full or partial
payment for Property; (b) Capital Leases; (c) reimbursement obligations with respect to letters of
credit; and (d) guaranties of any Debt of the foregoing types owing by another Person.




          Borrower Security Agreement: the security agreement to be entered into between the
Borrower and the Agent on or about the date of this Agreement pursuant to which, among other
things, the Borrower grants security over certain of its assets and undertakings in favor of the
Agent.




          Borrowing: a group of Loans of one Type that are made on the same day or are
converted into Loans of one Type on the same day.




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





4









 








          Borrowing Base: on any date of determination, an amount equal to the lesser of (a)
the aggregate amount of Commitments, minus the LC Reserve, minus the Availability
Block; or (b) the sum of the Accounts Formula Amount, minus the Availability Reserve.




          Borrowing Base Certificate: a certificate, in form and substance satisfactory to
Agent, by which Borrower certifies calculation of the Borrowing Base.




          Business Day: any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the laws of, or are in fact closed in, North Carolina,
California, Hong Kong or Singapore, and if such day relates to a LIBOR Loan, any Borrowing or the
issuance of a Letter of Credit, any such day on which commercial banks are open for business in
Singapore and Hong Kong and on which dealings in Dollar deposits are conducted between banks in the
London interbank Eurodollar market.




          Capital Expenditures: all liabilities incurred or expenditures made by the Parent or
Subsidiary for the acquisition of fixed assets, or any improvements, replacements, substitutions or
additions thereto with a useful life of more than one year, but excluding expenditures made on
assets substantially concurrently with the sale of, or pursuant to an exchange for or trade in of,
any existing asset of any like kind and character to the extent permitted herein.




          Capital Lease: any lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP.




          Cash Collateral: cash, and any interest or other income earned thereon, that is
delivered to Agent to Cash Collateralize any Obligations.




          Cash Collateral Account: a demand deposit, money market or other account established
by Agent at such financial institution as Agent may select in its discretion, which account shall
be subject to Agent’s Liens for the benefit of Secured Parties.




          Cash Collateralize: the delivery of cash to Agent, as security for the payment of
Obligations, in an amount equal to (a) with respect to LC Obligations, 105% of the aggregate LC
Obligations, and (b) with respect to any inchoate, contingent or other Obligations (including
Obligations arising under Bank Products, but excluding contingent or inchoate indemnification
obligations to the extent that claims giving rise thereto have not been asserted or can not
reasonably be identified by any Secured Party based on the then known facts and circumstances),
Agent’s good faith estimate of the amount due or to become due, including all fees and other
amounts relating to such Obligations. “Cash Collateralization” has a correlative meaning.




          Cash Equivalents: (a) marketable obligations issued or unconditionally guaranteed by,
and backed by the full faith and credit of, the United States government, maturing within 12 months
of the date of acquisition; (b) certificates of deposit, time deposits and bankers’ acceptances
maturing within 12 months of the date of acquisition, and overnight bank deposits, in each case
which are issued by a commercial bank organized under the laws of the United



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





5









 







States or any state or district thereof, rated A-1 (or better) by S&P or P-1 (or better) by
Moody’s at the time of acquisition, and (unless issued by a Lender) not subject to offset rights;
(c) repurchase obligations with a term of not more than 30 days for underlying investments of the
types described in clauses (a) and (b) entered into with any bank meeting the qualifications
specified in clause (b); (d) commercial paper rated A-1 (or better) by S&P or P-1 (or better) by
Moody’s, and maturing within nine months of the date of acquisition; and (e) shares of any money
market fund that has substantially all of its assets invested continuously in the types of
investments referred to above, has net assets of at least $500,000,000 and has the highest rating
obtainable from either Moody’s or S&P.




          Cash Management Services: any services provided from time to time by Bank of America
or any of its Affiliates to Parent or any Subsidiary in connection with operating, collections,
payroll, trust, or other depository or disbursement accounts, including automated clearinghouse,
e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft,
depository, information reporting, lockbox and stop payment services.




          Cayman Guarantor: means Trident Microsystems (Far East) Ltd.




          Cayman Islands Security Documents: any document, instrument or agreement governed by
the laws of the Cayman Islands now or hereafter securing (or given with the intent to secure) any
Obligations.




          CERCLA: the Comprehensive Environmental Response Compensation and Liability Act (42
U.S.C. § 9601 et seq.).




          Change in Law: the occurrence, after the date hereof, of (a) the adoption or taking
effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any Governmental
Authority; or (c) the making or issuance of any request, guideline or directive (whether or not
having the force of law) by any Governmental Authority.




          Change of Control: (a) Parent ceases to own and control, beneficially and of record,
directly or indirectly, all equity interests in each Obligor (other than Parent) except for equity
interests in any non-U.S. Obligor (but in any event constituting less than 49% of the equity
interests in such Obligor) that are required under Applicable Law to be owned by the respective
directors thereof or any other Persons; (b) any Person or “group” (within the meaning of Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934 (as amended from time to time, and any
successor statute)) (i) shall have acquired after the Closing beneficial ownership of 45% or more
on a fully diluted basis of the voting and/or economic interest in the Equity Interests of Parent
or (ii) shall have obtained the power (whether or not exercised) to elect a majority of the members
of the board of directors (or similar governing body) of Parent, (c) a change in the majority of
directors of the Parent, unless approved by the then majority of directors; or (d) all or
substantially all of the Borrower’s assets are sold or transferred.




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





6









 








          Claims: all liabilities, obligations, losses, damages, penalties, judgments,
proceedings, interest, costs and expenses of any kind (including remedial response costs,
reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of
the Obligations, resignation or replacement of Agent, or replacement of any Lender) incurred by or
asserted against any Indemnitee in any way relating to (a) any Loans, Letters of Credit, Loan
Documents, or the use thereof or transactions relating thereto, (b) any action taken or omitted to
be taken by any Indemnitee in connection with any Loan Documents, (c) the existence or perfection
of any Liens, or realization upon any Collateral, (d) exercise of any rights or remedies with
respect to the Obligations under any Loan Documents or Applicable Law, or (e) failure by any
Obligor to perform or observe any terms of any Loan Document, in each case including all costs and
expenses relating to any investigation, litigation, arbitration or other proceeding (including an
Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a
party thereto.




          Closing Date: as defined in Section 6.1.




          Code: the Internal Revenue Code of 1986.




          Collateral: all Property described in Section 7.1, all Property described in
any Security Documents as security for any Obligations, and all other Property that now or
hereafter secures (or is intended to secure) any Obligations.




          Commitment: for any Lender, its obligation to make Loans and to participate in LC
Obligations up to the maximum principal amount shown on Schedule 1.1 (as increased as
provided in Section 2.2 or as reduced as provided in Section 2.1.4), or as
hereafter determined pursuant to each Assignment and Acceptance or Assumption Agreement to which it
is a party. “Commitments” means the aggregate amount of such commitments of all Lenders.




          Commitment Date: as defined in Section 2.2.




          Commitment Termination Date: the earliest to occur of (a) the Revolver Termination
Date; (b) the date on which Borrower terminates the Commitments pursuant to Section 2.1.4;
or (c) the date on which the Commitments are terminated pursuant to Section 11.2.




          Compliance Certificate: a certificate, in form and substance satisfactory to Agent,
by which Borrower certifies compliance with Sections 10.2.3 and 10.3, lists all
outstanding Bank Products and calculates the applicable Level for the Applicable Margin.




          Contingent Obligation: any obligation of a Person arising from a guaranty, indemnity
or other assurance of payment or performance of any Debt, lease, dividend or other obligation
(“primary obligations”) of another obligor (“primary obligor”) in any manner,
whether directly or indirectly, including any obligation of such Person under any (a) guaranty,
endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation
to make take-or-pay or similar payments regardless of nonperformance by any other party to an
agreement; and (c) arrangement (i) to purchase any primary obligation or



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





7









 








security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to
maintain or assure working capital, equity capital, net worth or solvency of the primary obligor,
(iv) to purchase Property or services for the purpose of assuring the ability of the primary
obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of
any primary obligation against loss in respect thereof. The amount of any Contingent Obligation
shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the
maximum amount for which such Person may be liable under the instrument evidencing the Contingent
Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with
respect thereto.




          Credit Judgment: Agent’s reasonable judgment based upon its consideration of any
factor that: (a) could be expected to adversely affect the quantity, quality, mix or value of
Collateral (including any Applicable Law that may inhibit collection of an Account), the
enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders could receive in
liquidation of any Collateral; (b) suggests that any collateral report or financial information
delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) Agent
believes materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or
(d) creates or could be expected to result in a Default or Event of Default. In exercising such
judgment, Agent may consider any factors that could increase the credit risk of lending to Borrower
on the security of the Collateral.




          CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).




          Debt: as applied to any Person, without duplication, (a) all items that would be
included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but
excluding accrued liabilities incurred in the Ordinary Course of Business, income taxes payable and
short term payables due to Affiliates for the payment of goods and services incurred in the
Ordinary Course of Business of such Person and trade payables incurred in the Ordinary Course of
Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with
letters of credit issued for the account of such Person; and (d) in the case of an Obligor, the
Obligations. The Debt of a Person shall include any recourse Debt of any partnership in which such
Person is a general partner or joint venturer.




          Default: an event or condition that, with the lapse of time or giving of notice,
would constitute an Event of Default.




          Default Rate: for any Obligation (including, to the extent permitted by law, interest
not paid when due), 2% plus the interest rate otherwise applicable thereto.




          Defaulting Lender: any Lender that (a) fails to make any payment or provide funds to
Agent or Borrower as required hereunder or fails otherwise to perform its obligations under any
Loan Document, and such failure is not cured within one Business Day, or (b) is the subject of any
Insolvency Proceeding.




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





8









 








          Deposit Account Control Agreements: the Deposit Account control agreements in favor
of Agent to be executed at Agent’s request by each institution maintaining a Deposit Account for an
Obligor, for the benefit of Secured Parties, as security for the Obligations.




          Dilution Percent: the percent, determined as of the end of each month (i) through and
including March 2011, for the trailing six month period ended in the applicable month and (ii) from
and after March 2011, for the trailing twelve month period ended in the applicable month, in either
case equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits,
credit memos and other dilutive items with respect to Accounts in such period, divided
by (b) gross sales in such period.




          Dilution Reserve: the amount equal to the product of (x) the Value of Eligible
Accounts on the date of determination multiplied by (y) the aggregate percentage equal to 2% for
each whole percentage or portion thereof that the Dilution Percent exceeds 7.5%.




          Disbursement Account: the Deposit Account that Borrower maintains with Agent and that
Borrower designates as its disbursement account.




          Distribution: any declaration or payment of a distribution, interest or dividend on
any Equity Interest (other than payment-in-kind); any distribution, advance or repayment of Debt to
a holder of Equity Interests; or any purchase, redemption, or other acquisition or retirement for
value of any Equity Interest.




          Dollars: lawful money of the United States.




          Dominion Account: a special account designated by Agent and established by Borrower
or by another Obligor at Bank of America or another bank acceptable to Agent, over which Agent has
exclusive control for withdrawal purposes.




          EBITDA: determined on a consolidated basis for Parent and Subsidiaries, net income,
calculated before interest expense, provision for income taxes, depreciation and amortization
expense, gains or losses arising from the sale of capital assets, gains arising from the write-up
of assets, unrealized foreign currency gains or losses, and any extraordinary gains or losses from
the write-off or write-down of goodwill in accordance with purchase price accounting under GAAP as
applied to any Permitted Acquisition, any non-cash employee stock compensation and any other
non-cash charges acceptable to Agent (in each case, to the extent included in determining net
income).




          Eligible Account: an Account owing to the Borrower that arises in the Ordinary Course
of Business from the sale of goods or rendition of services, is payable in Dollars or in Euros
(provided that with respect to any Account which is payable in Euros, the Value thereof in
Dollars shall for all purposes be determined by Agent by reference to (i) the “Historical Exchange
Rate” for converting Euros into Dollars on the immediately prior Business Day as determined by
OANDA Corporation and made available on its website at
http://www.oanda.com/currency/historical-rates, (ii) the exchange rates as set forth on the



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





9









 







applicable website of Reuters information services, as selected by Agent or (iii) such
reasonable method or information services as the Agent deems appropriate to determine such rate,
and such determination shall be conclusive absent manifest error) and is deemed by Agent, in its
Credit Judgment, to be an Eligible Account. Without limiting the foregoing, no Account shall be an
Eligible Account if (a) it is unpaid for more than 60 days after the original due date, or more
than 90 days after the original invoice date; (b) 50% or more of the Accounts owing by the Account
Debtor are not Eligible Accounts under the foregoing clause; (c) when aggregated with other
Accounts owing by the Account Debtor, (Y) it exceeds 20% of the aggregate Eligible Accounts, with
respect to Account Debtors falling within clause (a) of the definition of “Accounts Formula Amount”
or (Z) it exceeds 10% of the aggregate Eligible Accounts, with respect to Account Debtors falling
within clause (b) of the definition of “Accounts Formula Amount”; provided (i) that with
respect to Accounts owing from The Samsung Group or any of its majority-owned subsidiaries, such
percentage shall be 50%, (ii) with respect to Accounts owing from Koninklijke Philips Electronics
N.V. or any of its majority-owned subsidiaries, such percentage shall be 35% (iii) with respect to
Accounts owing from TPV Technology Limited or any of its majority-owned subsidiaries, such
percentage shall be 15% and (iv) as to any Account Debtor, such higher percentage as Agent may
establish for such Account Debtor from time to time; (d) it does not conform with a covenant or
representation herein; (e) it is owing by a creditor or supplier, is a contra account or is
otherwise subject to a potential offset, counterclaim, dispute, deduction, discount, recoupment,
reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount
thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor; or the
Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or
winding up its affairs, or is not Solvent; or the Borrower is not able to bring suit or enforce
remedies against the Account Debtor through judicial process; (g) the Account Debtor is organized
or has its principal offices or assets outside the United States or Canada, except as provided in
the definition of “Accounts Formula Amount”; (h) it is owing by a Government Authority, unless the
Account Debtor is the United States or any department, agency or instrumentality thereof and the
Account has been assigned to Agent in compliance with the Assignment of Claims Act; (i) it is not
subject to a duly perfected, first priority Lien in favor of Agent, or is subject to any other
Lien; (j) the goods giving rise to it have not been delivered to and accepted by the Account
Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it
otherwise does not represent a final sale; (k) it is evidenced by Chattel Paper or an Instrument of
any kind or has been reduced to judgment; (l) its payment has been extended, the Account Debtor has
made a partial payment, or it arises from a sale on a cash-on-delivery basis; (m) it arises from a
sale to an Affiliate, from a sale on a bill-and-hold, guaranteed sale, sale-or-return,
sale-on-approval, consignment, or other repurchase or return basis, or from a sale to a Person for
personal, family or household purposes; (n) it represents a progress billing or retainage, or
relates to services for which a performance, surety or completion bond or similar assurance has
been issued; or (o) it includes a billing for interest, fees or late charges, but ineligibility
shall be limited to the extent thereof. In calculating delinquent portions of Accounts under
clauses (a) 
and (b), credit balances more than 90 days old will be excluded.




          Eligible Assignee: a Person that is (a) a Lender, U.S.-based Affiliate of a Lender or
Approved Fund or a purchaser of all or a substantial portion of Bank of America’s asset-based




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




10









 







loan portfolio; (b) any other financial institution approved by Agent and Borrower (which
approval by Borrower shall not be unreasonably withheld or delayed, and shall be deemed given if no
objection is made within two (2) Business Days after notice of the proposed assignment), that is
organized under the laws of the United States or any state or district thereof, has total assets in
excess of $5 billion, extends asset-based lending facilities in its ordinary course of business and
whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of the
Code or any other Applicable Law; and (c) during any Event of Default, any Person acceptable to
Agent in its discretion.




          Enforcement Action: any action to enforce any Obligations or Loan Documents or to
realize upon any Collateral (whether by judicial action, self-help, notification of Account
Debtors, exercise of setoff or recoupment, or otherwise).




          Environmental Laws: all Applicable Laws (including all programs, permits and guidance
promulgated by regulatory agencies), relating to public health (but excluding occupational safety
and health, to the extent regulated by OSHA) or the protection or pollution of the environment,
including CERCLA, RCRA and CWA.




          Environmental Notice: a notice (whether written or oral) from any Governmental
Authority or other Person of any possible noncompliance with, investigation of a possible violation
of, litigation relating to, or potential material fine or liability under any Environmental Law, or
with respect to any Environmental Release, environmental pollution or hazardous materials,
including any complaint, summons, citation, order, claim, demand or request for correction,
remediation or otherwise.




          Environmental Release: a release as defined in CERCLA or under any other
Environmental Law.




          Equity Interest: the interest of any (a) shareholder in a corporation or a company;
(b) partner in a partnership (whether general, limited, limited liability or joint venture); (c)
member in a limited liability company; or (d) other Person having any other form of equity security
or ownership interest.




          ERISA: the Employee Retirement Income Security Act of 1974.




          ERISA Affiliate: any trade or business (whether or not incorporated) under common
control with an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).




          ERISA Event: (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal
by any Obligor or 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; (c) a
complete or partial withdrawal by any Obligor or ERISA




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




11









 







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 Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings
by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) any Obligor or ERISA Affiliate
fails to meet any funding obligations with respect to any Pension Plan or Multiemployer Plan, or
requests a minimum funding waiver; (f) an event or condition which constitutes 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 (g) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor
or ERISA Affiliate.




          Event of Default: as defined in Article XI.




          Excluded Securities Accounts: (a) the Securities Account numbered 6254-2507
maintained by the Borrower with E*TRADE Securities LLC, but only if the aggregate balance in such
Securities Account does not exceed $160,000 at any time and (b) the Securities Account numbered
8924-1335 maintained by the Cayman Guarantor with Charles Schwab & Co., Inc., but only if the
aggregate balance in such Securities Account does not exceed $20,000 at any time; for the avoidance
of doubt, either of forgoing Securities Accounts shall cease to be an “Excluded Securities Account”
in the event the aggregate balance therein exceeds the applicable threshold set forth in this
definition.




          Excluded Tax: with respect to Agent, any Lender, Issuing Bank or any other recipient
of a payment to be made by or on account of any Obligation, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such
recipient is organized or in which its principal office is located or, in the case of any Lender,
in which its applicable Lending Office is located; and (b) any branch profits taxes imposed by the
jurisdiction in which any Obligor is located.




          Extraordinary Expenses: all documented out-of-pocket costs, expenses or advances that
Agent may incur and all internal bank charges referred to in Section 10.1.1 that Agent may
incur, in each case during a Default or Event of Default, or during the pendency of an Insolvency
Proceeding of an Obligor, including those relating to (a) any audit, inspection, repossession,
storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale,
collection, or other preservation of or realization upon any Collateral; (b) any action,
arbitration or other proceeding (whether instituted by or against Agent, any Lender, any Obligor,
any representative of creditors of an Obligor or any other Person) in any way relating to any
Collateral (including the validity, perfection, priority or avoidability of Agent’s Liens with
respect to any Collateral), Loan Documents, Letters of Credit or Obligations, including any lender
liability or other Claims; (c) the exercise, protection or enforcement of any rights or remedies of
Agent in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of any
taxes, charges or Liens with respect to any Collateral; (e) any Enforcement Action; (f) negotiation
and documentation of any modification, waiver, workout, restructuring or




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




12









 







forbearance with respect to any Loan Documents or Obligations; and (g) Protective Advances.
Such costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance
costs, permit fees, utility reservation and standby fees, reasonable and documented legal fees,
appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’
fees, environmental study fees, wages and salaries paid to employees of any Obligor or independent
contractors in liquidating any Collateral, and travel expenses.




          Federal Funds Rate: (a) the weighted average of interest rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers on
the applicable Business Day (or on the preceding Business Day, if the applicable day is not a
Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or
(b) if no such rate is published on the next Business Day, the average rate (rounded up, if
necessary, to the nearest 1/8 of 1%) charged to Bank of America on the applicable day on such
transactions, as determined by Agent.




          Fee Letter: the fee letter agreement between Agent and Borrower.




          Fiscal Quarter: each period of three months, commencing on the first day of a Fiscal
Year.




          Fiscal Year: the fiscal year of Parent and Subsidiaries for accounting and tax
purposes, ending on December 31 of each year, except in the case of Trident India Ltd., for which
the fiscal year ends on March 31 of each year.




          Fixed Charge Coverage Ratio: the ratio, determined on a consolidated basis for Parent
and Subsidiaries for the most recent twelve-month period, of (a) EBITDA to (b) Fixed Charges.




          Fixed Charges: the sum, on a consolidated basis for Parent and its Subsidiaries, of
interest expense (other than payment-in-kind), principal payments made on Borrowed Money, Capital
Expenditures (except those financed with Borrowed Money other than Loans), cash taxes paid, the
cash portion of consideration paid for Permitted Acquisitions (to the extent not included in
Capital Expenditures) and Distributions made (other than Permitted Distributions to the extent
eliminated as a Distribution on the consolidated financial statements of Parent).




          FLSA: the Fair Labor Standards Act of 1938.




          Foreign Plan: any employee benefit plan or arrangement (a) maintained or contributed
to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b)
mandated by a government other than the United States for employees of any Obligor or Subsidiary.




          Full Payment: with respect to any Obligations, (a) the full and indefeasible cash
payment thereof, including any interest, fees and other charges accruing during an Insolvency
Proceeding (whether or not allowed in the proceeding); (b) if such Obligations are LC




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




13









 







Obligations or inchoate or contingent in nature (excluding contingent or inchoate
indemnification obligations to the extent that claims giving rise thereto have not been asserted or
cannot reasonably be identified by any Secured Party based on the then-known facts and
circumstances), Cash Collateralization thereof (or delivery of a standby letter of credit
acceptable to Agent in its discretion, in the amount of required Cash Collateral); and (c) a
release of any Claims of Obligors against Agent, Lenders and Issuing Bank arising on or before the
payment date. No Loans shall be deemed to have been paid in full until all Commitments related to
such Loans have expired or been terminated.




          GAAP: generally accepted accounting principles in effect in the United States from
time to time.




          Governmental Approvals: all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and required reports to, all Governmental
Authorities.




          Governmental Authority: any federal, state, municipal, foreign or other governmental
department, agency, commission, board, bureau, court, tribunal, instrumentality, political
subdivision, or other entity or officer exercising executive, legislative, judicial, regulatory or
administrative functions for or pertaining to any government or court, in each case whether
associated with the United States, a state, district or territory thereof, or a foreign entity or
government.




          Guaranteed Obligations: as defined in Section 12.1.1.




          Guarantors: the entities from time to time party hereto as guarantors and each other
Person who guarantees payment or performance of any Obligations.




          Guaranty: each guaranty agreement executed by a Guarantor in favor of Agent,
including the guaranty provided pursuant to Article XII.




          Hedging Agreement: an agreement relating to any swap, cap, floor, collar, option,
forward, cross right or obligation, or combination thereof or similar transaction, with respect to
interest rate, foreign exchange, currency, commodity, credit or equity risk.




          Hong Kong Security Documents: the Borrower Security Agreement and the Trident Cayman
Security Agreement or any other document, instrument or agreement governed by the laws of Hong Kong
now or hereafter securing (or given with the intent to secure) any Obligations.




          HSBC Deposit Accounts: the Deposit Accounts numbered 580-199354-274 and
580-199354-001, maintained by the Cayman Guarantor, and 580-747608-274 and 580-199354-002,
maintained by the Borrower, in each case with The Hong Kong & Shanghai Banking Corporation Limited.





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




14









 








          Increasing Lender: as defined in Section 2.2.




          Indemnified Taxes: Taxes other than Excluded Taxes.




          Indemnitees: Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank
of America Indemnitees.




          Insolvency Proceeding: any case or proceeding commenced by or against a Person under
any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an
order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt
adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator
or other custodian for such Person or any substantial part of its Property; or (c) an assignment or
trust mortgage for the benefit of creditors.




          Intellectual Property: all intellectual and similar Property of a Person, including
inventions, designs, patents, copyrights, trademarks, service marks, mask works, trade names, trade
secrets, confidential or proprietary information, customer lists, know-how, software and databases;
all embodiments or fixations thereof and all related documentation, applications, registrations and
franchises; all licenses or other rights to use any of the foregoing; and all books and records
relating to the foregoing.




          Intellectual Property Claim: any claim or assertion (whether in writing, by suit or
otherwise) that the Parent’s or Subsidiary’s ownership, use, marketing, sale or distribution of any
Inventory, Equipment, Intellectual Property or other Property violates another Person’s
Intellectual Property.




          Interest Period: as defined in Section 3.1.3.




          Inventory: as defined in the UCC, including all goods intended for sale, lease,
display or demonstration; all work in process; and all raw materials, and other materials and
supplies of any kind that are or could be used in connection with the manufacture, printing,
packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or
consumed in a Borrower’s business (but excluding Equipment).




          Investment: any acquisition of all or substantially all assets of a Person; any
acquisition of record or beneficial ownership of any Equity Interests of a Person; or any loan or
capital contribution to or other investment in a Person.




          IRS: the United States Internal Revenue Service.




          Issuing Bank: Bank of America or an Affiliate of Bank of America.




          Issuing Bank Indemnitees: Issuing Bank and its officers, directors, employees,
Affiliates, agents and attorneys.





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




15









 








          LC Application: an application by Borrower to Issuing Bank for issuance of a Letter
of Credit, in form and substance satisfactory to Issuing Bank.




          LC Conditions: the following conditions necessary for issuance of a Letter of Credit:
(a) each of the conditions set forth in Article VI; (b) after giving effect to such
issuance, total LC Obligations do not exceed the Letter of Credit Subline, no Overadvance exists
and, if no Loans are outstanding, the LC Obligations do not exceed the Borrowing Base (without
giving effect to the LC Reserve for purposes of this calculation); (c) the expiration date of such
Letter of Credit is (i) no more than 365 days from issuance, in the case of standby Letters of
Credit, (ii) no more than 120 days from issuance, in the case of documentary Letters of Credit, and
(iii) at least 20 Business Days prior to the Revolver Termination Date (unless otherwise agreed by
the Agent or Cash Collateralized in a manner satisfactory to the Agent); (d) the Letter of Credit
and payments thereunder are denominated in Dollars; and (e) the purpose and form of the proposed
Letter of Credit is satisfactory to Agent and Issuing Bank in their discretion.




          LC Documents: all documents, instruments and agreements (including LC Requests and LC
Applications) delivered by Borrower or any other Person to Issuing Bank or Agent in connection with
issuance, amendment or renewal of, or payment under, any Letter of Credit.




          LC Obligations: the sum (without duplication) of (a) all amounts owing by Borrower
for any drawings under Letters of Credit; (b) the stated amount of all outstanding Letters of
Credit; and (c) all fees and other amounts owing with respect to Letters of Credit.




          LC Request: a request for issuance of a Letter of Credit, to be provided by Borrower
to Issuing Bank, in form satisfactory to Agent and Issuing Bank.




          LC Reserve: the aggregate of all LC Obligations, other than (a) those that have been
Cash Collateralized; and (b) if no Event of Default exists, those constituting charges owing to the
Issuing Bank.




          Lender Indemnitees: Lenders and their officers, directors, employees, Affiliates,
agents and attorneys.




          Lenders: as defined in the preamble to this Agreement, including Agent in its
capacity as a provider of Swingline Loans and any other Person who hereafter becomes a “Lender”
pursuant to an Assignment and Acceptance or an Assumption Agreement.




          Lending Office: the office designated as such by the applicable Lender at the time it
becomes party to this Agreement or thereafter by notice to Agent and Borrower.




          Letter of Credit: any standby or documentary letter of credit issued by Issuing Bank
for the account of Borrower, or any indemnity, guarantee, exposure transmittal memorandum or
similar form of credit support issued by Agent or Issuing Bank for the benefit of Borrower.





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




16









 








          Letter of Credit Subline: an amount equal to twenty-five percent (25%) of the
aggregate amount of Commitments.




          LIBOR: for any Interest Period with respect to a LIBOR Loan, the per annum rate of
interest (rounded up if necessary, to the nearest 1/8th of 1%), determined by Agent at
approximately 11:00 a.m. (London time) two Business Days prior to commencement of such Interest
Period, for a term comparable to such Interest Period, equal to (a) the British Bankers Association
LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source
designated by Agent); or (b) if BBA LIBOR is not available for any reason, the interest rate at
which Dollar deposits in the approximate amount of the LIBOR Loan would be offered by Bank of
America’s London branch to major banks in the London interbank Eurodollar market. If the Board of
Governors imposes a Reserve Percentage with respect to LIBOR deposits, then LIBOR shall be the
foregoing rate, divided by 1 minus the Reserve Percentage.




          LIBOR Loan: a Loan that bears interest based on LIBOR.




          License: any license or agreement under which an Obligor is authorized to use
Intellectual Property in connection with any manufacture, marketing, distribution or disposition of
Collateral, any use of Property or any other conduct of its business.




          Licensor: any Person from whom an Obligor obtains the right to use any Intellectual
Property.




          Lien: any Person’s interest in Property securing an obligation owed to, or a claim
by, such Person, whether such interest is based on common law, statute or contract, including
liens, security interests, pledges, hypothecations, statutory trusts, reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases, and other
title exceptions and encumbrances affecting Property.




          Lien Waiver: an agreement, in form and substance reasonably satisfactory to Agent, by
which (a) for any Collateral with an aggregate value in excess of $1,000,000 located on leased
premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to
permit Agent to enter upon the premises and remove the Collateral or to use the premises to store
or dispose of the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper,
customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the
Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for
Agent, and agrees to deliver the Collateral to Agent upon request; (c) for any Collateral held by a
repairman, mechanic or bailee, such Person acknowledges Agent’s Lien, waives or subordinates any
Lien it may have on the Collateral, and agrees to deliver the Collateral to Agent upon request; and
(d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to
Agent the right, vis-à-vis such Licensor, to enforce Agent’s Liens with respect to the Collateral,
including the right to dispose of it with the benefit of the Intellectual Property, whether or not
a default exists under any applicable License.




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





17









 








          Liquidity: at any time, as determined by Agent pursuant to current information
available to Agent from the internal systems of Agent or any of its Affiliates, or as determined by
Agent pursuant to current information provided by Borrower (subject to the review and approval of
Agent), without duplication, the sum of (a) Availability plus (b) the Borrower’s and any
other Obligor’s cash, Cash Equivalents and Long Term Liquid Investments (determined by their
current market value) subject to a Lien in favor of the Agent held in not more than two Securities
Accounts with Bank of America, N.A. that are subject to Securities Account Control Agreements in
form and substance satisfactory to Agent (any such Securities Account, a “Specified Securities
Account”).




          Loan: a loan made pursuant to Section 2.1, and any Swingline Loan,
Overadvance Loan or Protective Advance.




          Loan Account: the loan account established by each Lender on its books pursuant to
Section 5.8.




          Loan Documents: this Agreement, Other Agreements and Security Documents.




          Loan Year: each 12 month period commencing on the Closing Date and on each
anniversary of the Closing Date.




          Long Term Liquid Investments: Investments made in accordance with Parent’s investment
policy in the form attached as Exhibit D and approved by the board of directors of the Parent or
any Subsidiary or any committee thereof to which such board has delegated such authority, as such
policy is amended and restated from time to time in a manner satisfactory to Agent and with the
approval of such board or committee, that are not Cash Equivalents.




          Margin Stock: as defined in Regulation U of the Board of Governors.




          Material Adverse Effect: the effect of any event or circumstance that, taken alone or
in conjunction with other events or circumstances, (a) has or could be reasonably expected to have
a material adverse effect on the business, operations, Properties, prospects or condition
(financial or otherwise) of Obligors taken as a whole, on the value of any material Collateral, on
the enforceability of any Loan Documents, or on the validity or priority of Agent’s Liens on any
Collateral; (b) impairs the ability of any Obligor to perform any obligations under the Loan
Documents, including repayment of any Obligations; or (c) otherwise impairs the ability of Agent or
any Lender to enforce or collect any Obligations or to realize upon any Collateral.




          Material Contract: any agreement or arrangement to which Parent or any Subsidiary is
party (other than the Loan Documents) (a) that is deemed to be a material contract under any
securities law applicable to such Obligor, including the Securities Act of 1933; (b) for which
breach, termination, nonperformance or failure to renew could reasonably be expected to have a
Material Adverse Effect; or (c) that relates to Subordinated Debt, or Debt in an aggregate amount
of $500,000 or more.




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





18









 








          Material License: any Material Contract that involves the licensing of Intellectual
Property or other assets from any third party and that involves payments by the licensee thereunder
in excess of $2,500,000.




          Merrill Lynch Securities Accounts: the Securities Accounts (i) numbered 268-07M59,
maintained by the Parent, (ii) numbered 268-07083, maintained by the Borrower and (iii) numbered
07162 (4236457), maintained by the Cayman Guarantor, in each case with Merrill Lynch & Co., Inc.




          Moody’s: Moody’s Investors Service, Inc., and its successors.




          Multiemployer Plan: any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which any Obligor or ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.




          Net Proceeds: with respect to an Asset Disposition, proceeds (including, when
received, any deferred or escrowed payments) received by Parent or a Subsidiary in cash from such
disposition, net of (a) reasonable and customary costs and expenses actually incurred in connection
therewith, including legal fees and sales commissions and fees of accountants, investment banks and
consultants; (b) amounts applied to repayment of Debt secured by a Permitted Lien senior to Agent’s
Liens on Collateral sold; (c) transfer or similar taxes; and (d) reserves for indemnities, until
such reserves are no longer needed.




          Notes: each Revolver Note or other promissory note executed by Borrower to evidence
any Obligations.




          Notice of Borrowing: a Notice of Borrowing to be provided by Borrower to request a
Borrowing of Loans, in form satisfactory to Agent.




          Notice of Conversion/Continuation: a Notice of Conversion/Continuation to be provided
by Borrower to request a conversion or continuation of any Loans as LIBOR Loans, in form
satisfactory to Agent.




          Obligations: all (a) principal of and premium, if any, on the Loans, (b) LC
Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest,
expenses, fees and other sums payable by Obligors under Loan Documents, (d) obligations of Obligors
under any indemnity for Claims, (e) Extraordinary Expenses, (f) Bank Product Debt, and (g) other
Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents,
whether now existing or hereafter arising, whether evidenced by a note or other writing, whether
allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a
letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or
indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




19









 








          Obligor: Borrower, Parent, the Cayman Guarantor and any other Person that is a
Guarantor and that has granted a Lien or any security interest pursuant to a Security Document in
favor of Agent on its assets to secure any Obligations.




          Ordinary Course of Business: the ordinary course of business of Parent or any
Subsidiary, consistent with past practices and undertaken in good faith.




          Organic Documents: with respect to any Person, its memorandum and articles of
association, certificate of change of name (if any), charter, certificate or articles of
incorporation, bylaws, articles of organization, limited liability agreement, operating agreement,
members agreement, shareholders agreement, partnership agreement, certificate of partnership,
certificate of formation, voting trust agreement, or similar agreement or instrument governing the
formation or operation of such Person as applicable.




          Original Currency: as defined in Section 15.17.




          OSHA: the Occupational Safety and Hazard Act of 1970.




          Other Agreement: each Note; LC Document; Fee Letter; Lien Waiver; Borrowing Base
Certificate, Compliance Certificate, Perfection Certificate, financial statement or report
delivered hereunder; or other document, instrument or agreement (other than this Agreement or a
Security Document) now or hereafter delivered by an Obligor or other Person to Agent or a Lender in
connection with any transactions relating hereto.




          Other Currency: as defined in Section 15.17.




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




          Overadvance: as defined in Section 2.1.5.




          Overadvance Loan: a Base Rate Loan made when an Overadvance exists or is caused by
the funding thereof.




          Parent: Trident Microsystems, Inc., a Delaware corporation.




          Participant: as defined in Section 14.2.




          Patriot Act: the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





20









 








          Payment Item: each check, draft or other item of payment payable to an Obligor,
including those constituting proceeds of any Collateral.




          PBGC: the Pension Benefit Guaranty Corporation.




          Pension Plan: any employee pension benefit plan (as such term is defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by any Obligor or ERISA Affiliate or to which the Obligor or ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any time during the
preceding five plan years.




          Perfection Certificate: that certain Perfection Certificate of the Obligors dated on
or about the date hereof with respect to this Agreement.




          Permitted Acquisition: as defined in clause (d) of the definition of “Restricted
Investment”.




          Permitted Asset Disposition: an Asset Disposition that is (a) a sale of Inventory in
the Ordinary Course of Business; (b) a disposition of obsolete, worn-out or excess equipment or
other property in the Ordinary Course of Business; (c) termination of a lease of real or personal
Property that is not necessary for the Ordinary Course of Business, could not reasonably be
expected to have a Material Adverse Effect; (d) as long as no Event of Default has occurred and is
continuing, a transfer of assets (other than Intellectual Property) that are not Collateral, (e)
[***]; (f) [***]; (g) [***]; (h) [***]; (i) as long as no Event of Default has occurred and is
continuing, a transfer of property pursuant to any transaction permitted under the definition of
“Restricted Investment”; provided that for purposes of this subclause (i), transactions
permitted under clause (b) of the definition of “Restricted Investment” shall be permitted during
the occurrence and continuance of an Event of Default; or (j) approved in writing by Agent and
Required Lenders.




          Permitted Contingent Obligations: Contingent Obligations (a) arising from
endorsements of Payment Items for collection or deposit in the Ordinary Course of Business; (b)
arising from Hedging Agreements permitted hereunder; (c) existing on the Closing Date, and any
extension or renewal thereof that does not increase the amount of such Contingent Obligation when
extended or renewed; (d) incurred in the Ordinary Course of Business with respect to surety, appeal
or performance bonds, or other similar obligations; (e) arising under the Loan Documents; (f)
arising from agreements permitted hereunder providing for indemnification, purchase price
adjustment or similar obligations (other than for borrowed money) or from guaranties and other
credit supports permitted hereunder securing an Obligor’s performance in connection with
acquisitions and dispositions of assets; (g) guaranties permitted hereunder entered into in the
Ordinary Course of Business of the obligations of suppliers, customers and licensees; (h)
guaranties of Debt permitted to be incurred hereunder of Subsidiaries of the Parent; (i)
constituting Investments permitted hereunder; and (j) all other Contingent Obligations not



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





21









 







described in the foregoing clauses, but only to the extent that they do not exceed $1,000,000
in the aggregate any one time outstanding.




          Permitted Distributions: any direct or indirect Distribution by any Obligor to Parent
(i) solely to pay general administrative expenses of Parent in the Ordinary Course of Business,
(ii) solely to pay domestic Taxes of any Obligor, and (iii) solely to reimburse Parent for research
and development and for sales and marketing expenses.




          Permitted Lien: as defined in Section 10.2.2.




          Permitted Purchase Money Debt: Purchase Money Debt of Parent and Subsidiaries that is
unsecured or secured only by a Purchase Money Lien, as long as the aggregate amount does not exceed
$20,000,000 at any time and its incurrence does not violate Section 10.2.3.




          Person: any individual, corporation, limited liability company, partnership, joint
venture, joint stock company, land trust, business trust, unincorporated organization, Governmental
Authority or other entity.




          Plan: any employee benefit plan (as such term is defined in Section 3(3) of ERISA)
established by an Obligor or, with respect to any such plan that is subject to Section 412 of the
Code or Title IV of ERISA, an ERISA Affiliate.




          Prime Rate: the rate of interest announced by Bank of America from time to time as
its prime rate. Such rate is set by Bank of America on the basis of various factors, including its
costs and desired return, general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above or below such rate. Any change in such
rate announced by Bank of America shall take effect at the opening of business on the day specified
in the public announcement of such change.




          Pro Rata: with respect to any Lender, a percentage (carried out to the ninth decimal
place) determined (a) while Commitments are outstanding, by dividing the amount of such Lender’s
Commitment by the aggregate amount of all Commitments; and (b) at any other time, by dividing the
amount of such Lender’s Loans and LC Obligations by the aggregate amount of all outstanding Loans
and LC Obligations.




          Properly Contested: with respect to any obligation of an Obligor, (a) the obligation
is subject to a bona fide dispute regarding amount or the Obligor’s liability to pay; (b) the
obligation is being properly contested in good faith by appropriate proceedings promptly instituted
and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; (d)
non-payment could not have a Material Adverse Effect, nor result in forfeiture or sale of any
assets of the Obligor; (e) no Lien is imposed on assets of the Obligor, unless bonded and stayed to
the satisfaction of Agent; and (f) if the obligation results from entry of a judgment or other
order, such judgment or order is stayed pending appeal or other judicial review.





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




22









 








          Property: any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible.




          Protective Advances: as defined in Section 2.1.6.




          Purchase Money Debt: (a) Debt (other than the Obligations but including Capital
Leases) for payment of any of the purchase price (including taxes, and shipping and installation
costs) of fixed assets (including vehicles and software); (b) Debt (other than the Obligations but
including Capital Leases) incurred within 60 days before or after acquisition of any fixed assets
(including vehicles and software), for the purpose of financing any of the purchase price thereof;
provided, such 60 day period may be increased to 120 days if on the date of such
acquisition and on the date such debt is incurred no Default or Event of Default has occurred and
is continuing; and (c) any renewals, extensions or refinancings (but not increases) thereof.




          Purchase Money Lien: a Lien that secures Purchase Money Debt, encumbering only the
fixed assets acquired with such Debt and constituting a Capital Lease or a purchase money security
interest under the UCC.




          RCRA: the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).




          Real Estate: all right, title and interest (whether as owner, lessor or lessee) in
any real Property or any buildings, structures, parking areas or other improvements thereon.




          Refinancing Conditions: the following conditions for Refinancing Debt: (a) it is in
an aggregate principal amount that does not exceed the principal amount of the Debt being extended,
renewed or refinanced; (b) it has a final maturity no sooner than, a weighted average life no less
than, and an interest rate no greater than, the Debt being extended, renewed or refinanced; (c) it
is subordinated to the Obligations at least to the same extent as the Debt being extended, renewed
or refinanced; (d) the representations, covenants and defaults applicable to it are no less
favorable to the applicable Obligor than those applicable to the Debt being extended, renewed or
refinanced; (e) no additional Lien is granted to secure it; (f) no additional Person is obligated
on such Debt; and (g) upon giving effect to it, no Default or Event of Default exists.




          Refinancing Debt: Borrowed Money that is the result of an extension, renewal or
refinancing of Debt permitted under Section 10.2.1(b), (d) or (f).




          Reimbursement Date: as defined in Section 2.3.2.




          Rent and Charges Reserve: the aggregate of (a) all past due rent and other amounts
owing by an Obligor to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight
forwarder, broker or other Person who possesses any Collateral or could assert a Lien on any
Collateral; and (b) a reserve at least equal to three months (but so long as no Event of Default
exists, not in excess of six months) rent and other charges that could be payable to any such
Person, unless it has executed a Lien Waiver.



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.






23









 








          Report: as defined in Section 13.2.3.




          Reportable Event: any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.




          Required Lenders: Lenders (subject to Section 4.2) having (a) Commitments in
excess of 50% of the aggregate Commitments; and (b) if the Commitments have terminated, Loans in
excess of 50% of all outstanding Loans; provided, that for purposes of clauses (a) and (b)
of this definition, if there are two or more Lenders, “Required Lenders” shall include two or more
Lenders whose Commitments or Loans, as applicable, are in excess of 50% of the aggregate
Commitments or all outstanding Loans, as applicable.




          Reserve Percentage: the reserve percentage (expressed as a decimal, rounded up to the
nearest 1/8th of 1%) applicable to member banks under regulations issued from time to time by the
Board of Governors for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as “Eurocurrency liabilities”).




          Restricted Investment: any Investment by Parent or a Subsidiary, other than (a)
Investments in Subsidiaries to the extent existing on the Closing Date; (b) Cash Equivalents and
Long Term Liquid Investments that are subject to Agent’s Lien and control, pursuant to
documentation in form and substance satisfactory to Agent; (c) loans and advances permitted under
Section 10.2.7; (d) provided that no Event of Default has occurred and is
continuing or would result therefrom, acquisitions of any capital stock or indebtedness or the
assets comprising a division or business unit or a substantial part or all of the business of a
Person for total aggregate consideration (excluding capital stock and other non-cash consideration)
in an aggregate amount not exceeding $10,000,000 during the term of this Agreement (such
acquisitions, “Permitted Acquisitions”); (e) Investments (whether in the form of an
acquisition of equity or loans) in connection with joint ventures and strategic alliances to the
extent the aggregate cash investments therein (and cash commitments relating thereto) do not exceed
$5,000,000 in any Fiscal Year; (f) acquisitions of assets consisting of non-cash consideration
received in connection with any asset transfer permitted hereunder; (g) acquisitions of assets
consisting of notes receivable of, or prepaid royalties and other credit extensions to, customers
and suppliers in the Ordinary Course of Business; (h) acquisitions of assets received in
satisfaction or partial satisfaction of obligations owed by financially troubled obligors; (i)
acquisitions of assets acquired as a result of a foreclosure with respect to any secured
investment; and (j) without duplication of the foregoing clauses (a) through (i), other Investments
in an aggregate amount not to exceed $500,000 at any time.




          Restrictive Agreement: an agreement (other than a Loan Document) that conditions or
restricts the right of Parent, any Subsidiary or other Obligor to incur or repay Borrowed Money, to
grant Liens on any assets, to declare or make Distributions, to modify, extend or renew any
agreement evidencing Borrowed Money, or to repay any intercompany Debt.




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





24









 








          Revolver Note: a promissory note to be executed by Borrower in favor of a Lender in
the form of Exhibit A, which shall be in the amount of such Lender’s Commitment and shall evidence
the Loans made by such Lender.




          Revolver Termination Date: February 10, 2014.




          Royalties: all royalties, fees, expense reimbursement and other amounts payable by an
Obligor under a License.




          S&P: Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and its successors.




          Secured Parties: Agent, Issuing Bank, Lenders and providers of Bank Products.




          Securities Account Control Agreements: the Securities Account control agreements to
be executed by each institution maintaining a Securities Account (i) for an Obligor organized under
the laws of any Specified Jurisdiction, and (ii) at Agent’s request, for an Obligor organized under
the laws of any other jurisdiction, in each case in favor of Agent, for the benefit of Secured
Parties, as security for the Obligations.




          Security Documents: this Agreement, the Guaranties, Deposit Account Control
Agreements, Securities Account Control Agreements, Hong Kong Security Documents and Cayman Islands
Security Documents and all other documents, instruments and agreements now or hereafter securing
(or given with the intent to secure) any Obligations.




          Senior Officer: the chairman of the board, president, chief executive officer or
chief financial officer of Borrower or, if the context requires, another Obligor.




          Settlement Report: a report delivered by Agent to Lenders summarizing the Loans and
participations in LC Obligations outstanding as of a given settlement date, allocated to Lenders on
a Pro Rata basis in accordance with their Commitments.




          Solvent: as to any Person, such Person (a) owns Property whose present fair salable
value (as defined below) is greater than the probable total liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and
matured; (b) is able to pay all of its debts as they mature; (c) has capital that is not
unreasonably small for its business and is sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage; and (d) has not incurred (by way of
assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan
Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or
defraud either present or future creditors of such Person or any of its Affiliates. “Fair
salable value” means the amount that could be obtained for assets of a Person within a
reasonable time, either through collection or through sale under ordinary selling conditions by a
capable and diligent seller to an interested buyer who is willing (but under no compulsion) to
purchase, and




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




25









 







shall be determined based on a going concern sale of the assets of such Person, with value
assigned to such Person’s goodwill (consistent with a going concern valuation).




          Specified Jurisdiction: the United States, the Cayman Islands, Hong Kong, and any
state, province or other political subdivision of any of the foregoing.




          Specified Securities Account: as defined in the definition of “Liquidity”.




          Subordinated Debt: Debt incurred by an Obligor that is expressly subordinate and
junior in right of payment to Full Payment of all Obligations, and is on terms (including maturity,
interest, fees, repayment, covenants and subordination) satisfactory to Agent.




          Subsidiary: any entity at least 50% of whose voting securities or Equity Interests is
owned by an Obligor or any combination of Obligors (including indirect ownership by an Obligor
through other entities in which the Obligor directly or indirectly owns 50% of the voting
securities or Equity Interests).




          Swingline Loan: any Borrowing of Base Rate Loans funded with Agent’s funds, until
such Borrowing is settled among Lenders or repaid by Borrower.




          Taxes: all present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.




          Transferee: any actual or potential Eligible Assignee, Participant, Assuming Lender
or other Person acquiring an interest in any Obligations.




          Trident Cayman Security Agreement: the security agreement to be entered into between
the Cayman Guarantor on or about the date of this Agreement pursuant to which, among other things,
the Cayman Guarantor grants security over all its assets and undertakings in favor of the Agent.




          Trigger Period: the period (a) commencing on any day that (i) Liquidity is less than
$35,000,000 or (ii) Availability is less than $5,000,000; and (b) continuing until, during the
preceding 60 consecutive days, (i) Liquidity has been greater than $35,000,000 at all times and
(ii) Availability has been greater than $5,000,000 at all times.




          Type: any type of a Loan (i.e., Base Rate Loan or LIBOR Loan) that has the same
interest option and, in the case of LIBOR Loans, the same Interest Period.




          UCC: the Uniform Commercial Code as in effect in the State of California or, when the
laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform
Commercial Code of such jurisdiction.





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




26









 








          Unfunded Pension Liability: 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
Code for the applicable plan year.




          Unused Line Amount: as defined in Section 3.2.1.




          Upstream Payment: a Distribution by a Subsidiary of an Obligor to such Obligor.




          Value: (a) for Inventory, its value determined on the basis of the lower of cost or
market, calculated on a first-in, first-out basis, and excluding any portion of cost attributable
to intercompany profit among Borrower and its Affiliates; and (b) for an Account, its face amount,
net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or
Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account
Debtor or any other Person.




          Section 1.2 Accounting Terms. Under the Loan Documents (except as otherwise specified herein), all accounting terms shall
be interpreted, all accounting determinations shall be made, and all financial statements shall be
prepared, in accordance with GAAP applied on a basis consistent with the most recent audited
financial statements of the Parent and Borrower delivered to Agent before the Closing Date and
using the same inventory valuation method as used in such financial statements, except for any
change required or permitted by GAAP if Parent’s and Borrower’s certified public accountants concur
in such change, the change is disclosed to Agent, and Section 10.3 is amended, to the
extent necessary, in a manner satisfactory to Required Lenders to take into account the effects of
the change.




          Section 1.3 Uniform Commercial Code. As used herein, the following terms are defined in accordance with the UCC in effect in the
State of California from time to time: “Chattel Paper,” “Commercial Tort Claim,” “Deposit
Account,” “Document,” “Equipment,” “General Intangibles,” “Goods,” “Instrument,” “Investment
Property,” “Letter-of-Credit Right”, “Securities Account” and “Supporting Obligation.”




          Section 1.4 Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used
shall be deemed to cover all genders. In the computation of periods of time from a specified date
to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to
but excluding.” The terms “including” and “include” shall mean “including, without limitation”
and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall
not be applicable to limit any provision. Section titles appear as
a matter of convenience only and shall not affect the interpretation of any Loan Document.
All references to (a) laws or statutes include all related rules, regulations, interpretations,
amendments and successor provisions; (b) any document, instrument or agreement include any
amendments, waivers and other modifications, extensions or renewals (to the extent permitted by the
Loan Documents); (c) any section mean, unless the


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.





27









 







context otherwise requires, a section of this
Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and
schedules attached hereto, which are hereby incorporated by reference; (e) any Person include
successors and assigns; (f) unless otherwise specified, time of day means Hong Kong Time; or (g)
unless otherwise specified herein, discretion of Agent, Issuing Bank or any Lender mean the sole
and absolute discretion of such Person. All calculations of Value, fundings of Loans, issuances of
Letters of Credit and payments of Obligations shall be in Dollars and, unless the context otherwise
requires, all determinations (including calculations of Borrowing Base and financial covenants)
made from time to time under the Loan Documents shall be made in light of the circumstances
existing at such time. Borrowing Base calculations shall be consistent with historical methods of
valuation and calculation, and otherwise satisfactory to Agent (and not necessarily calculated in
accordance with GAAP). Obligors shall have the burden of establishing any alleged negligence,
misconduct or lack of good faith by Agent, Issuing Bank or any Lender under any Loan Documents. No
provision of any Loan Documents shall be construed against any party by reason of such party
having, or being deemed to have, drafted the provision. Whenever the phrase “to the best of
Borrower’s knowledge” or words of similar import are used in any Loan Documents, it means actual
knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she
had engaged in good faith and diligent performance of his or her duties, including reasonably
specific inquiries of employees or agents and a good faith attempt to ascertain the matter to which
such phrase relates.




ARTICLE II




CREDIT FACILITIES



          Section 2.1 Commitment.




          2.1.1 Loans. Each Lender agrees, severally on a Pro Rata basis up to its Commitment, on the terms set
forth herein, to make Loans to Borrower from time to time through the Commitment Termination Date.
The Loans may be repaid and reborrowed as provided herein. In no event shall Lenders have any
obligation to honor a request for a Loan if the unpaid balance of Loans outstanding at such time
(including the requested Loan) would exceed the Borrowing Base.




          2.1.2 Revolver Notes. The Loans made by each Lender and interest accruing thereon shall be evidenced by the
records of Agent and such Lender. At the request of any Lender, Borrower shall deliver a Revolver
Note to such Lender.




          2.1.3 Use of Proceeds. The proceeds of Loans shall be used by Borrower solely (a) to satisfy existing Debt; (b) to
pay fees and transaction expenses associated with the closing of this credit facility; (c) to pay
Obligations in accordance with this Agreement; and (d) for working capital and other lawful
corporate purposes of Borrower, including to provide funds to Parent and other Obligors to the
extent permitted hereunder.


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




28









 








          2.1.4 Voluntary Reduction or Termination of Commitments.




          (a) The Commitments shall terminate on the Revolver Termination Date, unless sooner terminated
in accordance with this Agreement. Upon at least 90 days prior written notice to Agent, Borrower
may, at its option, terminate the Commitments and this credit facility. Any notice of termination
given by Borrower shall be irrevocable. On the termination date, Borrower shall make Full Payment
of all Obligations.




          (b) Borrower may permanently reduce the Commitments, on a Pro Rata basis for each Lender, upon
at least 90 days’ prior written notice to Agent, which notice shall specify the amount of the
reduction and shall be irrevocable once given. Each reduction shall be in a minimum amount of
$5,000,000, or an increment of $1,000,000 in excess thereof, provided, that in no event shall the
Borrower reduce the Commitments pursuant to this Section 2.1.4(b) below $25,000,000.




          (c) Concurrently with any reduction in or termination of the Commitments, for whatever reason
(including an Event of Default), Borrower shall pay to Agent, for the Pro Rata benefit of Lenders
and as liquidated damages for loss of bargain (and not as a penalty), an amount equal to if the
reduction or termination occurs during the first Loan Year, 1% of the Commitments being reduced or
terminated. No such charge shall be payable if termination or reduction occurs at any time during
the second Loan Year or thereafter




          2.1.5 Overadvances. If the aggregate Loans exceed the Borrowing Base (“Overadvance”) at any time, the
excess amount shall be payable by Borrower on demand by Agent, but all such Loans shall
nevertheless constitute Obligations secured by the Collateral and entitled to all benefits of the
Loan Documents. Unless its authority has been revoked in writing by Required Lenders, Agent may
require Lenders to honor requests for Overadvance Loans and to forbear from requiring Borrower to
cure an Overadvance, (a) when no other Event of Default is known to Agent, as long as (i) the
Overadvance does not continue for more than 30 consecutive days (and
no Overadvance may exist for at least five consecutive days thereafter before further
Overadvance Loans are required), and (ii) the Overadvance is not known by Agent to exceed
$5,000,000; and (b) regardless of whether an Event of Default exists, if Agent discovers an
Overadvance not previously known by it to exist, as long as from the date of such discovery the
Overadvance (i) is not increased by more than $5,000,000, and (ii) does not continue for more than
30 consecutive days. In no event shall Overadvance Loans be required that would cause the
outstanding Loans and LC Obligations to exceed the aggregate Commitments. Any funding of an
Overadvance Loan or sufferance of an Overadvance shall not constitute a waiver by Agent or Lenders
of the Event of Default caused thereby. In no event shall Borrower or any other Obligor be deemed
a beneficiary of this Section nor authorized to enforce any of its terms.




          2.1.6 Protective Advances. Agent shall be authorized, in its discretion, at any time that any conditions in
Article VI are not satisfied, and without regard to the aggregate Commitments, to make Base
Rate Loans (“Protective Advances”) (a) up to an aggregate amount



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




29









 







of $5,000,000 outstanding
at any time, if Agent deems such Loans necessary or desirable to preserve or protect Collateral, or
to enhance the collectability or repayment of Obligations; or (b) to pay any other amounts
chargeable to Obligors under any Loan Documents, including costs, fees and expenses. Each Lender
shall participate in each Protective Advance on a Pro Rata basis. Required Lenders may at any time
revoke Agent’s authority to make further Protective Advances by written notice to Agent. Absent
such revocation, Agent’s determination that funding of a Protective Advance is appropriate shall be
conclusive.




          Section 2.2 Increase in the Aggregate Commitments.




          (a) The Borrower may, at any time, by notice to Agent, request that the aggregate amount of
the Commitments be increased by an amount of up to $60,000,000 (in increments of $15,000,000) (an
“Accordion Increase”) to be effective as of the date upon which the conditions set forth in
Section 2.2(d) below are fulfilled to the satisfaction of Agent (an “Accordion
Effective Date”); provided, however, that (i) in no event shall more than three
(3) Accordion Increases occur during the term of this Agreement and (ii) no Default or Event of
Default shall have occurred and be continuing as of the date of such request or as of the
applicable Accordion Effective Date, or shall occur as a result thereof.




          (b) Agent will promptly notify the Lenders of a request by the Borrower for an Accordion
Increase, which notice shall include the date by which Lenders wishing to participate in such
Accordion Increase must commit to participate in such Accordion Increase (each, a “Commitment
Date”) and shall provide that such request is made ratably to all the Lenders. Each Lender
that is willing to participate in such Accordion Increase (each, an “Increasing Lender”)
shall give written notice to Agent on or prior to the applicable Commitment Date of the amount by
which it is willing to increase its Commitment. If the Lenders notify
Agent that they are willing to increase the amount of their respective Commitments by an
aggregate amount that exceeds the amount of such Accordion Increase, such Accordion Increase shall
be allocated ratably among the Lenders willing to participate therein.




          (c) Promptly following the applicable Commitment Date, Agent shall notify the Borrower as to
the amount, if any, by which the Lenders are willing to participate in the applicable Accordion
Increase. If the aggregate amount by which the Lenders are willing to participate in such
Accordion Increase on the applicable Commitment Date is less than such Accordion Increase, then the
Agent, in consultation with the Borrower, will use its commercially reasonable efforts on terms to
be mutually agreed to obtain commitments from one or more Eligible Assignees to participate in any
portion of such Accordion Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the Commitment of each such
Eligible Assignee shall be in an amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof (or such lesser amounts as may be necessary to cause the aggregate increase to equal
such Accordion Increase).




          (d) On the applicable Accordion Effective Date, each Eligible Assignee that accepts an offer
to participate in the applicable Accordion Increase in accordance with



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




30









 







Section 2.2(c) (each such Eligible Assignee being an “Assuming Lender”) shall become a Lender party to this
Agreement as of the applicable Accordion Effective Date and the Commitment of each Increasing
Lender for such Accordion Increase shall be so increased by such amount (or by the amount allocated
to such Lender pursuant to the last sentence of Section 2.2(b)) as of such Accordion
Effective Date and the Commitment of each Lender as set forth on Schedule 1.1 shall be
adjusted accordingly; provided, that on or before the applicable Accordion Effective Date:





          (i) the full amount of the Accordion Increase has been committed to by Increasing
Lenders or Assuming Lenders;




          (ii) all amendments to this Agreement deemed reasonably necessary by Agent to
accomplish the applicable Accordion Increase shall have been agreed by the parties hereto
and any Assuming Lenders;




          (iii) all necessary approvals (including credit approvals) shall have been obtained by
each of the Increasing Lenders, the Assuming Lenders and Agent; and




          (iv) Agent shall have received the following, each dated such date:




          (A) (i) certified copies of resolutions of the Borrower approving such
Accordion Increase and the corresponding modifications to this Agreement and (ii) an
opinion of counsel for the Borrower (which may be in-house counsel), in form and
substance satisfactory to Agent;




          (B) an assumption agreement from each Assuming Lender, if any, in form and
substance satisfactory to the Borrower and Agent (each an
“Assumption Agreement”), duly executed by such Eligible Assignee, Agent
and the Borrower; and




          (C) confirmation from each Increasing Lender of the increase in the amount of
its Commitment in a writing satisfactory to the Borrower and Agent.



          On the applicable Accordion Effective Date, upon fulfillment of the conditions set forth in
this Section 2.2(d), Agent shall notify the Lenders (including, without limitation, each
Assuming Lender) and the Borrower, on or before 11:00 am, by facsimile, email or other electronic
communication, of the occurrence of such Accordion Increase and shall record in the Loan Account
the relevant information with respect to each Increasing Lender and each Assuming Lender on such
date. The Borrower shall prepay Revolving Loans on such Accordion Effective Date to the extent
necessary to cause the outstanding Revolving Loans to be ratable with the Commitment of each
Lender. This Section shall supersede the provisions of Section 15.1 as applicable.



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




31









 








          Section 2.3 Letter of Credit Facility.




          2.3.1 Issuance of Letters of Credit. Issuing Bank agrees to issue Letters of Credit from time to time until 20 days prior to the
earlier of the Revolver Termination Date or the Commitment Termination Date (or such later date as
agreed by Agent) on the terms set forth herein, including the following:





     (a) Borrower acknowledges that Issuing Bank’s willingness to issue any Letter of Credit
is conditioned upon Issuing Bank’s receipt of a LC Application with respect to the requested
Letter of Credit, as well as such other instruments and agreements as Issuing Bank may
customarily require for issuance of a letter of credit of similar type and amount. Issuing
Bank shall have no obligation to issue any Letter of Credit unless (i) Issuing Bank receives
a LC Request and LC Application at least three Business Days prior to the requested date of
issuance; (ii) each LC Condition is satisfied; and (iii) if a Defaulting Lender exists, such
Lender or Borrower has entered into arrangements satisfactory to Agent and Issuing Bank to
eliminate any funding risk associated with the Defaulting Lender. If Issuing Bank receives
written notice from a Lender at least five Business Days before issuance of a Letter of
Credit that any LC Condition has not been satisfied, Issuing Bank shall have no obligation
to issue the requested Letter of Credit (or any other) until such notice is withdrawn in
writing by that Lender or until Required Lenders have waived such condition in accordance
with this Agreement. Prior to receipt of any such notice, Issuing Bank shall not be deemed
to have knowledge of any failure of LC Conditions.




     (b) Letters of Credit may be requested by Borrower only (i) to support obligations of
Borrower incurred in the Ordinary Course of Business; or (ii) for other purposes as Agent
and Lenders may approve from time to time in writing. The renewal or extension of any
Letter of Credit shall be treated as the issuance of a new Letter of Credit, except that
delivery of a new LC Application shall be required at the discretion of Issuing Bank.




     (c) Borrower assumes all risks of the acts, omissions or misuses of any Letter of
Credit by the beneficiary. In connection with issuance of any Letter of Credit, none of
Agent, Issuing Bank or any Lender shall be responsible for the existence, character,
quality, quantity, condition, packing, value or delivery of any goods purported to be
represented by any Documents; any differences or variation in the character, quality,
quantity, condition, packing, value or delivery of any goods from that expressed in any
Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Documents or of any endorsements thereon; the time, place, manner or order in which shipment
of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred
to in a Letter of Credit or Documents; any deviation from instructions, delay, default or
fraud by any shipper or other Person in connection with any goods, shipment or delivery; any
breach of contract between a shipper or vendor and Borrower; errors, omissions,
interruptions or delays in transmission or delivery of any messages, by


 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



32









 







mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of
technical terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds
thereof; or any consequences arising from causes beyond the control of Issuing Bank, Agent
or any Lender, including any act or omission of a Governmental Authority. The rights and
remedies of Issuing Bank under the Loan Documents shall be cumulative. Issuing Bank shall
be fully subrogated to the rights and remedies of each beneficiary whose claims against
Borrower are discharged with proceeds of any Letter of Credit.




     (d) In connection with its administration of and enforcement of rights or remedies
under any Letters of Credit or LC Documents, Issuing Bank shall be entitled to act, and
shall be fully protected in acting, upon any certification, documentation or communication
in whatever form believed by Issuing Bank, in good faith, to be genuine and correct and to
have been signed, sent or made by a proper Person. Issuing Bank may consult with and employ
legal counsel, accountants and other experts to advise it concerning its obligations, rights
and remedies, and shall be entitled to act upon, and shall be fully protected in any action
taken in good faith reliance upon, any advice given by such experts. Issuing Bank may
employ agents and attorneys-in-fact in connection with any matter relating to Letters of
Credit or LC Documents, and shall not be liable for the negligence or misconduct of agents
and attorneys-in-fact selected with reasonable care.



          2.3.2 Reimbursement; Participations.




          (a) If Issuing Bank honors any request for payment under a Letter of Credit, Borrower shall
pay to Issuing Bank, on the same day (“Reimbursement Date”), the amount paid by Issuing
Bank under such Letter of Credit, together with interest at the interest rate for Base Rate Loans
from the Reimbursement Date until payment by Borrower. The obligation of Borrower to reimburse
Issuing Bank for any payment made under a Letter of Credit shall be absolute, unconditional,
irrevocable, and joint and several, and shall be paid without regard to any lack of validity or
enforceability of any Letter of Credit or the existence of any claim, setoff, defense or other
right that Borrower may have at any time against the beneficiary. Whether or not Borrower submits
a Notice of Borrowing, Borrower shall be deemed to have requested a Borrowing of Base Rate Loans in
an amount necessary to pay all amounts due Issuing Bank on any Reimbursement Date and each Lender
agrees to fund its Pro Rata share of such Borrowing whether or not the Commitments have terminated,
an Overadvance exists or is created thereby, or the conditions in Article VI are satisfied.




          (b) Upon issuance of a Letter of Credit, each Lender shall be deemed to have irrevocably and
unconditionally purchased from Issuing Bank, without recourse or warranty, an undivided Pro Rata
interest and participation in all LC Obligations relating to the Letter of Credit. If Issuing Bank
makes any payment under a Letter of Credit and Borrower does not reimburse such payment on the
Reimbursement Date, Agent shall promptly notify Lenders and each Lender shall promptly (within one
Business Day) and unconditionally pay to Agent, for the benefit of Issuing Bank, the



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



33









 







Lender’s Pro
Rata share of such payment. Upon request by a Lender, Issuing Bank shall furnish copies of any
Letters of Credit and LC Documents in its possession at such time.




          (c) The obligation of each Lender to make payments to Agent for the account of Issuing Bank in
connection with Issuing Bank’s payment under a Letter of Credit shall be absolute, unconditional
and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever,
and shall be made in accordance with this Agreement under all circumstances, irrespective of any
lack of validity or unenforceability of any Loan Documents; any draft, certificate or other
document presented under a Letter of Credit having been determined to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any
respect; or the existence of any setoff or defense that any Obligor may have with respect to any
Obligations. Issuing Bank does not assume any responsibility for any failure or delay in
performance or any breach by Borrower or any other Person of any obligations under any LC
Documents. Issuing Bank does not make to Lenders any express or implied warranty, representation
or guaranty with respect to the Collateral, LC Documents or any Obligor. Issuing Bank shall not be
responsible to any Lender for any recitals, statements, information, representations or warranties
contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any
LC Documents; the validity, genuineness, enforceability, collectability, value or sufficiency of
any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial
condition, results of operations, business, creditworthiness or legal status of any Obligor.




          (d) No Issuing Bank Indemnitee shall be liable to any Lender or other Person for any action
taken or omitted to be taken in connection with any LC Documents except as a result of its actual
gross negligence or willful misconduct. Issuing Bank shall not have any liability to any Lender if
Issuing Bank refrains from any action under any Letter of Credit or LC Documents until it receives
written instructions from Required Lenders.




          2.3.3 Cash Collateral. If any LC Obligations, whether or not then due or payable, shall for any reason be
outstanding at any time (a) that an Event of Default exists, (b) that Availability is less than
zero, (c) after the Commitment Termination Date, or (d) within 20 Business Days prior to the
Revolver Termination Date, then Borrower shall, at Issuing Bank’s or Agent’s request, Cash
Collateralize the stated amount of all outstanding Letters of Credit and pay to Issuing Bank the
amount of all other LC Obligations. Borrower shall, on demand by Issuing Bank or Agent from time
to time, Cash Collateralize the LC Obligations of any Defaulting Lender. If Borrower fails to
provide any Cash Collateral as required hereunder, Lenders may (and shall upon direction of Agent)
advance, as Loans, the amount of the Cash Collateral required (whether or not the Commitments have
terminated, an Overadvance exists or the conditions in Article VI are satisfied).




 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



34









 








ARTICLE III




INTEREST, FEES AND CHARGES



          Section 3.1 Interest.




          3.1.1 Rates and Payment of Interest.




          (a) The Obligations shall bear interest (i) if a Base Rate Loan, at the Base Rate in effect
from time to time, plus the Applicable Margin; (ii) if a LIBOR Loan, at LIBOR for the applicable
Interest Period, plus the Applicable Margin; and (iii) if any other Obligation (including, to the
extent permitted by law, interest not paid when due), at the Base Rate in effect from time to time,
plus the Applicable Margin for Base Rate Loans. Interest shall accrue from the date the Loan is
advanced or the Obligation is incurred or payable, until paid by Borrower. If a Loan is repaid on
the same day made, one day’s interest shall accrue.




          (b) During an Insolvency Proceeding with respect to Borrower, or during any other Event of
Default if Agent or Required Lenders in their discretion so elect, Obligations shall bear interest
at the Default Rate (whether before or after any judgment). Borrower acknowledges that the cost
and expense to Agent and Lenders due to an Event of Default are
difficult to ascertain and that the Default Rate is a fair and reasonable estimate to
compensate Agent and Lenders for such additional costs and expenses




          (c) Interest accrued on the Loans shall be due and payable in arrears, (i) on the first day of
each month for Base Rate Loans and, for any LIBOR Loan, the last day of its Interest Period;
provided that if any Interest Period is greater than 90 days, then interest shall be
payable at the end of every 90 days of such Interest Period and on the last day of such Interest
Period; (ii) on any date of prepayment, with respect to the principal amount of Loans being
prepaid; and (iii) on the Commitment Termination Date. Interest accrued on any other Obligations
shall be due and payable as provided in the Loan Documents and, if no payment date is specified,
shall be due and payable on demand. Notwithstanding the foregoing, interest accrued at the Default
Rate shall be due and payable on demand.




          3.1.2 Application of LIBOR to Outstanding Loans.




          (a) Borrower may on any Business Day, subject to delivery of a Notice of
Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or to continue any
LIBOR Loan at the end of its Interest Period as, a LIBOR Loan. During any Default or Event of
Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be
made, converted or continued as a LIBOR Loan.




          (b) Whenever Borrower desires to convert or continue Loans as LIBOR Loans, Borrower shall give
Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least three Business Days
before the requested conversion or continuation date. Promptly after receiving any such notice,
Agent shall notify each Lender thereof. Each Notice of



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



35









 







Conversion/Continuation shall be
irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion or
continuation date (which shall be a Business Day), and the duration of the Interest Period (which
shall be deemed to be 30 days if not specified). If, upon the expiration of any Interest Period in
respect of any LIBOR Loans, Borrower shall have failed to deliver a Notice of
Conversion/Continuation, it shall be deemed to have elected to convert such Loans into Base Rate
Loans.




          3.1.3 Interest Periods. In connection with the making, conversion or continuation of any LIBOR Loans, Borrower
shall select an interest period (“Interest Period”) to apply, which interest period shall
be 30, 60, or 90 days (or, with Agent’s consent, such other period as is 12 months or fewer);
provided, however, that:





     (a) the Interest Period shall commence on the date the Loan is made or continued as, or
converted into, a LIBOR Loan, and shall expire on the numerically corresponding day in the
calendar month at its end;




     (b) if any Interest Period commences on a day for which there is no corresponding day
in the calendar month at its end or if such corresponding day falls after the last Business
Day of such month, then the Interest Period shall expire on the last Business Day of such
month; and if any Interest Period would expire on a day that is not a Business Day, the
period shall expire on the next Business Day; and




     (c) no Interest Period shall extend beyond the Revolver Termination Date.



          3.1.4 Interest Rate Not Ascertainable. If Agent shall determine that on any date for determining LIBOR, due to any circumstance
affecting the London interbank market, adequate and fair means do not exist for ascertaining such
rate on the basis provided herein, then Agent shall immediately notify Borrower of such
determination. Until Agent notifies Borrower that such circumstance no longer exists, the
obligation of Lenders to make LIBOR Loans shall be suspended, and no further Loans may be converted
into or continued as LIBOR Loans.




          Section 3.2 Fees.




          3.2.1  Unused Line Fee. Borrower shall pay to Agent, for the Pro Rata benefit of Lenders, a fee equal to 0.75% per
annum times the amount (such amount, the “Unused Line Amount”) by which the Commitments
exceed the average daily balance of Loans and stated amount of Letters of Credit during any month;
provided, however, commencing with the payment due on March 31, 2011, such
percentage per annum shall be determined on a monthly basis based on the Unused Line Amount during
the immediately preceding month as listed below opposite the respective Unused Line Amount (as a
percentage of the aggregate Commitments) for such prior month:




	 	 	 	 	 
	If Unused Line Amount (as a	 	 
	 percentage of the aggregate	 	 
	  Commitments) during the	 	Unused Line Fee Percentage
	    prior calendar month is:	 	per Annum:
	≤ 33%
	 	 	0.25	%
	> 33%, but < 67%
	 	 	0.50	%
	≥ 67%
	 	 	0.75	%




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




36









 




Such fee shall be payable in arrears, on the first day of each month and on the Commitment
Termination Date.




          3.2.2
LC Facility Fees. Borrower shall pay (a) to Agent, for the Pro Rata benefit of Lenders, a fee equal to the
Applicable Margin in effect for LIBOR Loans times the average daily stated amount of Letters of
Credit, which fee shall be payable monthly in arrears, on the first day of each month; (b) to
Agent, for its own account, a fronting fee equal to 0.125% per annum on the stated amount of each
Letter of Credit, which fee shall be payable monthly in arrears, on the first day of each month;
and (c) to Issuing Bank, for its own account, all customary charges associated with the issuance,
amending, negotiating, payment, processing, transfer and administration of Letters of Credit, which
charges shall be paid as and when incurred. During an Event of Default, the fee payable under
clause (a) shall be increased by 2% per annum.




          3.2.3 Closing Fee. Borrower shall pay to Agent, for the Pro Rata benefit of Lenders, a closing fee as provided
in the Fee Letter.




          3.2.4 Agent Fees. In consideration of Agent’s syndication of the Commitments and service as Agent hereunder,
Borrower shall pay to Agent, for its own account, the fees described in the Fee Letter.




          Section 3.3 Computation of Interest, Fees. All interest, as well as fees and other charges calculated on a per annum basis, shall be
computed for the actual days elapsed, based on a year of 360 days. Each determination by Agent of
any interest, fees or interest rate hereunder shall be final, conclusive and binding for all
purposes, absent manifest error. All fees shall be fully earned when due and shall not be subject
to rebate, refund or proration. All fees payable under Section 3.2 are compensation for
services and are not, and shall not be deemed to be, interest or any other charge for the use,
forbearance or detention of money. A certificate as to amounts payable by Borrower under
Section 3.4, 3.6, 3.7, 3.9 or 5.9, submitted to Borrower by
Agent or the affected Lender, as applicable, shall be final, conclusive and binding for all
purposes, absent manifest error, and Borrower shall pay such amounts to the appropriate party
within 10 days following receipt of the certificate.




          Section 3.4 Reimbursement Obligations. Borrower shall reimburse Agent for all Extraordinary Expenses. Borrower shall also
reimburse Agent for all legal, accounting, appraisal, consulting, and other fees, costs and
expenses incurred by it in connection with (a) negotiation and preparation of any Loan Documents,
including any amendment or other modification thereof; (b) administration of and actions relating
to any Collateral, Loan Documents and transactions contemplated thereby, including any actions
taken to perfect or


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




37









 







maintain priority of Agent’s Liens on any Collateral, to maintain any insurance
required hereunder or to verify Collateral; and (c) subject to the limits of Section
10.1.1(b), each inspection, audit or appraisal with respect to any Obligor or Collateral,
whether prepared by Agent’s personnel or a third party. All legal, accounting and consulting
fees shall be charged to Borrower by Agent’s professionals at their full hourly rates, regardless
of any reduced or alternative fee billing arrangements that Agent, any Lender or any of their
Affiliates may have with such professionals with respect to this or any other transaction. If, for
any reason (including inaccurate reporting on financial statements or a Compliance Certificate), it
is reasonably determined that a higher Applicable Margin should have applied to a period than was
actually applied, then the proper margin shall be applied retroactively upon written notice to
Borrower and Borrower shall immediately pay to Agent, for the Pro Rata benefit of Lenders, an
amount equal to the difference between the amount of interest and fees that would have accrued
using the proper margin and the amount actually paid. All amounts payable by Borrower under this
Section shall be due on demand.




          Section 3.5 Illegality. If any Lender determines that any Applicable Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund LIBOR Loans, or to determine or charge interest rates based upon
LIBOR, or any Governmental Authority has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then,
on notice thereof by such Lender to Agent, any obligation of such Lender to make or continue LIBOR
Loans or to convert Base Rate Loans to LIBOR Loans shall be suspended until such Lender notifies
Agent that the circumstances giving rise to such determination no longer exist. Upon delivery of
such notice, Borrower shall prepay or, if applicable, convert all LIBOR Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such LIBOR Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such LIBOR Loans. Upon any such prepayment or conversion, Borrower
shall also pay accrued interest on the amount so prepaid or converted. Borrower shall have no
liability to such Lender under Section 3.9 in connection with any such prepayment or
conversion under this Section 3.5.




          Section 3.6 Inability to Determine Rates. If Required Lenders notify Agent for any reason in connection with a request for a
Borrowing of, or conversion to or continuation of, a LIBOR Loan that (a) Dollar deposits are not
being offered to banks in the London interbank Eurodollar market for the applicable amount and
Interest Period of such Loan, (b) adequate and reasonable means do not exist for determining LIBOR
for the requested Interest Period, or (c) LIBOR for the requested Interest Period does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, then Agent will
promptly so notify Borrower and each Lender. Thereafter, the obligation of Lenders to make or
maintain LIBOR Loans shall be suspended until Agent (upon instruction by Required Lenders) revokes
such notice. Upon receipt of such notice, Borrower may revoke any pending request for a Borrowing
of, conversion to or continuation of a LIBOR Loan or, failing that, will be deemed to have
submitted a request for a Base Rate Loan.


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




38









 








          Section 3.7 Increased Costs; Capital Adequacy.




          3.7.1 Change in Law. If any Change in Law shall:





     (a) impose modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in LIBOR) or Issuing Bank;




     (b) subject any Lender or Issuing Bank to any Tax with respect to any Loan, Loan
Document, Letter of Credit or participation in LC Obligations, or change the basis of
taxation of payments to such Lender or Issuing Bank in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 5.9 and the imposition of, or
any change in the rate of, any Excluded Tax payable by such Lender or Issuing Bank); or




     (c) impose on any Lender or Issuing Bank or the London interbank market any other
condition, cost or expense affecting any Loan, Loan Document, Letter of Credit or
participation in LC Obligations;


and the result thereof shall be to increase the cost to such Lender of making or maintaining any
LIBOR Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the
amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender or Issuing Bank,
Borrower will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts
as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred
or reduction suffered.




          3.7.2 Capital Adequacy. If any Lender or Issuing Bank determines that any Change in Law affecting such Lender or
Issuing Bank or any Lending Office of such Lender or such Lender’s or Issuing Bank’s holding
company, if any, regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender’s, Issuing Bank’s or holding company’s capital as a consequence of this
Agreement, or such Lender’s or Issuing Bank’s Commitments, Loans, Letters of Credit or
participations in LC Obligations, to a level below that which such Lender, Issuing Bank or holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s,
Issuing Bank’s and holding company’s policies with respect to capital adequacy), then from time to
time Borrower will pay to such Lender or Issuing Bank, as
the case may be, such additional amount or amounts as will compensate it or its holding
company for any such reduction suffered.




          3.7.3 Compensation. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant
to this Section shall not constitute a waiver of its right to demand such compensation, but
Borrower shall not be required to compensate a Lender or Issuing Bank for any increased costs
incurred or reductions suffered more than nine months prior


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




39









 







to the date that the Lender or Issuing
Bank notifies Borrower of the Change in Law giving rise to such increased costs or reductions and
of such Lender’s or Issuing Bank’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof).




          Section 3.8 Mitigation; Option to Terminate. If any Lender gives a notice under Section 3.5 or requests compensation under
Section 3.7, or if Borrower is required to pay additional amounts with respect to a Lender
under Section 5.9, then such Lender shall use reasonable efforts to designate a different
Lending Office or to assign its rights and obligations hereunder to another of its offices,
branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (a)
would eliminate the need for such notice or reduce amounts payable or to be withheld in the future,
as applicable; and (b) would not subject the Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to it. Borrower shall pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment. If any Lender gives
a notice under Section 3.5 or requests compensation under Section 3.7, or if Borrower is
required to pay additional amounts with respect to a Lender under Section 5.9, then
Borrower shall have the right to terminate this Agreement, and to prepay the Obligations without
payment of any amounts under Section 2.1.4(c).




          Section 3.9 Funding Losses. If for any reason (other than default by a Lender) (a) any Borrowing of, or conversion to
or continuation of, a LIBOR Loan does not occur on the date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (b) any repayment or
conversion of a LIBOR Loan occurs on a day other than the end of its Interest Period, or (c)
Borrower fails to repay a LIBOR Loan when required hereunder, then Borrower shall pay to Agent its
customary administrative charge and to each Lender all losses and expenses that it sustains as a
consequence thereof, including loss of anticipated profits and any loss or expense arising from
liquidation or redeployment of funds or from fees payable to terminate deposits of matching funds.
Lenders shall not be required to purchase Dollar deposits in the London interbank market or any
other offshore Dollar market to fund any LIBOR Loan,
but the provisions hereof shall be deemed to apply as if each Lender had purchased such
deposits to fund its LIBOR Loans.




          Section 3.10 Maximum Interest. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid
or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious
non-extortionate interest permitted by Applicable Law (“maximum rate”). If Agent or any
Lender shall receive interest in an amount that exceeds the maximum rate, the excess interest shall
be applied to the principal of the Obligations or, if it exceeds such unpaid principal, refunded to
Borrower. In determining whether the interest contracted for, charged or received by Agent or a
Lender exceeds the maximum rate, such Person may, to the extent permitted by Applicable Law, (a)
characterize any payment that is not principal as an expense, fee or premium rather than interest;
(b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate and
spread in



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




40









 







equal or unequal parts the total amount of interest throughout the contemplated term of
the Obligations hereunder.




ARTICLE IV




LOAN ADMINISTRATION



          Section 4.1 Manner of Borrowing and Funding Loans.




          4.1.1 Notice of Borrowing.




          (a) Whenever Borrower desires funding of a Borrowing of Loans, Borrower shall give Agent a
Notice of Borrowing. Such notice must be received by Agent no later than 11:00 a.m. (i) on the
Business Day of the requested funding date, in the case of Base Rate Loans, and (ii) at least three
Business Days prior to the requested funding date, in the case of LIBOR Loans. Notices received
after 11:00 a.m. shall be deemed received on the next Business Day. Each Notice of Borrowing shall
be irrevocable and shall specify (A) the amount of the Borrowing, (B) the requested funding date
(which must be a Business Day), (C) whether the Borrowing is to be made as Base Rate Loans or LIBOR
Loans, and (D) in the case of LIBOR Loans, the duration of the applicable Interest Period (which
shall be deemed to be 30 days if not specified).




          (b) Unless payment is otherwise timely made by Borrower, the becoming due of any Obligations
(whether principal, interest, fees or other charges, including Extraordinary Expenses, LC
Obligations, Cash Collateral and Bank Product Debt) shall be deemed to be a request for Base Rate
Loans on the due date, in the amount of such Obligations. The proceeds of such Loans shall be
disbursed as direct payment of the relevant Obligation. In addition, Agent
may, at its option, charge such Obligations against any operating, investment or other account
of Borrower maintained with Agent or any of its Affiliates.




          (c) If Borrower establishes the Disbursement Account with Agent or any Affiliate of Agent,
then the presentation for payment of any check or other item of payment drawn on such account at a
time when there are insufficient funds to cover it shall be deemed to be a request for Base Rate
Loans on the date of such presentation, in the amount of the check and items presented for payment.
The proceeds of such Loans may be disbursed directly to the Disbursement Account or other
appropriate account.




          4.1.2 Fundings by Lenders. Each Lender shall timely honor its Commitment by funding its Pro Rata share of each
Borrowing of Loans that is properly requested hereunder. Except for Borrowings to be made as
Swingline Loans, Agent shall endeavor to notify Lenders of each Notice of Borrowing (or deemed
request for a Borrowing) by 12:00 noon on the proposed funding date for Base Rate Loans or by 3:00
p.m. at least two Business Days before any proposed funding of LIBOR Loans. Each Lender shall fund
to Agent such Lender’s Pro Rata share of the Borrowing to the account specified by Agent in
immediately available funds not later than 2:00 p.m. on the requested funding date, unless Agent’s
notice is


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




41









 







received after the times provided above, in which event Lender shall fund its Pro Rata
share by 11:00 a.m. on the next Business Day. Subject to its receipt of such amounts from Lenders,
Agent shall disburse the proceeds of the Loans as directed by Borrower. Unless Agent shall have
received (in sufficient time to act) written notice from a Lender that it does not intend to fund
its Pro Rata share of a Borrowing, Agent may assume that such Lender has deposited or promptly will
deposit its share with Agent, and Agent may disburse a corresponding amount to Borrower. If a
Lender’s share of any Borrowing or of any settlement pursuant to Section 4.1.3(b) is not
received by Agent, then Borrower agrees to repay to Agent on demand the amount of such share,
together with interest thereon from the date disbursed until repaid, at the rate applicable to the
Borrowing.




          4.1.3 Swingline Loans; Settlement.




          (a) Agent may, but shall not be obligated to, advance Swingline Loans to Borrower, up to an
aggregate outstanding amount of $7,500,000, unless the funding is specifically required to be made
by all Lenders hereunder. Each Swingline Loan shall constitute a Loan for all purposes, except
that payments thereon shall be made to Agent for its own account. The obligation of Borrower to
repay Swingline Loans shall be evidenced by the records of Agent and need not be evidenced by any
promissory note.




          (b) To facilitate administration of the Loans, Lenders and Agent agree (which agreement is
solely among them, and not for the benefit of or enforceable by Borrower) that settlement among
them with respect to Swingline Loans and other Loans may take place on a date determined from time
to time by Agent, which shall occur at least once each week. On each
settlement date, settlement shall be made with each Lender in accordance with the Settlement
Report delivered by Agent to Lenders. Between settlement dates, Agent may in its discretion apply
payments on Loans to Swingline Loans, regardless of any designation by Borrower or any provision
herein to the contrary. Each Lender’s obligation to make settlements with Agent is absolute and
unconditional, without offset, counterclaim or other defense, and whether or not the Commitments
have terminated, an Overadvance exists or the conditions in Article VI are satisfied. If,
due to an Insolvency Proceeding with respect to Borrower or otherwise, any Swingline Loan may not
be settled among Lenders hereunder, then each Lender shall be deemed to have purchased from Agent a
Pro Rata participation in each unpaid Swingline Loan and shall transfer the amount of such
participation to Agent, in immediately available funds, within one Business Day after Agent’s
request therefor.




          4.1.4 Notices. Borrower authorizes Agent and Lenders to extend, convert or continue Loans, effect
selections of interest rates, and transfer funds to or on behalf of Borrower based on telephonic or
e-mailed instructions. Borrower shall confirm each such request by prompt delivery to Agent of a
Notice of Borrowing or Notice of Conversion/Continuation, if applicable, but if it differs in any
material respect from the action taken by Agent or Lenders, the records of Agent and Lenders shall
govern. Neither Agent nor any Lender shall have any liability for any loss suffered by Borrower as
a result of Agent or any Lender acting upon its


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




42









 









understanding of telephonic or e-mailed
instructions from a person believed in good faith by Agent or any Lender to be a person authorized
to give such instructions on Borrower’s behalf.




          Section 4.2 Defaulting Lender. Agent may (but shall not be required to), in its discretion, retain any payments or other
funds received by Agent that are to be provided to a Defaulting Lender hereunder, and may apply
such funds to such Lender’s defaulted obligations or readvance the funds to Borrower in accordance
with this Agreement. The failure of any Lender to fund a Loan, to make any payment in respect of
LC Obligations or to otherwise perform its obligations hereunder shall not relieve any other Lender
of its obligations, and no Lender shall be responsible for default by another Lender. Lenders and
Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by
Borrower) that, solely for purposes of determining a Defaulting Lender’s right to vote on matters
relating to the Loan Documents and to share in payments, fees and Collateral proceeds thereunder, a
Defaulting Lender shall not be deemed to be a “Lender” until all its defaulted obligations have
been cured.




          Section 4.3 Number and Amount of LIBOR Loans; Determination of Rate. Each Borrowing of LIBOR Loans when made shall be in a minimum amount of $3,000,000, plus
any increment of $1,000,000 in excess thereof.
No more than five Borrowings of LIBOR Loans may be outstanding at any time, and all LIBOR
Loans having the same length and beginning date of their Interest Periods shall be aggregated
together and considered one Borrowing for this purpose. Upon determining LIBOR for any Interest Period requested by Borrower, Agent shall promptly
notify Borrower thereof by telephone or electronically and, if requested by Borrower, shall confirm
any telephonic notice in writing.




          Section 4.4 Borrower as Agent. Each Obligor (other than the Borrower) hereby designates Borrower as its representative and
agent for all purposes under the Loan Documents, including with regard to delivery or receipt of
communications, preparation and delivery of Borrowing Base and financial reports, receipt and
payment of Obligations, requests for waivers, amendments or other accommodations, actions under the
Loan Documents (including in respect of compliance with covenants), and all other dealings with
Agent, Issuing Bank or any Lender. Borrower hereby accepts such appointment. Agent and Lenders
shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or
communication (including any notice of borrowing) delivered by Borrower on behalf of any other
Obligor. Agent and Lenders may give any notice or communication with an Obligor (other than
Borrower) hereunder to Borrower on behalf of such Obligor. Each of Agent, Issuing Bank and Lenders
shall have the right, in its discretion, to deal exclusively with Borrower for any or all purposes
under the Loan Documents. Each Obligor (other than Borrower) agrees that any notice, election,
communication, representation, agreement or undertaking made on its behalf by Borrower shall be
binding upon and enforceable against it.




          Section 4.5 One Obligation. The Loans, LC Obligations and other Obligations shall constitute one general obligation of
the Borrower and the Guarantors and (unless otherwise expressly provided in any Loan Document)
shall be secured by Agent’s Lien upon all Collateral.



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




43









 








          Section 4.6 Effect of Termination. On the effective date of any termination of the Commitments on the Revolver Termination
Date or pursuant to Section 2.1.4, all Obligations shall be immediately due and payable,
and any Lender may terminate its and its Affiliates’ Bank Products (other than Cash Management
Services to the extent Cash Collateralized or supported by similar arrangements, in either case in
a manner acceptable to the respective Lender and provided that nothing herein affects the right of
the respective Lender to terminate the respective Cash Management Services in accordance with the
terms of the respective Cash Management Services agreement). All undertakings of Borrower
contained in the Loan Documents shall survive any termination of the Commitments, and Agent shall
retain its Liens in the Collateral and all of its rights and remedies under the Loan Documents
until Full Payment of the Obligations. Notwithstanding Full Payment of the Obligations, Agent
shall not be required to terminate its Liens in any Collateral
unless, with respect to any damages Agent may incur as a result of the dishonor or return of
Payment Items applied to Obligations, Agent receives (a) a written agreement, executed by Borrower
and any Person whose advances are used in whole or in part to satisfy the Obligations, indemnifying
Agent and Lenders from any such damages; or (b) such Cash Collateral as Agent, in its reasonable
discretion, deems necessary to protect against any such damages. Sections 2.3,
3.4, 3.6, 3.7, 3.9, 5.5, 5.9, 5.10,
12, 15.2 and this Section, and the obligation of each Obligor and Lender with
respect to each indemnity given by it in any Loan Document, shall survive Full Payment of the
Obligations and any release relating to this credit facility.




ARTICLE V




PAYMENTS



          Section 5.1 General Payment Provisions. All payments of Obligations shall be made in Dollars, without offset, counterclaim or
defense of any kind, free of (and without deduction for) any Taxes, and in immediately available
funds, not later than 12:00 noon on the due date. Any payment after such time shall be deemed made
on the next Business Day. If any payment under the Loan Documents shall be stated to be due on a
day other than a Business Day, the due date shall be extended to the next Business Day and such
extension of time shall be included in any computation of interest and fees. Any payment of a
LIBOR Loan prior to the end of its Interest Period shall be accompanied by all amounts due under
Section 3.9. Any prepayment of Loans shall be applied first to Base Rate Loans and then to
LIBOR Loans (it being understood and agreed that the principal amount shall be applied to the LIBOR
Loans in the order of maturity, with the LIBOR Loans with the shortest time to maturity paid
first).




          Section 5.2 Repayment of Loans. Loans shall be due and payable in full on the Revolver Termination Date, unless payment is
sooner required hereunder. Loans may be prepaid from time to time, without penalty or premium. If
any Asset Disposition includes the disposition of Accounts or Inventory, then Net Proceeds equal to
the greater of (a) the net book value of such Accounts and Inventory, or (b) the reduction in the
Borrowing Base upon giving effect to such disposition, shall be applied to the Loans.
Notwithstanding anything herein to the contrary, if an Overadvance exists, Borrower shall, on the
sooner of Agent’s demand or the first Business


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




44









 







Day after Borrower has knowledge thereof, repay the
outstanding Loans in an amount sufficient to reduce the principal balance of Loans to the Borrowing
Base.




          Section 5.3 Currency Conversion. To the extent Agent receives any funds under or in connection with this Agreement in a
currency other than Dollars, Agent may convert such funds into Dollars at spot
rates then prevailing in accordance with its normal and customary procedures, and such rate
determination shall be conclusive absent manifest error.




          Section 5.4 Payment of Other Obligations. Obligations other than Loans, including LC Obligations and Extraordinary Expenses, shall be
paid by Borrower as provided in the Loan Documents or, if no payment date is specified, on demand.




          Section 5.5 Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any obligation to marshal any assets in favor of
any Obligor or against any Obligations. If any payment by or on behalf of Borrower is made to
Agent, Issuing Bank or any Lender, or Agent, Issuing Bank or any Lender exercises a right of
setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by Agent, Issuing Bank or such Lender in its discretion) to be
repaid to a trustee, receiver or any other Person, then to the extent of such recovery, the
Obligation originally intended to be satisfied, and all Liens, rights and remedies relating
thereto, shall be revived and continued in full force and effect as if such payment had not been
made or such setoff had not occurred.




          Section 5.6 Post-Default Allocation of Payments.




          5.6.1 Allocation. Notwithstanding anything herein to the contrary, during an Event of Default, monies to be
applied to the Obligations, whether arising from payments by Obligors, realization on Collateral,
setoff or otherwise, shall be allocated as follows:





     (a) first, to all costs and expenses, including Extraordinary Expenses, owing
to Agent;




     (b) second, to all amounts owing to Agent on Swingline Loans;




     (c) third, to all amounts owing to Issuing Bank on LC Obligations;




     (d) fourth, to all Obligations constituting fees (excluding amounts relating to
Bank Products);




     (e) fifth, to all Obligations constituting interest (excluding amounts relating
to Bank Products);




     (f) sixth, to provide Cash Collateral for outstanding Letters of Credit;


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



45









 






     (g) seventh, to all Loans and to Obligations related to Bank Products referred
to in clause (b) of the definition thereof in respect of which Agent has received written
notice as contemplated by the definition of “Bank Products”; and




     (h) last, to all other Obligations.


Amounts shall be applied to each category of Obligations set forth above until Full Payment thereof
and then to the next category. If amounts are insufficient to satisfy a category, they shall be
applied on a pro rata basis among the Obligations in the category. Amounts distributed with
respect to any Bank Product Debt shall be the lesser of the applicable Bank Product Amount last
reported to Agent (to the extent contemplated by the definition of “Bank Product”) or the actual
Bank Product Debt as calculated by the methodology reported to Agent for determining the amount
due. Agent shall have no obligation to calculate the amount to be distributed with respect to any
Bank Product Debt, but may rely upon written notice of the amount (setting forth a reasonably
detailed calculation) from the Secured Party. In the absence of such notice, Agent may assume the
amount to be distributed is the Bank Product Amount last reported to it. The allocations set forth
in this Section are solely to determine the rights and priorities of Agent and Lenders as among
themselves, and may be changed by agreement among them without the consent of any Obligor. This
Section is not for the benefit of or enforceable by Borrower.




          5.6.2 Erroneous Application. Agent shall not be liable for any application of amounts made by it in good faith and, if
any such application is subsequently determined to have been made in error, the sole recourse of
any Lender or other Person to which such amount should have been made shall be to recover the
amount from the Person that actually received it (and, if such amount was received by any Lender,
such Lender hereby agrees to return it).




          Section 5.7 Application of Payments. The available balance in the Dominion Account as of 3:00 p.m. on each Business Day shall be
applied to the Obligations. If the available balance exceeds such Obligations, the excess amount
(as determined by Agent in its sole discretion) shall be deposited in the Disbursement Account at
the end of such Business Day. Borrower irrevocably waives the right to direct the application of
any payments or Collateral proceeds, and agrees that Agent shall have the continuing, exclusive
right to apply and reapply same against the Obligations, in such manner as Agent deems advisable.




          Section 5.8 Loan Account; Account Stated.




          5.8.1 Loan Account. Agent shall maintain in accordance with its usual and customary practices an account or
accounts (“Loan Account”) evidencing the Debt of Borrower resulting from each Loan or
issuance of a Letter of Credit from time to time. Any failure of Agent to record anything in the
Loan Account, or any error in doing so, shall not limit or otherwise affect the obligation of
Borrower to pay any amount owing hereunder.




          5.8.2 Entries Binding. Entries made in the Loan Account shall constitute presumptive evidence of the information
contained therein. If any information contained in the Loan Account is provided to or inspected by
any Person, then such information shall be



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



46









 







conclusive and binding on such Person for all purposes
absent manifest error, except to the extent such Person notifies Agent in writing within 30 days
after receipt or inspection that specific information is subject to dispute.




          Section 5.9 Taxes.




          5.9.1 Payments Free of Taxes. All payments by Obligors of Obligations shall be free and clear of and without reduction
for any Taxes. If Applicable Law requires any Obligor or Agent to withhold or deduct any Tax
(including backup withholding or withholding Tax), the withholding or deduction shall be based on
information provided pursuant to Section 5.10 and Agent shall pay the amount withheld or
deducted to the relevant Governmental Authority. If the withholding or deduction is made on
account of Indemnified Taxes or Other Taxes, the sum payable by Borrower shall be increased so that
Agent, Lender or Issuing Bank, as applicable, receives an amount equal to the sum it would have
received if no such withholding or deduction (including deductions applicable to additional sums
payable under this Section) had been made. Without limiting the foregoing, Borrower shall timely
pay all Other Taxes to the relevant Governmental Authorities.




          5.9.2 Payment. Borrower shall indemnify, hold harmless and reimburse (within 10 days after demand
therefor, including documentation with respect to the amounts demanded) Agent, Lenders and Issuing
Bank for any Indemnified Taxes or Other Taxes (including those attributable to amounts payable
under this Section) withheld or deducted by any Obligor or Agent, or paid by Agent, any Lender or
Issuing Bank, with respect to any Obligations, Letters of Credit or Loan Documents, whether or not
such Taxes were properly asserted by the relevant Governmental Authority, and including all
penalties, interest and reasonable expenses relating thereto (except for such penalties, interest
and expenses to the extent determined by a final non-appealable order of a court of competent
jurisdiction to have arisen from the gross negligence or willful misconduct of Lender or Issuing
Bank, as applicable), as well as any amount that a Lender or Issuing Bank fails to pay indefeasibly
to Agent under Section 5.10. A certificate as to the amount of any such payment or
liability delivered to Borrower by Agent, or by a Lender or
Issuing Bank (with a copy to Agent), shall be conclusive, absent manifest error. As soon as
practicable after any payment of Taxes by Borrower, Borrower shall deliver to Agent a receipt from
the Governmental Authority or other evidence of payment satisfactory to Agent.




          5.9.3 Refunds. If any Lender or Issuing Bank determines, in its reasonable
discretion, that it has received a refund in respect of any Indemnified Taxes or Other Taxes as to
which indemnification or additional amounts have been paid to it by Borrower pursuant to this
Section 5.9, it shall promptly remit such refund (but only to the extent of indemnity
payments made, or additional amounts paid by Borrower under this Section 5.9 with respect
to the Indemnified Taxes or Other Taxes giving rise to such refund) to Borrower, net of all
out-of-pocket expense of such Lender or Issuing Bank, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such refund);
provided that Borrower, upon the request of Lender or Issuing Bank, as the case may be, agrees
promptly to return such refund, plus any penalties, interest or other charges imposed on such



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



47









 







party by the relevant Governmental Authority, to such party in the event such party is required to repay
such refund to the relevant Governmental Authority. This subsection shall not be construed to
require any Lender or Issuing Bank, as the case may be, to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the Borrower or any other
Person.




          Section 5.10 Lender Tax Information.




          5.10.1 Status of Lenders. Each Lender shall deliver documentation and information to Agent and Borrower, in form
required by Applicable Law or reasonably requested by Agent or Borrower, sufficient to permit Agent
or Borrower to determine (a) whether or not payments made with respect to Obligations are subject
to Taxes, (b) if applicable, the required rate of withholding or deduction, and (c) such Lender’s
entitlement to any available exemption from, or reduction of, applicable Taxes for such payments or
otherwise to establish such Lender’s status for withholding tax purposes in the applicable
jurisdiction.




          5.10.2 Lender Obligations. Each Lender and Issuing Bank shall promptly notify Borrower and Agent of any change in
circumstances that would change any claimed Tax exemption or reduction. Each Lender and Issuing
Bank shall indemnify, hold harmless and reimburse (within 10 days after demand therefor) Borrower
and Agent for any Taxes, losses, claims, liabilities, penalties, interest and expenses (including
reasonable attorneys’ fees) incurred by or asserted against a Borrower or Agent by any Governmental
Authority due to such Lender’s or Issuing Bank’s failure to deliver, or inaccuracy or deficiency
in, any documentation required to be delivered by it pursuant to this Section. Each Lender and
Issuing Bank authorizes Agent to set off any amounts due to Agent
under this Section against any amounts payable to such Lender or Issuing Bank under any Loan
Document.




          Section 5.11 Nature and Extent of Borrower’s Liability.




          5.11.1 Extent of Liability. The Borrower agrees that its obligations shall not be discharged until Full Payment of the
Obligations, and that such obligations are absolute and unconditional, irrespective of (a) the
genuineness, validity, regularity, enforceability, subordination or any future modification of, or
change in, any Obligations or Loan Document, or any other document, instrument or agreement to
which any Obligor is or may become a party or be bound; (b) the absence of any action to enforce
this Agreement (including this Section) or any other Loan Document, or any waiver, consent or
indulgence of any kind by Agent or any Lender with respect thereto; (c) the existence, value or
condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty
for the Obligations or any action, or the absence of any action, by Agent or any Lender in respect
thereof (including the release of any security or guaranty); (d) the insolvency of any Obligor; (e)
any election by Agent or any Lender in an Insolvency Proceeding for the application of Section
1111(b)(2) of the Bankruptcy Code; (f) any borrowing or grant of a Lien by any other Obligor, as
debtor-in-possession under Section 364 of the Bankruptcy



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



48









 







Code or otherwise; (g) the disallowance of
any claims of Agent or any Lender against any Obligor for the repayment of any Obligations under
Section 502 of the Bankruptcy Code or otherwise; or (h) any other action or circumstances that
might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor,
except Full Payment of all Obligations.




          5.11.2 Waivers.




          (a) Borrower expressly waives all rights that it may have now or in the future under any
statute, at common law, in equity or otherwise, to compel Agent or Lenders to marshal assets or to
proceed against any Obligor, other Person or security for the payment or performance of any
Obligations before, or as a condition to, proceeding against Borrower. Borrower waives all
defenses available to a surety, guarantor or accommodation co-obligor other than Full Payment of
all Obligations. It is agreed among Borrower, Agent and Lenders that the provisions of this
Section 5.11 are of the essence of the transaction contemplated by the Loan Documents and
that, but for such provisions, Agent and Lenders would decline to make Loans and issue Letters of
Credit.




          (b) Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem
appropriate, including realization upon Collateral or any Real Estate by judicial foreclosure or
non-judicial sale or enforcement, without affecting any rights and
remedies under this Section 5.11. If, in taking any action in connection with the
exercise of any rights or remedies, Agent or any Lender shall forfeit any other rights or remedies,
including the right to enter a deficiency judgment against Borrower or other Person, whether
because of any Applicable Laws pertaining to “election of remedies” or otherwise, Borrower consents
to such action and waives any claim based upon it, even if the action may result in loss of any
rights of subrogation that Borrower might otherwise have had. Borrower waives all rights and
defenses arising out of an election of remedies, such as nonjudicial foreclosure with respect to
any security for the Obligations, even though that election of remedies destroys Borrower’s rights
of subrogation against any other Person. Agent may bid all or a portion of the Obligations at any
foreclosure or trustee’s sale or at any private sale, and the amount of such bid need not be paid
by Agent but shall be credited against the Obligations. The amount of the successful bid at any
such sale, whether Agent or any other Person is the successful bidder, shall be conclusively deemed
to be the fair market value of the Collateral, and the difference between such bid amount and the
remaining balance of the Obligations shall be conclusively deemed to be the amount of the
Obligations guaranteed under this Section 5.11, notwithstanding that any present or future
law or court decision may have the effect of reducing the amount of any deficiency claim to which
Agent or any Lender might otherwise be entitled but for such bidding at any such sale.




          5.11.3 Subordination. Borrower hereby subordinates any claims, including any rights at law or in equity to
payment, subrogation, reimbursement, exoneration, contribution, indemnification or set off, that it
may have at any time against any other Obligor, howsoever arising, to the Full Payment of all
Obligations.



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




49











 





ARTICLE VI




CONDITIONS PRECEDENT



          Section 6.1 Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2 and Section 6.3,
Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise
extend credit to Borrower hereunder, until the date (“Closing Date”) that each of the
following conditions has been satisfied (and notwithstanding anything to the contrary herein, any
Borrowing on the Closing Date shall be in an amount not in excess of $1,000,000 and the proceeds
thereof shall be used only for the payment of fees and expenses incurred in connection with the
negotiation and delivery of this Agreement):





     (a) Notes shall have been executed by Borrower and delivered to each Lender that
requests issuance of a Note. Each other Loan Document shall have been duly executed and
delivered to Agent by each of the signatories thereto, and each Obligor shall be in
compliance with all terms thereof.




     (b) Agent shall have received (i) duly executed Security Documents from such Obligors
as it shall reasonably request, (ii) acknowledgments of all filings or recordations
necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other
evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral,
except Permitted Liens and (iii) evidence that the Cayman Guarantor has recorded the
security interests created by it pursuant to this Agreement and/or the Security Documents in
its register of mortgages and charges.




     (c) Agent shall have received duly executed agreements establishing each Dominion
Account and related lockbox, in form and substance, and with financial institutions,
satisfactory to Agent.




     (d) Agent shall have received certificates, in form and substance reasonably
satisfactory to it, from a knowledgeable Senior Officer of Borrower certifying that, after
giving effect to the initial Loans and transactions hereunder, (i) Borrower is Solvent; (ii)
no Default or Event of Default exists; (iii) the representations and warranties set forth in
Article IX are true and correct in all material respects (to the extent not
qualified by the concept of “materiality”); (iv) Borrower has complied with all agreements
and conditions to be satisfied by it under the Loan Documents; and (v) the entry into by the
Borrower of the Loan Documents to which it is a party will not breach any borrowing or
guarantor restriction binding on the Borrower or any of its Subsidiaries under its Organic
Documents.




     (e) Agent shall have received a certificate of a duly authorized officer of each
Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true
and complete, and in full force and effect, without amendment except as shown; (ii) that an
attached copy of resolutions (including, without limitation, resolutions of the sole


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




50









 






shareholder of the Borrower) authorizing execution and delivery of the Loan Documents and
the transactions contemplated thereby is true and complete, and that such resolutions are in
full force and effect, were duly adopted, have not been amended, modified or revoked, and
constitute all resolutions adopted with respect to this credit facility; and (iii) to the
title, name and signature of each Person authorized to sign the Loan Documents and
containing the specimen signature of each Person authorized to sign the Loan Documents.
Agent may conclusively rely on this certificate until it is otherwise notified by the
applicable Obligor in writing.




     (f) Agent shall have received a written opinion of DLA Piper LLP (US), as well as any
local counsel to Obligors or Agent, in form and substance satisfactory to Agent.




     (g) Agent shall have received copies of the charter documents of each Obligor,
certified by the Secretary of State or other appropriate official of such Obligor’s
jurisdiction of organization or incorporation. Agent shall have received good standing
certificates (where applicable) for each Obligor, issued by the Secretary of State or other
appropriate official of such Obligor’s jurisdiction of organization or incorporation
and each jurisdiction where such Obligor’s conduct of business or ownership of Property
necessitates qualification.




     (h) Agent shall have received copies of policies or certificates of insurance for the
insurance policies carried by Parent and the other Obligors, all in compliance with the Loan
Documents.




     (i) Agent shall have completed its business, financial and legal due diligence of
Obligors, including a roll-forward of its previous field examination, with results
satisfactory to Agent. No material adverse change in the financial condition of any Obligor
or in the quality, quantity or value of any Collateral shall have occurred since December
31, 2009.




     (j) Borrower shall have paid all fees due and payable to the Agent and Lenders under
the Fee Letter and all expenses to be paid to Agent and Lenders as provided herein.




     (k) Agent shall have received a Borrowing Base Certificate prepared as of December 31,
2010 and any other Borrowing Base Certificate required under Section 8.1 as of the
date on which the conditions set forth in clauses (a) through (j) of this Section
6.1 are satisfied.




     (l) Agent shall have received, in form and substance satisfactory to it, (a) financial
projections for Parent and Subsidiaries evidencing the ability to comply with the financial
covenants set forth herein and (b) interim financial statements for Parent and Subsidiaries
dated as of November 30, 2010 and any other financial statements required


 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


51









 







to be delivered as of the date on which the conditions set forth in clauses (a) through (j) of this Section
6.1 are satisfied.



          Section 6.2 Conditions Precedent to All Credit Extensions. Agent, Issuing Bank and Lenders shall not be required to fund any Loans, arrange for
issuance of any Letters of Credit or grant any other accommodation to or for the benefit of
Borrower, unless the following conditions are satisfied:





     (a) No Default or Event of Default shall exist at the time of, or result from, such
funding, issuance or grant;




     (b) The representations and warranties of each Obligor in the Loan Documents shall be
true and correct in all material respects (to the extent not qualified by the concept of
“materiality”) on the date of, and upon giving effect to, such funding, issuance or grant
(except for representations and warranties that expressly relate to an earlier date);




     (c) All conditions precedent in any other Loan Document shall be satisfied;




     (d) No event shall have occurred or circumstance exist that has or could reasonably be
expected to have a Material Adverse Effect; and




     (e) With respect to issuance of a Letter of Credit, the LC Conditions shall be
satisfied.



          Each request (or deemed request) by Borrower for funding of a Loan, issuance of a Letter of
Credit or grant of an accommodation shall constitute a representation by Borrower that the
foregoing conditions are satisfied on the date of such request and on the date of such funding,
issuance or grant. As an additional condition to any funding, issuance or grant, Agent shall have
received such other information, documents, instruments and agreements as it deems appropriate in
connection therewith.




          Section 6.3 Post-execution Covenants.





     (a) Notwithstanding anything to the contrary contained in this Agreement or the other
Loan Documents to the contrary, (i) within 45 days of the date hereof, one or more of the
Obligors shall have transferred at least $30,000,000 of cash, Cash Equivalents and Long Term
Liquid Investments (determined by their current market value) satisfactory to Agent to a
securities account with Bank of America, N.A. subject to a Securities Account Control
Agreement in form and substance satisfactory to Agent and (ii) within 30 days of the date
hereof, the Obligors shall have closed the HSBC Deposit Accounts and the Merrill Lynch
Securities Accounts.




     (b) Notwithstanding anything to the contrary contained in this Agreement or the other
Loan Documents to the contrary, within 45 days of the date hereof, upon giving


 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


52









 







effect to, and only immediately following, any initial funding of Loans and issuance of Letters of
Credit and the payment by Borrower of all fees and expenses incurred in connection herewith
as well as any payables stretched beyond their customary payment practices, Liquidity shall
be at least $40,000,000, of which at least $10,000,000 shall be Availability.




     (c) Notwithstanding anything to the contrary contained in this Agreement or the other
Loan Documents to the contrary, within 5 Business Days of the date hereof (or such later
date as determined by Agent in its sole discretion) the Borrower shall have (i) served
notices of assignment on each customer identified in the List of Existing Customers (as
defined in the Borrower Security Agreement) and (ii) inserted the legend substantially in
the form of Schedule 7 (Form of Legends) to the Borrower Security Agreement in each invoice
it issues to the relevant counterparty under or in respect of a Relevant Contract (as
defined in the Borrower Security Agreement), in each case in accordance with the Borrower
Security Agreement.




     (d) Notwithstanding anything to the contrary contained in this Agreement or the other
Loan Documents to the contrary, within 15 Business Days of the date hereof (or such later
date as determined by Agent in its sole discretion) the Obligors shall have delivered such
instruments or other documents or agreements, and shall have taken such actions, as Agent
deems appropriate under Applicable Law to evidence and perfect its Lien in the Equity
Interests of each of the following Subsidiaries of Trident Microsystems (Far East) Ltd: (i)
Trident Microsystems Holdings BV, (ii) Trident Microsystems (Europe) GmbH and (iii) Trident
Microsystems (Europe) B.V.



ARTICLE VII




COLLATERAL



          Section 7.1 Grant of Security Interest. To secure the prompt payment and performance of all Obligations, each Obligor hereby grants
to Agent, for the benefit of Secured Parties, a continuing security interest in and Lien upon all
personal Property of such Obligor, including all of the following Property, whether now owned or
hereafter acquired, and wherever located:





     (a) all Accounts;




     (b) all Chattel Paper, including electronic chattel paper;




     (c) all Commercial Tort Claims, including those shown on Schedule 9.1.16;




     (d) all Deposit Accounts;




     (e) all Documents;



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


53









 






     (f) all General Intangibles (except as provided by Section 7.6);




     (g) all Goods, including Inventory, Equipment and fixtures;




     (h) all Instruments;




     (i) all Investment Property;




     (j) all Letter-of-Credit Rights;




     (k) all Supporting Obligations;




     (l) all monies, whether or not in the possession or under the control of Agent, a
Lender, or a bailee or Affiliate of Agent or a Lender, including any Cash Collateral;




     (m) all accessions to, substitutions for, and all replacements, products, and cash and
non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect
to insurance policies, and claims against any Person for loss, damage or destruction of any
Collateral; and




     (n) all books and records (including customer lists, files, correspondence, tapes,
computer programs, print-outs and computer records) pertaining to the foregoing.



          Section 7.2 Lien on Deposit Accounts; Cash Collateral.




          7.2.1 Deposit Accounts. To further secure the prompt payment and performance of all Obligations, each Obligor
hereby grants to Agent, for the benefit of Secured Parties, a continuing security interest in and
Lien upon all amounts credited to any Deposit Account of such Obligor, including any sums in any
blocked or lockbox accounts or in any accounts into which such sums are swept. Each Obligor hereby
authorizes and directs each bank or other depository to deliver to Agent, upon request, all
balances in any Deposit Account maintained by such Obligor, without inquiry into the authority or
right of Agent to make such request.




          7.2.2 Cash Collateral. Any Cash Collateral may be invested, at Agent’s discretion, in Cash Equivalents, but Agent
shall have no duty to do so, regardless of any agreement or course of dealing with any Obligor, and
shall have no responsibility for any investment or loss. Each Obligor hereby grants to Agent, for
the benefit of Secured Parties, a security interest in all Cash Collateral held from time to time
and all proceeds thereof, as security for the Obligations, whether such Cash Collateral is held in
a Cash Collateral Account or elsewhere. Agent may apply Cash Collateral to the payment of any
Obligations, in such order as Agent may elect, as they become due and payable. Each Cash
Collateral Account and all Cash Collateral shall be under the sole dominion and control of Agent.
No Obligor or other Person claiming through or on behalf of any Obligor shall have any right to any
Cash Collateral, until Full Payment of all Obligations.



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



54









 








          Section 7.3 Other Collateral.




          7.3.1 Commercial Tort Claims. Obligors shall promptly notify Agent in writing if any Obligor has a Commercial Tort Claim
(other than, as long as no Default or Event of Default exists, a Commercial Tort Claim for less
than $100,000), shall promptly amend Schedule 9.1.16 to
include such claim, and shall take such actions as Agent deems appropriate to subject such
claim to a duly perfected, first priority Lien in favor of Agent (for the benefit of Secured
Parties).




          7.3.2 Certain After-Acquired Collateral. Obligors shall promptly notify Agent in writing if, after the Closing Date, any Obligor
obtains any interest in any Collateral consisting of Deposit Accounts, Chattel Paper, Documents,
Instruments, Intellectual Property, Investment Property or Letter-of-Credit Rights and, upon
Agent’s request, shall promptly take such actions as Agent deems appropriate to effect Agent’s duly
perfected, first priority Lien upon such Collateral, including obtaining any appropriate
possession, control agreement or Lien Waiver. If any Collateral is in the possession of a third
party, at Agent’s request, Obligors shall obtain an acknowledgment that such third party holds the
Collateral for the benefit of Agent.




          Section 7.4 No Assumption of Liability. The Lien on Collateral granted hereunder is given as security only and shall not subject
Agent or any Lender to, or in any way modify, any obligation or liability of Obligors relating to
any Collateral.




          Section 7.5 Further Assurances. Promptly upon request, Obligors shall deliver such instruments, assignments, title
certificates, or other documents or agreements, and shall take such actions, as Agent deems
appropriate under Applicable Law to evidence or perfect its Lien on any Collateral, or otherwise to
give effect to the intent of this Agreement (including without limitation, the filing of this
Agreement with the Hong Kong Companies Registry within five weeks from the date of execution of
this Agreement). Each Obligor ratifies any action taken by Agent before the Closing Date to effect
or perfect its Lien on any Collateral. At Agent’s request, Parent shall cause any Subsidiary that
is not an Obligor to guaranty the Obligations in a manner satisfactory to Agent, and to execute and
deliver such documents, instruments and agreements and to take such other actions as Agent shall
require to evidence and perfect a Lien in favor of Agent (for the benefit of Secured Parties) on
the same classes of assets of such Person as have been granted by Borrower as Collateral hereunder,
including delivery of such legal opinions, in form and substance satisfactory to Agent, as it shall
deem appropriate.




          Section 7.6 Exclusions from Collateral. Notwithstanding Section 7.1, the Collateral shall not include Intellectual
Property.




ARTICLE VIII




COLLATERAL ADMINISTRATION



          Section 8.1 Borrowing Base Certificates. By the 15th day of each month, Borrower shall deliver to Agent (and Agent shall
promptly deliver same to Lenders) a Borrowing



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


55









 







Base Certificate prepared as of the close of business
of the previous month, and at such other times as Agent may request. All calculations of
Availability in any Borrowing Base Certificate shall originally be made by Borrower and certified
by a Senior Officer, provided that Agent may from time to time review and adjust any such
calculation (a) to reflect its reasonable estimate of declines in value of any Collateral, due to
collections received in the Dominion Account or otherwise; (b) to adjust advance rates to reflect
changes in dilution, quality, mix and other factors affecting Collateral; and (c) to the extent the
calculation is not made in accordance with this Agreement or does not accurately reflect the
Availability Reserve.




          Section 8.2 Administration of Accounts.




          8.2.1 Records and Schedules of Accounts. Each Obligor shall keep records of its Accounts that are accurate and complete in all
material respects, including all payments and collections thereon, and shall submit to Agent sales,
collection, reconciliation and other reports in form reasonably satisfactory to Agent, on such
periodic basis as Agent may request. Borrower shall also provide to Agent, on or before the 15th
day of each month, a detailed aged trial balance of all Accounts as of the end of the preceding
month, specifying each Account’s Account Debtor name and address, amount, invoice date and due
date. Promptly upon Agent’s request, Borrower shall provide Agent with supporting documentation
showing any discount, allowance, credit, authorized return or dispute, and including such proof of
delivery, copies of invoices and invoice registers, copies of related documents, repayment
histories, status reports and other information as Agent may reasonably request. If Accounts
reported on the most recently delivered Borrowing Base Certificate as Eligible Accounts in an
aggregate face amount of $200,000 or more cease to be Eligible Accounts, Borrower shall notify
Agent of such occurrence promptly (and in any event within one Business Day) after any Senior
Officer or any corporate controller of Borrower or Parent has knowledge thereof.




          8.2.2 Taxes. If an Account of Borrower includes a charge for any Taxes, Agent is authorized, in its
discretion, to pay the amount thereof to the proper taxing authority for the account of Borrower
and to charge Borrower therefor; provided, however, that neither Agent nor Lenders shall be liable
for any Taxes that may be due from Borrower or with respect to any Collateral.




          8.2.3 Account Verification. Whether or not a Default or Event of Default exists, Agent shall have the right at any
time, in the name of Agent, any designee of Agent or Borrower, to verify the validity, amount or
any other matter relating to any Accounts of Borrower by mail, telephone or otherwise;
provided that if no Event of Default exists, Agent shall not conduct such verification in
its own name. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly
conclude any such verification process.




          8.2.4 Maintenance of Dominion Account. Borrower shall maintain Dominion Accounts pursuant to lockbox or other arrangements
acceptable to Agent. Borrower shall obtain an agreement (in form and substance satisfactory to
Agent) from each lockbox servicer and Dominion Account bank, establishing Agent’s control over and
Lien in the lockbox



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


56









 







or Dominion Account, requiring immediate deposit of all remittances received in
the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for
customary administrative charges. If a Dominion Account is not maintained with Bank of America,
Agent may require immediate transfer of all funds in such account to a Dominion Account maintained
with Bank of America. Agent and Lenders assume no responsibility to Borrower for any lockbox
arrangement or Dominion Account, including any claim of accord and satisfaction or release with
respect to any Payment Items accepted by any bank.




          8.2.5 Proceeds of Collateral. Borrower shall request in writing and otherwise take all necessary steps to ensure that all
payments on Accounts or otherwise relating to Collateral are made directly to a Dominion Account
(or a lockbox relating to a Dominion Account). If Parent or any Subsidiary receives cash or
Payment Items with respect to any Collateral, it shall hold same in trust for Agent and promptly
(not later than the next Business Day) deposit same into a Dominion Account.




          Section 8.3 Administration of Inventory.




          8.3.1 Records and Reports of Inventory. Each Obligor shall keep accurate and complete records of its Inventory. Each Obligor shall
conduct a physical inventory at least once per calendar year (and on a more frequent basis if
requested by Agent when an Event of Default exists), and shall provide to Agent a report based on
each such inventory promptly upon completion thereof, together with such supporting information as
Agent may reasonably request.




          8.3.2 Returns of Inventory. No Obligor shall return any Inventory to a supplier, vendor or other Person, whether for
cash, credit or otherwise, unless (a) such return is in the Ordinary Course of Business and (b)
Agent is promptly notified if the aggregate Value of all Inventory returned in any month exceeds
$3,000,000.




          8.3.3 Acquisition, Sale and Maintenance. Each Obligor shall take all steps to assure that all Inventory is produced in accordance
with Applicable Law, including the FLSA. Each Obligor shall use, store and maintain all Inventory
with reasonable care and caution, in accordance with applicable standards of any insurance and in
material conformity with all Applicable Law, and shall make current rent payments (within
applicable grace periods provided for in leases) at all locations where any Collateral is located,
except for such rent payments that are subject to dispute and for which adequate reserves are
maintained in accordance with GAAP; provided, Borrower shall promptly notify Agent if the aggregate
amount of all such rent payments that are subject to dispute is in excess of $1,000,000.




          Section 8.4 Administration of Equipment.




          8.4.1 Records and Schedules of Equipment. Each Obligor shall keep records of its Equipment that are accurate and complete in all
material respects, including kind, quality, quantity, cost, acquisitions and dispositions thereof.




 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


57









 








          8.4.2 Dispositions of Equipment. No Obligor shall sell, lease or otherwise dispose of any Equipment, without the prior
written consent of Agent, other than (a) a Permitted Asset Disposition; and (b) replacement of
Equipment that is worn, damaged or obsolete with Equipment of like function and value, if the
replacement Equipment is acquired substantially contemporaneously with such disposition and is free
of Liens.




          8.4.3 Condition of Equipment. The Equipment is in good operating condition and repair, and all necessary replacements and
repairs have been made so that the marketability and operating efficiency of the Equipment (other
than Equipment that is worn, damaged or obsolete) is preserved at all times, reasonable wear and
tear excepted. Each Obligor shall ensure that the Equipment is mechanically and structurally
sound, and capable of performing the functions for which it was designed, in accordance with
manufacturer specifications.




          Section 8.5 Administration of Deposit Accounts. Schedule 8.5 sets forth all Deposit Accounts and Securities Accounts maintained by
Obligors, including all Dominion Accounts. Each Obligor shall take all actions necessary to
establish Agent’s control of each such Deposit Account and Securities Account (other than an
account exclusively used for payroll, payroll taxes or employee benefits, or an account containing
not more that $10,000 at any time); provided, that only upon the Agent’s request shall the
Obligors be required to deliver a Deposit Account Control Agreement or a Securities Account Control
Agreement, as applicable, with respect to (i) the HSBC Deposit Accounts, (ii) the Merrill Lynch
Securities Accounts and (iii) the Excluded Securities Accounts. Each Obligor shall be the sole
account holder of each Deposit Account or Securities Account, as the case may be, and shall not
allow any other Person (other than Agent) to have control over a Deposit Account or Securities
Account or any Property deposited therein. Each Obligor shall promptly notify Agent of any opening
or closing of a Deposit Account or Securities Account and, with the consent of Agent, will amend
Schedule 8.5 to reflect same.




          Section 8.6 General Provisions.




          8.6.1 Location of Collateral. All tangible items of Collateral, other than Inventory in transit, shall at all times be
kept by Obligors at the business locations set forth in Schedule 8.6.1 (as amended by
Borrower from time to time); provided, that (a) with regard to any Collateral moved within
the United States, 30 Business Days prior written notice is given to Agent; and (b) with regard to
any Inventory and Equipment moved to a location outside of the United States, 30 Business Days
prior written notice is given to Agent; provided, further, that if the aggregate
value of all such Inventory and Equipment exceeds $1,000,000, the Agent shall have maintained its
perfected first priority security interest therein to the reasonable satisfaction of the Agent.



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


58









 








          8.6.2 Insurance of Collateral; Condemnation Proceeds.




          (a) Each Obligor shall maintain insurance with respect to the Collateral, covering casualty,
hazard, theft, malicious mischief, flood and other risks, in amounts, with endorsements and with
insurers (with a Best Rating of at least A7, unless otherwise approved by Agent) reasonably
satisfactory to Agent. All proceeds under each policy shall be payable to Agent. From time to
time upon request, Obligors shall deliver to Agent the originals or certified copies of its
insurance policies and updated flood plain searches. Unless Agent shall agree otherwise, each
policy shall include satisfactory endorsements (i) showing Agent as loss payee; (ii) requiring 30
days prior written notice to Agent in the event of cancellation of the policy for any reason
whatsoever; and (iii) specifying that the interest of Agent shall not be impaired or invalidated by
any act or neglect of any Obligor or the owner of the Property, nor by the occupation of the
premises for purposes more hazardous than are permitted by the policy. If any Obligor fails to
provide and pay for any insurance, Agent may, at its option, but shall not be
required to, procure the insurance and charge Obligors therefor. Each Obligor agrees to
deliver to Agent, promptly as rendered, copies of all reports made to insurance companies. While
no Event of Default exists, Obligors may settle, adjust or compromise any insurance claim, as long
as the proceeds in excess of $1,000,000 are delivered to Agent when any Obligations are
outstanding. If an Event of Default exists, only Agent shall be authorized to settle, adjust and
compromise such claims.




          (b) During the continuance of an Event of Default or if any Obligations are outstanding, any
proceeds of insurance in excess of $1,000,000 (other than proceeds from workers’ compensation,
employment practices liability or D&O insurance) and any awards arising from condemnation of any
Collateral shall be paid to Agent. Any such proceeds or awards that relate to Inventory shall be
applied to payment of the Loans, and then to any other Obligations outstanding. Subject to clause
(c) below, any proceeds or awards that relate to Equipment or Real Estate shall be applied first to
Loans and then to other Obligations.




          (c) If requested by Obligors in writing within 15 days after Agent’s receipt of any insurance
proceeds or condemnation awards relating to any loss or destruction of Equipment or Real Estate,
Obligors may use such proceeds or awards to repair or replace such Equipment or Real Estate (and
until so used, the proceeds shall be held by Agent as Cash Collateral) as long as (i) no Default or
Event of Default exists; (ii) such repair or replacement is promptly undertaken and concluded, in
accordance with plans satisfactory to Agent; (iii) replacement buildings are constructed on the
sites of the original casualties and are of comparable size, quality and utility to the destroyed
buildings; (iv) the repaired or replaced Property is free of Liens, other than Permitted Liens; and
(v) Obligors comply with disbursement procedures for such repair or replacement as Agent may
reasonably require.




          8.6.3 Protection of Collateral. All expenses of protecting, storing, warehousing, insuring, handling, maintaining and
shipping any Collateral, all Taxes payable with respect to any Collateral (including any sale
thereof), and all other payments required to be made by Agent to any Person to realize upon any
Collateral, shall be borne and paid by Obligors.



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


59









 







Agent shall not be liable or responsible in any
way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable
care in its custody while Collateral is in Agent’s actual possession), for any diminution in the
value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other
Person whatsoever, but the same shall be at Obligors’ sole risk.




          8.6.4 Defense of Title to Collateral. Each Obligor shall at all times defend its title to Collateral and Agent’s Liens therein
against all Persons, claims and demands whatsoever, except Permitted Liens.




          Section 8.7 Power of Attorney. Each Obligor hereby irrevocably constitutes and appoints Agent (and all Persons designated
by Agent) as such Obligor’s true and lawful attorney (and agent-in-fact) for the purposes provided
in this Section. Agent, or Agent’s designee, may, without notice and in either its or an Obligor’s
name, but at the cost and expense of Obligors:





     (a) Endorse an Obligor’s name on any Payment Item or other proceeds of Collateral
(including proceeds of insurance) that come into Agent’s possession or control; and




     (b) During an Event of Default, (i) notify any Account Debtors of the assignment of
their Accounts, demand and enforce payment of Accounts by legal proceedings or otherwise,
and generally exercise any rights and remedies with respect to Accounts; (ii) settle,
adjust, modify, compromise, discharge or release any Accounts or other Collateral, or any
legal proceedings brought to collect Accounts or Collateral; (iii) sell or assign any
Accounts and other Collateral upon such terms, for such amounts and at such times as Agent
deems advisable; (iv) collect, liquidate and receive balances in Deposit Accounts or
investment accounts, and take control, in any manner, of proceeds of Collateral; (v)
prepare, file and sign an Obligor’s name to a proof of claim or other document in a
bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or
similar document; (vi) receive, open and dispose of mail addressed to an Obligor (provided
that upon removing any Collateral contained in such mail, Agent shall deliver such mail to
such Obligor), and notify postal authorities to deliver any such mail to an address
designated by Agent; (vii) endorse any Chattel Paper, Document, Instrument, bill of lading,
or other document or agreement relating to any Accounts, Inventory or other Collateral;
(viii) use an Obligor’s stationery and sign its name to verifications of Accounts and
notices to Account Debtors; (ix) use information contained in any data processing,
electronic or information systems relating to Collateral; (x) make and adjust claims under
insurance policies; (xi) take any action as may be necessary or appropriate to obtain
payment under any letter of credit, banker’s acceptance or other instrument for which an
Obligor is a beneficiary; and (xii) take all other actions as Agent deems appropriate to
fulfill any Obligor’s obligations under the Loan Documents.



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


60









 





ARTICLE IX




REPRESENTATIONS AND WARRANTIES



          Section 9.1 General Representations and Warranties. To induce Agent and Lenders to enter into this Agreement and to make available the
Commitments, Loans and Letters of Credit, each of Borrower and Parent represents and warrants that:




          9.1.1 Organization and Qualification. Each of Parent and each Subsidiary is duly organized or incorporated, validly existing and
in good standing under the laws of the jurisdiction of its organization or incorporation (as the
case may be). It is duly qualified, authorized to do business and in good standing as a foreign
corporation in each jurisdiction where failure to be so qualified could reasonably be expected to
have a Material Adverse Effect.




          9.1.2 Power and Authority. Each of Parent and each Subsidiary is duly authorized to execute, deliver and perform its
Loan Documents. The execution, delivery and performance of the Loan Documents have been duly
authorized by all necessary action, and do not (a) require any consent or approval of any holders
of Equity Interests of any Obligor, other than those already obtained; (b) contravene the Organic
Documents of any Obligor; (c) violate any Applicable Law or cause a default under any Material
Contract; or (d) result in or require the imposition of any Lien (other than Permitted Liens) on
any Property of any Obligor.




          9.1.3 Enforceability. Each Loan Document is a legal, valid and binding obligation of each Obligor party thereto,
enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors’ rights generally.




          9.1.4 Capital Structure. Schedule 9.1.4 shows, for each of Parent and each Subsidiary, its name, its
jurisdiction of organization or incorporation, its authorized and issued Equity Interests, the
holders of its Equity Interests, and all agreements binding on such holders with respect to their
Equity Interests. Except as disclosed on Schedule 9.1.4, in the five years preceding the
Closing Date, neither Parent nor any Subsidiary has acquired any substantial assets from any other
Person nor been the surviving entity in a merger or combination. Each Obligor has good title to
its Equity Interests in its Subsidiaries, subject only to Agent’s Lien, and all such Equity
Interests are duly issued, fully paid and non-assessable. There are no outstanding purchase
options, warrants, subscription rights, agreements to issue or sell, convertible interests, phantom
rights or powers of attorney relating to Equity Interests of Parent or any Subsidiary.




          9.1.5 Title to Properties; Priority of Liens. Each of Parent and each Subsidiary has good and marketable title to (or valid leasehold
interests in) all of its Real Estate, and good title to all of its personal Property, including all
Property reflected in any financial statements delivered to Agent or Lenders, in each case free of
Liens except Permitted Liens. Each of Parent and each Subsidiary has paid and discharged all
lawful claims that, if unpaid, could become a Lien on its Properties, other than Permitted Liens.
All Liens of Agent in the



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


61









 







          Collateral are duly perfected, first priority Liens, subject only to
Permitted Liens that are expressly allowed to have priority over Agent’s Liens.




          9.1.6 Accounts. Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and
representations made by Borrower with respect thereto. Borrower warrants, with respect to each
Account at the time it is shown as an Eligible Account in a Borrowing Base Certificate, that:





     (a) it is genuine and in all respects what it purports to be, and is not evidenced by a
judgment;




     (b) it arises out of a completed, bona fide sale and delivery of goods or rendition of
services in the Ordinary Course of Business, and substantially in accordance with any
purchase order, contract or other document relating thereto;




     (c) it is for a sum certain, maturing as stated in the invoice covering such sale or
rendition of services, a copy of which has been furnished or is available to Agent on
request;




     (d) it is not subject to any offset, Lien (other than Agent’s Lien), deduction,
defense, dispute, counterclaim or other adverse condition except as arising in the Ordinary
Course of Business and disclosed to Agent; and it is absolutely owing by the Account Debtor,
without contingency in any respect;




     (e) no purchase order, agreement, document or Applicable Law restricts assignment of
the Account to Agent (regardless of whether, under the UCC, the restriction is ineffective),
and the applicable Obligor is the sole payee or remittance party shown on the invoice;




     (f) no extension, compromise, settlement, modification, credit, deduction or return has
been authorized with respect to the Account, except discounts or allowances granted in the
Ordinary Course of Business for prompt payment that are reflected on the face of the invoice
related thereto and in the reports submitted to Agent hereunder; and




     (g) to the best of each of Parent’s and Borrower’s knowledge, (i) there are no facts or
circumstances that are reasonably likely to impair the enforceability or collectability of
such Account; (ii) the Account Debtor had the capacity to contract when the Account arose,
continues to meet Borrower’s customary credit standards, is Solvent, is not contemplating or
subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing
business; and (iii) there are no proceedings or actions threatened or pending against any
Account Debtor that could reasonably be expected to have a material adverse effect on the
Account Debtor’s financial condition.



          9.1.7 Financial Statements. The consolidated and consolidating balance sheets, and related statements of income, cash
flow and shareholder’s equity, of Parent and



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


62









 







Subsidiaries that have been and are hereafter
delivered to Agent and Lenders, are prepared in accordance with GAAP, and fairly present in all
material respects the financial positions and results of operations of Parent and Subsidiaries at
the dates and for the periods indicated. All projections delivered from time to time to Agent and
Lenders have been prepared in good faith, based on reasonable assumptions in light of the
circumstances at such time. Since December 31, 2009, there has been no change in the condition,
financial or otherwise, of Parent or any Subsidiary that could reasonably be expected to have a
Material Adverse Effect. No financial statement delivered to Agent or Lenders at any time contains
any untrue statement of a material fact, nor fails to disclose any material fact necessary to make
such statement not materially misleading. Each of Parent and each Subsidiary is Solvent.




          9.1.8 Surety Obligations. None of Parent nor any Subsidiary is obligated as surety or indemnitor under any bond or
other contract that assures payment or performance of any obligation of any Person, except as
permitted hereunder.




          9.1.9 Taxes. Each of Parent and each Subsidiary has filed all federal, state and local tax returns and
other reports that it is required by law to file, and has paid, or made provision for the payment
of, all Taxes upon it, its income and its Properties that are due and payable, except to the extent
being Properly Contested. The provision for Taxes on the books of each of Parent and each
Subsidiary is adequate for all years not closed by applicable statutes, and for its current Fiscal
Year.




          9.1.10 Brokers. There are no brokerage commissions, finder’s fees or investment banking fees payable in
connection with any transactions contemplated by the Loan Documents.




          9.1.11 Intellectual Property. Each of Parent and each Subsidiary owns or has the lawful right to use all Intellectual
Property necessary for the conduct of its business, except as for Intellectual Property the absence
of which could not reasonably be expected to have a Material Adverse Effect, without conflict with
any rights of others. There is no pending or, to Parent’s or Borrower’s knowledge, threatened
Intellectual Property Claim with respect to Parent, any Subsidiary or any of their Property
(including any Intellectual Property) that could reasonably be expected to have a Material Adverse
Effect. Except as disclosed on Schedule 9.1.11 (as updated by Borrower (i) on or before
each anniversary of the Closing Date and (ii) during the occurrence and continuance of an Event of
Default, at the Agent’s request), none of Parent nor any Subsidiary pays or owes any Royalty or
other compensation to any Person with respect to any Intellectual Property.
Except as disclosed on Schedule 9.1.11 (as updated by Borrower (i) on or before each
anniversary of the Closing Date and (ii) during the occurrence and continuance of an Event of
Default, at the Agent’s request), none of Parent nor any Subsidiary produces goods which are
subject to the rights of a third party as Licensor. All Intellectual Property owned, used or
licensed by, or otherwise subject to any interests of, Parent or any Subsidiary is shown on
Schedule 9.1.11 (as updated by Borrower (i) on or before each anniversary of the Closing
Date and (ii) during the occurrence and continuance of an Event of Default, at the Agent’s
request).



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


63









 








          9.1.12 Governmental Approvals. Each of Parent and each Subsidiary has, is in compliance in all material respects with, and
is in good standing with respect to, all Governmental Approvals necessary to conduct its business
and to own, lease and operate its Properties. All necessary import, export or other licenses,
permits or certificates for the import or handling of any goods or other Collateral have been
procured and are in effect, and Parent and Subsidiaries have complied with all foreign and domestic
laws with respect to the shipment and importation of any goods or Collateral, except where
noncompliance could not reasonably be expected to have a Material Adverse Effect.




          9.1.13 Compliance with Laws. Each of Parent and each Subsidiary has duly complied, and its Properties and business
operations are in compliance, in all material respects with all Applicable Law, except where
noncompliance could not reasonably be expected to have a Material Adverse Effect. There have been
no citations, notices or orders of material noncompliance issued to Parent or any Subsidiary under
any Applicable Law. No Inventory has been produced in violation of the FLSA in any material
respect.




          9.1.14 Compliance with Environmental Laws. Except as disclosed on Schedule 9.1.14, none of Parent’s nor any Subsidiary’s past
or present operations, Real Estate or other Properties are subject to any federal, state or local
investigation to determine whether any remedial action is needed to address any environmental
pollution, hazardous material or environmental clean-up. None of Parent nor any Subsidiary has
received any Environmental Notice that could reasonably be expected to result in a Material Adverse
Effect. None of Parent nor any Subsidiary has any material contingent liability with respect to
any Environmental Release, environmental pollution or hazardous material on any Real Estate now or
previously owned, leased or operated by it.




          9.1.15 Burdensome Contracts. None of Parent nor any Subsidiary is a party or subject to any contract, agreement or
charter restriction that could reasonably be expected to have a Material Adverse Effect. None of
Parent nor any Subsidiary is party or subject to any Restrictive Agreement, except as shown on
Schedule 9.1.15. No such Restrictive Agreement prohibits the execution, delivery or
performance of any Loan Document by an Obligor.




          9.1.16 Litigation. Except as shown on Schedule 9.1.16, there are no proceedings or investigations
pending or, to Parent’s or Borrower’s knowledge, threatened against Parent or any Subsidiary, or
any of their businesses, operations, Properties, prospects or conditions, that (a) relate to any
Loan Documents or transactions contemplated thereby; or (b) could reasonably be expected to have a
Material Adverse Effect if determined adversely to Parent or any Subsidiary. Except as shown on
such Schedule (as amended by Borrower from time to time), no Obligor has a Commercial Tort Claim
(other than, as long as no Default or Event of Default exists, a Commercial Tort Claim for less
than $500,000). None of Parent nor any Subsidiary is in default with respect to any order,
injunction or judgment of any Governmental Authority.



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


64









 








          9.1.17 No Defaults. No event or circumstance has occurred or exists that constitutes a Default or Event of
Default. None of Parent nor any Subsidiary is in default, and no event or circumstance has
occurred or exists that with the passage of time or giving of notice would constitute a default, in
the payment of any Borrowed Money in a principal amount in excess of $2,500,000 or under any
Material Contract which could reasonably be expected to have a Material Adverse Effect. There is
no basis upon which any party (other than Parent or a Subsidiary) could terminate a Material
Contract prior to its scheduled termination date, which termination could reasonably be expected to
have a Material Adverse Effect.




          9.1.18 ERISA. Except as disclosed on Schedule 9.1.18:





     (a) Each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code, and other federal and state laws. Each Plan that is intended to qualify
under Section 401(a) of the Code has received a favorable determination letter from the IRS
or an application for such a letter is currently being processed by the IRS with respect
thereto and, to the knowledge of Parent and Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification. Each Obligor and ERISA Affiliate has
made all required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.




     (b) There are no pending or, to the best of Parent and Borrower’s knowledge, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with respect to any
Plan that could reasonably be expected to have a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with respect to
any Plan that has resulted in or could reasonably be expected to have a Material Adverse
Effect.




     (c) To the best of Parent and Borrower’s knowledge, (i) No ERISA Event has occurred or
is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) no Obligor or ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due
and not delinquent under Section 4007 of ERISA); (iv) no Obligor or ERISA Affiliate has
incurred, or reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no Obligor or
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.




     (d) With respect to any Foreign Plan, to the best of Parent and Borrower’s knowledge,
(i) all employer and employee contributions required by law or by the terms of the Foreign
Plan have been made, or, if applicable, accrued, in accordance with normal accounting
practices; (ii) the fair market value of the assets of each funded Foreign Plan,


 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


65









 







the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve
established for any Foreign Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations with respect to all current and
former participants in such Foreign Plan according to the actuarial assumptions and
valuations most recently used to account for such obligations in accordance with applicable
generally accepted accounting principles; and (iii) it has been registered as required and
has been maintained in good standing with applicable regulatory authorities.



          9.1.19 Trade Relations. There exists no actual or, to the best of Parent and Borrower’s knowledge, threatened (in
writing) termination, limitation or modification of any business relationship between Parent or any
Subsidiary and any customer or supplier, or any group of customers or suppliers, would could
reasonably be expected result in a Material Adverse Effect. There exists no condition or
circumstance that could reasonably be expected to impair the ability of Parent or any Subsidiary to
conduct its business at any time hereafter in substantially the same manner as conducted on the
Closing Date.




          9.1.20 Labor Relations. Except as described on Schedule 9.1.20 (as amended by Borrower from time to time),
none of Parent nor any Subsidiary is party to or bound by any collective bargaining agreement,
management agreement or consulting agreement. There are no material grievances, disputes or
controversies with any union or other organization of Parent’s or any Subsidiary’s employees, or,
to the best of Parent and Borrower’s knowledge, any asserted or threatened strikes, work stoppages
or demands for collective bargaining, in each case that could reasonably be expected to result in a
Material Adverse Effect.




          9.1.21 Payable Practices. None of Parent nor any Subsidiary has made any material change in its historical accounts
payable practices from those in effect on the Closing Date.




          9.1.22 Not a Regulated Entity. No Obligor is (a) an “investment company” or a “person directly or indirectly controlled by
or acting on behalf of an investment company” within the meaning of the Investment Company Act of
1940; or (b) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any
public utilities code or any other Applicable Law regarding its authority to incur Debt.




          9.1.23 Margin Stock. None of Parent nor any Subsidiary is engaged, principally or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying any
Margin Stock. No Loan proceeds or Letters of Credit will be used by Borrower to purchase or carry,
or to reduce or refinance any Debt incurred to purchase or carry, any Margin Stock or for any
related purpose governed by Regulations T, U or X of the Board of Governors.




          Section 9.2 Complete Disclosure. No Loan Document contains any untrue statement of a material fact, nor fails to disclose
any material fact necessary to make the



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


66









 







statements contained therein not materially misleading in
light of the circumstances in which such statements were made. There is no fact or circumstance
with respect to any Obligor’s business (excluding general market and economic conditions) that such
Obligor has failed to disclose to Agent in writing that could reasonably be expected to have a
Material Adverse Effect.




ARTICLE X




COVENANTS AND CONTINUING AGREEMENTS



          Section 10.1 Affirmative Covenants. As long as any Commitments or Obligations are outstanding, Parent shall, and shall cause
each Subsidiary to:




          10.1.1 Inspections; Appraisals.




          (a) Permit Agent from time to time, subject (except when a Default or Event of Default exists)
to reasonable notice and normal business hours, to visit and inspect the
Properties of Parent or any Subsidiary, inspect, audit and make extracts from Parent’s or any
Subsidiary’s books and records, and discuss with its officers, employees, agents, advisors and
independent accountants Parent’s or such Subsidiary’s business, financial condition, assets,
prospects and results of operations. Lenders may participate in any such visit or inspection, at
their own expense; provided, however, that except during a Default or Event of
Default Agent shall conduct no more than three such examinations per Loan Year. Neither Agent nor
any Lender shall have any duty to Parent or any Subsidiary to make any inspection, nor to share any
results of any inspection, appraisal or report with Parent or any Subsidiary. Each Obligor
acknowledges that all inspections, appraisals and reports are prepared by Agent and Lenders for
their purposes, and Obligors shall not be entitled to rely upon them.




          (b) Reimburse Agent for all charges, costs and expenses of Agent in connection with up to two
field examinations per Loan Year of any Obligor’s books and records or any other financial or
Collateral matters as Agent deems appropriate and reimburse Agent for all charges, costs and
expenses of Agent in connection with appraisals of Inventory; provided, however,
that if an examination or appraisal is initiated during a Default or Event of Default, all charges,
costs and expenses therefor shall be reimbursed by Borrower without regard to such limits. Subject
to and without limiting the foregoing, Borrower specifically agrees to pay Agent’s then standard
charges for each day that an employee of Agent or its Affiliates is engaged in any examination
activities, and shall pay the standard charges of Agent’s internal appraisal group. This Section
shall not be construed to limit Agent’s right to conduct examinations or to obtain appraisals at
any time in its discretion, nor to use third parties for such purposes.




          10.1.2 Financial and Other Information. Keep adequate records and books of account with respect to its business activities, in
which proper entries are made in accordance with GAAP reflecting all financial transactions; and
furnish to Agent and Lenders:





     (a) as soon as available, and in any event within 90 days after the close of each
Fiscal Year, balance sheets as of the end of such Fiscal Year and the related



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


67









 







statements of
income, cash flow and shareholders’ equity for such Fiscal Year, on consolidated and
consolidating bases for Parent and Subsidiaries, which consolidated statements shall be
audited and signed (without a qualified opinion and without any other qualification except
any qualification related to deficiency or weakness in internal controls for the audits
covering the periods ended December 31, 2010 and December 31, 2011 only and to the extent
that such deficiency or weakness would not, based on Agent’s determination, impair the
Collateral, Collateral reporting or Borrower’s ability to repay any Obligations) by a firm
of independent certified public accountants of recognized standing selected by Borrower and
acceptable to Agent, and shall set forth in comparative form corresponding figures for the
preceding Fiscal Year and other information acceptable to Agent; the foregoing requirement
may be satisfied by Parent notifying Agent no later than the date provided above that it has
provided a direct link to
such reports and other information on Parent’s or another Person’s website on the
Internet;




     (b) as soon as available, and in any event within 40 days after the end of each Fiscal
Quarter (but within 75 days after the last Fiscal Quarter in a Fiscal Year), unaudited
balance sheets as of the end of such Fiscal Quarter and the related statements of income and
cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on
consolidated and consolidating bases for Parent and Subsidiaries, setting forth in
comparative form corresponding figures for the preceding Fiscal Year and certified by the
chief financial officer of Parent as prepared in accordance with GAAP and fairly presenting
the financial position and results of operations for such Fiscal Quarter and period, subject
to normal year-end adjustments and the absence of footnotes; the foregoing requirement may
be satisfied by Parent notifying Agent no later than the date provided above that it has
provided a direct link to such reports and other information on Parent’s or another Person’s
website on the Internet;




     (c) as soon as available, and in any event within 30 days after the end of each month
(but within 45 days after the last month in a Fiscal Year), unaudited balance sheets as of
the end of such month and the related statements of income and, if Liquidity was less than
$50,000,000 at any time during such month, cash flow for such month and for the portion of
the Fiscal Year then elapsed, on consolidated and consolidating bases for Parent and
Subsidiaries, setting forth in comparative form corresponding figures for the preceding
Fiscal Year and certified by the chief financial officer of Parent as fairly presenting the
financial position and results of operations for such month and period, subject to normal
year-end adjustments and the absence of footnotes;




     (d) concurrently with delivery of financial statements under clauses (a), (b) and (c)
above, or more frequently if requested by Agent while a Default or Event of Default exists,
a Compliance Certificate (which shall include a calculation of the Fixed Charge Coverage
Ratio) executed by the chief financial officer of Parent;



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


68









 






     (e) concurrently with delivery of financial statements under clause (a) above, copies
of all management letters and other material reports submitted to Borrower or Parent by
their respective accountants in connection with such financial statements;




     (f) not later than 10 days after the commencement of each Fiscal Year, projections of
Parent’s consolidated balance sheets, results of operations, cash flow and Availability for
such Fiscal Year, month by month;




     (g) at Agent’s request, a listing of Borrower’s trade payables, specifying the trade
creditor and balance due, and a detailed trade payable aging, all in form satisfactory to
Agent;




     (h) promptly after the sending or filing thereof, copies of any proxy statements,
financial statements or reports that Parent has made generally available to its
shareholders; copies of any regular, periodic and special reports or registration
statements or prospectuses that Parent 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 Parent to the public concerning material
changes to or developments in the business of Parent; the foregoing requirement may be
satisfied by Parent promptly notifying Agent that it has provided a direct link to such
reports and other information on Parent’s or another Person’s website on the Internet;




     (i) such other reports and information (financial or otherwise) as Agent may reasonably
request from time to time in connection with any Collateral or any Parent, Subsidiary’s or
other Obligor’s financial condition or business; and




     (j) as soon as available, and in any event within 120 days after the close of each
Fiscal Year, financial statements for each Guarantor, in form and substance consistent with
the audited financial statements of Parent.



          10.1.3 Notices. Notify Agent and Lenders in writing, promptly after Parent’s or Borrower’s obtaining
knowledge thereof, of any of the following that affects an Obligor: (a) the written threat or
commencement of any proceeding or investigation, whether or not covered by insurance, if an adverse
determination could reasonably be expected to have a Material Adverse Effect; (b) any pending or
threatened (in writing) material labor dispute, strike or walkout, or the expiration of any
material labor contract; (c) any default under or termination of a Material Contract; (d) the
existence of any Default or Event of Default; (e) any judgment against an Obligor in an amount
exceeding $2,000,000; (f) the assertion of any Intellectual Property Claim, if an adverse
resolution could reasonably be expected to have a Material Adverse Effect; (g) any violation or
asserted violation of any Applicable Law (including ERISA, OSHA, FLSA, or any Environmental Laws),
if an adverse resolution could reasonably be expected to have a Material Adverse Effect; (h) any
Environmental Release by an Obligor that could reasonably be expected to have a Material Adverse
Effect or on any Property owned, leased or occupied by an Obligor; or receipt of any Environmental
Notice; (i) the occurrence of


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


69









 







any ERISA Event; (j) the discharge of or any withdrawal or
resignation by Parent’s or Borrower’s independent accountants; or (k) any opening of a new office
or place of business, at least 30 days prior to such opening.




          10.1.4 Landlord and Storage Agreements. Upon request, provide Agent with copies of all existing agreements, and promptly after
execution thereof provide Agent with copies of all future agreements, between an Obligor and any
landlord, warehouseman, processor, shipper, bailee or other Person that owns any premises at which
any Collateral may be kept or that otherwise may possess or handle any Collateral.




          10.1.5 Compliance with Laws. Comply with all Applicable Laws, including ERISA, Environmental Laws, FLSA, OSHA,
Anti-Terrorism Laws, and laws regarding collection and payment of Taxes, and maintain all
Governmental Approvals necessary to the ownership of its Properties or conduct of its business,
unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or maintain could
not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of
the foregoing, if any Environmental Release occurs at or on any Properties of Parent or any
Subsidiary, it shall act promptly and diligently to investigate and report to Agent and all
appropriate Governmental Authorities the extent of, and, if required by Applicable Laws, to make
appropriate remedial action to eliminate, such Environmental Release, whether or not directed to do
so by any Governmental Authority.




          10.1.6 Taxes. Pay and discharge all material Taxes prior to the date on which they become delinquent or
penalties attach, unless such Taxes are being Properly Contested.




          10.1.7 Insurance. In addition to the insurance required hereunder with respect to Collateral, maintain
insurance with insurers (with a Best Rating of at least A7, unless otherwise approved by Agent)
satisfactory to Agent, (a) with respect to the Properties and business of Parent and Subsidiaries
of such type (including product liability, workers’ compensation, larceny, embezzlement, or other
criminal misappropriation insurance), in such amounts, and with such coverages and deductibles as
are customary for companies similarly situated; and (b) business interruption insurance in an
amount not less than (i) $3,000,000, with respect to locations of the Parent and its Subsidiaries,
(ii) $1,000,000, with respect to locations of any vendors providing goods or services to the Parent
or its Subsidiaries and (iii) $10,000,000 in the aggregate, for all locations specified in the
forgoing subclauses (i) and (ii), in each case with deductibles satisfactory to Agent.




          10.1.8 Licenses. Keep each Material License affecting any Collateral (including the manufacture,
distribution or disposition of Inventory) in full force and effect to the extent that the failure
to do so could reasonably be expected to have a Material Adverse Effect; pay all Royalties when due
except (i) for Royalties that are subject to dispute or (ii) to the extent that the failure to make
such payments could not reasonably be expected to have a Material Adverse Effect; and notify Agent
of any default or breach asserted by any Person to have occurred under any Material License which
could reasonably be expected to have a Material Adverse Effect.



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


70









 








          10.1.9 Future Subsidiaries. Promptly notify Agent upon any Person becoming a Subsidiary and, at Agent’s request, cause
it to guaranty the Obligations in a manner satisfactory to Agent, and to execute and deliver such
documents, instruments and agreements and to take such other actions as Agent
shall require to evidence and perfect a Lien in favor of Agent (for the benefit of Secured
Parties) on the same classes of assets of such Person as have been granted by Borrower as
Collateral hereunder, including delivery of such legal opinions, in form and substance satisfactory
to Agent, as it shall deem appropriate.




          10.1.10 Deposit Accounts. In order to facilitate the administration of the Loans and Agent’s security interest in the
Obligor’s assets, each of Parent, the Cayman Guarantor and Borrower shall maintain Bank as their
respective principal depository bank, including for the maintenance of operating and deposit
accounts, lockbox administration, funds transfer, information reporting services and other treasury
management services.




          10.1.11 Securities Accounts. Unless otherwise waived by Agent, each of Parent, the Cayman Guarantor and Borrower shall
provide advance written notice to Agent of a withdrawal request from any Specified Securities
Account by 5:00 pm (Pacific time) on the Business Day prior to the requested withdrawal date.




          Section 10.2 Negative Covenants. As long as any Commitments or Obligations are outstanding, Parent shall not, and shall
cause each Subsidiary not to:




          10.2.1 Permitted Debt. Create, incur, guarantee or suffer to exist any Debt, except:





     (a) the Obligations;




     (b) Subordinated Debt;




     (c) Permitted Purchase Money Debt;




     (d) Borrowed Money (other than the Obligations, Subordinated Debt and Permitted
Purchase Money Debt), but only to the extent outstanding on the Closing Date and not
satisfied with proceeds of the initial Loans;




     (e) Bank Product Debt;




     (f) Debt incurred pursuant to Hedging Agreements to the extent permitted under
Section 10.2.15;




     (g) Debt incurred in connection with Permitted Acquisitions, provided that such
Debt is in existence when the applicable Person becomes a Subsidiary, or that is
secured by an asset when acquired by Parent or a Subsidiary, as long as such Debt was
not incurred in contemplation of such Person becoming a Subsidiary or such acquisition;



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


71









 






     (h) Permitted Contingent Obligations;




     (i) Refinancing Debt as long as each Refinancing Condition is satisfied;




     (j) Intercompany loans (i) between Obligors to the extent permitted by Section
10.2.7(d) and (ii) by an Obligor to a Subsidiary that is not an Obligor to the extent
permitted by Section 10.2.7(e).




     (k) To the extent constituting Debt, obligations for indemnification or customary
adjustments of purchase price or similar obligations in connection with Permitted
Acquisitions;




     (l) To the extent constituting Debt, obligations incurred in the Ordinary Course of
Business in connection with operating, collections, payroll, trust or other depository or
disbursement accounts, including automated clearinghouse, controlled disbursement, e
payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft,
depository, information reporting, lockbox, stop payment, overdraft and/or wire transfer
services;




     (m) To the extent constituting Debt, performance guaranties given by Obligors to
suppliers, customers, and licensees in the Ordinary Course of Business guarantying the
timely performance of delivery of goods or rendition of services by Obligors; and




     (n) Debt that is not included in any of the preceding clauses of this Section, is not
secured by a Lien and does not exceed $1,000,000 in the aggregate at any time.



          10.2.2 Permitted Liens. Create or suffer to exist any Lien upon any of its Property, except the following
(collectively, “Permitted Liens”):





     (a) Liens in favor of Agent;




     (b) Purchase Money Liens securing Permitted Purchase Money Debt;




     (c) Liens for Taxes not yet due or being Properly Contested;




     (d) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising in the
Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is
not yet due or is being Properly Contested, and (ii) such Liens do not materially impair the
value or use of the Property or materially impair operation of the business of Parent or any
Subsidiary;




     (e) Liens incurred or deposits made in the Ordinary Course of Business to secure the
performance of tenders, bids, leases, contracts (except those relating to Borrowed Money),
statutory obligations and other similar obligations, or arising as a




[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


72









 







result of progress
payments under government contracts, as long as such Liens are at all times junior to
Agent’s Liens;




     (f) Liens arising in the Ordinary Course of Business that are subject to Lien Waivers;




     (g) Liens arising by virtue of a judgment or judicial order against Parent or any
Subsidiary, or any Property of Parent or a Subsidiary, as long as such Liens are (i) in
existence for less than 20 consecutive days or being Properly Contested, and (ii) at all
times junior to Agent’s Liens;




     (h) easements, rights-of-way, zoning and other restrictions, covenants or other
agreements of record, and other similar charges or encumbrances on Real Estate, that do not
secure any monetary obligation and do not interfere with the Ordinary Course of Business;




     (i) normal and customary rights of setoff upon deposits in favor of depository
institutions, and Liens of a collecting bank on Payment Items in the course of collection;




     (j) Liens on assets acquired in connection with Permitted Acquisitions,
provided that such Liens were not incurred in contemplation of such Permitted
Acquisition;




     (k) Liens consisting of Licenses and sublicenses granted in the Ordinary Course of
Business and any interest or title of a Licensor or under any License or sublicense;




     (l) Purported Liens evidenced by the filing of precautionary UCC financing statements
relating solely to operating leases of personal property entered into the Ordinary Course of
Business; and




     (m) existing Liens shown on Schedule 10.2.2.



          10.2.3 Capital Expenditures. Make Capital Expenditures in excess of $10,000,000 in the aggregate during any Fiscal Year;
provided, however, that if the amount of Capital Expenditures permitted to be made
in any Fiscal Year exceeds the amount actually made, up to 50% of such excess may be carried
forward to the next Fiscal Year; and provided, further, that any Capital
Expenditures in such next succeeding Fiscal Year shall be applied first to such authorized Capital
Expenditures amount (and not to such carry forward amount, if any). The foregoing notwithstanding,
Parent and the Subsidiaries may make Capital Expenditures of up to $8,000,000 with respect to
enterprise resources planning software, which Capital Expenditures shall not be subject to the
Fiscal Year limits on Capital Expenditures.




          10.2.4 Distributions; Upstream Payments. Declare or make any Distributions, except (i) Upstream Payments, (ii) if no Event of
Default has occurred and is



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


73









 







continuing, repurchases of capital stock of the Parent from employees
of the Parent or any of its Subsidiaries in accordance with employment agreements entered into in
the Ordinary Course of Business and (iii) distributions in the form of Equity Interests; or create
or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any
Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law or in
effect on the Closing Date as shown on Schedule 9.1.15.




          10.2.5 Restricted Investments. Make any Restricted Investment.




          10.2.6 Disposition of Assets. Make any Asset Disposition, except a Permitted Asset Disposition, a disposition of
Equipment under Section 8.4.2, or a transfer of Property by a Subsidiary or Obligor to an
Obligor.




          10.2.7 Loans. Make any loans or other advances of money to any Person, except (a) advances to an officer
or employee for salary, travel expenses, commissions and similar items in the Ordinary Course of
Business; (b) prepaid expenses and extensions of trade credit made in the Ordinary Course of
Business; (c) deposits with financial institutions permitted hereunder; (d) as long as no Default
or Event of Default exists, intercompany loans by an Obligor to another Obligor; (e) as long as no
Default or Event of Default exists, intercompany loans by an Obligor to a Subsidiary that is not an
Obligor, to the extent that the aggregate amount of such loans outstanding at any time does not
exceed the sum of (i) the amount of such loans outstanding on the date hereof as set forth on
Schedule 10.2.17 less the aggregate amount of all payments of principal in respect thereof
made on or after the date hereof plus (ii) $5,000,000; and (f) other loans and advances not
to exceed $1,000,000 in the aggregate at any time outstanding.




          10.2.8 Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement,
defeasance or acquisition) with respect to any (a) Subordinated Debt, except regularly scheduled
payments of principal, interest and fees but only to the extent permitted under any subordination
agreement relating to such Debt (and a Senior Officer of Parent shall certify to Agent, not less
than five Business Days prior to the date of payment, that all conditions under such agreement have
been satisfied); or (b) Borrowed Money (other than the
Obligations) except (i) regularly scheduled payments of principal, interest and fees as
provided under the agreements evidencing such Debt, (ii) mandatory prepayments due as a result of
any disposition, damage, condemnation or loss of any assets securing Purchase Money Debt permitted
hereunder and (iii) payments of principal and interest on intercompany loans between Obligors.




          10.2.9 Fundamental Changes. Merge, combine or consolidate with any Person, or liquidate, wind up its affairs or
dissolve itself, in each case whether in a single transaction or in a series of related
transactions, except for (i) mergers or consolidations of a wholly-owned Subsidiary with another
wholly-owned Subsidiary or into an Obligor, (ii) any Permitted Acquisition; change its name or
conduct business under any fictitious name; change its tax, charter or other organizational
identification number; or change its form or state of



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


74









 







organization and (iii) the dissolution of a
wholly-owned Subsidiary (other than an Obligor) in which such Subsidiary’s assets are transferred
to another wholly-owned Subsidiary or into an Obligor.




          10.2.10 Subsidiaries. Form or acquire any Subsidiary after the Closing Date, except in accordance with
Sections 10.1.9 and 10.2.5; or permit any existing Subsidiary to issue any
additional Equity Interests except director’s qualifying shares.




          10.2.11 Organic Documents. Amend, modify or otherwise change any of its Organic Documents as in effect on the Closing
Date in a manner that could reasonably be expected to have a material adverse effect on the Agent
or the other Secured Parties or the enforceability of any Loan Document or any Lien on any of the
Collateral.




          10.2.12 Tax Consolidation. File or consent to the filing of any consolidated income tax return with any Person other
than Parent and Subsidiaries.




          10.2.13 Accounting Changes. Make any material change in accounting treatment or reporting practices, except as required
by GAAP and in accordance with Section 1.2; or change its Fiscal Year.




          10.2.14 Restrictive Agreements. Become a party to any Restrictive Agreement, except a Restrictive Agreement (a) in effect
on the Closing Date; (b) relating to secured Debt permitted hereunder, as long as the
restrictions apply only to collateral for such Debt; or (c) constituting customary
restrictions on assignment in leases, licenses and other contracts.




          10.2.15 Hedging Agreements. Enter into any Hedging Agreement, except to hedge risks arising in the Ordinary Course of
Business and not for speculative purposes.




          10.2.16 Conduct of Business. Engage in any business, other than its business as conducted on the Closing Date and any
activities incidental thereto.




          10.2.17 Affiliate Transactions. Enter into or be party to any transaction with an Affiliate, except (a) transactions
contemplated by the Loan Documents; (b) payment of reasonable compensation to officers and
employees for services actually rendered, and loans and advances permitted by Section
10.2.7; (c) payment of customary directors’ fees and indemnities; (d) transactions solely among
Obligors; (e) transactions with Affiliates that were consummated prior to the Closing Date, as
shown on Schedule 10.2.17; (f) transactions among Obligors made for transfer pricing in the
Ordinary Course of Business and year end adjustments to transfer pricing made in the Ordinary
Course of Business; and (g) other transactions with Affiliates in the Ordinary Course of Business,
upon fair and reasonable terms and no less favorable than would be obtained in a comparable
arm’s-length transaction with a non-Affiliate.




          10.2.18 Plans. Become party to any Multiemployer Plan, other than any in existence on the Closing Date.


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



75









 









          10.2.19 Amendments to Subordinated Debt. Amend, supplement or otherwise modify any document, instrument or agreement relating to any
Subordinated Debt, if such modification (a) increases the principal balance of such Debt, or
increases any required payment of principal or interest; (b) accelerates the date on which any
installment of principal or any interest is due, or adds any additional redemption, put or
prepayment provisions; (c) shortens the final maturity date or otherwise accelerates amortization;
(d) increases the interest rate; (e) increases or adds any fees or charges; (f) modifies any
covenant in a manner or adds any representation, covenant or default that is more onerous or
restrictive in any material respect for Parent or any Subsidiary, or that is otherwise materially
adverse to Parent, any Subsidiary or Lenders; or (g) results in the Obligations not being fully
benefited by the subordination provisions thereof.




          10.2.20 Securities Accounts. Make any withdrawal, including any withdrawal of cash, Cash Equivalents, or Long Term Liquid
Investments, from any Specified Securities Account if: (i) a Trigger Period exists and the Parent
is not in compliance with the financial covenant set forth in Section 10.3.1,(ii) a Trigger
Period would exist as a result of such withdrawal and the Parent would not be in compliance with
the financial covenant set forth in Section 10.3.1 or (iii) a Default or Event of Default
exists or would exist as a result of such withdrawal, and for purposes of this Section
10.2.20 each Obligor acknowledges and agrees that the Agent and any Lender may take any action
to prevent any such withdrawal.




          Section 10.3 Financial Covenant. As long as any Commitments or Obligations are outstanding, Parent shall:




          10.3.1 Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage Ratio of at least 1.0 to 1.0 for each trailing twelve
month period ending during or immediately before any Trigger Period.




ARTICLE XI




EVENTS OF DEFAULT; REMEDIES ON DEFAULT



          Section 11.1 Events of Default. Each of the following shall be an “Event of Default” hereunder, if the same shall
occur for any reason whatsoever, whether voluntary or involuntary, by operation of law or
otherwise:





	 	     (a) Borrower fails to pay any Obligations when due (whether at stated maturity, on
demand, upon acceleration or otherwise);
	 
	 	     (b) Any representation, warranty or other written statement of an Obligor made in
connection with any Loan Documents or transactions contemplated thereby is incorrect or
misleading in any material respect when given or deemed given pursuant to the terms of this
Agreement;






[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


76









 







	 	     (c) Parent or any other Obligor breaches or fails to perform any covenant contained in
Section 7.2, 7.3, 7.5, 8.1, 8.2.4, 8.2.5,
8.6.2, 10.1.1, 10.1.2, 10.2 or 10.3;
	 
	 	     (d) An Obligor breaches or fails to perform any other covenant contained in any Loan
Documents, and such breach or failure is not cured within 20 days after a Senior Officer of
such Obligor has knowledge thereof or receives notice thereof from Agent, whichever is
sooner; provided, however, that such notice and opportunity to cure shall not apply if the
breach or failure to perform is not capable of being cured within such period or is a
willful breach by an Obligor;
	 
	 	     (e) A Guarantor repudiates, revokes or attempts to revoke, in each case in writing, its
Guaranty; an Obligor or third party denies or contests the validity or enforceability of any
Loan Documents or Obligations, or the perfection or priority of any Lien granted to Agent;
or any Loan Document ceases to be in full force or effect for any reason (other than a
waiver or release by Agent and Lenders);
	 
	 	     (f) Any breach or default of an Obligor occurs under any document, instrument or
agreement to which it is a party or by which it or any of its Properties is bound, relating
to any Debt (other than the Obligations) in excess of $2,500,000, if the maturity of or any
payment with respect to such Debt may be accelerated or demanded due to such breach;
provided, however, that the upon the cure or waiver of such breach or
default with respect to such Debt, the Event of Default under this Section 11.1(f)
shall be automatically cured;
	 
	 	     (g) Any judgment or order for the payment of money is entered against an Obligor in an
amount that exceeds, individually or cumulatively with all unsatisfied judgments or orders
against all Obligors, $2,500,000 (net of any insurance coverage therefor acknowledged in
writing by the insurer), and shall remain unsatisfied or unstayed for a period of 30 days;
	 
	 	     (h) A loss, theft, damage or destruction occurs with respect to any Collateral if the
amount not covered by insurance exceeds $1,000,000;
	 
	 	     (i) An Obligor is enjoined, restrained or in any way prevented by any Governmental
Authority from conducting any material part of its business (in the case of non-U.S.
Obligors, for more than 5 consecutive days), an Obligor suffers the loss, revocation or
termination of any material license, permit, lease or agreement necessary for its business;
there is a cessation of any material part of an Obligor’s business for a material period of
time; any material Collateral or Property of an Obligor is taken or impaired through
condemnation which taking or impairment could reasonably be expected to have a Material
Adverse Effect; an Obligor agrees to or commences any liquidation, dissolution or winding up
of its affairs except in connection with a merger or consolidation that is permitted
hereunder; or an Obligor is not Solvent;





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


77









 






	 	     (j) An Insolvency Proceeding is commenced by an Obligor; an Obligor is, or is deemed
for the purposes of any Applicable Law to be, unable to pay its Debts as they fall due or
insolvent; an Obligor admits its inability to pay its Debts as they fall due; an Obligor
suspends making payments on any of its Debts or announces on intention to do so; an Obligor,
by reason by actual or anticipated financial difficulties, begins negotiations with any
creditor for any rescheduling or restructuring of any of its Debt; in relation to an
Obligor, the value of its assets is less than its liabilities (taking into account
contingent and prospective liabilities); in relation to an Obligor, any of its Debts is
subject to a moratorium; an Obligor makes an offer of settlement, extension or composition
to its unsecured creditors generally; a trustee is appointed to take possession
of any substantial Property of or to operate any of the business of an Obligor; or an
Insolvency Proceeding is commenced against an Obligor and: the Obligor consents to
institution of the proceeding, the petition commencing the proceeding is not timely
contested by the Obligor, the petition is not dismissed within 30 days after filing, or an
order for relief is entered in the proceeding;
	 
	 	     (k) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that has
resulted or could reasonably be expected to result in liability of an Obligor to a Pension
Plan, Multiemployer Plan or PBGC, or that constitutes grounds for appointment of a trustee
for or termination by the PBGC of any Pension Plan or Multiemployer Plan; an Obligor or
ERISA Affiliate fails to pay when due any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan; or any event similar to
the foregoing occurs or exists with respect to a Foreign Plan;
	 
	 	     (l) An Obligor or any of its Senior Officers is criminally indicted or convicted for
(i) a felony committed in the conduct of the Obligor’s business, or (ii) violating any state
or federal law (including the Controlled Substances Act, Money Laundering Control Act of
1986 and Illegal Exportation of War Materials Act) that could reasonably be expected to lead
to forfeiture of any material portion of the Collateral;
	 
	 	     (m) A Change of Control occurs; or
	 
	 	     (n) Borrower fails to promptly notify Agent if any event occurs or condition exists
that has a Material Adverse Effect (other than a Material Adverse Effect caused by general
economic terms and conditions).





[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


78









 











          Section 11.2 Remedies upon Default. If an Event of Default described in Section 11.1(j) occurs with respect to any
Obligor, then to the extent permitted by Applicable Law, all Obligations shall become automatically
due and payable and all Commitments shall terminate, without any action by Agent or notice of any
kind. In addition, or if any other Event of Default exists, Agent may in its discretion (and shall
upon written direction of Required Lenders) do any one or more of the following from time to time:





     (a) declare any Obligations immediately due and payable, whereupon they shall be due
and payable without diligence, presentment, demand, protest or notice of any kind, all of
which are hereby waived by Obligors to the fullest extent permitted by law;




     (b) terminate, reduce or condition any Commitment, or make any adjustment to the
Borrowing Base;




     (c) require Obligors to Cash Collateralize LC Obligations, Bank Product Debt and other
Obligations that are contingent or not yet due and payable (excluding
contingent or inchoate indemnification obligations to the extent that claims giving
rise thereto have not been asserted or cannot reasonably be identified by any Secured Party
based on the then known facts and circumstances), and, if Obligors fail promptly to deposit
such Cash Collateral, Agent may (and shall upon the direction of Required Lenders) advance
the required Cash Collateral as Loans (whether or not an Overadvance exists or is created
thereby, or the conditions in Article VI are satisfied); and




     (d) exercise any other rights or remedies afforded under any agreement, by law, at
equity or otherwise, including the rights and remedies of a secured party under the UCC.
Such rights and remedies include the rights to (i) take possession of any Collateral; (ii)
require Obligors to assemble Collateral, at Obligors’ expense, and make it available to
Agent at a place designated by Agent; (iii) enter any premises where Collateral is located
and store Collateral on such premises until sold (and if the premises are owned or leased by
an Obligor, Obligors agree not to charge for such storage); and (iv) sell or otherwise
dispose of any Collateral in its then condition, or after any further manufacturing or
processing thereof, at public or private sale, with such notice as may be required by
Applicable Law, in lots or in bulk, at such locations, all as Agent, in its discretion,
deems advisable. Each Obligor agrees that 10 days notice of any proposed sale or other
disposition of Collateral by Agent shall be reasonable. Agent shall have the right to
conduct such sales on any Obligor’s premises, without charge, and such sales may be
adjourned from time to time in accordance with Applicable Law. Agent shall have the right
to sell, lease or otherwise dispose of any Collateral for cash, credit or any combination
thereof, and Agent may purchase any Collateral at public or, if permitted by law, private
sale and, in lieu of actual payment of the purchase price, may set off the amount of such
price against the Obligations.



          Section 11.3 License. Agent is hereby granted an irrevocable, non-exclusive license or other right during the
continuance of an Event of Default to use, license or sub-license



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


79









 







(without payment of royalty or
other compensation to any Person) any or all Intellectual Property of Obligors, computer hardware
and software, trade secrets, brochures, customer lists, promotional and advertising materials,
labels, packaging materials and other Property, in advertising for sale, marketing, selling,
collecting, completing manufacture of, or otherwise exercising any rights or remedies with respect
to, any Collateral. Each Obligor’s rights and interests under Intellectual Property shall inure to
Agent’s benefit.




          Section 11.4 Setoff. At any time during an Event of Default, Agent, Issuing Bank, Lenders, and any of their
Affiliates are authorized, to the fullest extent permitted by Applicable Law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by Agent,
Issuing Bank, such Lender or such Affiliate to or for the credit or the account of an
Obligor against any Obligations, irrespective of whether or not Agent, Issuing Bank, such
Lender or such Affiliate shall have made any demand under this Agreement or any other Loan Document
and although such Obligations may be contingent or unmatured or are owed to a branch or office of
Agent, Issuing Bank, such Lender or such Affiliate different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of Agent, Issuing Bank, each Lender and each
such Affiliate under this Section are in addition to other rights and remedies (including other
rights of setoff) that such Person may have.




          Section 11.5 Remedies Cumulative; No Waiver.




          11.5.1 Cumulative Rights. All agreements, warranties, guaranties, indemnities and other undertakings of Obligors
under the Loan Documents are cumulative and not in derogation of each other. The rights and
remedies of Agent and Lenders are cumulative, may be exercised at any time and from time to time,
concurrently or in any order, and are not exclusive of any other rights or remedies available by
agreement, by law, at equity or otherwise. All such rights and remedies shall continue in full
force and effect until Full Payment of all Obligations.




          11.5.2 Waivers. No waiver or course of dealing shall be established by (a) the failure or delay of Agent or
any Lender to require strict performance by Obligors with any terms of the Loan Documents, or to
exercise any rights or remedies with respect to Collateral or otherwise; (b) the making of any Loan
or issuance of any Letter of Credit during a Default, Event of Default or other failure to satisfy
any conditions precedent; or (c) acceptance by Agent or any Lender of any payment or performance by
an Obligor under any Loan Documents in a manner other than that specified therein. It is expressly
acknowledged by Obligors that any failure to satisfy a financial covenant on a measurement date
shall not be cured or remedied by satisfaction of such covenant on a subsequent date.



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


80









 








ARTICLE XII




GUARANTY



          Section 12.1 Guaranty.




          12.1.1 Guaranty of the Obligations. Guarantors jointly and severally hereby irrevocably and unconditionally guaranty to Agent
for the ratable benefit of the Lenders the due and punctual payment in full of
all Obligations when the same shall become due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due
but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
§ 362(a)) (collectively, the “Guaranteed Obligations”).




          12.1.2 Limitation of Liability.




          (a) Each Guarantor, and by its acceptance of this Guaranty, the Agent and each Lender hereby
confirms that it is the intention of all such Persons that this Guaranty and the Guaranteed
Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent
applicable to this Guaranty and the Guaranteed Obligations of each Guarantor hereunder. To
effectuate the foregoing intention, the Agent, Lenders and the Guarantors hereby irrevocably agree
that the Guaranteed Obligations of each Guarantor under this Guaranty at any time shall be limited
to the maximum amount as will result in the Guaranteed Obligations of such Guarantor under this
Guaranty not constituting a fraudulent transfer or conveyance. For purposes hereof,
“Bankruptcy Law” means any Insolvency Proceeding or any proceeding of the type referred to
in Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.




          (b) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Lender under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Lenders under
or in respect of the Loan Documents.




          12.1.3 Payment by Guarantors. Guarantors hereby jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Lender may have at law or in equity against any Guarantor
by virtue hereof, that upon the failure of the Borrower to pay any of the Guaranteed Obligations
when and as the same shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)),
Guarantors will upon demand pay, or cause to be paid, in cash, to Agent for the ratable benefit of
Lenders, an amount



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


81









 








equal to the sum of the unpaid principal amount of all Guaranteed Obligations
then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including
interest which, but for the Borrower’s becoming the subject of a case under the Bankruptcy Code,
would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against the
Borrower for such interest
in the related bankruptcy case) and all other Guaranteed Obligations then owed to Lenders as
aforesaid.




          12.1.4 Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent
and unconditional and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the Guaranteed
Obligations. In furtherance of the foregoing and without limiting the generality thereof, each
Guarantor agrees as follows:





     (a) This Guaranty is a guaranty of payment when due and not of collectability. This
Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;




     (b) Agent may enforce this Guaranty upon the occurrence and during the continuance of
an Event of Default notwithstanding the existence of any dispute between the Borrower and
any Lender with respect to the existence of such Event of Default;




     (c) The obligations of each Guarantor hereunder are independent of the obligations of
the Borrower and the obligations of any other guarantor (including any other Guarantor) of
the obligations of the Borrower, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is brought against the Borrower
or any of such other guarantors and whether or not the Borrower or such other guarantors are
joined in any such action or actions;




     (d) Payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations
shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion
of the Guaranteed Obligations which has not been paid. Without limiting the generality of
the foregoing, if Agent is awarded a judgment in any suit brought to enforce any Guarantor’s
covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed
to release such Guarantor from its covenant to pay the portion of the Guaranteed Obligations
that is not the subject of such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s
liability hereunder in respect of the Guaranteed Obligations;




     (e) Agent, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder,
from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or
otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations;
(ii) settle, compromise, release or discharge, or accept or refuse any offer of



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


82









 







performance
with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating
thereto and/or subordinate the payment of the same to the payment of any other obligations;
(iii) request and accept other guaranties of the Guaranteed
Obligations and take and hold security for the payment hereof or the Guaranteed
Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind,
waive, alter, subordinate or modify, with or without consideration, any security for payment
of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any
other obligation of any Person (including any other Guarantor) with respect to the
Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for
the benefit of Agent or any Lender in respect hereof or the Guaranteed Obligations and
direct the order or manner of sale thereof, or exercise any other right or remedy that Agent
or such Lender may have against any such security, in each case as Agent in its discretion
may determine consistent herewith and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable, and even though
such action operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of any Guarantor against the Borrower or any security for the
Guaranteed Obligations; and (vi) exercise any other rights available to it under the Loan
Documents; and




     (f) This Guaranty and the obligations of Guarantors hereunder shall be valid and
enforceable and shall not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Guaranteed Obligations),
including the occurrence of any of the following, whether or not any Guarantor shall have
had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or
any right, power or remedy (whether arising under the Loan Documents, at law, in equity or
otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or
with respect to any other guaranty of or security for the payment of the Guaranteed
Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions (including provisions relating to events of
default) hereof, any of the other Loan Documents or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in
each case whether or not in accordance with the terms hereof or such Loan Document or any
agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or
any agreement relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments received from any source
(other than payments received pursuant to the other Loan Documents or from the proceeds of
any security for the Guaranteed Obligations, except to the extent such security also serves
as collateral for indebtedness other than the Guaranteed Obligations) to the payment of
indebtedness other than the Guaranteed Obligations, even though any Lender might have
elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any
Lender’s


 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


83









 







consent to the change, reorganization or termination of the corporate structure or
existence of the Parent or any of its Subsidiaries and to any corresponding restructuring of
the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Guaranteed Obligations;
(vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert
against any Lender in respect of the Guaranteed Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay
to do any other act or thing, which may or might in any manner or to any extent vary the
risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.



          12.1.5 Waivers by Guarantors. Each Guarantor hereby waives, to the fullest extent permitted by law, for the benefit of
Lenders: (a) any right to require any Lender, as a condition of payment or performance by such
Guarantor, to (i) proceed against the Borrower, any other guarantor (including any other Guarantor)
of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security
held from the Borrower, any such other guarantor or any other Person, (iii) proceed against or have
resort to any balance of any deposit account or credit on the books of any Lender in favor of the
Borrower or any other Person, or (iv) pursue any other remedy in the power of any Lender
whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of the Borrower or any other Guarantor including any defense based on
or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the liability of the
Borrower or any other Guarantor from any cause other than payment in full of the Guaranteed
Obligations; (c) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects more burdensome than
that of the principal; (d) any defense based upon any Lender’s errors or omissions in the
administration of the Guaranteed Obligations, except behavior which amounts to gross negligence or
bad faith; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might
be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s
obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s
liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that any Lender protect, secure,
perfect or insure any security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and notices of any action
or inaction, including acceptance hereof, notices of default hereunder or any agreement or
instrument related thereto, notices of any renewal, extension or modification of the Guaranteed
Obligations or any agreement related thereto, notices of any extension of credit to the Borrower
and notices of any of the matters referred to in Section 12.1.4 and any right to consent to
any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which
limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms
hereof.




          As used in this paragraph, any reference to “the principal” includes the Borrower, and any
reference to “the creditor” includes Agent and each other Lender. In accordance with


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


84









 







Section 2856
of the California Civil Code (a) each Guarantor waives any and all rights and
defenses available to it by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the
California Civil Code, including without limitation any and all rights or defenses such Guarantor
may have by reason of protection afforded to the principal with respect to any of the Guaranteed
Obligations, or to any other guarantor of any of the Guaranteed Obligations with respect to any of
such guarantor’s obligations under its guaranty, in either case pursuant to the antideficiency or
other laws of the State of California limiting or discharging the principal’s indebtedness or such
guarantor’s obligations, including without limitation Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure; and (b) each Guarantor waives all rights and defenses arising
out of an election of remedies by the creditor, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a Guaranteed Obligation, has destroyed such
Guarantor’s rights of subrogation and reimbursement against the principal by the operation of
Section 580d of the Code of Civil Procedure or otherwise; and even though that election of remedies
by the creditor, such as nonjudicial foreclosure with respect to security for an obligation of any
other guarantor of any of the Guaranteed Obligations, has destroyed such Guarantor’s rights of
contribution against such other guarantor. No other provision of this Guaranty shall be construed
as limiting the generality of any of the covenants and waivers set forth in this paragraph.




          12.1.6 Guarantors’ Rights of Subrogation, Contribution, Etc. Until there is Full Payment of the Guaranteed Obligations, each Guarantor hereby waives any
claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have
against the Borrower or any other Guarantor or any of its assets in connection with this Guaranty
or the performance by such Guarantor of its obligations hereunder, in each case whether such claim,
right or remedy arises in equity, under contract, by statute, under common law or otherwise and
including without limitation (a) any right of subrogation, reimbursement or indemnification that
such Guarantor now has or may hereafter have against the Borrower with respect to the Guaranteed
Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any
Lender now has or may hereafter have against the Borrower, and (c) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any Lender. In addition, until
there is Full Payment of the Guaranteed Obligations, each Guarantor shall withhold exercise of any
right of contribution such Guarantor may have against any other guarantor (including any other
Guarantor) of the Guaranteed Obligations. Each Guarantor further agrees that, to the extent the
waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification
such Guarantor may have against the Borrower or against any collateral or security, and any rights
of contribution such Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights any Lender may have against the Borrower, to all right, title and
interest any Lender may have in any such collateral or security, and to any right any Lender may
have against such other guarantor. If any amount shall be paid to any Guarantor on account of any
such subrogation, reimbursement, indemnification or contribution rights at any time when there is
not Full Payment of all Guaranteed Obligations, such amount shall be held in trust for
Agent on behalf of Lenders and shall forthwith be paid


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


85









 







over to Agent for the benefit of
Lenders to be credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.




          12.1.7 Subordination of Other Obligations. Any liability of the Borrower or any Guarantor now or hereafter held by any Guarantor (the
“Obligee Guarantor”) is hereby subordinated in right of payment to the Guaranteed
Obligations, and any funds or other amounts collected or received by the Obligee Guarantor in
respect of any such liability after an Event of Default has occurred and is continuing shall be
held in trust for Agent on behalf of Lenders and shall forthwith be paid over to Agent for the
benefit of Lenders to be credited and applied against the Guaranteed Obligations but without
affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any
other provision hereof; payments received with respect to any such Debt when an Event of Default
does not exist may be retained by the Obligee Guarantor to the extent permitted hereunder.




          12.1.8 Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until there is Full
Payment of all of the Guaranteed Obligations. Each Guarantor hereby irrevocably waives any right
to revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations.




          12.1.9 Authority of Guarantors or the Borrower. It is not necessary for any Lender to inquire into the capacity or powers of any Guarantor
or the Borrower or the officers, directors or any agents acting or purporting to act on behalf of
any of them.




          12.1.10 Financial Condition of the Borrower. Any Loan may be made to the Borrower or continued from time to time without notice to or
authorization from any Guarantor regardless of the financial or other condition of the Borrower at
the time of any such grant or continuation. No Lender shall have any obligation to disclose or
discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial
condition of the Borrower. Each Guarantor has adequate means to obtain information from the
Borrower on a continuing basis concerning the financial condition of the Borrower and its ability
to perform its obligations under the Loan Documents, and each Guarantor assumes the responsibility
for being and keeping informed of the financial condition of the Borrower and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives
and relinquishes any duty on the part of any Lender to disclose any matter, fact or thing relating
to the business, operations or conditions of the Borrower now known or hereafter known by any
Lender.




          12.1.11 Bankruptcy, Etc.




          (a) So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Agent acting pursuant to the instructions of Required Lenders, commence or
join with any other Person in commencing any bankruptcy, reorganization or insolvency case or
proceeding of or against the Borrower or any other Guarantor; this prohibition shall not be deemed
to prohibit the board of directors (or similar



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


86









 







governing body) from commencing any such case or
proceeding with respect to the Obligor that such board of directors or other governing body
oversees. The obligations of Guarantors hereunder shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of
the Borrower or any Guarantor or by any defense which the Borrower or any other Guarantor may have
by reason of the order, decree or decision of any court or administrative body resulting from any
such proceeding.




          (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in
Section 12.1.11(a) above (or, if interest on any portion of the Guaranteed Obligations
ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such
interest as would have accrued on such portion of the Guaranteed Obligations if such case or
proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is
the intention of Guarantors and Lenders that the Guaranteed Obligations which are guaranteed by
Guarantors pursuant hereto should be determined without regard to any rule of law or order which
may relieve the Borrower of any portion of such Guaranteed Obligations. Guarantors will permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or
similar Person to pay Agent, or allow the claim of Agent in respect of, any such interest accruing
after the date on which such case or proceeding is commenced.




          (c) In the event that all or any portion of the Guaranteed Obligations are paid by the
Borrower, the obligations of Guarantors hereunder shall continue and remain in full force and
effect or be reinstated, as the case may be, in the event that all or any part of such payment(s)
are rescinded or recovered directly or indirectly from any Lender as a preference, fraudulent
transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute
Guaranteed Obligations for all purposes hereunder.




ARTICLE XIII




AGENT



          Section 13.1 Appointment, Authority and Duties of Agent.




          13.1.1 Appointment and Authority. Each Lender appoints and designates Bank of America as Agent hereunder. Agent may, and
each Lender authorizes Agent to, enter into all Loan Documents to which Agent is intended to be a
party and accept all Security Documents, for Agent’s benefit and the Pro Rata benefit of Lenders.
Each Lender agrees that any action taken by Agent or Required Lenders in accordance with the
provisions of the Loan Documents, and the exercise by Agent or Required Lenders of any rights or
remedies set forth therein, together with all other powers reasonably incidental thereto, shall be
authorized by and binding upon all Lenders. Without limiting the generality of the foregoing,
Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent
for Lenders with


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


87









 







respect to all payments and collections arising in connection with the Loan
Documents; (b) execute and deliver as Agent each Loan Document, including any intercreditor or
subordination agreement, and accept delivery of each Loan Document from any Obligor or other
Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and
administering Liens under the Loan Documents, and for all other purposes stated therein; (d)
manage, supervise or otherwise deal with Collateral for the benefit of the Secured Parties; and (e)
take any Enforcement Action or otherwise exercise any rights or remedies with respect to any
Collateral under the Loan Documents, Applicable Law or otherwise for the benefit of the Secured
Parties. The duties of Agent shall be ministerial and administrative in nature, and Agent shall
not have a fiduciary relationship with any Lender, Secured Party, Participant or other Person, by
reason of any Loan Document or any transaction relating thereto. Agent alone shall be authorized
to determine whether any Accounts constitute Eligible Accounts, or whether to impose or release any
reserve, which determinations and judgments, if exercised in good faith, shall exonerate Agent from
liability to any Lender or other Person for any error in judgment.




          13.1.2 Duties. Agent shall not have any duties except those expressly set forth in the Loan Documents.
The conferral upon Agent of any right shall not imply a duty on Agent’s part to exercise such
right, unless instructed to do so by Required Lenders in accordance with this Agreement.




          13.1.3 Agent Professionals. Agent may perform its duties through agents and employees. Agent may consult with and
employ Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any
action taken in good faith reliance upon, any advice given by an Agent Professional. Agent shall
not be responsible for the negligence or misconduct of any agents, employees or Agent Professionals
selected by it with reasonable care.




          13.1.4 Instructions of Required Lenders. The rights and remedies conferred upon Agent under the Loan Documents may be exercised
without the necessity of joinder of any other party, unless required by Applicable
Law. Agent may request instructions from Required Lenders with respect to any act (including
the failure to act) in connection with any Loan Documents, and may seek assurances to its
satisfaction from Lenders of their indemnification obligations under Section 13.6 against
all Claims that could be incurred by Agent in connection with any act. Agent shall be entitled to
refrain from any act until it has received such instructions or assurances, and Agent shall not
incur liability to any Person by reason of so refraining. Instructions of Required Lenders shall
be binding upon all Lenders, and no Lender shall have any right of action whatsoever against Agent
as a result of Agent acting or refraining from acting in accordance with the instructions of
Required Lenders. Notwithstanding the foregoing, instructions by and consent of all Lenders shall
be required in the circumstances described in Section 15.1.1, and in no event shall
Required Lenders, without the prior written consent of each Lender, direct Agent to accelerate and
demand payment of Loans held by one Lender without accelerating and demanding payment of all other
Loans, nor to terminate the Commitments of one Lender without terminating the Commitments of all
Lenders. In no event shall Agent be required to take any action that, in its opinion, is contrary
to Applicable Law or any Loan Documents or could subject any Agent Indemnitee to personal
liability.



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


88









 








          Section 13.2 Agreements Regarding Collateral and Field Examination Reports.




          13.2.1 Lien Releases; Care of Collateral. Lenders authorize Agent to release any Lien with respect to any Collateral (a) upon Full
Payment of the Obligations; (b) that is the subject of an Asset Disposition which Borrower
certifies in writing to Agent is a Permitted Asset Disposition or a Lien which Borrower certifies
is a Permitted Lien entitled to priority over Agent’s Liens (and Agent may rely conclusively on any
such certificate without further inquiry); (c) that does not constitute a material part of the
Collateral; or (d) with the written consent of all Lenders. Lenders authorize Agent to subordinate
its Liens to any Purchase Money Lien permitted hereunder. Agent shall have no obligation to assure
that any Collateral exists or is owned by an Obligor, or is cared for, protected or insured, nor to
assure that Agent’s Liens have been properly created, perfected or enforced, or are entitled to any
particular priority, nor to exercise any duty of care with respect to any Collateral.




          13.2.2 Possession of Collateral. Agent and Lenders appoint each Lender as agent (for the benefit of Secured Parties) for the
purpose of perfecting Liens in any Collateral held or controlled by such Lender, to the extent such
Liens are perfected by possession or control. If any Lender obtains possession or control of any
Collateral, it shall notify Agent thereof and, promptly upon Agent’s request, deliver such
Collateral to Agent or otherwise deal with it in accordance with Agent’s instructions.




          13.2.3 Reports. Agent shall promptly forward to each Lender, when complete, copies of any field audit,
examination or appraisal report prepared by or for Agent with respect to any Obligor or Collateral
(“Report”). Each Lender agrees (a) that neither Bank of America nor Agent makes any
representation or warranty as to the accuracy or completeness of any Report, and shall not be
liable for any information contained in or omitted from any Report; (b) that the Reports are not
intended to be comprehensive audits or examinations, and that Agent or any other Person performing
any audit or examination will inspect only specific information regarding Obligations or the
Collateral and will rely significantly upon Obligors’ books and records as well as upon
representations of Obligors’ officers and employees; and (c) to keep all Reports confidential and
strictly for such Lender’s internal use, and not to distribute any Report (or the contents thereof)
to any Person (except to such Lender’s Participants, attorneys and accountants) or use any Report
in any manner other than administration of the Loans and other Obligations. Each Lender agrees to
indemnify and hold harmless Agent and any other Person preparing a Report from any action such
Lender may take as a result of or any conclusion it may draw from any Report, as well as from any
Claims arising as a direct or indirect result of Agent furnishing a Report to such Lender.




          Section 13.3 Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any
certification, notice or other communication (including those by telephone, telex, telegram,
telecopy or e-mail) believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person, and upon the advice and statements of Agent Professionals.



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


89









 








          Section 13.4 Action Upon Default. Agent shall not be deemed to have knowledge of any Default or Event of Default unless it
has received written notice from a Lender or Borrower specifying the occurrence and nature thereof.
If any Lender acquires knowledge of a Default or Event of Default, it shall promptly notify Agent
and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in
any Loan Documents or with the written consent of Agent and Required Lenders, it will not take any
Enforcement Action, accelerate Obligations under any Loan Documents, or exercise any right that it
might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or other
similar dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take
action to preserve or enforce its rights against an Obligor where a deadline or limitation period
is applicable that would, absent such action, bar enforcement of Obligations held by such Lender,
including the filing of proofs of claim in an Insolvency Proceeding.




          Section 13.5 Ratable Sharing. If any Lender shall obtain any payment or reduction of any Obligation, whether through
set-off or otherwise, in excess of its share of such Obligation, determined on a Pro Rata basis or
in accordance with Section 5.6.1, as applicable, such Lender shall forthwith purchase
from Agent, Issuing Bank and the other Lenders such participations in the affected Obligation
as are necessary to cause the purchasing Lender to share the excess payment or reduction on a Pro
Rata basis or in accordance with Section 5.6.1, as applicable. If any of such payment or
reduction is thereafter recovered from the purchasing Lender, the purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without interest. No Lender shall
set off against any Dominion Account without the prior consent of Agent.




          Section 13.6 Indemnification of Agent Indemnitees. EACH LENDER SHALL INDEMNIFY AND HOLD HARMLESS AGENT INDEMNITEES, TO THE EXTENT NOT
REIMBURSED BY OBLIGORS (BUT WITHOUT LIMITING THE INDEMNIFICATION OBLIGATIONS OF OBLIGORS UNDER ANY
LOAN DOCUMENTS), ON A PRO RATA BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED
AGAINST ANY AGENT INDEMNITEE, PROVIDED THE CLAIM RELATES TO OR ARISES FROM AN AGENT INDEMNITEE
ACTING AS OR FOR AGENT (IN ITS CAPACITY AS AGENT). In Agent’s discretion, it may reserve for any
such Claims made against an Agent Indemnitee, and may satisfy any judgment, order or settlement
relating thereto, from proceeds of Collateral prior to making any distribution of Collateral
proceeds to Lenders. If Agent is sued by any receiver, bankruptcy trustee, debtor-in-possession or
other Person for any alleged preference or fraudulent transfer, then any monies paid by Agent in
settlement or satisfaction of such proceeding, together with all interest, costs and expenses
(including attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent
by each Lender to the extent of its Pro Rata share.




          Section 13.7 Limitation on Responsibilities of Agent. Agent shall not be liable to Lenders for any action taken or omitted to be taken under the
Loan Documents, except for losses directly and solely caused by Agent’s gross negligence or willful
misconduct. Agent does not assume any responsibility for any failure or delay in performance or
any breach by any



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


90









 







Obligor or Lender of any obligations under the Loan Documents. Agent does not
make to Lenders any express or implied warranty, representation or guarantee with respect to any
Obligations, Collateral, Loan Documents or Obligor. No Agent Indemnitee shall be responsible to
Lenders for any recitals, statements, information, representations or warranties contained in any
Loan Documents; the execution, validity, genuineness, effectiveness or enforceability of any Loan
Documents; the genuineness, enforceability, collectability, value, sufficiency, location or
existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein;
the validity, enforceability or collectability of any Obligations; or the assets, liabilities,
financial condition, results of operations, business, creditworthiness or legal status of any
Obligor or Account Debtor. No Agent Indemnitee shall have any obligation to any Lender to
ascertain or inquire into the existence of any Default or Event of Default, the observance or
performance by any Obligor of any terms of the Loan Documents, or the satisfaction of any
conditions precedent contained in any Loan Documents.




          Section 13.8 Successor Agent and Co-Agents.




          13.8.1 Resignation; Successor Agent. Subject to the appointment and acceptance of a successor Agent as provided below, Agent may
resign at any time by giving at least 30 days written notice thereof to Lenders and Borrower. Upon
receipt of such notice, Required Lenders shall have the right to appoint a successor Agent which
shall be (a) a Lender or an Affiliate of a Lender; or (b) a commercial bank that is organized under
the laws of the United States or any state or district thereof, has a combined capital surplus of
at least $200,000,000 and (provided no Default or Event of Default exists) is reasonably acceptable
to Borrower. If no successor agent is appointed prior to the effective date of the resignation of
Agent, then Agent may appoint a successor agent from among Lenders. Upon acceptance by a successor
Agent of an appointment to serve as Agent hereunder, such successor Agent shall thereupon succeed
to and become vested with all the powers and duties of the retiring Agent without further act, and
the retiring Agent shall be discharged from its duties and obligations hereunder but shall continue
to have the benefits of the indemnification set forth in Sections 13.6 and 15.2.
Notwithstanding any Agent’s resignation, the provisions of this Article XII shall continue
in effect for its benefit with respect to any actions taken or omitted to be taken by it while
Agent. Any successor to Bank of America by merger or acquisition of stock or this loan shall
continue to be Agent hereunder without further act on the part of the parties hereto, unless such
successor resigns as provided above.




          13.8.2 Separate Collateral Agent. It is the intent of the parties that there shall be no violation of any Applicable Law
denying or restricting the right of financial institutions to transact business in any
jurisdiction. If Agent believes that it may be limited in the exercise of any rights or remedies
under the Loan Documents due to any Applicable Law, Agent may appoint an additional Person who is
not so limited, as a separate collateral agent or co-collateral agent. If Agent so appoints a
collateral agent or co-collateral agent, each right and remedy intended to be available to Agent
under the Loan Documents shall also be vested in such separate agent. Every covenant and
obligation necessary to the exercise thereof by such agent shall run to and be enforceable by it as
well as Agent. Lenders shall execute and deliver such documents as



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


91









 







Agent deems appropriate to vest
any rights or remedies in such agent. If any collateral agent or co-collateral agent shall die or
dissolve, become incapable of acting, resign or be removed, then all the rights and remedies of
such agent, to the extent permitted by Applicable Law, shall vest in and be exercised by Agent
until appointment of a new agent.




          Section 13.9 Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it has, independently and without reliance upon
Agent or any other Lenders, and based upon such documents, information and analyses as it has
deemed appropriate, made its own credit analysis of each Obligor and its own
decision to enter into this Agreement and to fund Loans and participate in LC Obligations
hereunder. Each Lender has made such inquiries concerning the Loan Documents, the Collateral and
each Obligor as such Lender feels necessary. Each Lender further acknowledges and agrees that the
other Lenders and Agent have made no representations or warranties concerning any Obligor, any
Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or
Obligations. Each Lender will, independently and without reliance upon the other Lenders or Agent,
and based upon such financial statements, documents and information as it deems appropriate at the
time, continue to make and rely upon its own credit decisions in making Loans and participating in
LC Obligations, and in taking or refraining from any action under any Loan Documents. Except for
notices, reports and other information expressly requested by a Lender, Agent shall have no duty or
responsibility to provide any Lender with any notices, reports or certificates furnished to Agent
by any Obligor or any credit or other information concerning the affairs, financial condition,
business or Properties of any Obligor (or any of its Affiliates) which may come into possession of
Agent or any of Agent’s Affiliates.




          Section 13.10 Replacement of Certain Lenders. If a Lender (a) is a Defaulting Lender, or (b) fails to give its consent to any amendment,
waiver or action for which consent of all Lenders was required and Required Lenders consented,
then, in addition to any other rights and remedies that any Person may have, Agent may, by notice
to such Lender within 120 days after such event, require such Lender to assign all of its rights
and obligations under the Loan Documents to Eligible Assignee(s) specified by Agent, pursuant to
appropriate Assignment and Acceptance(s) and within 20 days after Agent’s notice. Agent is
irrevocably appointed as attorney-in-fact to execute any such Assignment and Acceptance if the
Lender fails to execute same. Such Lender shall be entitled to receive, in cash, concurrently with
such assignment, all amounts owed to it under the Loan Documents, including all principal, interest
and fees through the date of assignment (but excluding any prepayment charge).




          Section 13.11 Remittance of Payments and Collections.




          13.11.1 Remittances Generally. All payments by any Lender to Agent shall be made by the time and on the day set forth in
this Agreement, in immediately available funds. If no time for payment is specified or if payment
is due on demand by Agent and request for payment is made by Agent by 11:00 a.m. on a Business Day,
payment shall be made by Lender not later than 2:00 p.m. on such day, and if request is made after
11:00 a.m., then payment shall be made by 11:00 a.m. on the next Business Day. Payment by Agent to
any Lender shall be


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


92









 







made by wire transfer, in the type of funds received by Agent. Any such
payment shall be subject to Agent’s right of offset for any amounts due from such Lender under the
Loan Documents.




          13.11.2 Failure to Pay. If any Lender fails to pay any amount when due by it to Agent pursuant to the terms hereof,
such amount shall bear interest from the due date until paid at the rate determined by Agent as
customary in the banking industry for interbank compensation. In no event shall Borrower be
entitled to receive credit for any interest paid by a Lender to Agent, nor shall any Defaulting
Lender be entitled to interest on any amounts held by Agent pursuant to Section 4.2.




          13.11.3 Recovery of Payments. If Agent pays any amount to a Lender in the expectation that a related payment will be
received by Agent from an Obligor and such related payment is not received, then Agent may recover
such amount from each Lender that received it. If Agent determines at any time that an amount
received under any Loan Document must be returned to an Obligor or paid to any other Person
pursuant to Applicable Law or otherwise, then, notwithstanding any other term of any Loan Document,
Agent shall not be required to distribute such amount to any Lender. If any amounts received and
applied by Agent to any Obligations are later required to be returned by Agent pursuant to
Applicable Law, each Lender shall pay to Agent, on demand, such Lender’s Pro Rata share of the
amounts required to be returned.




          Section 13.12 Agent in its Individual Capacity. As a Lender, Bank of America shall have the same rights and remedies under the other Loan
Documents as any other Lender, and the terms “Lenders,” “Required Lenders” or any similar term
shall include Bank of America in its capacity as a Lender. Each of Bank of America and its
Affiliates may accept deposits from, maintain deposits or credit balances for, invest in, lend
money to, provide Bank Products to, act as trustee under indentures of, serve as financial or other
advisor to, and generally engage in any kind of business with, Obligors and their Affiliates, as if
Bank of America were any other bank, without any duty to account therefor (including any fees or
other consideration received in connection therewith) to the other Lenders. In their individual
capacity, Bank of America and its Affiliates may receive information regarding Obligors, their
Affiliates and their Account Debtors (including information subject to confidentiality
obligations), and each Lender agrees that Bank of America and its Affiliates shall be under no
obligation to provide such information to Lenders, if acquired in such individual capacity and not
as Agent hereunder.




          Section 13.13 Agent Titles. Each Lender, other than Bank of America, that is designated (on the cover page of this
Agreement or otherwise) by Bank of America as an “Agent” or “Arranger” of any type shall not have
any right, power, responsibility or duty under any Loan Documents other than those applicable to
all Lenders, and shall in no event be deemed to have any fiduciary relationship with any other
Lender.




          Section 13.14 No Third Party Beneficiaries. This Article XIII is an agreement solely among Lenders and Agent, and shall survive
Full Payment of the Obligations. This



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


93









 







Article XIII does not confer any rights or benefits
upon any Obligor or any other Person. As between Obligors and Agent, any action that Agent may
take under any Loan Documents or with respect to any Obligations shall be conclusively presumed to
have been authorized and directed by Lenders.




ARTICLE XIV




BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS



          Section 14.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Obligors, Agent, Lenders,
and their respective successors and assigns, except that (a) no Obligor shall have the right to
assign its rights or delegate its obligations under any Loan Documents; and (b) any assignment by a
Lender must be made in compliance with Section 14.3. Agent may treat the Person which made
any Loan as the owner thereof for all purposes until such Person makes an assignment in accordance
with Section 14.3. Any authorization or consent of a Lender shall be conclusive and
binding on any subsequent transferee or assignee of such Lender.




          Section 14.2 Participations.




          14.2.1 Permitted Participants; Effect. Any Lender may, in the ordinary course of its business and in accordance with Applicable
Law, at any time sell to a financial institution (“Participant”) a participating interest
in the rights and obligations of such Lender under any Loan Documents. Despite any sale by a
Lender of participating interests to a Participant, such Lender’s obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties
hereto for performance of such obligations, such Lender shall remain the holder of its Loans and
Commitments for all purposes, all amounts payable by Borrower shall be determined as if such Lender
had not sold such participating interests, and Borrower and Agent shall continue to deal solely and
directly with such Lender in connection with the Loan Documents. Each Lender shall be solely
responsible for notifying its Participants of any matters under the Loan Documents, and Agent and
the other Lenders shall not have any obligation or liability to any such Participant.




          14.2.2 Voting Rights. Each Lender shall retain the sole right to approve, without the consent of any Participant,
any amendment, waiver or other modification of any Loan Documents other than that which forgives
principal, interest or fees, reduces the stated interest rate or fees payable with respect to any
Loan or Commitment in which such Participant has an interest, postpones the
Commitment Termination Date or any date fixed for any regularly scheduled payment of
principal, interest or fees on such Loan or Commitment, or releases Borrower, Guarantor or
substantial portion of the Collateral.




          14.2.3 Benefit of Set-Off. Borrower agrees that each Participant shall have a right of set-off in respect of its
participating interest to the same extent as if such interest were owing directly to a Lender, and
each Lender shall also retain the right of set-off with respect to



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


94









 







any participating interests sold
by it. By exercising any right of set-off, a Participant agrees to share with Lenders all amounts
received through its set-off, in accordance with Section 14.5 as if such Participant were a
Lender.




          Section 14.3 Assignments.




          14.3.1 Permitted Assignments. A Lender may assign to an Eligible Assignee any of its rights and obligations under the
Loan Documents, as long as (a) each assignment is of a constant, and not a varying, percentage of
the transferor Lender’s rights and obligations under the Loan Documents and, in the case of a
partial assignment, is in a minimum principal amount of $10,000,000 (unless otherwise agreed by
Agent in its discretion) and integral multiples of $2,000,000 in excess of that amount; (b) except
in the case of an assignment in whole of a Lender’s rights and obligations, the aggregate amount of
the Commitments retained by the transferor Lender is at least $10,000,000 (unless otherwise agreed
by Agent in its discretion); and (c) the parties to each such assignment shall execute and deliver
to Agent, for its acceptance and recording, an Assignment and Acceptance. Nothing herein shall
limit the right of a Lender to pledge or assign any rights under the Loan Documents to (i) any
Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A
of the Board of Governors and any Operating Circular issued by such Federal Reserve Bank, or (ii)
counterparties to swap agreements relating to any Loans; provided, however, that
any payment by Borrower to the assigning Lender in respect of any Obligations assigned as described
in this sentence shall satisfy Borrower’s obligations hereunder to the extent of such payment, and
no such assignment shall release the assigning Lender from its obligations hereunder.




          14.3.2 Effect; Effective Date. Upon delivery to Agent and Borrower of an assignment notice in the form of Exhibit
C and payment of a processing fee of $3,500 to Agent (unless otherwise agreed by Agent in its
discretion), the assignment shall become effective as specified in the notice, if it complies with
this Section 14.3. From such effective date, the Eligible Assignee shall for all purposes
be a Lender under the Loan Documents, and shall have all rights and obligations of a Lender
thereunder. Upon consummation of an assignment, the transferor Lender, Agent and Borrower
shall make appropriate arrangements for issuance of replacement and/or new Notes, as
applicable. The transferee Lender shall comply with Section 5.10 and deliver, upon
request, an administrative questionnaire satisfactory to Agent.




ARTICLE XV




MISCELLANEOUS



          Section 15.1 Consents, Amendments and Waivers.




          15.1.1 Amendment. No modification of any Loan Document, including any extension or amendment of a Loan
Document or any waiver of a Default or Event of Default, shall be effective without the prior
written agreement of Agent (with the consent of Required



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


95









 







Lenders) and each Obligor party to such
Loan Document; provided, however, that except as contemplated by Section
2.2




          (a) without the prior written consent of Agent, no modification shall be effective with
respect to any provision in a Loan Document that relates to any rights, duties or discretion of
Agent;




          (b) without the prior written consent of Issuing Bank, no modification shall be effective with
respect to any LC Obligations or Section 2.3;




          (c) without the prior written consent of each affected Lender, no modification shall be
effective that would (i) increase the Commitment of such Lender; or (ii) reduce the amount of, or
waive or delay payment of, any principal, interest or fees payable to such Lender; and




          (d) without the prior written consent of all Lenders (except a Defaulting Lender as provided
in Section 4.2), no modification shall be effective that would (i) extend the Revolver
Termination Date; (ii) alter Section 5.6, 7.1 (except to add Collateral) or
15.1.1; (iii) amend the definition of Borrowing Base (or any defined term used in such
definition), Pro Rata or Required Lenders; (iv) increase any advance rate, decrease the
Availability Block or increase total Commitments; (vi) release Collateral with a book value greater
than $5,000,000 during any calendar year, except as currently contemplated by the Loan Documents;
or (vii) release any Obligor from liability for any Obligations, if such Obligor is Solvent at the
time of the release.




          15.1.2 Limitations. The agreement of Borrower shall not be necessary to the effectiveness of any modification
of a Loan Document that deals solely with the rights and duties of Lenders, Agent and/or Issuing
Bank as among themselves. Only the consent of the parties to the Fee Letter or
any agreement relating to a Bank Product shall be required for any modification of such
agreement, and any non-Lender that is party to a Bank Product agreement shall have no right to
participate in any manner in modification of any other Loan Document. Any waiver or consent
granted by Agent or Lenders hereunder shall be effective only if in writing and only for the matter
specified.




          15.1.3 Payment for Consents. No Obligor will, directly or indirectly, pay any remuneration or other thing of value,
whether by way of additional interest, fee or otherwise, to any Lender (in its capacity as a Lender
hereunder) as consideration for agreement by such Lender with any modification of any Loan
Documents, unless such remuneration or value is concurrently paid, on the same terms, on a Pro Rata
basis to all Lenders providing their consent.




          Section 15.2 Indemnity. EACH OBLIGOR SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST ANY CLAIMS THAT MAY
BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS ARISING FROM THE NEGLIGENCE OF
AN INDEMNITEE. In no event shall any party to a Loan Document have any obligation thereunder to
indemnify or hold harmless an



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


96









 







Indemnitee with respect to a Claim that is determined in a final,
non-appealable judgment by a court of competent jurisdiction to result from the gross negligence or
willful misconduct of such Indemnitee.




          Section 15.3 Notices and Communications.




          15.3.1 Notice Address. Subject to Section 4.1.4, all notices and other communications by or to a party
hereto shall be in writing and shall be given to any Obligor, at Parent’s address shown on the
signature pages hereof, and to any other Person at its address shown on the signature pages hereof
(or, in the case of a Person who becomes a Lender after the Closing Date, at the address shown on
its Assignment and Acceptance or Assumption Agreement, as applicable), or at such other address as
a party may hereafter specify by notice in accordance with this Section 15.3. Each such
notice or other communication shall be effective only (a) if given by facsimile transmission, when
transmitted to the applicable facsimile number, if confirmation of receipt is received; (b) if
given by mail, three Business Days after deposit in the U.S. mail, with first-class postage
pre-paid, addressed to the applicable address; or (c) if given by personal delivery, when duly
delivered to the notice address with receipt acknowledged. Notwithstanding the foregoing, no
notice to Agent pursuant to Section 2.1.4, 2.3, 3.1.2, 4.1.1 or
5.3.3 shall be effective until actually received by the individual to whose attention at
Agent such notice is required to be sent. Any written notice or other communication that is not
sent in conformity with the foregoing
provisions shall nevertheless be effective on the date actually received by the noticed party.
Any notice received by Parent shall be deemed received by all Obligors.




          15.3.2 Electronic Communications; Voice Mail. Electronic mail and internet websites may be used only for routine communications, such as
financial statements, Borrowing Base Certificates and other information required by Section
10.1.2, administrative matters, distribution of Loan Documents for execution, and matters
permitted under Section 4.1.4. Agent and Lenders make no assurances as to the privacy and
security of electronic communications. Electronic and voice mail may not be used as effective
notice under the Loan Documents.




          15.3.3 Non-Conforming Communications. Agent and Lenders may rely upon any notices purportedly given by or on behalf of any
Obligor even if such notices were not made in a manner specified herein, were incomplete or were
not confirmed, or if the terms thereof, as understood by the recipient, varied from a later
confirmation. Each Obligor shall indemnify and hold harmless each Indemnitee from any liabilities,
losses, costs and expenses arising from any telephonic communication purportedly given by or on
behalf of an Obligor to the extent provided in Section 15.2.




          Section 15.4 Performance of Borrower’s Obligations. Agent may, in its discretion at any time and from time to time, at Borrower’s expense, pay
any amount or do any act required of Borrower under any Loan Documents or otherwise lawfully
requested by Agent to (a) enforce any Loan Documents or collect any Obligations; (b) protect,
insure, maintain or realize upon any Collateral; or (c) defend or maintain the validity or priority
of Agent’s Liens in



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


97









 







any Collateral, including any payment of a judgment, insurance premium,
warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien.
All payments, costs and expenses (including Extraordinary Expenses) of Agent under this Section
shall be reimbursed to Agent by Borrower, on demand, with interest from the date incurred to the
date of payment thereof at the rate then applicable to Base Rate Loans. Any payment made or action
taken by Agent under this Section shall be without prejudice to any right to assert an Event of
Default or to exercise any other rights or remedies under the Loan Documents.




          Section 15.5 Credit Inquiries. Each of Parent and Borrower hereby authorizes Agent and Lenders (but they shall have no
obligation) to respond to usual and customary credit inquiries from third parties concerning Parent
or any Subsidiary.




          Section 15.6 Severability. Wherever possible, each provision of the Loan Documents shall be interpreted in such manner
as to be valid under Applicable Law. If any provision is found to be invalid under Applicable Law,
it shall be ineffective only to the extent of such invalidity and the remaining provisions of the
Loan Documents shall remain in full force and effect.




          Section 15.7 Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are cumulative. The parties acknowledge that the Loan
Documents may use several limitations, tests or measurements to regulate similar matters, and they
agree that these are cumulative and that each must be performed as provided. Except as otherwise
provided in another Loan Document (by specific reference to the applicable provision of this
Agreement), if any provision contained herein is in direct conflict with any provision in another
Loan Document, the provision herein shall govern and control.




          Section 15.8 Counterparts. Any Loan Document may be executed in counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement
shall become effective when Agent has received counterparts bearing the signatures of all parties
hereto. Delivery of a signature page of any Loan Document by telecopy or other electronic means
shall be effective as delivery of a manually executed counterpart of such agreement.




          Section 15.9 Entire Agreement. Time is of the essence of the Loan Documents. The Loan Documents constitute the entire
contract among the parties relating to the subject matter hereof, and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.




          Section 15.10 Relationship with Lenders. The obligations of each Lender hereunder are several, and no Lender shall be responsible
for the obligations or Commitments of any other Lender. Amounts payable hereunder to each Lender
shall be a separate and independent debt. It shall not be necessary for Agent or any other Lender
to be joined as an additional party in any proceeding for such purposes. Nothing in this Agreement
and no action of Agent or Lenders pursuant to the Loan Documents shall be deemed to constitute
Agent and



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


98









 







Lenders to be a partnership, association, joint venture or any other kind of entity, nor
to constitute control of Borrower.




          Section 15.11 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated by any Loan Document, Borrower acknowledges and agrees that (a)(i) this credit facility and any related arranging or
other services by Agent, any Lender, any of their Affiliates or any arranger are
arm’s-length commercial transactions between Borrower and such Person; (ii) Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate; and (iii) Borrower is capable of evaluating and understanding, and does understand and
accept, the terms, risks and conditions of the transactions contemplated by the Loan Documents; (b)
each of Agent, Lenders, their Affiliates and any arranger is and has been acting solely as a
principal in connection with this credit facility, is not the financial advisor, agent or fiduciary
for Borrower, any of its Affiliates or any other Person, and has no obligation with respect to the
transactions contemplated by the Loan Documents except as expressly set forth therein; and (c)
Agent, Lenders, their Affiliates and any arranger may be engaged in a broad range of transactions
that involve interests that differ from those of Borrower and its Affiliates, and have no
obligation to disclose any of such interests to Borrower or its Affiliates. To the fullest extent
permitted by Applicable Law, each Obligor hereby waives and releases any claims that it may have
against Agent, Lenders, their Affiliates and any arranger with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated by
a Loan Document.




          Section 15.12 Confidentiality. Each of Agent, Lenders and Issuing Bank agrees to maintain the confidentiality of all
Information (as defined below), except that Information may be disclosed (a) to its Affiliates, and
to its and their partners, directors, officers, employees, agents, advisors and representatives
(provided such Persons are informed of the confidential nature of the Information and instructed to
keep it confidential); (b) to the extent requested by any governmental, regulatory or
self-regulatory authority purporting to have jurisdiction over it or its Affiliates; (c) to the
extent required by Applicable Law or by any subpoena or other legal process (provided,
however, that to the extent practicable and permitted by Applicable Law, Agent, the Lender
or the Issuing Bank, as applicable, shall use reasonable efforts to provide Parent with prior
notice of its intent to disclose any confidential information in accordance with this clause (c),
so as to allow the affected Obligor the opportunity to obtain a protective order or similar court
protection); (d) to any other party hereto; (e) in connection with any action or proceeding, or
other exercise of rights or remedies, relating to any Loan Documents or Obligations; (f) subject to
an agreement containing provisions substantially the same as this Section, to any Transferee or any
actual or prospective party (or its advisors) to any Bank Product; (g) with the consent of Parent;
or (h) to the extent such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) is available to Agent, any Lender, Issuing Bank or any of their
Affiliates on a nonconfidential basis from a source other than an Obligor. Notwithstanding the
foregoing, Agent and Lenders may publish or disseminate general information describing this credit
facility, including the names and addresses of Borrower and Parent and a general description of
Parent’s and Borrower’s businesses, and may use Parent’s and Borrower’s logos, trademarks or
product photographs in advertising


[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


99









 







materials, subject to Parent’s prior written consent, not to be
unreasonably withheld, delayed or conditioned. As used herein, “Information” means all
information received from an Obligor or Subsidiary relating to it or its business that is
identified as confidential when delivered or that a reasonable Person would understand is
confidential. Any Person required to maintain the confidentiality of Information pursuant to this
Section shall be deemed to have complied if it exercises the same degree of care that it
accords to its own confidential information. Each of Agent, Lenders and Issuing Bank acknowledges
that (i) Information may include material non-public information concerning an Obligor or
Subsidiary; (ii) it has developed compliance procedures regarding the use of material non-public
information; and (iii) it will handle such material non-public information in accordance with
Applicable Law, including federal and state securities laws.




          Section 15.13 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, UNLESS OTHERWISE SPECIFIED, SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES
(BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS).




          Section 15.14 Consent to Forum; Arbitration.




          15.14.1 Forum. EACH OBLIGOR HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE
COURT SITTING IN OR WITH JURISDICTION OVER LOS ANGELES COUNTY, CALIFORNIA, IN ANY PROCEEDING OR
DISPUTE RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY SUCH PROCEEDING SHALL BE
BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH OBLIGOR IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS AND
DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR
INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 15.3.1. Nothing herein shall limit the right of Agent or any
Lender to bring proceedings against any Obligor in any other court, nor limit the right of any
party to serve process in any other manner permitted by Applicable Law. Nothing in this Agreement
shall be deemed to preclude enforcement by Agent of any judgment or order obtained in any forum or
jurisdiction.




          15.14.2 Arbitration. Notwithstanding any other provision of this Agreement to the contrary, any controversy or
claim among the parties relating in any way to any Obligations or Loan Documents, including any
alleged tort, shall at the request of any party hereto be determined by binding arbitration
conducted in accordance with the United States Arbitration Act (Title 9 U.S. Code). Arbitration
proceedings will be determined in accordance with the Act, the then-current rules and procedures
for the arbitration of financial services disputes of the American Arbitration
Association (“AAA”), and the terms of this Section. In the event of any inconsistency, the
terms of this Section shall control. If AAA is unwilling or unable to serve as



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


100









 







the provider of
arbitration or to enforce any provision of this Section, Agent may designate another arbitration
organization with similar procedures to serve as the provider of arbitration. The arbitration
proceedings shall be conducted in Los Angeles or Pasadena, California. The arbitration hearing
shall commence within 90 days of the arbitration demand and close within 90 days thereafter. The
arbitration award must be issued within 30 days after close of the hearing (subject to extension by
the arbitrator for up to 60 days upon a showing of good cause), and shall include a concise written
statement of reasons for the award. The arbitrator shall give effect to applicable statutes of
limitation in determining any controversy or claim, and for these purposes, service on AAA under
applicable AAA rules of a notice of claim is the equivalent of the filing of a lawsuit. Any
dispute concerning this Section or whether a controversy or claim is arbitrable shall be determined
by the arbitrator. The arbitrator shall have the power to award legal fees to the extent provided
by this Agreement. Judgment upon an arbitration award may be entered in any court having
jurisdiction. The arbitrator shall not have the power to commit errors of law or legal reasoning,
and any award may be reviewed and vacated or corrected on appeal to a court of competent
jurisdiction for any such error. The institution and maintenance of an action for judicial relief
or pursuant to a provisional or ancillary remedy shall not constitute a waiver of the right of any
party, including the plaintiff, to submit the controversy or claim to arbitration if any other
party contests such action for judicial relief. No controversy or claim shall be submitted to
arbitration without the consent of all parties if, at the time of the proposed submission, such
controversy or claim relates to an obligation secured by Real Estate, but if all parties do not
consent to submission of such a controversy or claim to arbitration, it shall be determined as
provided in the next sentence. At the request of any party, a controversy or claim that is not
submitted to arbitration as provided above shall be determined by judicial reference; and if such
an election is made, the parties shall designate to the court a referee or referees selected under
the auspices of the AAA in the same manner as arbitrators are selected in AAA sponsored proceedings
and the presiding referee of the panel (or the referee if there is a single referee) shall be an
active attorney or retired judge; and judgment upon the award rendered by such referee or referees
shall be entered in the court in which proceeding was commenced. None of the foregoing provisions
of this Section shall limit the right of Agent or Lenders to exercise self-help remedies, such as
setoff, foreclosure or sale of any Collateral or to obtain provisional or ancillary remedies from a
court of competent jurisdiction before, after or during any arbitration proceeding. The exercise
of a remedy does not waive the right of any party to resort to arbitration or reference.




          Section 15.15 Waivers by Obligors. To the fullest extent permitted by Applicable Law, each Obligor waives (a) the right to
trial by jury (which Agent and each Lender hereby also waives) in any proceeding or dispute of any
kind relating in any way to any Loan Documents, Obligations or Collateral; (b) presentment, demand,
protest, notice of presentment, default, non-payment, maturity, release, compromise, settlement,
extension or renewal of any commercial paper, accounts, documents, instruments, chattel paper and
guaranties at any
time held by Agent on which an Obligor may in any way be liable, and hereby ratifies anything
Agent may do in this regard; (c) notice prior to taking possession or control of any Collateral;
(d) any bond or security that might be required by a court prior to allowing Agent to exercise any
rights or remedies; (e) the benefit of all valuation,



[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


101









 








appraisement and exemption laws; (f) any
claim against Agent or any Lender, on any theory of liability, for special, indirect,
consequential, exemplary or punitive damages (as opposed to direct or actual damages) in any way
relating to any Enforcement Action, Obligations, Loan Documents or transactions relating thereto;
and (g) notice of acceptance hereof. Each Obligor acknowledges that the foregoing waivers are a
material inducement to Agent and Lenders entering into this Agreement and that Agent and Lenders
are relying upon the foregoing in their dealings with Obligors. Each Obligor has reviewed the
foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial
and other rights following consultation with legal counsel. In the event of litigation, this
Agreement may be filed as a written consent to a trial by the court.




          Section 15.16 Patriot Act Notice. Agent and Lenders hereby notify Obligors that pursuant to the requirements of the Patriot
Act, Agent and Lenders are required to obtain, verify and record information that identifies each
Obligor, including its legal name, address, tax ID number and other information that will allow
Agent and Lenders to identify it in accordance with the Patriot Act. Agent and Lenders will also
require information regarding each personal guarantor, if any, and may require information
regarding Obligors’ management and owners, such as legal name, address, social security number and
date of birth.




          Section 15.17 Judgment Currency.




          15.17.1 If for the purposes of obtaining judgment in any court or through an arbitration
proceeding it is necessary to convert the sum due hereunder or under the Notes in any currency (the
“Original Currency”) into another currency (the “Other Currency”) the parties
hereto agree, to the fullest extent that they may effectively do so, that the rates of exchange
used shall be that at which is in accordance with normal banking procedures the Agent could
purchase the Original Currency with the Other Currency on the first Business Day preceding that on
which final judgment or award is given.




          15.17.2 The obligations of Borrower in respect of any sum due in the Original Currency from it
to the Agent or any Lender hereunder or under any Note shall, notwithstanding any judgment in any
Other Currency, be discharged only to the extent that on the Business Day following receipt by
Agent or such Lender of any sum adjudged to be so due in such Other Currency may in accordance with
the normal banking procedures purchase Original Currency with such Other Currency. If the amount
of the Original Currency so purchased is less than the sum originally due to Agent or Lender in the
Original Currency, Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify Agent and such Lender against
such loss.




[Remainder of page intentionally left blank; signatures begin on following page]



 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


102









 





          IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth
above.




	 	 	 	 	 	 	 

	 	 	BORROWER:	 	 
	 
	 	 	 	 	 	 
	 	 	The Common Seal of TRIDENT

        MICROSYSTEMS
(HONG KONG) LIMITED 

        was affixed to this
Deed in the presence of:	 	 
	 
	 
	 	/s/ Pete J. Mangan	 	 
	 	 	 	 	 
	 	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	Witnessed by:	 	 	 	 
	 

	 	Signature:	 	/s/ David L. Teichmann	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	David L. Teichmann	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:	 	1170 Kifer Road

Sunnyvale, CA 94086	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices: 1170 Kifer Road

Sunnyvale, CA 94086
	 	 




 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


 









 





	 	 	 	 	 	 	 

	 	 	GUARANTORS:	 	 
	 
	 	 	 	 	 	 
	 	 	Executed as a Deed by 


        TRIDENT MICROSYSTEMS (FAR EAST) LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Pete J. Mangan	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Title: Pete J. Mangan, Director	 	 
	 

	 	 	 	Address: 1170 Kifer Road

Sunnyvale, CA 94086	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Attn: Legal Department	 	 
	 

	 	 	 	Telecopy: +1 (408) 991-9309	 	 
	 
	 	 	 	 	 	 
	 	 	In the presence of:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	/s/ David
L. Teichmann                                        

		  
	 	 	Witness Name: David
L. Teichmann	 	 
	 	 	Witness Occupation:
Attorney	 	 
	 	 	Witness Address: 1170 Kifer Road

Sunnyvale, CA 94086	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 




 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.



Trident
2011 Loan Agreement



 









 





	 	 	 	 	 	 	 

	 	 	TRIDENT MICROSYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Pete J. Mangan	 	 
	 

	 	 	 	 

Name Pete J. Mangan
	 	 
	 

	 	 	 	Title: EVP and CFO	 	 
	 

	 	 	 	Address: 1170 Kifer Road 

Sunnyvale, CA 94086	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Attn: Legal Department	 	 
	 

	 	 	 	Telecopy: +1 (408) 991-9309	 	 





 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


Trident
2011 Loan Agreement



 









 





	 	 	 	 	 	 	 

	 	 	AGENT AND LENDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A. (ACTING THROUGH 

        ITS
SINGAPORE BRANCH),

        as Agent and Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ David Knoblauch	 	 
	 

	 	 	 	 

Name: David Knoblauch
	 	 
	 

	 	 	 	Title:  SVP	 	 
	 

	 	 	 	Address:

55 South Lake Avenue, Suite 900

Pasadena, CA 91101

Attn: Portfolio Manager

Telecopy: 626-584-4600	 	 





 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.


Trident
2011 Loan Agreement


 









 





SCHEDULE 1.1

to

Loan, Guaranty and Security Agreement




COMMITMENTS OF LENDERS



	 	 	 
	Lender	 	Commitment
	Bank of America, N.A.
	 	$40,000,000
	TOTAL:
	 	$40,000,000






 [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.




 











 





Exhibit A

to

Loan, Guaranty and Security Agreement




REVOLVER NOTE



					
	 	 	 	 	 
	[Date]
	 	$                                        
	 	Pasadena, California






     TRIDENT MICROSYSTEMS (HONG KONG) LIMITED, a Hong Kong limited company, (“Borrower”),
for value received, hereby unconditionally promises to pay to the order of
                                         (“Lender”), the principal sum of                  
             
           DOLLARS
($                    ), or such lesser amount as may be advanced by Lender as Loans and owing as LC
Obligations from time to time under the Loan Agreement described below, together with all accrued
and unpaid interest thereon. Terms are used herein as defined in the Loan, Guaranty and Security
Agreement dated as of February 9, 2011, among Borrower, certain Affiliates of Borrower from time to
time party thereto as Guarantors, Bank of America, N.A., as Agent, Lender, and certain other
financial institutions, as such agreement may be amended, modified, renewed or extended from time
to time (“Loan Agreement”).



     Principal of and interest on this Note from time to time outstanding shall be due
and payable as provided in the Loan Agreement. This Note is issued pursuant to and evidences Loans
and LC Obligations under the Loan Agreement, to which reference is made for a statement of the
rights and obligations of Lender and the duties and obligations of Borrower. The Loan Agreement
contains provisions for acceleration of the maturity of this Note upon the happening of certain
stated events, and for the borrowing, prepayment and reborrowing of amounts upon specified terms
and conditions.



     The holder of this Note is hereby authorized by Borrower to record on a schedule annexed to
this Note (or on a supplemental schedule) the amounts owing with respect to Loans and LC
Obligations, and the payment thereof. Failure to make any notation, however, shall not affect the
rights of the holder of this Note or any obligations of Borrower hereunder or under any other Loan
Documents.



     Time is of the essence of this Note. Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment for payment, protest, notice of protest,
notice of intention to accelerate the maturity of this Note, diligence in collecting, the bringing
of any suit against any party, and any notice of or defense on account of any extensions, renewals,
partial payments, or changes in any manner of or in this Note or in any of its terms, provisions
and covenants, or any releases or substitutions of any security, or any delay, indulgence or other
act of any trustee or any holder hereof, whether before or after maturity. Borrower agrees to pay,
and to save the holder of this Note harmless against, any liability for the payment of all costs
and expenses (including without limitation reasonable attorneys’ fees) if this Note is collected by
or through an attorney-at-law.



     In no contingency or event whatsoever shall the amount paid or agreed to be paid to the holder
of this Note for the use, forbearance or detention of money advanced hereunder exceed the highest
lawful rate permitted under Applicable Law. If any such excess amount is inadvertently paid by
Borrower or inadvertently received by the holder of this Note, such excess shall be returned to
Borrower or credited as a payment of principal, in accordance with the Loan Agreement. It is the
intent hereof that Borrower not pay or contract to pay, and that holder of this Note not receive or
contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that
which may be paid by Borrower under Applicable Law.



     This Note shall be governed by the laws of the State of California, without giving effect to
any conflict of law principles (but giving effect to federal laws relating to national banks).



 









 





     IN WITNESS WHEREOF, this Revolver Note is executed as of the date set forth above.



	 	 	 	 	 

	Attest:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

Secretary

	 	 By	 	 
	 

	 	 	 	 
	 

	 	 	 	Title:
	[Seal]
	 	 	 	 
	 
	 	 	 	 
	Attest:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

Secretary

	 	 By	 	 
	 

	 	 	 	 
	 

	 	 	 	Title:
	[Seal]
	 	 	 	 
	 
	 	 	 	 
	Attest:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

Secretary

	 	 By	 	 
	 

	 	 	 	 
	 

	 	 	 	Title:
	[Seal]
	 	 	 	 






- 2 -









 







Exhibit B

to

Loan, Guaranty and Security Agreement




ASSIGNMENT AND ACCEPTANCE



          Reference is made to the Loan, Guaranty and Security Agreement dated as of February 9, 2011,
as amended (“Loan Agreement”), among TRIDENT MICROSYSTEMS (HONG KONG) LIMITED
(“Borrower”), certain Affiliates of Borrower from time to time party thereto as Guarantors,
BANK OF AMERICA, N.A., as agent (“Agent”) for the financial institutions from time to time
party to the Loan Agreement (“Lenders”), and such Lenders. Terms are used herein as
defined in the Loan Agreement.              
                 
                 
                 
                 (“Assignor”) 
                   
and                   
                  
                  
                   
        
(“Assignee”) agree as follows:




          1. Assignor hereby assigns to Assignee and Assignee hereby purchases and assumes from Assignor
(a) a principal amount of $________ of Assignor’s outstanding Loans and $                     of Assignor’s
participations in LC Obligations and (b) the amount of $                     of Assignor’s Commitment (which
represents ____% of the total Commitments) (the foregoing items being, collectively, the
“Assigned Interest”), together with an interest in the Loan Documents corresponding to the
Assigned Interest. This Agreement shall be effective as of the date (“Effective Date”)
indicated in the corresponding Assignment Notice delivered to Agent, provided such Assignment
Notice is executed by Assignor, Assignee, Agent and Borrower, if applicable. From and after the
Effective Date, Assignee hereby expressly assumes, and undertakes to perform, all of Assignor’s
obligations in respect of the Assigned Interest, and all principal, interest, fees and other
amounts which would otherwise be payable to or for Assignor’s account in respect of the Assigned
Interest shall be payable to or for Assignee’s account, to the extent such amounts accrue on or
after the Effective Date.




     2. Assignor (a) represents that as of the date hereof, prior to giving effect to this
assignment, its Commitment is $                     and the outstanding balance of its Loans and
participations in LC Obligations is
$                    ; (b) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or representations made in or
in connection with the Loan Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement or any other instrument or document
furnished pursuant thereto, other than that Assignor is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; and (c) makes no representation or warranty and assumes no responsibility with respect to
the financial condition of Borrower or the performance by Borrower of its obligations under the
Loan Documents. [Assignor is attaching the Note[s] held by it and requests that Agent exchange
such Note[s] for new Notes payable to Assignee [and Assignor].]



     3. Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (b) confirms that it has received copies of the Loan Agreement and such
other Loan Documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (c) agrees that it shall, independently
and without reliance upon Assignor and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents; (d) confirms that it is an Eligible Assignee; (e) appoints and authorizes
Agent to take such action as agent on its behalf and to exercise such powers under the Loan
Agreement as are delegated to Agent by the terms thereof, together with such powers as are
incidental thereto; (f) agrees that it will observe and perform all obligations that are required
to be performed by it as a “Lender” under the Loan Documents; and (g) represents and warrants that
the assignment evidenced hereby will not result in a non-exempt “prohibited transaction” under
Section 406 of ERISA.



 









 





          4. This Agreement shall be governed by the laws of the State of California. If any provision
is found to be invalid under Applicable Law, it shall be ineffective only to the extent of such
invalidity and the remaining provisions of this Agreement shall remain in full force and effect.




          5. Each notice or other communication hereunder shall be in writing, shall be sent by
messenger, by telecopy or facsimile transmission, or by first-class mail, shall be deemed given
when sent and shall be sent as follows:





	 	(a)	 	If to Assignee, to the following address (or to such other
address as Assignee may designate from time to time):
	 
	 	 	 	                                                            
	 
	 	 	 	                                                            
	 
	 	 	 	                                                            
	 
	 	(b)	 	If to Assignor, to the following address (or to such other
address as Assignor may designate from time to time):
	 
	 	 	 	                                                            
	 
	 	 	 	                                                            
	 
	 	 	 	                                                            
	 
	 	 	 	                                                            





          Payments hereunder shall be made by wire transfer of immediately available Dollars as follows:




          If to Assignee, to the following account (or to such other account as Assignee may designate
from time to time):





                                                                 




                                                                 




     ABA No.                                         




                                                                 




     Account No.                                         




     Reference:                                         



          If to Assignor, to the following account (or to such other account as Assignor may designate
from time to time):





                                                                 




     ABA No.                                         




                                                                 




     Account No.                                         




     Reference:                                         



- 2 -









 





          IN WITNESS WHEREOF, this Assignment and Acceptance is executed as of                                         .




	 	 	 	 	 	 	 

	 	 	 	 	 
	 	 	(“Assignee”)	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	(“Assignor”)	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






- 3 -









 





Exhibit C

to

Loan, Guaranty and Security Agreement




ASSIGNMENT NOTICE



          Reference is made to (1) the Loan, Guaranty and Security Agreement dated as of February 9,
2011, as amended (“Loan Agreement”), among TRIDENT MICROSYSTEMS (HONG KONG) LIMITED
(“Borrower”), certain Affiliates of Borrower from time to time party thereto as Guarantors,
BANK OF AMERICA, N.A., as agent (“Agent”) for the financial institutions from time to time
party to the Loan Agreement (“Lenders”), and such Lenders; and (2) the Assignment and
Acceptance dated as of              
       , 20___ (“Assignment Agreement”), between
                  
                 
                 
         (“Assignor”) and    
                   
                 
  (“Assignee”). Terms are
used herein as defined in the Loan Agreement.




          Assignor hereby notifies Borrower and Agent of Assignor’s intent to assign to Assignee
pursuant to the Assignment Agreement (a) a principal amount of $                     of Assignor’s outstanding
Loans and $                     of Assignor’s participations in LC Obligations and (b) the amount of
$                     of Assignor’s Commitment (which represents                     _% of the total Commitments)(the
foregoing items being, collectively, the “Assigned Interest”), together with an interest in
the Loan Documents corresponding to the Assigned Interest. This Agreement shall be effective as of
the date (“Effective Date”) indicated below, provided this Assignment Notice is executed by
Assignor, Assignee, Agent and Borrower, if applicable. Pursuant to the Assignment Agreement,
Assignee has expressly assumed all of Assignor’s obligations under the Loan Agreement to the extent
of the Assigned Interest, as of the Effective Date.




          For purposes of the Loan Agreement, Agent shall deem Assignor’s Commitment to be reduced by
$                    , and Assignee’s Commitment to be increased by $                    .




          The address of Assignee to which notices and information are to be sent under the terms of the
Loan Agreement is:




                                                            




                                                            




                                                            




                                                            




     The address of Assignee to which payments are to be sent under the terms of the Loan Agreement
is shown in the Assignment and Acceptance.



          This Notice is being delivered to Borrower and Agent pursuant to Section 14.3 of the Loan
Agreement. Please acknowledge your acceptance of this Notice by executing and returning to
Assignee and Assignor a copy of this Notice.










4









 








          IN WITNESS WHEREOF, this Assignment Notice is executed as of                                         .




	 	 	 	 	 	 	 

	 	 	 	 	 
	 	 	(“Assignee”)	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	(“Assignor”)	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






ACKNOWLEDGED AND AGREED,

AS OF THE DATE SET FORTH ABOVE:



BORROWER:*




	 	 	 	 	 

	 	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 





 




* No signature required if Assignee is a Lender, U.S.-based Affiliate of a Lender or Approved Fund,
or if an Event of Default exists.




BANK OF AMERICA, N.A.,

as Agent





	 	 	 	 	 

	By

	 	 

Title:
	 	 






5









 





Exhibit D

to

Loan, Guaranty and Security Agreement




LONG-TERM INVESTMENT POLICY



See attached.




6











 





Trident Microsystems, Inc.

Investment Policy

Approved: April 21, 2010



I. Purpose



The purpose of this policy is to establish guidelines for the investment of the company’s cash.
These guidelines apply to the direct investment of company cash by the Treasury Department and to
any investment activities undertaken by external investment managers.



II. Definitions



“Liquidity” is defined as cash or equivalents that are readily available for corporate purposes
without incurring a loss of principal due to early redemption.



III. Objectives



The objectives of this policy in order of priority are:





	 	A.	 	Preservation of capital.
	 
	 	B.	 	Ensuring that sufficient liquidity is available to meet the company’s operating and
strategic requirements.
	 
	 	C.	 	Achieving appropriate yields on invested cash consistent with this policy and market
conditions.




IV. Maximum Maturity



The portfolio will be invested in short-term instruments that have maturities no longer than 24
months. However, the average maturity of the portfolio will be maintained at 6 months or
less.



V. Liquidity Needs



Outside managers will manage maturities and reinvestment to ensure that at least $1 million (or 1%
of the portfolio, whichever is greater) is available for withdrawal or transfer on a weekly basis.



VI. Types and Characteristics of Assets Approved for Investment





	 	A.	 	Securities and/or obligations issued by or guaranteed by the U.S. Government and U.S.
Federal Agencies.




 









 






	 	B.	 	Time Deposits, Certificates of Deposit and Bankers Acceptances including Eurodollar
denominated and Yankee issues. Investments must be rated by at least
two of the three following rating services: S&P, Moody’s, and/or Fitch, and carry a minimum
short-term rating of A1, P1, and/or F1, respectively.
	 
	 	C.	 	Corporate securities issued by foreign or domestic corporations which pay in U.S.
Dollars. Commercial Paper and Corporate Notes must be rated by at least two of the three
following rating services: S&P, Moody’s, and/or Fitch. Commercial Paper must carry a
minimum short-term rating of A1, P1, and/or F1. Corporate Notes must have a minimum
long-term rating of: A, A2, and/or A, respectively.
	 
	 	D.	 	Taxable or Tax-Exempt Municipal Obligations, including Pre-Refunded Municipals — All
municipal obligations must be rated by at least two of the three following rating
services: S&P, Moody’s, or Fitch and carry a minimum short-term rating of SP1or A1,
MIGI/VMIGI or P1, and/or F1, respectively, or a long-term rating of AA-, Aa3, and/or AA-,
respectively. There are no required minimum rating requirements for Pre-Refunded
Municipal Obligations 100% escrowed in US Treasuries or US Government Agencies.
	 
	 	E.	 	Certificates of Deposit (CDs) that are issued by FDIC-insured institutions, without
regard to the instrument’s credit rating, if any. Total assets invested in CDs issued by
any one FDIC-insured institution will not exceed the FDIC coverage limit.
	 
	 	 	 	** Trident will list for benefit of Manager the current banking relationships so not to
exceed FDIC limit of $250,000 per name.
	 
	 	F.	 	Money Market Funds must be qualified under SEC Rule 2a-7 and seek to maintain a Net
Asset Value of one U.S. dollar. Further, Money Market Funds must have assets under
management of at least $3 billion.




VII. Concentration Limits



Diversification of the portfolio will be a tool for minimizing risk while maintaining liquidity.
The following parameters will be adhered to in managing the portfolio:





	 	A.	 	U.S. Treasury Securities and Money Market Funds strictly invested in U.S. Treasuries:
No concentration limit.
	 
	 	B.	 	Obligations of U.S. Federal Agencies: No more than 10% from any one issuer.
	 
	 	C.	 	Money Market Funds (excluding U.S. Treasury Funds): No more than 30% in any single
fund.
	 
	 	D.	 	CDs Issued by FDIC-insured Institutions: No more than 10% with any one issuer, and
never to exceed the FDIC coverage limit at that institution.
	 
	 	E.	 	For all other approved investments, no more than 5% or $1 million, whichever is
greater, will be invested in any one issuer.




 









 










VIII. Responsibilities of The Manager





	 	A.	 	Adherence to Trident’s Investment Policy






	 	1.	 	The Manager is expected to respect and observe the specific
limitations, guidelines, attitudes, and philosophies stated herein or as expressed
in any written amendments or instructions.
	 
	 	2.	 	The Manager will sign-off on this policy, and in so doing is
affirming that it is capable of managing the portfolio in accordance with the
investment guidelines and limitations stated herein.






	 	B.	 	Discretionary Authority






	 	1.	 	The Manager will be responsible for making all investment decisions
on a discretionary basis regarding all assets placed under its jurisdiction. Such
“discretion” includes decisions to buy, hold and sell securities (including cash
equivalents) in amounts and proportions that are reflective of The Manager’s
current investment strategy and compatible with investment guidelines.






	 	C.	 	Communication






	 	1.	 	The Manager is expected to keep Trident Microsystems informed on an
ongoing basis of major changes in its investment outlook, investment strategy,
asset allocation, and other matters affecting its investment policies or
philosophy.
	 
	 	2.	 	The Manager is expected to communicate suggested changes to these
guidelines as appropriate to market conditions and to communicate its ongoing
investment views and recommendations with Trident.






	 	D.	 	Reporting






	 	1.	 	The Manager will provide detailed statements monthly, showing
positions as of a portfolio date, securities bought and sold since the last
report, and other parameters and metrics to allow Trident to test adherence to
this policy.






	 	E.	 	Compliance with Appropriate Legislation






	 	1.	 	The Manager is expected to be registered under the Investment
Advisory Act of 1940.
	 
	 	2.	 	The Manager is expected to provide a SAS 70 Type II document
annually.




 









 












	 	F.	 	Trading






	 	1.	 	The Manager is expected to seek best execution for all purchases and
sales in accordance with applicable law and regulation. All securities purchased
will be in the name of the account or the nominee name of the custodian bank.






	 	G.	 	Evaluation and Review






	 	1.	 	Evaluation criteria:






	 	i.	 	Consistency of approach — having a visible
philosophy and adhering to a stated investment strategy.
	 
	 	ii.	 	Adherence to risk tolerance and investment
guidelines.
	 
	 	iii.	 	Performance relative to the appropriate
benchmarks.






	 	2.	 	Meetings.






	 	i.	 	Quarterly discussions will be held to review
current portfolio structure, asset allocation policy, and investment
results in context of Trident’s goals and this Policy.






	 	3.	 	If any aspect of this Policy proves problematic or if investment
performance could be prudently improved through amendment of this policy, Manager
is expected to provide recommendations for amendment or alteration in writing.





Approved By:




Trident Microsystems




	 	 	 	 	 	 	 

	 

	 	Date:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Investment Manager
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Date: