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Exhibit 10.22  


 
 

CREDIT AGREEMENT    



Dated
as of September 21, 2007 


among



PROMETHEUS
LABORATORIES INC.,

as the Borrower, 


THE
DOMESTIC SUBSIDIARIES OF THE BORROWER

FROM TIME TO TIME PARTY HERETO,

as the Guarantors, 


BANK
OF AMERICA, N.A.,

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


COMERICA
BANK,

as Syndication Agent, 


US
BANK NA,

as Documentation Agent 


and



THE
OTHER LENDERS PARTY HERETO 


   

   

    


BANC
OF AMERICA SECURITIES LLC,

as Sole Lead Arranger and Book Manager 








TABLE OF CONTENTS 



	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	1
	        1.01	 	Defined Terms.	 	1
	        1.02	 	Other Interpretive Provisions.	 	23
	        1.03	 	Accounting Terms.	 	24
	        1.04	 	Rounding.	 	25
	        1.05	 	Times of Day.	 	25
	        1.06	 	Letter of Credit Amounts.	 	25
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS	 	25
	        2.01	 	Revolving Loans and Term Loan.	 	25
	        2.02	 	Borrowings, Conversions and Continuations of Loans.	 	25
	        2.03	 	Letters of Credit.	 	28
	        2.04	 	Swing Line Loans.	 	35
	        2.05	 	Prepayments.	 	37
	        2.06	 	Termination or Reduction of Commitments.	 	39
	        2.07	 	Repayment of Loans.	 	39
	        2.08	 	Interest.	 	40
	        2.09	 	Fees.	 	40
	        2.10	 	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.	 	41
	        2.11	 	Evidence of Debt.	 	41
	        2.12	 	Payments Generally; Administrative Agent's Clawback.	 	42
	        2.13	 	Sharing of Payments.	 	43
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY	 	44
	        3.01	 	Taxes.	 	44
	        3.02	 	Illegality.	 	46
	        3.03	 	Inability to Determine Rates.	 	46
	        3.04	 	Increased Cost and Reduced Return; Capital Adequacy.	 	47
	        3.05	 	Funding Losses.	 	48
	        3.06	 	Matters Applicable to all Requests for Compensation.	 	48
	        3.07	 	Survival.	 	49
	ARTICLE IV GUARANTY	 	49
	        4.01	 	The Guaranty.	 	49
	        4.02	 	Obligations Unconditional.	 	49
	        4.03	 	Reinstatement.	 	50
	        4.04	 	Certain Additional Waivers.	 	50
	        4.05	 	Remedies.	 	51
	        4.06	 	Rights of Contribution.	 	51
	        4.07	 	Guarantee of Payment; Continuing Guarantee.	 	51
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	51
	        5.01	 	Conditions of Closing.	 	51
	        5.02	 	Conditions to all Credit Extensions.	 	53
	ARTICLE VI REPRESENTATIONS AND WARRANTIES	 	54
	        6.01	 	Existence, Qualification and Power.	 	54
	        6.02	 	Authorization; No Contravention.	 	54
	        6.03	 	Governmental Authorization; Other Consents.	 	54
	        6.04	 	Binding Effect.	 	55
	        6.05	 	Financial Statements; No Material Adverse Effect.	 	55
	        6.06	 	Litigation.	 	56
	        6.07	 	No Default.	 	56
	        6.08	 	Ownership of Property; Liens.	 	56
	        6.09	 	Environmental Compliance.	 	56
	        6.10	 	Insurance.	 	57
	 	 	 	 	 








 

	        6.11	 	Taxes.	 	57
	        6.12	 	ERISA Compliance.	 	57
	        6.13	 	Subsidiaries.	 	58
	        6.14	 	Margin Regulations; Investment Company Act.	 	58
	        6.15	 	Disclosure.	 	58
	        6.16	 	Compliance with Laws and Material Contractual Obligations.	 	58
	        6.17	 	Intellectual Property; Licenses, Etc.	 	58
	        6.18	 	Solvency.	 	59
	        6.19	 	Perfection of Security Interests in the Collateral.	 	59
	        6.20	 	Business Locations.	 	59
	        6.21	 	Labor Matters.	 	59
	ARTICLE VII AFFIRMATIVE COVENANTS	 	59
	        7.01	 	Financial Statements.	 	60
	        7.02	 	Certificates; Other Information.	 	60
	        7.03	 	Notices.	 	62
	        7.04	 	Payment of Obligations.	 	63
	        7.05	 	Preservation of Existence, Etc.	 	63
	        7.06	 	Maintenance of Properties.	 	63
	        7.07	 	Maintenance of Insurance.	 	63
	        7.08	 	Compliance with Laws.	 	63
	        7.09	 	Books and Records.	 	64
	        7.10	 	Inspection Rights.	 	64
	        7.11	 	Use of Proceeds.	 	64
	        7.12	 	Additional Subsidiaries.	 	64
	        7.13	 	ERISA Compliance.	 	65
	        7.14	 	Pledged Assets.	 	65
	        7.15	 	Landlord Consents.	 	66
	ARTICLE VIII NEGATIVE COVENANTS	 	66
	        8.01	 	Liens.	 	66
	        8.02	 	Investments.	 	68
	        8.03	 	Indebtedness.	 	68
	        8.04	 	Fundamental Changes.	 	69
	        8.05	 	Dispositions.	 	70
	        8.06	 	Restricted Payments.	 	70
	        8.07	 	Change in Nature of Business.	 	71
	        8.08	 	Transactions with Affiliates and Insiders.	 	71
	        8.09	 	Burdensome Agreements.	 	71
	        8.10	 	Use of Proceeds.	 	72
	        8.11	 	Financial Covenants.	 	72
	        8.13	 	Prepayment of Other Indebtedness, Etc.	 	73
	        8.14	 	Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity.	 	73
	        8.15	 	Ownership of Subsidiaries.	 	73
	        8.16	 	Sale Leasebacks.	 	73
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES	 	73
	        9.01	 	Events of Default.	 	73
	        9.02	 	Remedies Upon Event of Default.	 	75
	        9.03	 	Application of Funds.	 	76
	ARTICLE X ADMINISTRATIVE AGENT	 	77
	        10.01	 	Appointment and Authority.	 	77
	        10.02	 	Rights as a Lender.	 	77
	 	 	 	 	 



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	        10.03	 	Exculpatory Provisions.	 	77
	        10.04	 	Reliance by Administrative Agent.	 	78
	        10.05	 	Delegation of Duties.	 	78
	        10.06	 	Resignation of the Administrative Agent.	 	78
	        10.07	 	Non-Reliance on Administrative Agent and Other Lenders.	 	79
	        10.08	 	No Other Duties; Etc.	 	80
	        10.09	 	Administrative Agent May File Proof of Claims.	 	80
	        10.10	 	Collateral and Guaranty Matters.	 	80
	ARTICLE XI MISCELLANEOUS	 	81
	        11.01	 	Amendments, Etc.	 	81
	        11.02	 	Notices and Other Communications; Facsimile Copies.	 	83
	        11.03	 	No Waiver; Cumulative Remedies.	 	84
	        11.04	 	Expenses; Indemnity; Damage Waiver.	 	85
	        11.05	 	Payments Set Aside.	 	86
	        11.06	 	Successors and Assigns.	 	86
	        11.07	 	Confidentiality.	 	90
	        11.08	 	Set-off.	 	91
	        11.09	 	Interest Rate Limitation.	 	91
	        11.10	 	Counterparts.	 	91
	        11.11	 	Integration.	 	91
	        11.12	 	Survival of Representations and Warranties.	 	91
	        11.13	 	Severability.	 	92
	        11.14	 	Replacement of Lenders.	 	92
	        11.15	 	Governing Law; Jurisdiction, Etc.	 	93
	        11.16	 	California Judicial Reference.	 	93
	        11.17	 	Waiver of Right to Trial by Jury.	 	94
	        11.18	 	USA PATRIOT Act Notice.	 	94
	        11.19	 	No Advisory or Fiduciary Relationship	 	94






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	SCHEDULES	 	 
	

        2.01	
 	

Commitments and Pro Rata Shares	
 	

 
	        6.06	 	Litigation	 	 
	        6.10	 	Insurance	 	 
	        6.13	 	Subsidiaries	 	 
	        6.17	 	IP Rights	 	 
	        6.20(a)	 	Locations of Tangible Personal Property	 	 
	        6.20(b)	 	Location of Chief Executive Office, Etc.	 	 
	        8.01	 	Existing Liens	 	 
	        8.02(b)	 	Existing Investments	 	 
	        8.02(c)	 	Borrower Investment Policy	 	 
	        8.03	 	Existing Indebtedness	 	 
	        11.02	 	Certain Addresses for Notices	 	 
	

EXHIBITS	
 	

 
	

        A	
 	

Form of Loan Notice	
 	

 
	        B	 	Form of Swing Line Loan Notice	 	 
	        C-1	 	Form of Revolving Note	 	 
	        C-2	 	Form of Swing Line Note	 	 
	        C-3	 	Form of Term Note	 	 
	        D	 	Form of Compliance Certificate	 	 
	        E	 	Form of Assignment and Assumption	 	 
	        F	 	Form of Joinder Agreement	 	 




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CREDIT AGREEMENT  


        This CREDIT AGREEMENT is entered into as of September 21, 2007 among PROMETHEUS LABORATORIES INC., a California corporation (the
"Borrower"), the Guarantors (defined herein), each Lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender") and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer. 


        The
Borrower has requested that the Lenders provide certain credit facilities for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set
forth herein. 


        In
consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: 


ARTICLE I  


 DEFINITIONS AND ACCOUNTING TERMS  


1.01    Defined Terms.    


        As
used in this Agreement, the following terms shall have the meanings set forth below: 


        "1996 License Agreement" means that certain Exclusive License Agreement, dated as of August 14, 1996, by and among Cedars-Sinai
Medical Center, the Regents of the University of California acting through its campus at Los Angeles, and the Borrower. 



        "Acquisition", by any Person, means the acquisition by such Person on or after the Closing Date, in a single transaction or in a series of
related transactions, of (a) all or any substantial portion of the Property of another Person or at least a majority of the Voting Stock of another Person, in each case whether or not involving
a merger or consolidation with such other Person and whether for cash,
Property, services, assumption of Indebtedness, securities or otherwise and (b) any patents, patent rights, licenses or other intellectual property rights of any Person or agreements or
contracts related thereto outside the ordinary course of business. 


        "Additional Term Loan" has the meaning provided in Section 2.02(f). 


        "Administrative Agent" means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor
administrative agent. 


        "Administrative Agent's Office" means the Administrative Agent's address and, as appropriate, account as set forth on  Schedule 11.02 or such other address or
account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
 


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


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


        "Aggregate Revolving Commitments" means the Revolving Commitments of all the Lenders. The initial amount of the Aggregate Revolving
Commitments in effect on the Closing Date is TWENTY-FIVE MILLION DOLLARS ($25,000,000). 


        "Agreement" means this Credit Agreement, as amended, modified, supplemented or extended from time to time. 







 



        "Applicable Rate" means the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(b): 



	Pricing Tier
 
	 	Consolidated Leverage Ratio
	 	Eurodollar Rate Loans
	 	Letter of Credit Fee
	 	Base Rate Loans
	 	Commitment Fee

	1	 	3 2.0:1.0	 	2.00%	 	2.00%	 	1.00%	 	0.50%
	2	 	< 2.0:1.0 but 3 1.5:1.0	 	1.75%	 	1.75%	 	0.75%	 	0.375%
	3	 	< 1.5:1.0 but 3 1.0:1.0	 	1.50%	 	1.50%	 	0.50%	 	0.25%
	4	 	< 1.0:1.0	 	1.25%	 	1.25%	 	0.25%	 	0.20%





        Any
increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the
date a Compliance Certificate is required to be delivered pursuant to Section 7.02(b); provided,  however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then upon request
of the Required Lenders, Pricing Tier 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall continue to apply
until the first Business Day immediately following the date a Compliance Certificate is delivered in accordance with Section 7.02(b), whereupon
the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Leverage Ratio contained in such Compliance Certificate. Subject to the following proviso, the Applicable Rate in
effect from the Closing Date through the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to  Section 7.02(b) for the fiscal quarter
ending March 31, 2008 shall be determined based upon Pricing Tier 3;  provided, however, in the event that any Compliance Certificate delivered by the
Borrower for any fiscal
quarter ending prior to March 31, 2008 or any Pro Forma Compliance Certificate delivered by the Borrower prior to such date demonstrates that the Consolidated Leverage Ratio as of the end of
the applicable fiscal quarter referenced in such certificate is (a) equal to or greater than 1.5 to 1.0 but less than 2.0 to 1.0 or (b) equal to or greater than 2.0 to 1.0, then,
effective as of the first Business Day immediately following the date of the delivery of such certificate, the Applicable Rate shall thereafter be determined based upon Pricing Tier 2 or Pricing Tier
1, respectively, in each case until such time as the Applicable Rate is subsequently eligible for adjustment in accordance with the first sentence of this paragraph. Notwithstanding anything to the
contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of  Section 2.10(b). 


        "Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or
(c) an entity or an Affiliate of an entity that administers or manages a Lender. 


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


        "Assignment and Assumption" means an Assignment and Assumption substantially in the form of  Exhibit E. 


        "Attorney Costs" means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel. 


        "Attributable Indebtedness" means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof
that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the capitalized amount of the remaining lease
payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease,
(c) in respect of any Securitization Transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate
adjustments, determined by the Administrative Agent in its reasonable judgment and (d) in the case of 


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any
Sale and Leaseback Transaction, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during
the term of such lease). 


        "Audited Financial Statements" means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended
December 31, 2006, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the
notes thereto. 


        "Availability Period" means, with respect to the Revolving Commitments, the period from and including the Closing Date to the earliest of
(a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and
(c) the date of termination of the commitment of each Lender to make Revolving Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to  Section 9.02. 


        "Bank of America" means Bank of America, N.A. and its successors. 


        "BAS" means Banc of America Securities LLC, in its capacity as sole lead arranger and sole book manager. 


        "Base Rate" means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus
1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its "prime rate." The "prime rate" is a rate set by
Bank of America based upon various factors including Bank of America's 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 announced 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. 


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


        "Borrower" has the meaning specified in the introductory paragraph hereto. 


        "Borrower Materials" has the meaning specified in Section 7.02. 



        "Borrowing" means a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same
Interest Period made by each of the Lenders pursuant to Section 2.01. 


        "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws
of, or are in fact closed in, the state where the Administrative Agent's Office is located and, if such day relates to any Eurodollar Rate Loan, means any day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market. 



        "Businesses" means, at any time, a collective reference to the businesses operated by the Borrower and its Subsidiaries at such time. 


        "Capital Lease" means, as applied to any Person, any lease of any Property by that Person as lessee which, in accordance with GAAP, is
required to be accounted for as a capital lease on the balance sheet of that Person. 


        "Cash Collateralize" has the meaning specified in Section 2.03(g). 



        "Cash Equivalents" means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or
any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of
acquisition, (b) Dollar denominated time deposits and certificates of deposit 


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of
(i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody's is at least P-1 or the equivalent thereof (any such bank being an "Approved Bank"),
in each case with maturities of not more than 270 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody's and maturing within six months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including
any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person
shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase
obligations and (e) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which
are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing
subdivisions (a) through (d). 


        "Change in Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect
of any Law, (b) any change in any Law 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" means an event or series of events by which: 



        (a)   any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, but excluding any employee benefit plan
of such person or its subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, an "option right"), whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of thirty-five percent (35%) or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing
body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or 


        (b)   during
any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease
to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors). 



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        "Closing Date" means the date hereof. 


        "Collateral" means a collective reference to all real and personal Property with respect to which Liens in favor of the Administrative
Agent are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents. 


        "Collateral Documents" means a collective reference to the Security Agreement, the Pledge Agreement, the Mortgages and other security
documents as may be executed and delivered by the Loan Parties pursuant to the terms of Section 7.14. 


        "Commitment" means, as to each Lender, the Revolving Commitment of such Lender and/or the Term Loan Commitment of such Lender. 



        "Compliance Certificate" means a certificate substantially in the form of  Exhibit D. 


        "Consolidated Capital Expenditures" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, all expenditures
in respect of the purchase of any fixed or capital assets which are required to be capitalized in accordance with GAAP. 


        "Consolidated Cash Taxes" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the aggregate of all
income Taxes, as determined in accordance with GAAP, to the extent the same are paid in cash during such period. 


        "Consolidated EBITDA" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Expense for such period, (ii) the provision for federal, state, local and foreign income Taxes payable by the Borrower and its Subsidiaries for such period,
(iii) the amount of depreciation and amortization expense for such period and (iv) all non-cash, non-recurring charges incurred during such period (including,
without limitation, any non-cash stock-based compensation charges and option-based severance expenses); provided that (A) such
charges were not a cash item in the twelve (12) month period prior to such incurrence and (B) any non-cash impairment charges related to the write-off of
intangible assets shall not exceed (1) $6,000,000 in the aggregate for any four fiscal quarter period and (2) $20,000,000 in the aggregate during the term of this Agreement  minus (b) to
the extent included in calculating such Consolidated Net Income, (i) federal, state, local and foreign income tax credits of
the Borrower and its Subsidiaries for such period and (ii) interest income of the Borrower and its Subsidiaries on a consolidated basis for such period, all as determined in accordance with
GAAP. Notwithstanding the foregoing, for purposes of calculating Consolidated EBITDA for any period, the amount of Consolidated EBITDA attributable to Non-Guarantor Subsidiaries for such
period shall not exceed fifteen percent (15%) of total Consolidated EBITDA for such period. 


        "Consolidated Fixed Charge Coverage Ratio" means, as of any date of determination, the ratio of (a) the sum of
(i) Consolidated EBITDA for the period of the four (4) prior fiscal quarters ending on such date minus (ii) Consolidated Cash Taxes
for such period to (b) the sum of (i) cash Consolidated Interest Expense for the period of the four (4) prior fiscal quarters ending on such date,  plus (ii) Consolidated Scheduled
Funded Debt Payments for the period of the four (4) fiscal quarters immediately succeeding such date.
Notwithstanding the foregoing, (x) for purposes of calculating the Consolidated Fixed Charge Coverage Ratio as of the fiscal quarter period ending December 31, 2007, cash Consolidated
Interest Expense for the four (4) fiscal quarter period ending on such date shall be deemed to be cash Consolidated Interest Expense for the fiscal quarter period ending on such date multiplied
by four, (y) for purposes of calculating the Consolidated Fixed Charge Coverage Ratio as of the fiscal quarter period ending March 31, 2008, cash Consolidated Interest Expense for the
four (4) fiscal quarter period ending on such date shall be deemed to be cash Consolidated Interest Expense for the two (2) fiscal quarter period ending on such date multiplied by two
and (z) for purposes of calculating the Consolidated Fixed Charge Coverage Ratio as of the fiscal quarter ending June 30, 


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2008,
cash Consolidated Interest Expense for the four (4) fiscal quarter period ending on such date shall be deemed to be cash Consolidated Interest Expense for the three (3) fiscal
quarter period ending on such date multiplied by one and one third. 



        "Consolidated Funded Indebtedness" means the Funded Indebtedness of the Borrower and its Subsidiaries on a consolidated basis determined
in accordance with GAAP. For the purposes of
clarification, Consolidated Funded Indebtedness shall not include any obligations of the Borrower to purchase the Warrants or the Warrant Shares pursuant to the Securities Purchase Agreement. 


        "Consolidated Interest Expense" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to
the sum of all interest, premium payments, debt discount, fees, charges and related expenses of the Borrower and its Subsidiaries in connection with borrowed money (including (a) payments
consisting of interest in respect of any Capital Lease or any Synthetic Lease or in connection with the deferred purchase price of assets and (b) any interest expense related to the mark to
market of the Warrants or the Warrant Shares), in each case to the extent treated as interest in accordance with GAAP. 


        "Consolidated Leverage Ratio" means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such
date to (b) Consolidated EBITDA for the period of the four (4) fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to  Section 7.01(a) or
(b). 



        "Consolidated Net Income" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the net income or loss of
the Borrower and its Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period. 


        "Consolidated Scheduled Funded Debt Payments" means for any period for the Borrower and its Subsidiaries on a consolidated basis, the sum
of all scheduled payments of principal on Consolidated Funded Indebtedness, as determined in accordance with GAAP; provided, however, for purposes of calculating the Consolidated Fixed Charge Coverage
Ratio, the installment payments due after December 31, 2011 shall be deemed to be equal to the installment payment for the quarter ended December 31, 2011. For purposes of this
definition, "scheduled payments of principal" (a) shall be determined without giving effect to any reduction of such scheduled payments resulting from the application of any voluntary or
mandatory prepayments made during the applicable period, (b) shall be deemed to include the Attributable Indebtedness in respect of Capital Leases, Synthetic Leases and Sale and Leaseback
Transactions and (c) shall not include any voluntary prepayments or mandatory prepayments required pursuant to Section 2.05. 



        "Consolidated Total Assets" means, as of any date of determination, all assets of the Borrower and its Subsidiaries as determined
according to the consolidated balance sheet contained in the most recent financial statements delivered pursuant to Section 7.01(a) or  (b).



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



        "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another
Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors, managing general partners or the
equivalent. 


        "Credit Extension" means each of the following: (a) a Borrowing and (b) an L/C Credit Extension. 


6







 



        "Debt Issuance" means the issuance by the Borrower or any Subsidiary of any Indebtedness other than Indebtedness permitted under  Section 8.03. 



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


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


        "Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) two percent (2%) per annum;  provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus two percent (2%) per annum, in each case to the fullest extent permitted by applicable Laws. 



        "Defaulting Lender" means any Lender who (a) has failed to fund any portion of the Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a proceeding under the Debtor Relief Laws. 



        "Disposition" or "Dispose" means the sale, transfer, license, lease or other disposition
(including any Sale and Leaseback Transaction) of any Property by the Borrower or any Subsidiary (including the Equity Interests of any Subsidiary), including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding (i) the sale, lease, license, transfer or other disposition
of inventory in the ordinary course of business of the Borrower and its Subsidiaries, (ii) the sale, lease, license, transfer or other disposition of machinery and equipment no longer used or
useful in the conduct of business of the Borrower and its Subsidiaries, (iii) any sale, lease, license, transfer or other disposition of Property by the Borrower or any Subsidiary to any Loan
Party, provided that the Loan Parties shall cause to be executed and delivered such documents, instruments and certificates as the Administrative Agent
may request so as to cause the Loan Parties to be in compliance with the terms of Section 7.14 after giving effect to such transaction,
(iv) any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any Property of the Borrower or any of its Subsidiaries (or any settlement in lieu
thereof), (v) any Permitted Investment, (vi) any sale, lease, license, transfer or other disposition of Property by any Foreign Subsidiary to another Foreign Subsidiary, (vii) any
sale or other disposition by the Borrower or any Subsidiary of accounts receivable related to diagnostic receivables that are more than one hundred twenty (120) days past due in the ordinary
course of business, (viii) any Equity Issuance and any transaction described in clauses (a) through (g) of the definition of Equity Issuance set forth herein, (ix) any
sale, transfer, license, lease or other disposition of any Property permitted by Section 8.04 or  Section 8.06, (x) any termination of a
lease or sublease with respect to real property or any other termination of any interest in leased
real property, (xi) any sale, transfer or other disposition of cash and Cash Equivalents pursuant to transactions permitted hereunder (xii) any termination of any contract, license or
other agreement, (xiii) the incurrence of any Permitted Lien, (xiv) with respect to any Property that is the subject of and used, developed or created by the Borrower in connection with
the Entocort® EC Distribution Agreement or 1996 License Agreement, respectively, any sale, lease, license, transfer or other disposition of such Property pursuant to the
Entocort® EC Distribution Agreement or 1996 License Agreement, respectively, and (xv) any licensing of IP Rights by a Loan Party to another Person,  provided that (A) any such licensing is
on an arms-length basis on 


7







 



commercially
reasonable terms and (B) the Borrower shall deliver prior written notice to the Administrative Agent of any such transaction that provides annual revenue to the Borrower and/or any
of its Subsidiaries in excess of $500,000 per year. 


        "Dollar" and "$" mean lawful money of the United States. 


        "Domestic Subsidiary" means any Subsidiary that is organized under the Laws of any political subdivision of the United States. 



        "Earn Out Obligations" means, with respect to an Acquisition, all obligations of the Borrower or any Subsidiary to make earn out or other
contingency payments pursuant to the documentation relating to such Acquisition (excluding (a) any such obligations or contingency payments required to be paid with common stock or
nonredeemable preferred stock (or warrants to purchase such securities) of the Borrower and (b) any Milestone Payments). For the avoidance of doubt, Earn Out Obligations shall not
include any contractual royalty payments. The amount of any Earn Out Obligation shall be deemed to be the aggregate liability in respect thereof as recognized on the consolidated balance sheet of the
Borrower and its Subsidiaries in accordance with GAAP. 


        "Eligible Assets" means Property that is used or useful in the same or similar lines of businesses as the Borrower and its Subsidiaries
were engaged in on the Closing Date (or any reasonable extensions or expansions thereof). 


        "Eligible Assignee" means any Person that meets the requirements to be an assignee under  Section 11.06(b)(iii), (v)
and (vi) (subject to
such consents, if any, as may be required under Section 11.06(b)(iii)). 



        "Entocort® EC Distribution Agreement" means that certain Distribution Agreement dated as of November 19, 2004 by and
between AstraZeneca LP, a Delaware limited partnership, and the Borrower. 


        "Environmental Laws" means any and all federal, state, local, foreign and other applicable Laws, decrees, concessions, grants, franchises,
agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to Hazardous
Materials, air emissions and discharges to waste or public systems. 


        "Environmental Liability" means any liability, contingent or otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the foregoing. 


        "Equity Interests" means, with respect to any Person, all of the shares of equity interests of (or other ownership or profit interests in)
such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of equity interests of (or other ownership or profit interests in) such Person, all
of the securities convertible into or exchangeable for shares of equity interests of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein),
whether voting or nonvoting. 


        "Equity Issuance" means any issuance by any Loan Party or any Subsidiary to any Person of its Equity Interests, other than (a) any
issuance of its Equity Interests to the Borrower or any other Loan Party, (b) any issuance of its Equity Interests pursuant to the exercise of options or warrants, (c) any 


8







 



issuance
of its Equity Interests pursuant to the conversion of any debt securities to equity or the conversion of any class of equity securities to any other class of equity securities, (d) any
issuance of options, rights or warrants relating to its Equity Interests, (e) any issuance of its Equity Interests in connection with a Public Offering, (f) any issuance by the Borrower
of its Equity Interests pursuant to the Product Acquisition Documents and (g) any issuance by a Loan Party of its Equity Interests to an existing shareholder of such Loan Party. The term
"Equity Issuance" shall not be deemed to include any Disposition. 


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


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


        "ERISA Event" means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) 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 (f) 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 the Borrower or any ERISA Affiliate. 


        "Eurodollar Liabilities" has the meaning specified in Section 3.04(c). 



        "Eurodollar Rate" means, for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available
at such time for any reason, then the "Eurodollar Rate" for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America's London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the commencement of such Interest Period. 


        "Eurodollar Rate Loan" means a Loan that bears interest at a rate based on the Eurodollar Rate. 


        "Event of Default" has the meaning specified in Section 9.01. 



        "Excluded Property" means, with respect to any Loan Party, (a) any owned or leased real or personal Property which is located
outside of the United States unless otherwise requested by the Administrative Agent or the Required Lenders, (b) any personal Property (including, without limitation, motor vehicles) in respect
of which perfection of a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in either the United States
Copyright Office or the United States Patent and Trademark Office, unless otherwise 


9







 



requested
by the Administrative Agent or the Lenders, (c) any Property which, subject to the terms of Section 8.09, is subject to a Lien
of the type described in Section 8.01(i) pursuant to documents which prohibit such Loan Party from granting any other Liens in such Property,
(d) the Entocort® EC Distribution Agreement, (e) any Equity Interests of Proprius, Inc. acquired by the Borrower pursuant to the Proprius License Agreement,
(f) any Property released from the Lien of the Administrative Agent pursuant to and in accordance with the Loan Documents, (g) any Property to the extent that and for as long as (but
only for so long as) the assignment thereof or the creation of a security interest therein (i) would constitute a breach or default under, result in a termination of or require any consent not
obtained under, (A) if the applicable Property is a contract or other agreement, such contract or other agreement, or (B) in the case of any Property, any lease, permit, license or
agreement related to such Property (in each case as such lease, permit, license or agreement is in effect on the date of this Agreement or the date on which such lease, permit, license or agreement is
first entered into by or issued to the applicable Loan Party) (ii) is prohibited by any Law, or (iii) requires a filing with or consent from any Governmental Authority that has not been
made or obtained, except to the extent that such Law or provisions of any such lease, license or agreement is ineffective under applicable Law or would be ineffective under Sections 9-406,
9-407, 9-408 or 9-409 of the Uniform Commercial Code in the State of New York to prevent the attachment of such security interest, (h) any leased or
subleased office space of any Loan Party and (i) any automobile lease of any Loan Party. 


        "Excluded Taxes" means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (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, (b) any branch profits Taxes imposed by the United States or any similar Taxes imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under  Section 11.14), any withholding
Tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party
hereto (or designates a new Lending Office) or is attributable to such Foreign Lender's failure or inability (other than as a result of a Change in Law) to comply with  Section 3.01(e), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new
Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01(a). 


        "Existing Preferred Stock" means any of the outstanding Series A, B, C, D or E preferred stock of the Borrower (or warrants for
such preferred stock) issued pursuant to the Amended and Restated Articles of Incorporation of the Borrower as in effect on the Closing Date. 


        "Existing Credit Agreement" means that certain Credit Agreement dated as of August 19, 2005 among the Borrower, the lenders party
thereto and Bank of America, as agent, as amended or modified from time to time. 



        "Extraordinary Receipt" means any cash received by or paid to or for the account of the Borrower or any Subsidiary from pension plan
reversions, proceeds of insurance (including, without limitation, any key man life insurance but excluding proceeds of business interruption insurance) and any loss of, damage to or destruction of, or
any condemnation or other taking for public use of, any Property of the Borrower or any of its Subsidiaries (and payments in lieu thereof); provided,  however, that for the purposes of this Agreement and the other Loan Documents, the following shall not be deemed to be an Extraordinary Receipt
(a) any termination payment received by the Borrower pursuant to the Entocort® EC Distribution Agreement or (b) cash receipts by any Loan Party in the ordinary course of
business. 


10







 



        "Facilities" means, at any time, a collective reference to the facilities and real properties owned, leased or operated by the Borrower or
any Subsidiary. 


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


        "Fee Letter" means the letter agreement, dated August 17, 2007 among the Borrower, the Administrative Agent and BAS. 


        "First-Tier Foreign Subsidiary" means each Foreign Subsidiary that is owned directly by the Borrower or a Guarantor. 


        "Foreign Lender" means any Lender that is organized under the Laws of a jurisdiction other than that in which the Borrower is resident for
Tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. 


        "Foreign Subsidiary" means any Subsidiary that is not a Domestic Subsidiary. 


        "FRB" means the Board of Governors of the Federal Reserve System of the United States. 


        "Fully Satisfied" means, with respect to the Obligations as of any date, that, as of such date, (a) all principal of and interest
accrued to such date which constitute Obligations shall have been irrevocably paid in full in cash, (b) all fees, expenses and other amounts then due and payable which constitute Obligations
shall have been irrevocably paid in cash, (c) all outstanding Letters of Credit shall have been (i) terminated, (ii) fully irrevocably Cash Collateralized or (iii) secured
by one or more letters of credit on terms and conditions, and with one or more financial institutions, reasonably satisfactory to the L/C Issuer and (d) the Commitments shall have expired or
been terminated in full. 


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



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



        (a)   all
obligations for borrowed money, whether current or long-term (including the Obligations) and all obligations of such Person evidenced by bonds,
debentures, notes, loan agreements or other similar instruments; 


        (b)   all
purchase money indebtedness; 


        (c)   all
direct obligations arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments; 


        (d)   all
obligations in respect of the deferred purchase price of Property or services, including without limitation, any Earn Out Obligations; 


        (e)   all
Attributable Indebtedness; 



11









  



        (f)    all
obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests (excluding the Warrants and Warrant
Shares) in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; 


        (g)   all
Guarantees with respect to Funded Indebtedness of the types specified in clauses (a) through (f) above of another Person; and 


        (h)   all
Funded Indebtedness of the types referred to in clauses (a) through (g) above of any partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which such Person is a general partner or joint venturer, except to the extent that Funded Indebtedness is expressly made non-recourse
to such Person. 




For
purposes hereof, (x) the amount of any direct obligation arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar
instruments shall be the maximum amount available to be drawn thereunder and (y) the amount of any Guarantee shall be the amount of the indebtedness subject to such Guarantee. In addition, for
the avoidance of doubt, the term "Funded Indebtedness" shall not include (i) obligations of a Person under purchase agreements pertaining to potential Acquisitions of such Person prior to
consummation of any such Acquisition, (ii) accrued Taxes, accrued compensation or other accruals of any Person incurred in the ordinary course of business, (iii) trade accounts payable
of any Person incurred in the ordinary course of business, (iv) obligations with respect to the Warrants or Warrant Shares, (v) any such obligations or contingency payments of the type
referred to in clause (d) above required to be paid with common stock or nonredeemable preferred stock (or warrants to purchase such securities), (vi) any Milestone Payments or
(vii) any contractual royalty payments). 


        "GAAP" means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied. 


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


        "Guarantee" means, as to any Person, without duplication (a) any obligation, contingent or otherwise, of such Person guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation,
(ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee on any given date
shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in 


12







 



respect
thereof as determined by the guaranteeing Person in good faith. The term "Guarantee" as a verb has a corresponding meaning. 


        "Guaranty" means the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders pursuant to  Article IV. 



        "Guarantors" means each Domestic Subsidiary of the Borrower identified as a "Guarantor" on the signature pages hereto and each other
Person that joins as a Guarantor pursuant to Section 7.12, together with their successors and permitted assigns. 


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


        "Honor Date" has the meaning specified in Section 2.03(c). 


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



        (a)   all
Funded Indebtedness; 


        (b)   net
obligations under any Swap Contract; 


        (c)   all
Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (b) above of any other Person; and 


        (d)   all
Indebtedness of the types referred to in clauses (a) through (c) above of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the
Borrower or such Subsidiary. 




For
purposes hereof (y) the amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date and (z) the amount
of any Guarantee shall be the amount of the Indebtedness subject to such Guarantee. 


        "Indemnified Taxes" means Taxes other than Excluded Taxes. 


        "Indemnitees" has the meaning specified in Section 11.04(b). 



        "Interest Payment Date" means (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to
such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate
Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as
to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date. 



        "Interest Period" means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or
converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Loan Notice;  provided that: 



          (i)  any
Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding Business Day; 



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



13







 




Interest
Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and 


        (iii)  no
Interest Period shall extend beyond the Maturity Date. 




        "Interim Financial Statements" has the meaning specified in Section 5.01(c). 


        "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended. 


        "Investment" means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the
purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) an Acquisition. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment. 


        "IP Rights" has the meaning specified in Section 6.17. 


        "IRS" means the United States Internal Revenue Service. 



        "ISP" means, with respect to any Letter of Credit, the "International Standby Practices 1998" published by the Institute of International
Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance). 


        "Issuer Documents" means with respect to any Letter of Credit, the Letter Credit Application, and any other document, agreement and
instrument entered into by the L/C Issuer and the Borrower or in favor of the L/C Issuer and relating to any such Letter of Credit. 


        "Joinder Agreement" means a joinder agreement substantially in the form of  Exhibit F executed and delivered by a Domestic Subsidiary in accordance with the
provisions of  Section 7.12. 


        "Laws" means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law. 


        "L/C Advance" means, with respect to each Lender, such Lender's funding of its participation in any L/C Borrowing in accordance with its
Pro Rata Share. 


        "L/C Borrowing" means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date
when made or refinanced as a Borrowing of Revolving Loans. 


        "L/C Credit Extension" means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the
renewal or increase of the amount thereof. 


        "L/C Issuer" means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder. 


        "L/C Obligations" means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit  plus the aggregate of all Unreimbursed
Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if
on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such 


14







 



Letter
of Credit shall be deemed to be "outstanding" in the amount so remaining available to be drawn. 


        "Lenders" means (a) each of the Persons identified as a "Lender" on the signature pages hereto and their successors and assigns
and, as the context requires, includes the L/C Issuer and the Swing Line Lender, and (b) each of the Persons who becomes a Lender hereunder pursuant to  Section 2.02(f) and their successors and
assigns. 


        "Lending Office" means, as to any Lender, the office or offices of such Lender described as such in such Lender's Administrative
Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent. 


        "Letter of Credit" means any standby letter of credit issued hereunder. 


        "Letter of Credit Application" means an application and agreement for the issuance or amendment of a letter of credit in the form from
time to time in use by the L/C Issuer. 


        "Letter of Credit Expiration Date" means the day that is thirty (30) days prior to the Maturity Date then in effect (or, if such
day is not a Business Day, the next preceding Business Day). 


        "Letter of Credit Sublimit" means an amount equal to the lesser of (a) the Aggregate Revolving Commitments and
(b) $10,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments. 


        "Lien" means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease
having substantially the same economic effect as any of the foregoing). 



        "Loan" means an extension of credit by a Lender to the Borrower under Article II in
the form of a Revolving Loan, Swing Line Loan or Term Loan. 


        "Loan Documents" means this Agreement, each Note, each Letter of Credit, each Issuer Document, each Joinder Agreement, the Collateral
Documents, each Request for Credit Extension, each Compliance Certificate, the Fee Letter and each other document, instrument or agreement from time to time executed by the Borrower or any of its
Subsidiaries or any Responsible Officer thereof and delivered in connection with this Agreement. 



        "Loan Notice" means a notice of (a) a Borrowing of Revolving Loans or any portion of the Term Loan, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall
be substantially in the form of Exhibit A. 


        "Loan Parties" means, collectively, the Borrower and each Guarantor. 


        "Material Adverse Effect" means (a) a material adverse change in, or a material adverse effect upon, the business, assets,
properties, liabilities (actual or contingent), condition (financial or otherwise), operations or prospects of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of
the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a party; provided that in no event shall the repurchase by the Borrower of the
Warrants and/or Warrant Shares pursuant to the terms of Sections 8.08 and/or 8.09 of the Securities Purchase Agreement be considered to be, or result in, a Material Adverse Effect. 



        "Maturity Date" means September 21, 2012; provided that if such date is not a
Business Day, the Maturity Date shall be the next preceding Business Day. 


15







 



        "Mayo Litigation" means the patent litigation between the Borrower and Mayo Collaborative Services as described on Schedule 6.06. 



        "Milestone Payments" means, with respect to the Product Acquisition, all obligations of the Borrower or any Subsidiary to make earn out or
other contingency payments to the Product Seller pursuant to the Product Acquisition Agreement. 


        "Moody's" means Moody's Investors Service, Inc. and any successor thereto. 


        "Mortgages" means the mortgages, deeds of trust or deeds to secure debt that purport to grant to the Administrative Agent a security
interest in the fee interest and/or leasehold interests of any Loan Party in each real Property (other than Excluded Property) acquired or leased by a Loan Party, as the same may be amended, modified,
restated or supplemented from time to time. 


        "Multiemployer Plan" means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or
any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions. 


        "Net Cash Proceeds" means: 



        (a)   with
respect to any Disposition by any Loan Party or any of its Subsidiaries, any Extraordinary Receipt received or paid to the account of any Loan Party or any of its
Subsidiaries or any Debt Issuance by any Loan Party or any of its Subsidiaries, the excess, if any, of the aggregate cash or Cash Equivalents proceeds received by the Borrower or any Subsidiary in
respect of such Disposition, Extraordinary Receipt, or Debt Issuance, net of (i) direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment
banking fees, and sales commissions), (ii) Taxes paid or payable as a result thereof, (iii) in the case of any Disposition, the amount necessary to retire any Indebtedness secured by a
Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the related Property and (iv) in the case of any Disposition, a reasonable reserve for (A) any adjustment in
respect of the sale price of the applicable Property required pursuant to GAAP and/or (B) the after-tax costs of any liabilities associated with the applicable Property and retained
by the Borrower or a Subsidiary after the sale or other disposition thereof; it being understood that (x) "Net Cash Proceeds" shall include, without limitation, any cash or Cash Equivalents
received upon the sale or other disposition of any non-cash consideration received by the Borrower or any Subsidiary in any Disposition, Debt Issuance or Extraordinary Receipt and
(y) any amounts excluded pursuant to the foregoing clause (iv) shall be included as Net Cash Proceeds at such time as any such reserve is no longer required. 



        (b)   with
respect to the sale or issuance of any Equity Interest by any Loan Party or any of its Subsidiaries, the excess of (i) the sum of the cash and Cash
Equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses,
incurred by such Loan Party or such Subsidiary in connection therewith. 




        "Non-Guarantor Subsidiary" means any Subsidiary of the Borrower that is not a Loan Party. 



        "Note" or "Notes" means the Revolving Notes, the Swing Line Note and/or the Term Notes,
individually or collectively, as appropriate. 


        "Obligations" means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Loan Party as the debtor in
such proceeding, regardless of whether such interest and fees are 


16







 



allowed
claims in such proceeding. The foregoing shall also include any Swap Contract between any Loan Party and any Lender or Affiliate of a Lender. 


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


        "Other Taxes" means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document
established by a Governmental Authority (but excluding Excluded Taxes). 


        "Outstanding Amount" means (i) with respect to any Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements by the Borrower of Unreimbursed Amounts. 


        "Participant" has the meaning specified in Section 11.06(d). 


        "PBGC" means the Pension Benefit Guaranty Corporation. 


        "Pension Plan" means 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 the Borrower or any ERISA Affiliate or to which the Borrower or any 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 immediately preceding five
(5) plan years. 


        "Permitted Acquisitions" means Investments consisting of an Acquisition (other than the Product Acquisition) by the Borrower or any
Subsidiary of the Borrower, provided that (i) if the aggregate consideration for such Acquisition exceeds $5,000,000, the Borrower has provided
the Administrative Agent with prior written notice of such Acquisition, which notice shall include a reasonably detailed description of such Acquisition, (ii) the Property acquired (or the
Property of the Person acquired) in such Acquisition is used or useful in the same or a similar line of business as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any
reasonable extensions or expansions thereof), (iii) the Administrative Agent shall have received all items in respect of the Equity Interests or Property acquired in such Acquisition required
to be delivered by the terms of Section 7.12 and/or Section 7.14, (iv) in the case
of an Acquisition of the Equity Interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (v) if
the aggregate consideration for such Acquisition exceeds $5,000,000 the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving
effect to such Acquisition on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11
as of the end of the most recent fiscal quarter for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or  (b),
(vi) if the aggregate consideration for such Acquisition exceeds $5,000,000 the representations and 


17







 



warranties
made by the Loan Parties in any Loan Document shall be true and correct in all material respects at and as if made as of the date of such Acquisition (after giving effect thereto) except to
the extent such representations and warranties expressly relate to an earlier date, (vii) if such transaction involves the purchase of an interest in a partnership between the Borrower (or a
Subsidiary of the Borrower) as a general partner and entities unaffiliated with the Borrower or such Subsidiary as the other partners, such transaction shall be effected by having such equity interest
acquired by a corporate holding company directly or indirectly wholly-owned by the Borrower newly formed for the sole purpose of effecting such transaction and (viii) the aggregate
consideration (including cash and non-cash consideration, any assumption of Indebtedness, deferred purchase price and any Earn Out Obligations) for all such Acquisitions occurring during
(A) any fiscal year shall not exceed $40,000,000 and (B) the term of this Agreement shall not exceed $75,000,000; provided, that the aggregate consideration (including cash and
non-cash consideration, any assumption of Indebtedness, deferred purchase price and any Earn Out Obligations) for (1) any Acquisition of less than all of the Voting Stock of any
Person shall not exceed $15,000,000 and (2) all Acquisitions of less than all of the Voting Stock of any Person shall not exceed $40,000,000 in the aggregate during the term of this Agreement. 



        "Permitted Investments" means, at any time, Investments by the Borrower or any of its Subsidiaries permitted to exist at such time
pursuant to the terms of Section 8.02. 


        "Permitted Liens" means, at any time, Liens in respect of Property of the Borrower or any of its Subsidiaries permitted to exist at such
time pursuant to the terms of Section 8.01. 



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


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


        "Platform" has the meaning specified in Section 7.02. 



        "Pledge Agreement" means the pledge agreement dated as of the Closing Date executed in favor of the Administrative Agent by each of the
Loan Parties. 


        "Product Acquisition" means the Acquisition by the Borrower of a therapeutic product (the "Product
Assets") from a global pharmaceutical company (the "Product Seller"); provided
that (i) the Administrative Agent shall receive, prior to or within thirty (30) days following the closing of the Product Acquisition, all items in respect of the Property acquired in
the Product Acquisition required to be delivered by the terms of Section 7.12 and/or  Section 7.14, (ii) on or before the date of the
execution of the Product Acquisition Agreement, the Borrower shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate demonstrating that as of such execution date, upon giving effect to the Product Acquisition on a Pro Forma Basis, (A) the Loan Parties
would be in compliance with the financial covenants set forth in Section 8.11 and (B) the Consolidated Leverage Ratio would be equal to or
less than 1.75 to 1.00, in each case as of the end of the most recent fiscal quarter for which the Borrower has delivered financial statements pursuant to Sections
7.01(a) or (b), (iii) the representations and warranties made by the Loan Parties in any Loan Document shall be true and
correct in all material respects at and as if made as of the date of the execution of the Product Acquisition Agreement except to the extent such representations and warranties expressly relate to an
earlier date, (iv) prior to execution by the Borrower, the Administrative Agent shall have received and reviewed the final draft of the Product Acquisition Agreement (which may include an
escrow payment in an aggregate amount not to exceed $80,000,000) and the other material Product Acquisition Documents, the terms of which shall be reasonably satisfactory to the Administrative Agent
and the Required Lenders (including all exhibits and schedules thereto, all representations and warranties contained therein with respect to the Product Assets and the 


18







 



escrow
provisions, if any), (v) promptly following the execution of the Product Acquisition Agreement, the Administrative Agent shall receive an executed copy of the Product Acquisition
Agreement and the other material Product Acquisition Documents then in effect, certified by a Responsible Officer of the Borrower to be true, correct and complete, (vi) (A) the Product
Acquisition Agreement and the other Product Acquisition Documents shall not have been altered, amended or otherwise changed or supplemented in any material respect from the drafts thereof delivered to
the Administrative Agent pursuant to the foregoing clause (iv) and (B) no material condition in the Product Acquisition Agreement shall have been waived, in each case on or before the
closing date of the Product Acquisition without the written consent of the Administrative Agent and the Required Lenders, and (vii) the Product Acquisition shall be consummated in accordance
with the material terms of the Product Acquisition Agreement and in material compliance with applicable law and regulatory approvals, and all material governmental, shareholder and third party
consents necessary to purchase the Product Assets shall be obtained. 


        "Product Acquisition Agreement" means the purchase agreement between the Borrower and Product Seller with respect to the Product Assets,
together with all exhibits and schedules thereto. 


        "Product Acquisition Documents" means the Product Acquisition Agreement and all other agreements, instruments and documents executed and
delivered in connection with the Product Acquisition. 



        "Product Assets" has the meaning specified in the definition of "Product Acquisition" set forth in this  Section 1.01. 


        "Product Seller" has the meaning specified in the definition of "Product Acquisition" set forth in this  Section 1.01. 


        "Pro Forma Basis" means, for purposes of calculating the Consolidated Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio
(including for purposes of determining the Applicable Rate) that any Disposition, Extraordinary Receipt or Acquisition shall be deemed to have occurred as of the first day of the most recent four
fiscal quarter period preceding the date of such transaction for which the Borrower has delivered financial statements pursuant to  Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to any
Disposition or Extraordinary Receipt, income statement and cash flow statement items (whether positive or negative) attributable to the Property disposed of shall be excluded to the extent relating to
any period occurring prior to the date of such transaction and (b) with respect to any Acquisition, income statement items (whether positive or negative) attributable to the Person or Property
acquired shall be included to the extent relating to any period applicable in such calculations to the extent (i) such items are not otherwise included in such income statement items for the
Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (ii) such
items are supported by audited financial statements or other information reasonably satisfactory to the Administrative Agent. 


        "Pro Forma Compliance Certificate" means a certificate of a Responsible Officer of the Borrower containing reasonably detailed calculation
of the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter end for which the Borrower has delivered financial
statements pursuant to Section 7.01(a) or (b) after giving effect to the applicable transaction
on a Pro Forma Basis. 


        "Pro Rata Share" means, as to each Lender at any time, (a) with respect to such Lender's Revolving Commitment at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Revolving Commitment of such Lender at such time and the denominator of which
is the amount of the Aggregate Revolving Commitments at such time; provided that if the commitment of each Lender to make Revolving Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share 


19







 



of
such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof, and (b) with respect to such Lender's outstanding
Term Loan at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the principal amount of the Term Loan held by such Lender at such time
and the denominator of which is the aggregate principal amount of the Term Loan at such time. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on  Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. 


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


        "Proprius License Agreement" means that certain License Agreement entered into as of September 19, 2007 by and between the Borrower
and Proprius, Inc. 


        "Public Lender" has the meaning specified in Section 7.02. 


        "Public Offering" means a public offering of any Equity Interests of the Borrower pursuant to an effective registration statement under
the Securities Act of 1933. 


        "Register" has the meaning specified in Section 11.06(c). 



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


        "Reorganization" has the meaning specified in Section 8.04. 


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


        "Request for Credit Extension" means (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice,
(b) with respect to an L/C Credit Extension, a Letter of Credit Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice. 


        "Required Lenders" means, at any time, Lenders holding in the aggregate more than fifty percent (50%) of (a) the Revolving
Commitments and the outstanding Term Loans or (b) if the Revolving Commitments have been terminated, the outstanding Loans, L/C Obligations, Swing Line Loans and participations therein. The
Revolving Commitments of, and the outstanding Term Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders. 


        "Required Revolving Lenders" means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total
Revolving Outstandings (with the aggregate amount of each Lender's risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed "held" by such Lender for purposes
of this definition) and (b) aggregate unused Revolving Commitments; provided that the unused Revolving Commitment of, and the portion of the
Total Revolving
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders. 


        "Responsible Officer" means the chief executive officer, president or chief financial officer of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such
Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. 



        "Restricted Payment" means any dividend or other distribution (whether in cash, securities or other Property) with respect to any capital
stock or other Equity Interest of the Borrower or any Subsidiary, 


20







 



or
any payment (whether in cash, securities or other Property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Borrower's stockholders, partners or members (or the equivalent Person thereof). 



        "Revolving Commitment" means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to  Section 2.01 and shall include any
commitments made by such Lender to make revolving loans pursuant to the terms of  Section 2.02(f), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing
Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. 



        "Revolving Loan" has the meaning specified in Section 2.01(a). 


        "Revolving Note" has the meaning specified in Section 2.11(a). 


        "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor
thereto. 


        "Sale and Leaseback Transaction" means, with respect to the Borrower or any Subsidiary, any arrangement, directly or indirectly, with any
Person whereby the Borrower or such Subsidiary shall sell or transfer any Property, used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such Property or other Property that it intends to use for substantially the same purpose or purposes as the Property being sold or transferred. 


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



        "Securities Purchase Agreement" means that certain Securities Purchase Agreement dated as of April 30, 2001, with respect to the
purchase and sale of the 13% senior notes due April 30, 2006 in an aggregate principal amount of $60 million and warrants for 4,466,224 shares of the Borrower's common stock, by and
between the Borrower and the purchasers party thereto. 


        "Securitization Transaction" means any financing transaction or series of financing transactions (including factoring arrangements)
pursuant to which the Borrower or any Subsidiary may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals
or similar rights to payment to a special purpose Affiliate of the Borrower. 


        "Security Agreement" means the security agreement dated as of the Closing Date executed in favor of the Administrative Agent by each of
the Loan Parties. 


        "Solvent" or "Solvency" means, with respect to any Person as of a particular date, that on
such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business, (b) such Person
does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature in their ordinary course, (c) such
Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person's Property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair market value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent liabilities, of such Person (other than, with respect to the Borrower, any liability relating to the Existing Preferred Stock,
Warrants or Warrant Shares) and (e) the present fair market value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured (other than, with respect to the Borrower, 


21







 



any
liability relating to the Existing Preferred Stock, Warrants or Warrant Shares). In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount which is recognized by such Person on the balance sheet of such Person in accordance with GAAP. 



        "Subsidiary" of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a
majority of the shares of Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower. 


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


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


        "Swing Line Lender" means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder. 


        "Swing Line Loan" has the meaning specified in Section 2.04(a). 


        "Swing Line Loan Notice" means a notice of a Borrowing of Swing Line Loans pursuant to  Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B. 


        "Swing Line Note" has the meaning specified in Section 2.11(a). 


        "Swing Line Sublimit" means an amount equal to the lesser of (a) $5,000,000 and (b) the Aggregate Revolving Commitments. The
Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments. 


        "Synthetic Lease" means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing arrangement whereby the arrangement is considered borrowed money indebtedness for Tax purposes but is classified as an operating lease or does not otherwise
appear on the balance sheet under GAAP. 


22









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


        "Term Loan" has the meaning specified in Section 2.01(b);  provided, however, the term shall also include any
additional term loans made to the Borrower pursuant to the terms of  Section 2.02(f) in the form of an increase to the Term Loan. 


        "Term Loan Commitment" means, as to each Lender, its obligation to make its portion of the Term Loan to the Borrower pursuant to  Section 2.01(b), in the principal
amount set forth opposite such Lender's name on  Schedule 2.01 and shall include any commitments made by such Lender to make term loans pursuant to the terms of  Section 2.02(f) in the form of an increase to the Term Loan. The aggregate principal amount of the Term Loan Commitments of all of the Lenders as
in effect on the Closing Date is SEVENTY-FIVE MILLION DOLLARS ($75,000,000). 


        "Term Note" has the meaning specified in Section 2.11(a). 


        "Threshold Amount" means $5,000,000. 


        "Total Revolving Outstandings" means the aggregate Outstanding Amount of all Revolving Loans, all Swing Line Loans and all L/C
Obligations. 


        "Type" means, with respect to any Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan. 


        "Unfunded Pension Liability" means 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 Internal Revenue Code for the
applicable plan year. 


        "United States" and "U.S." mean the United States of America. 



        "Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i). 


        "Voting Stock" means, with respect to any Person, Equity Interests issued by such Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening
of such a contingency. 


        "Warrant Shares" means the "Warrant Shares" as defined in the Securities Purchase Agreement. 



        "Warrants" means the "Warrants" as defined in the Securities Purchase Agreement. 


        "Wholly Owned Subsidiary" means any Person 100% of whose Equity Interests are at the time owned by the Borrower directly or indirectly
through other Persons 100% of whose Equity Interests are at the time owned, directly or indirectly, by the Borrower. 


1.02    Other Interpretive Provisions.    


        With
reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: 



        (a)   The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be
construed to have the same meaning and effect as the word "shall." Unless the context requires otherwise, (i) any definition of or reference to
any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other 



23







 

document
as from time to time amended, restated, supplemented, extended or otherwise modified (subject to any restrictions on such amendments, restatements, supplements, extensions or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person's successors and assigns, (iii) the words
"herein," "hereof" and "hereunder," and words of similar
import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any
reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law and any reference to any Law shall, unless
otherwise specified, refer to such Law as amended, modified or supplemented from time to time, and (vi) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer to any and all real and personal property and tangible and intangible
assets and properties, including cash, securities, accounts and contract rights. 


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


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




1.03    Accounting Terms.    


        (a)   Except
as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations derived therefrom) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time to time as specified in Section 1.03(b) below, applied in a manner consistent with that used in
preparing the Audited Financial Statements; provided, however, that calculations of Attributable Indebtedness under any Synthetic Lease or the implied interest component of any Synthetic Lease shall
be made by the Borrower in accordance with accepted financial practice and consistent with the terms of such Synthetic Lease. 


        (b)   The
Borrower will provide a written summary of material changes in GAAP affecting the Borrower's financial statements and in the consistent application thereof with each
annual and quarterly Compliance Certificate delivered in accordance with Section 7.02(b). If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders,
which shall not be unreasonably withheld, delayed or conditioned); provided that, until so amended, (i) such ratio or requirement shall continue
to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change
in GAAP. 


        (c)   Notwithstanding
the above, the parties hereto acknowledge and agree that all calculations of the Consolidated Leverage Ratio (including for purposes of determining the
Applicable Rate) and the Consolidated Fixed Charge Coverage Ratio shall be made on a Pro Forma Basis. 


24







 



1.04    Rounding.    


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


1.05    Times of Day.    


        Unless
otherwise specified, all references herein to times of day shall be references to Pacific time (daylight or standard, as applicable). 


1.06    Letter of Credit Amounts.    


        Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time;  provided, however, that with respect
to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time. 


ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS  


2.01    Revolving Loans and Term Loan.    



        (a)    Revolving Loans.    Subject to the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a "Revolving Loan") to the Borrower in Dollars from time to time on any Business Day during the Availability Period in an
aggregate amount not to exceed at any time outstanding the amount of such Lender's Revolving Commitment; provided,  however, that after giving effect to any
Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate
Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Revolving Commitment. Within the limits of each Lender's Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this  Section 2.01, prepay
under Section 2.05, and reborrow under this  Section 2.01. Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein, provided, however, all Borrowings made
on the Closing Date shall be made as Base Rate Loans. 


        (b)    Term Loan.    Subject to the terms and conditions set forth herein, each Lender severally agrees to make its
portion of a term loan (the "Term Loan") to the Borrower in Dollars on the Closing Date in an amount not to exceed such Lender's Term Loan Commitment.
Amounts repaid on the Term Loan may not be reborrowed. The Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans, as further provided herein,  provided, however, all Borrowings made on the Closing Date shall be made as Base Rate Loans. 



2.02    Borrowings, Conversions and Continuations of Loans.    


        (a)   Each
Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's irrevocable notice
to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 10:00 a.m. (i) three (3) Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(b) must be 


25







 

confirmed
promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $100,000 in excess thereof. Except as provided in Sections
2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to
the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of a Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. 


        (b)   Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share of the applicable Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans as described
in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in  Section 5.02 (and, if such
Borrowing is the initial Credit Extension, Section 5.01), the
Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided, however, that if, on the date of a Borrowing of
Revolving Loans, there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such
L/C Borrowings, and second, to the Borrower as provided above. 


        (c)   Except
as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of the Interest Period for such Eurodollar Rate Loan.
During the existence of a Default or Event of Default, no Loans may be requested as Eurodollar Rate Loans without the consent of the Required Lenders, and the Required Lenders may demand that any or
all of the then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans. 


        (d)   The
Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America's prime rate used in determining the Base Rate promptly following the public
announcement of such change. 


        (e)   After
giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than
three (3) Interest Periods in effect with respect to Revolving Loans and three (3) Interest Periods in effect with respect to the Term Loan. 


26







 



        (f)    The
Borrower may at any time and from time to time prior to the Maturity Date, upon prior written notice by the Borrower to the Administrative Agent, request
(1) an increase to the Revolving Commitments, (2) an increase to the Term Loan and/or (3) additional commitments to make term loans to be structured as a separate term loan
tranche with terms different from the Term Loan (any such separate term loan, an "Additional Term Loan"), in an amount (for all such requests made
pursuant to this Section 2.02(f)) not to exceed FIFTY MILLION DOLLARS ($50,000,000) with additional Revolving Commitments, Term Loan Commitments
or commitments to make Additional Term Loans, as applicable, from any existing Lender or new Revolving Commitments, Term Loan Commitments or commitments for Additional Term Loans, as applicable, from
any other Person selected by the Borrower and approved by the Administrative Agent in its reasonable discretion; provided that: 



          (i)  any
such increase shall be in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof; 


         (ii)  no
Default or Event of Default shall be continuing at the time of any such increase; 



        (iii)  no
existing Lender shall be under any obligation to increase its Commitment and any such decision whether to increase its Commitment shall be in such Lender's sole and
absolute discretion; 


        (iv)  (A)
any new Lender shall join this Agreement by executing such joinder and/or commitment documents reasonably required by the Administrative Agent and reflecting such
Person's commitment (it being understood that each such Person shall become a "Lender" hereunder upon executing such joinder documents), and (B) any existing Lender electing to increase its
Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent; 



         (v)  prior
to the funding of any such increase of the Term Loan or any such Additional Term Loan, the Borrower shall have delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to the funding of any such increase to the Term Loan or Additional Term Loan, as applicable, on a Pro Forma Basis, the Loan Parties would
be in compliance with the financial covenants set forth in Section 8.11 as of the end of the most recent fiscal quarter for which the Borrower
has delivered financial statements pursuant to Section 7.01(a) or (b); 



        (vi)  the
Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such increase (in sufficient copies for each Lender)
signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (B) in the case
of the Borrower, certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in  Article VI and the other Loan Documents are true and
correct in all material respects on and as of the date of such increase, except to the
extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for
purposes of this Section 2.02(f), the representations and warranties contained in subsections (a) and (b) of  Section 6.05 shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of  Section 7.01, and (2) no Default or Event of Default exists; and 


       (vii)  with
respect to any Additional Term Loan, (A) the obligations of the Loan Parties in respect of such Additional Term Loan shall constitute Obligations under the
Loan Documents, and shall be entitled to all of the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit ratably from the Guaranty set
forth in Article IV hereunder and the security interests and Liens created by the Collateral Documents (and the 



27







 




Borrower
shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the requirements of this clause (A) are satisfied after the establishment of
any such Additional Term Loan), (B) the final maturity of such Additional Term Loan shall be no earlier than the Maturity Date of the Term Loan or the final maturity date of any then existing
Additional Term Loan, (C) the initial principal amount of such Additional Term Loan shall not amortize (pursuant to scheduled amortization) during any calendar year in a percentage amount
greater than the percentage of the outstanding principal amount of the Term Loan scheduled to amortize during such calendar year in accordance with  Section 2.07(c), (D) the Lenders providing
such Additional Term Loan shall be entitled to voting rights on a pro rata basis with the
Lenders holding the Term Loan and any Additional Term Loan then existing and shall be entitled to receive proceeds of prepayments on a pro rata basis with the Lenders holding the Term Loan and any
Additional Term Loans then existing, (E) the Borrower shall execute a promissory note in favor of any new Lender or any existing Lender providing additional commitments hereunder and requesting
a note and (F) the yield applicable to such Additional Term Loan (taking into account the interest rate applicable to such Additional Term Loan, any original issue discount and any upfront fees
payable to the Lenders making such Additional Term Loan, with such upfront fees or original issue discount, as applicable, to be equated to interest based on an assumed three year average life) may be
higher than the then-current Applicable Rate on the Term Loan, but by no more than 0.25% (it being understood that the pricing of the Term Loan may be increased and/or additional fees may
be paid to existing Lenders holding the Term Loan to the extent necessary to satisfy such requirement). 


Upon
any increase of the Revolving Commitments or the Term Loan, as applicable, the outstanding Loans held by each Lender thereunder (and, in the case of an increase of the Revolving Commitments, the
participation interests of the Lenders having Revolving Commitments in outstanding L/C Obligations and Swing Line Loans) shall be reallocated (through assignments and purchases of the necessary
Commitments and outstanding Loans) amongst the applicable Lenders such that after giving affect to such reallocation, each of the applicable Lenders will hold Revolving Loans or Term Loans, as
applicable (and, in the case of an increase of the Revolving Commitments, the participation interests of the Lenders having Revolving Commitments in outstanding L/C Obligations and Swing Line Loans)
based on its Pro Rata Share of the applicable facility after giving effect to such increase. Such assignments shall not be subject to any processing and/or recordation fees among the applicable
Lenders, and the Borrower shall be responsible for any costs arising under Section 3.05 resulting from such reallocation, it being understood
that the parties hereto shall use commercially reasonable efforts to avoid prepayment or assignment of any affected Loan that is a Eurodollar Rate Loan on a day other than the last day of the Interest
Period applicable thereto. 




2.03    Letters of Credit.    


        (a)    The Letter of Credit Commitment.    



          (i)  Subject
to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this  Section 2.03, (1) from time to time on any
Business Day during the period from the Closing Date until the Letter of Credit Expiration
Date, to issue Letters of Credit for the account of the Borrower, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder;  provided that after
giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall
not exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations plus such Lender's Pro Rata Share of the 



28







 

Outstanding
Amount of all Swing Line Loans shall not exceed such Lender's Revolving Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies
with the conditions set forth in clauses (x) and (z) in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's
ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed. 


         (ii)  The
L/C Issuer shall not issue any Letter of Credit, if: 



        (A)  subject
to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance, unless the Required Revolving Lenders have approved such expiry date; or 



        (B)  the
expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders having Revolving Commitments have
approved such expiry date. 




        (iii)  The
L/C Issuer shall not be under any obligation to issue any Letter of Credit if: 



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


        (B)  the
issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally; 



        (C)  except
as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000; 


        (D)  such
Letter of Credit is to be denominated in a currency other than Dollars; or 


        (E)  a
default of any Lender's obligations to fund under Section 2.03(c) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Lender to eliminate the L/C Issuer's risk with respect to such Lender. 




        (iv)  The
L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the
terms hereof. 


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


        (vi)  The
L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall
have all of the benefits and immunities (A) provided to the Administrative Agent in Article X with respect to any 



29







 




acts
taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully
as if the term "Administrative Agent" as used in Article X included the L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the L/C Issuer. 




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



          (i)  Each
Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer
and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day);
(B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of
any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of
Credit; and (H) such other matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative
Agent may require. 


         (ii)  Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C
Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one (1) Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article V shall not then be satisfied, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be, in each
case in accordance with the L/C Issuer's usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender's Pro Rata Share  times the amount of such Letter of
Credit. 


        (iii)  If
the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit
that has automatic extension provisions (each, an "Auto-Extension Letter of Credit");  provided that any such Auto-Extension Letter of Credit must permit
the L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the
"Non-Extension Notice Date") in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to make a 



30







 




specific
request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the
L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided,  however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would
have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of  Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven
(7) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or
(2) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 5.02 is
not then satisfied, and in each case directing the L/C Issuer not to permit such extension. 



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




        (c)    Drawings and Reimbursements; Funding of Participations.    



          (i)  Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an "Honor
Date"), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the
L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Lender's Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Revolving Loans that are Base
Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in  Section 2.02 for the principal amount of Base
Rate Loans, but subject to the conditions set forth in  Section 5.02 (other than the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments.
Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. 



         (ii)  Each
Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent
for the account of the L/C Issuer at the Administrative Agent's Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer. 



        (iii)  With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Base Rate Loans because the conditions set forth in  Section 5.02 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in
the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such
event, each Lender's payment to the Administrative Agent for the 



31







 




account
of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03. 


        (iv)  Until
each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C
Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender's Pro Rata Share of such amount shall be solely for the account of the L/C Issuer. 



         (v)  Each
Lender's obligation to make Revolving Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this  Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided,  however, that each Lender's
obligation to make Revolving Loans pursuant to this Section 2.03(c)
is subject to the conditions set forth in Section 5.02 (other than delivery by the Borrower of a Loan Notice). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as
provided herein. 


        (vi)  If
any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender's Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error. 




        (d)    Repayment of Participations.    



          (i)  At
any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender's L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of cash collateral applied thereto by the Administrative Agent), the Administrative Agent
will distribute to such Lender its Pro Rata Share thereof in the same funds as those received by the Administrative Agent. 


         (ii)  If
any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to  Section 2.03(c)(i) is required to be returned under any of the circumstances described in 
Section 11.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement. 



32









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



          (i)  any
lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document; 


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



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


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


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




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


        (f)    Role of L/C Issuer.    Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit,
the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire
as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with
the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,  however, that
anything in such clauses to the contrary 


33







 



notwithstanding,
the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower that were caused by the L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the
contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. 



        (g)    Cash Collateral.    Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored any
full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any
reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. Sections
2.05 and 9.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this  Section 2.03, Section 2.05 and  Section 9.02(c), "Cash Collateralize" means to pledge and deposit with
or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby grants
to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, interest bearing deposit accounts at Bank of America. 


        (h)    Applicability of ISP.    Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of
Credit is issued, the rules of the ISP shall apply to each Letter of Credit. 


        (i)    Letter of Credit Fees.    The Borrower shall pay to the Administrative Agent for the account of each Lender in
accordance with its Pro Rata Share a Letter of Credit fee (the "Letter of Credit Fee") for each Letter of Credit equal to the Applicable Rate  times the
daily amount available to be drawn under such Letter of Credit, calculated in accordance with  Section 2.10. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of
Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at an amount equal to the Applicable Rate plus two percent (2%). 



        (j)    Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.    The Borrower shall pay directly
to the L/C Issuer for its own account a fronting fee, with respect to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the actual daily maximum amount available to
be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit) on a quarterly basis in arrears, and due and payable on the first Business Day
after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with 


34







 



the
first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, the
Borrower shall pay directly to the L/C Issuer for its own account the reasonable and customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the
L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable. 


        (k)    Conflict with Issuer Documents.    In the event of any conflict between the terms hereof and the terms of any
Issuer Document, the terms hereof shall control. 


2.04    Swing Line Loans.    


        (a)    Swing Line Facility.    Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in
reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans (each such loan, a "Swing
Line Loan") to the Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the
amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of Revolving Loans and L/C Obligations of the
Lender acting as Swing Line Lender, may exceed the amount of such Lender's Revolving Commitment; provided,  however, that after giving effect to any Swing
Line Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Revolving Commitment, and provided, further, that the Borrower shall not use the proceeds of any Swing
Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this  Section 2.04, prepay
under Section 2.05, and reborrow under this  Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing
Line Loan, each Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender's Pro Rata Share  times the amount of such Swing Line Loan. 


        (b)    Borrowing Procedures.    Each Borrowing of Swing Line Loans shall be made upon the Borrower's irrevocable
notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $100,000 and integral multiples of $100,000 in
excess thereof, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic
Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and,
if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender
not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a), or
(B) that one or more of the applicable conditions specified in Article V is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later 


35







 



than
3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower. 



        (c)    Refinancing of Swing Line Loans.    



          (i)  The
Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably requests and authorizes the Swing
Line Lender to so request on its behalf), that each Lender make a Revolving Loan that is a Base Rate Loan in an amount equal to such Lender's Pro Rata Share of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of  Section 2.02, without
regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the
conditions set forth in Section 5.02 (other than the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the
Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering
such notice to the Administrative Agent. Each Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the Administrative Agent's Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to  Section 2.04(c)(ii)
, each Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender. 


         (ii)  If
for any reason any Swing Line Loan cannot be refinanced by such a Borrowing of Revolving Loans in accordance with  Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line
Lender as set forth herein shall be deemed to be a request by the
Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender's payment to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. 



        (iii)  If
any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.04(c) by the time specified in  Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to
the greater of Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such
Lender's Revolving Loan included in the relevant Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error. 


        (iv)  Each
Lender's obligation to make Revolving Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this  Section 2.04(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right that such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided,  however, that
each Lender's obligation to make Revolving Loans 



36







 




pursuant
to this Section 2.04(c) is subject to the conditions set forth in Section 5.02.
No such purchase or funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein. 




        (d)    Repayment of Participations.    



          (i)  At
any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing
Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share of such payment in the same funds as those received by the Swing Line Lender. 



         (ii)  If
any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swing Line Lender in its
discretion), each Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination of this Agreement. 




        (e)    Interest for Account of Swing Line Lender.    The Swing Line Lender shall be responsible for invoicing the
Borrower for interest on the Swing Line Loans. Until each Lender funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this  Section 2.04 to refinance such Lender's
Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the
account of the Swing Line Lender. 


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


2.05    Prepayments.    


        (a)    Voluntary Prepayments of Loans.    



          (i)  Revolving Loans and Term Loans. The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time
or from time to time voluntarily prepay the Revolving Loans and the Term Loan in whole or in part without premium or penalty; provided that
(A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans
and (2) on the date of prepayment of Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $100,000 in
excess thereof (or, if less, the entire principal amount thereof then outstanding); (C) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding) and (D) any prepayment of the Term Loan shall be applied in the direct order of maturity. Each
such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender's Pro Rata Share of such prepayment. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be
accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Loans of the Lenders in accordance with their respective Pro Rata Shares. 



37







 

         (ii)  Swing Line Loans. The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at
any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice
must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. 




        (b)    Mandatory Prepayments of Loans.    



          (i)  Revolving Commitments. If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving
Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and the Swing
Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect. If at any time after the Borrower delivers Cash Collateral pursuant to this  Section 2.05(b)(i),
 the Total Revolving Outstandings no longer exceed the aggregate of such Cash Collateral and the Aggregate Revolving
Commitments then in effect, such Cash Collateral, to the extent of any such excess, shall be returned to the Borrower promptly after the Administrative Agent's receipt of a written request from the
Borrower. 


         (ii)  Dispositions. No later than the date that is three hundred sixty-five (365) days following receipt by
the Borrower or any Subsidiary of Net Cash Proceeds of any Disposition, the Borrower shall prepay the Loans and Cash Collateralize the L/C Obligations as hereafter provided in an aggregate amount
equal to 100% of such Net Cash Proceeds, but only to the extent such Net Cash Proceeds are not reinvested in Eligible Assets within such three hundred sixty-five (365) day period;  provided,
however, that no amount shall be required to be applied under this
Section 2.05(b)(ii) until the aggregate Net Cash Proceeds from Dispositions that have not previously been applied as a mandatory prepayment
during the then current fiscal year exceeds $500,000, and then only the excess thereof shall be required to be applied. Any prepayment pursuant to this clause (ii) shall be applied as set forth
in clause (vi) below. 


        (iii)  Debt Issuances. Within five (5) Business Days following receipt by the Borrower or any Subsidiary of the Net
Cash Proceeds of any Debt Issuance, the Borrower shall prepay the Loans and Cash Collateralize the L/C Obligations as hereafter provided in an aggregate amount equal to 100% of such Net Cash Proceeds
(such prepayment to be applied as set forth in clause (vi) below). 


        (iv)  Extraordinary Receipts. Within five (5) Business Days following receipt by the Borrower or any Subsidiary of the
Net Cash Proceeds of any Extraordinary Receipt (unless such Net Cash Proceeds constitute condemnation or insurance proceeds in which case the Borrower or such Subsidiary shall have three hundred
sixty-five (365) days from the date of such Extraordinary Receipt to reinvest such Net Cash Proceeds in Eligible Assets prior to being required to make any such prepayment), the
Borrower shall prepay the Loans and Cash Collateralize the L/C Obligations as hereafter provided in an aggregate amount equal to 100% of such Net Cash Proceeds (such prepayment to be applied as set
forth in clause (vi) below). 


         (v)  Equity Issuances. Within five (5) Business Days following receipt by the Borrower or any Subsidiary of the Net
Cash Proceeds of any Equity Issuance, the Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 50% of such Net Cash Proceeds (such prepayment
shall be applied as set forth in clause (vi) below). 



38







 




        (vi)  Application of Mandatory Prepayments. All amounts required to be paid pursuant to this  Section 2.05(b) shall be applied as follows: 



        (A)  with
respect to all amounts prepaid pursuant to Section 2.05(b)(i), to the Revolving Loans and the Swing Line
Loans and (after all Revolving Loans and all Swing Line Loans have been repaid) to ratably Cash Collateralize any L/C Obligations; 


        (B)  with
respect to all amounts prepaid pursuant to Sections 2.05(b)(ii),  (iii), (iv) and (v), first to the Term Loan (ratably to
the remaining principal amortization payments thereof), then (after the Term Loan has been repaid in full) to the Revolving Loans and the Swing Line Loans (without a corresponding reduction of the
Aggregate Revolving Commitments) and then (after all Revolving Loans and all Swing Line Loans have been repaid) to ratably Cash Collateralize any L/C Obligations. 


Within
the parameters of the applications set forth above, prepayments shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest Period maturities. All
prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise
without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment. 





2.06    Termination or Reduction of Commitments.    


        The
Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments to
an amount not less than the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C Obligations; provided that (i) any such notice shall
be received by the Administrative Agent not later than 12:00 noon five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $2,000,000 or any whole multiple of $500,000 in excess thereof and (iii) if, after giving effect to any reduction of the Aggregate Revolving Commitments, the Swing Line
Sublimit or the Letter of Credit Sublimit exceeds the amount of the Aggregate Revolving Commitments, such sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Revolving Commitments. Any reduction of the Aggregate Revolving Commitments shall be applied to the
Revolving Commitment of each Lender according to its Pro Rata Share. All fees accrued with respect thereto until the effective date of any termination of the Aggregate Revolving Commitments shall be
paid on the effective date of such termination. 


2.07    Repayment of Loans.    


        (a)    Revolving Loans.    The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount
of all Revolving Loans outstanding on such date. 


        (b)    Swing Line Loans.    The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the
date within one (1) Business Day of demand therefor by the Swing Line Lender and (ii) the Maturity Date. 


        (c)    Term Loan.    The Borrower shall repay the outstanding principal amount of the Term Loan in installments on the
dates and in amounts equal to the percentage of the principal amount of the Term Loan outstanding on such date as set forth in the table below (as such installments may hereafter be 


39







 



adjusted
as a result of prepayments made pursuant to Section 2.05), unless accelerated sooner pursuant to  Section 9.02: 



	Payment Dates
	 	Principal Amortization

Payment
	 
	March 31, 2008	 	1.25	%
	June 30, 2008	 	1.25	%
	September 30, 2008	 	1.25	%
	December 31, 2008	 	1.25	%
	March 31, 2009	 	2.50	%
	June 30, 2009	 	2.50	%
	September 30, 2009	 	2.50	%
	December 31, 2009	 	2.50	%
	March 31, 2010	 	2.50	%
	June 30, 2010	 	2.50	%
	September 30, 2010	 	2.50	%
	December 31, 2010	 	2.50	%
	March 31, 2011	 	3.75	%
	June 30, 2011	 	3.75	%
	September 30, 2011	 	3.75	%
	December 31, 2011	 	3.75	%
	March 31, 2012	 	15.00	%
	June 30, 2012	 	15.00	%
	Maturity Date	 	Outstanding Principal Balance

of Term Loan	 






2.08    Interest.    


        (a)   Subject
to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the sum of (A) the Eurodollar Rate for such Interest Period plus (B) the Applicable Rate;
(ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate  plus the Applicable Rate; and
(iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate. 


        (b)   Upon
the occurrence and during the continuation of an Event of Default, the Borrower shall pay interest on the principal amount of all outstanding Loans at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. 


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


2.09    Fees.    


        In
addition to certain fees described in subsections (i) and (j) of Section 2.03: 


        (a)    Commitment Fee.    The Borrower shall pay to the Administrative Agent, for the account of each Lender in
accordance with its Pro Rata Share of the Revolving Commitments, a commitment fee equal to the product of (i) the Applicable Rate times
(ii) the actual daily amount by which the Aggregate Revolving Commitments exceed the sum of (y) the Outstanding Amount of Revolving Loans and (z) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in 


40







 



 Article V is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first
such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable
Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. For
purposes of clarification, Swing Line Loans shall not be considered outstanding for purposes of determining the unused portion of the Aggregate Revolving Commitments. 



        (b)    Fee Letter.    The Borrower shall pay to BAS and the Administrative Agent for their own respective accounts
fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall be non-refundable for any reason whatsoever. 


2.10    Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.    


        (a)   All
computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America's "prime rate" shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the
same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. 



        (b)   If,
as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Lenders determine that
(i) the Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have
resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on
demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States,
automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for
such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be,
under Section 2.03(c)(iii), 2.03(i) or 2.08(b) or
under Article IX. The Borrower's obligations under this paragraph shall survive the termination of the Commitments of all of the Lenders and the
repayment of all other Obligations hereunder. 


2.11    Evidence of Debt.    


        (a)   The
Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders
to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay
any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the
Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall 


41







 



evidence
such Lender's Loans in addition to such accounts or records. Each such promissory note shall (i) in the case of Revolving Loans, be in the form of  Exhibit C-1 (a "Revolving Note"), (ii) in the case of Swing Line Loans, be in
the form of Exhibit C-2 (a "Swing Line Note") and (iii) in the case of the
Term Loan, be in the form of Exhibit C-3 (a "Term Note"). Each Lender may attach
schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. 


        (b)   In
addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error. 


2.12    Payments Generally; Administrative Agent's Clawback.    


        (a)   All
payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata
Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after
2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. 


        (b)   (i) Unless
the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with  Section 2.02
and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing
and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of
the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender's Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to
any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. 


42









  



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




        A
notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error. 


        (c)   Subject
to the definition of "Interest Period", if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. 


        (d)   If
at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then
due hereunder, such funds shall be applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable under  Article III)
incurred by the Administrative Agent and each Lender, (ii) second, toward
repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and
(iii) third, toward repayment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and L/C Borrowings then due to such parties. 


        (e)   If
any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this  Article II, and such funds are not made available
to the Borrower by the Administrative Agent because the conditions to the applicable Credit
Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without interest. 



        (f)    The
obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to  Section 11.04(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or to make any payment
under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under  Section 11.04(c). 



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


2.13    Sharing of Payments.    


        If,
other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by
it (but not including any amounts applied by the Swing Line Lender to outstanding Swing Line Loans), any payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in 


43







 



excess
of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the
other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line Loans held by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them;  provided, however, that if all or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the purchasing
Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to
such paying Lender's ratable share (according to the proportion of (i) the amount of such paying Lender's required repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent permitted by Law, exercise all its rights of payment (including the right of set-off, but subject to  Section 11.08) with
respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section and will in each case
notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section shall from and after such purchase have the right to give all
notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. 


ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY  


3.01    Taxes.    


        (a)   Payments Free of Taxes.    Any and all payments by or on account of any obligation of the Borrower hereunder or
under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes; provided
that if the Borrower shall be required by applicable Law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer, as the case may be,
receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable Law. 



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


        (c)   Indemnification by the Borrower.    The Borrower shall indemnify the Administrative Agent, each Lender and the
L/C Issuer, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto (but only to the extent such Taxes and penalties were not caused by the gross negligence or willful misconduct of the Administrative Agent, such Lender or the L/C Issuer), 


44







 



whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that
the Borrower shall not be required to indemnify the Administrative Agent, such Lender or the L/C Issuer pursuant to the foregoing provision for any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) for which written notice was received by the Administrative Agent, such Lender or the L/C
Issuer from the appropriate Governmental Authority more than six months prior to the date that the Administrative Agent, such Lender or the L/C Issuer, as the case may be, notifies the Borrower of
such Indemnified Taxes or Other Taxes. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or
by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, together with any other documentation reasonably requested by the Borrower, shall be conclusive absent
manifest error. 


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



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


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



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


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


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


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



45







 





        (f)    Forms W-9.    The Administrative Agent, the L/C Issuer and each Lender that is a United States
person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended) for United States federal income tax purposes (a "U.S.
Lender") shall deliver to the Administrative Agent and the Borrower on or prior to the Closing Date (or, if later, on or prior to the date on which such Lender becomes a party
to this Agreement) two original copies of Internal Revenue Service Form W-9 (or any successor form), properly completed and duly executed by such Lender, certifying that such U.S.
Lender is entitled to an exemption from United States backup withholding tax. Borrower shall not be required to pay any additional amounts to any U.S. Lender under this Agreement if such amounts arise
as a result of such Lender's failure to comply with the preceding sentence; provided, however, that
Borrower shall not be relieved of its obligation to pay any such additional amounts after such time as any such Lender shall have cured any such failure. 


        (g)   Treatment of Certain Refunds.    If the Administrative Agent, any Lender or the L/C Issuer determines, in its
sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section
with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer (to the
extent not due to the gross negligence or willful misconduct of the Administrative Agent, such Lender or the L/C Issuer, respectively), as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Administrative
Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer 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. 



3.02    Illegality.  


        If any Lender determines that any 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 Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies
the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate 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 Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different Lending Office if such designation will avoid
the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. 



3.03    Inability to Determine Rates.  


        If the Administrative Agent determines that for any reason adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested
Interest Period with respect to a proposed 


46







 



Eurodollar
Rate Loan, or that the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to the Lenders of
funding such Loan, the Administrative Agent will promptly notify the Borrower and all Lenders. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended
until the Administrative Agent revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing, conversion or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein. 


3.04    Increased Cost and Reduced Return; Capital Adequacy.  



        (a)   If
any Lender determines that as a result of the introduction of or any change in or in the interpretation of any Law, or such Lender's compliance therewith, there shall
be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing or participating in Letters of Credit, or a
reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this subsection (a) any such increased costs or reduction in
amount resulting from (i) Indemnified Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or any foreign jurisdiction or any political subdivision thereof under the Laws of which such Lender is organized or has its
Lending Office, and (iii) reserve requirements utilized, as to Eurodollar Rate Loans, in the determination of the Eurodollar Rate), then from time to time upon demand of such Lender (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction. 


        (b)   If
any Lender determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, or compliance by such Lender
(or its Lending Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender's obligations
hereunder (taking into consideration its policies with respect to capital adequacy and such Lender's desired return on capital), then from time to time upon demand of such Lender (with a copy of such
demand to the Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction. 


        (c)   The
Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including
Eurodollar funds or deposits (currently known as "Eurodollar Liabilities"), additional interest on the unpaid principal amount of each Eurodollar Rate
Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error), which
shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least fifteen (15) days prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice fifteen (15) days prior to the relevant Interest Payment Date, such additional interest
shall be due and payable fifteen (15) days from receipt of such notice. 



        (d)   A
certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof. 


        (e)   Failure
or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender's or 


47







 



the
L/C Issuer's right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant
to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or the L/C Issuer, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender's or the L/C Issuer's intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect
thereof). 


3.05    Funding Losses.  


        Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any actual, direct loss, cost or expense incurred by it as a result of: 



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


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



        (c)   any
assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to  Section 11.14; 


including
any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any reasonable and customary administrative fees charged by such Lender in connection with the foregoing. 


        For
purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to
have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded. 


3.06    Matters Applicable to all Requests for Compensation.  


        (a)   Designation of a Different Lending Office. If any Lender requests compensation under  Section 3.04, or the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then
such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to  Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. 


        (b)   Replacement of Lenders. If any Lender requests compensation under  Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for 


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the
account of any Lender pursuant to Section 3.01, or if any Lender delivers a notice pursuant to  Section 3.02, the Borrower may replace such Lender
in accordance with Section 11.14. 


3.07    Survival.  



        All of the Borrower's obligations under this Article III shall survive termination of the Aggregate
Revolving Commitments and repayment of all other Obligations hereunder. 


ARTICLE IV

GUARANTY  


4.01    The Guaranty.  


        Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate of a Lender that enters into a Swap Contract with a Loan Party, and
the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations in
full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors
hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of
the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in
accordance with the terms of such extension or renewal. 


        Notwithstanding
any provision to the contrary contained herein or in any other of the Loan Documents or Swap Contracts between any Loan Party and any Lender, or any Affiliate of a
Lender, the obligations of each Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations
subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state Law. 



4.02    Obligations Unconditional.  


        The obligations of the Guarantors under Section 4.01 are joint and several, absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, Swap Contracts between any Loan Party and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable Law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent
of this Section 4.02 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each
Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts paid under this  Article IV
until such time as the Obligations have been paid in full and the Commitments have expired or terminated. Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted by Law, the occurrence of any one or more of the 


49







 



following
shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above: 


        (a)   at
any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived; 


        (b)   any
of the acts mentioned in any of the provisions of any of the Loan Documents, any Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender,
or any other agreement or instrument referred to in the Loan Documents or such Swap Contracts shall be done or omitted; 


        (c)   the
maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any
of the Loan Documents, any Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan Documents or such Swap
Contracts shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with; 



        (d)   any
Lien granted to, or in favor of, the Administrative Agent or any Lender, or Lenders as security for any of the Obligations shall fail to attach or be perfected; or 


        (e)   any
of the Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any creditor of any Guarantor). 


        With
respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that
the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents, any Swap Contract between any Loan Party and any Lender, or any
Affiliate of a Lender, or any other agreement or instrument referred to in the Loan Documents or such Swap Contracts, or against any other Person under any other guarantee of, or security for, any of
the Obligations. 


4.03    Reinstatement.  


        The obligations of the Guarantors under this Article IV shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, Attorney Costs) incurred by the Administrative Agent or such Lender in connection with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar Law;  provided that such
costs and expenses were not caused by the gross negligence or willful misconduct of the Administrative Agent or any Lender. 



4.04    Certain Additional Waivers.  


        Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation
pursuant to Section 4.02 and through the exercise of rights of contribution pursuant to  Section 4.06. 


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4.05    Remedies.  


        The Guarantors agree that, to the fullest extent permitted by Law, as between the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.02) for purposes of  Section 4.01 notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations
(whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 4.01. The
Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof. 



4.06    Rights of Contribution.  


        The Guarantors hereby agree as among themselves that, in connection with payments made hereunder, each Guarantor shall have a right of contribution from each
other Guarantor in accordance with applicable Law. Such contribution rights shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations have been Fully
Satisfied, and none of the Guarantors shall exercise any such contribution rights until the Obligations have been Fully Satisfied. 


4.07    Guarantee of Payment; Continuing Guarantee.  



        The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing guarantee,
and shall apply to all Obligations whenever arising. 


ARTICLE V

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS  


5.01    Conditions of Closing.  



        The obligation of the Administrative Agent, the L/C Issuer and each Lender to enter into this Agreement and to make the initial Credit Extension hereunder on the
Closing Date is subject to the satisfaction of the following conditions precedent: 


        (a)   Loan Documents.    Receipt by the Administrative Agent of executed counterparts of this Agreement and the other
Loan Documents required to be entered into on the Closing Date, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each Lender. 



        (b)   Opinions of Counsel.    Receipt by the Administrative Agent of opinions of legal counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, dated as of the Closing Date, and in form and substance reasonably satisfactory to the Administrative Agent. 


        (c)   Financial Statements.    The Administrative Agent shall have received: 



        (i)    the
Audited Financial Statements; 


        (ii)   the
unaudited balance sheets, statements of operations and cash flows of the Borrower and its Subsidiaries for the fiscal quarters ended March 31, 2007 and
June 30, 2007 (the "Interim Financial Statements"); and 



51







 




        (iii)  a
pro forma financial model as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower, each in form satisfactory to the Lenders, of
balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries (including the Product Assets), each on an annual basis beginning January 1, 2008 and ending with
the fiscal year ended December 31, 2011. 




        (d)   No Material Adverse Change.    There shall not have occurred a material adverse change in the business, assets,
properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries, taken as a whole, since December 31, 2006 (it
being understood and agreed that (i) the repurchase by the Borrower of the Warrants and Warrant Shares pursuant to the terms of Sections 8.8 and 8.9 of the Securities Purchase Agreement shall
not be considered to be, or result in, such a material adverse change and (ii) the existence of the Mayo Litigation is not presently considered to be, or to have resulted in, such a material
adverse change; provided, however, that the Lenders shall not be obligated to enter into this Agreement and make their initial Credit Extension on the
Closing Date if the Mayo Litigation shall have resulted in such a material adverse change prior to the Closing Date). 


        (e)   Litigation.    There shall not exist any action, suit, investigation or proceeding pending or, to the knowledge
of the Borrower, the Administrative Agent or the Lenders, threatened in any court or before an arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect,
except as set forth on Schedule 6.06 (it being understood and agreed that the existence of the Mayo Litigation is not presently considered to be,
or to have resulted in, a Material Adverse Effect; provided, however, that the Lenders shall not be
obligated to enter into this Agreement and make their initial Credit Extension on the Closing Date if the Mayo Litigation shall have resulted in a Material Adverse Effect prior to the Closing Date). 


        (f)    Organization Documents, Resolutions, Etc.    Receipt by the Administrative Agent of the following in form and
substance satisfactory to the Administrative Agent and its legal counsel: 



        (i)    the
Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation or organization (it being understood that each Loan Party's bylaws will not be certified by a Governmental Authority), where applicable, and certified by a secretary
or assistant secretary of such Loan Party to be true and correct as of the Closing Date; 



        (ii)   such
certificates of resolutions or other action, incumbency certificates (including specimen signatures) and/or other certificates of Responsible Officers of each Loan
Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a party; and 


        (iii)  certification
from the state of organization or formation of each Loan Party stating that such Loan Party is in "good standing" in such state. 




        (g)   Perfection and Priority of Liens.    Receipt by the Administrative Agent of the following: 



        (i)    (A)
searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan Party or where a filing would need to be made in order to perfect the
Administrative Agent's security interest in the Collateral, and copies of the financing statements on file in such jurisdictions evidencing that no Liens exist other than Permitted Liens and
(B) tax lien, judgment and pending litigation searches. 


        (ii)   all
certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Pledge Agreement, together with duly executed in
blank, undated stock powers attached thereto; 



52







 




        (iii)  searches
of ownership of, and Liens on, intellectual property of each Loan Party in the appropriate governmental offices; and 



        (iv)  duly
executed notices of grant of security interest in the form required by the Security Agreement as are necessary, in the Administrative Agent's sole discretion, to
perfect the Administrative Agent's security interest in the intellectual property of the Loan Parties. 




        (h)   Evidence of Insurance. Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance
of the Loan Parties evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Administrative Agent as additional
insured (in the case of liability insurance) or loss payee (in the case of hazard insurance) on behalf of the Lenders. 


        (i)    Closing Certificate.    Receipt by the Administrative Agent of a certificate signed by a Responsible Officer of
the Borrower certifying that the conditions specified in Sections 5.01(d) and (e) and  Sections 5.02(a) and
(b) have been satisfied as of the Closing Date. 



        (j)    Consents.    All governmental, shareholder and third party consents and approvals necessary in connection with
this Agreement shall have been obtained; all such consents and approvals shall be in force and effect; and all applicable waiting periods shall have expired without any action being taken by any
authority that could restrain, prevent or impose any material adverse condition on this Agreement or that could seek or threaten any of the foregoing, and no Law shall be applicable which has, or
could reasonably be expected to have, such effect. 


        (k)   Termination of Existing Credit Agreement.    Receipt by the Administrative Agent of evidence that the Existing
Credit Agreement has been or concurrently with the Closing Date is being terminated and that provisions acceptable to the Administrative Agent shall have been made for the termination and release of
all Liens securing obligations under the Existing Credit Agreement. 


        (l)    Fees.    Receipt by the Administrative Agent and the Lenders of any fees required to be paid on or before the
Closing Date. 


        (m)  Attorney Costs.    Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs
of the Administrative Agent to the extent invoiced prior to or on the Closing Date. 



        Without
limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance
with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, or waived, each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender unless the Administrative Agent
shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. 


5.02    Conditions to all Credit Extensions.  



        The obligation of each Lender to honor any Request for Credit Extension (excluding a Loan Notice requesting a conversion of a Loan of one Type to the other Type,
or a continuation of Eurodollar Rate Loan) is subject to the following conditions precedent: 



        (a)   The
representations and warranties of the Borrower and each other Loan Party contained in Article VI or any other
Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of
such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of
such earlier date, and except that for purposes of this Section 5.02, the representations and warranties contained in subsections (a) and
(b) of 



53







 

 Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of  Section 7.01.




        (b)   No
Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof. 


        (c)   There
shall not have been commenced against the Borrower or any Subsidiary an involuntary case under any applicable Debtor Relief Law, now or hereafter in effect, or any
case, proceeding or other action for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such involuntary case or other case, proceeding or other action shall remain undismissed. 



        (d)   The
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof. 




        Each
Request for Credit Extension (excluding a Loan Notice requesting a conversion of a Loan of one Type to the other Type, or a continuation of Eurodollar Rate Loan) submitted by the
Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 5.02(a),  (b) and (c)
 have been satisfied on and as of the date of the applicable Credit Extension. 


ARTICLE VI

REPRESENTATIONS AND WARRANTIES  


        The Loan Parties represent and warrant to the Administrative Agent and the Lenders that: 


6.01    Existence, Qualification and Power.  


        Each Loan Party (a) is a corporation, partnership or limited liability company duly organized or formed, validly existing and in good standing under the
Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to
(i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and
is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except
in each case referred to in clause (b)(i) or (c), to the extent that the failure to have any such power and authority, license, authorization, consent, approval or qualification, or to
be so licensed or in good standing, could not reasonably be expected to have a Material Adverse Effect. 


6.02    Authorization; No Contravention.  



        The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary
corporate or other organizational action, and do not (a) contravene the terms of any of such Person's Organization Documents; (b) conflict with or result in any breach or contravention
of, or the creation of any Lien under (i) any Contractual Obligation to which such Person is a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or its Property is subject; or (c) violate any Law (including, without limitation, Regulation U or Regulation X issued by the FRB) except in
each case referred to in clause (b) or (c), to the extent that such any such conflict, breach, contravention, creation of a Lien or violation could not reasonably be expected to have a Material
Adverse Effect. 


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6.03    Governmental Authorization; Other Consents.  


        No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document other than (i) those that have already
been obtained and are in full force and effect and (ii) filings to perfect the Liens created by the Collateral Documents. 


6.04    Binding Effect.  


        This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto. This Agreement and each other Loan
Document constitutes a legal, valid and binding obligation of each Loan Party that is party thereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may
be limited by Debtor Relief Laws or by other equitable remedies as a matter of judicial discretion. 


6.05    Financial Statements; No Material Adverse Effect.  


        (a)   The
Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness
and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for Taxes, commitments and Indebtedness required to be shown thereon in
accordance with GAAP. 


        (b)   The
Interim Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to year-end audit adjustments; and (iii) show all material indebtedness
and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for Taxes, material commitments and Indebtedness required to be shown
thereon in accordance with GAAP. 


        (c)   From
the date of the Audited Financial Statements to and including the Closing Date, there has been no Disposition by the Borrower or any Subsidiary, or any
Extraordinary Receipt, of any material part of the business or Property of the Borrower and its Subsidiaries, taken as a whole, and no purchase or other acquisition by any of them of any business or
Property (including any Equity Interests of any other Person) material in relation to the consolidated financial condition of the Borrower and its Subsidiaries, taken as a whole, in each case, which
is not reflected in the foregoing financial statements (including the Interim Financial Statements) or in the notes thereto or has not otherwise been disclosed in writing to the Lenders on or prior to
the Closing Date. 


        (d)   The
forecasts delivered pursuant to Section 5.01(c)(iii) were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were reasonable in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower's
good faith estimate of its future financial performance during the period covered by such forecasts. The Administrative Agent, the L/C Issuer and the Lenders hereby acknowledge that forecasts and
estimates of future financial performance are inherently uncertain and no assurances have been given, and no representations or warranties have been made by any Loan Party, that the results reflected
in the forecasts will be achieved. 


        (e)   Since
the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect. 


55









   
6.06    Litigation.    


        There
are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Responsible Officers of the Loan Parties, threatened in writing, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to
this Agreement or any other Loan Document, or any of the transactions contemplated hereby or (b) except as set forth on Schedule 6.06, if
determined adversely, could reasonably be expected to have a Material Adverse Effect. The Loan Parties further represent and warrant that, and the Administrative Agent, L/C Issuer and each of the
Lenders hereby acknowledge that, none of the actions, suits, claims, disputes, proceedings, arbitrations or governmental investigations identified on  Schedule 6.06 have resulted in a Material
Adverse Effect as of the Closing Date. For the avoidance of doubt, if any actions, suits, proceedings,
arbitrations or governmental investigations identified on Schedule 6.06 (including, without limitation, the Mayo Litigation) shall result in a
Material Adverse Effect, the Loan Parties hereby agree that the Lenders shall be under no obligation to make any Loan and the L/C Issuer shall be under no obligation to issue or extend any Letter of
Credit hereunder. 


6.07    No Default.    


        (a)   Neither
the Borrower nor any Subsidiary is in default under or with respect to any Contractual Obligation that could reasonably be expected to have a Material Adverse
Effect. 



        (b)   No
Default has occurred and is continuing. 


6.08    Ownership of Property; Liens.    


        Each
of the Borrower and its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Borrower and its
Subsidiaries is subject to no Liens, other than Permitted Liens. 



6.09    Environmental Compliance.    


        Except
as could not reasonably be expected to have a Material Adverse Effect: 



        (a)   To
the knowledge of the Responsible Officers of the Loan Parties, (i) all operations at the Facilities and each of the Facilities are in compliance with all
applicable Environmental Laws, (ii) there is no violation of any Environmental Law with respect to the Facilities or the Businesses, and (iii) there are no conditions relating to the
Facilities or the Businesses that could give rise to liability under any applicable Environmental Laws. 



        (b)   To
the knowledge of the Responsible Officers of the Loan Parties, none of the Facilities contains, or has previously contained, any Hazardous Materials at, on or under
the Facilities in amounts or concentrations that constitute or constituted a violation of, or could give rise to liability under, Environmental Laws. 


        (c)   Neither
the Borrower nor any Subsidiary has received any written or to the knowledge of the Responsible Officers of the Loan Parties, oral notice of, or inquiry from any
Governmental Authority regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Facilities or the Businesses. 


        (d)   Hazardous
Materials have not been transported or disposed of from the Facilities, or generated, treated, stored or disposed of at, on or under any of the Facilities or
any other location, in each case by or on behalf the Borrower or any Subsidiary in violation of, or in a manner that would be reasonably likely to give rise to liability under, any applicable
Environmental Law. 



56







 




        (e)   No
judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Responsible Officers of the Loan Parties, threatened in writing,
under any Environmental Law to which the Borrower or any Subsidiary is or will be named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Borrower, any Subsidiary, the Facilities or the Businesses. 


        (f)    To
the knowledge of the Responsible Officers of the Loan Parties, there has been no release or, threat of release of Hazardous Materials at or from the Facilities, or
arising from or related to the
operations (including, without limitation, disposal) of the Borrower or any Subsidiary in connection with the Facilities or otherwise in connection with the Businesses, in violation of or in amounts
or in a manner that could give rise to liability under Environmental Laws. 




6.10    Insurance.    


        The
properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not, to the knowledge of the Responsible Officers of the Loan
Parties, Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties
in localities where the Borrower or the applicable Subsidiary operates. The insurance coverage of the Loan Parties as in effect on the Closing Date is outlined as to carrier, policy number, expiration
date, type, amount and deductibles on Schedule 6.10. 


6.11    Taxes.    


        The
Borrower and its Subsidiaries have (a) filed all federal Tax returns and reports required to be filed, (b) filed or will file all material state and other material Tax
returns and reports required to be filed, and (c) paid all federal taxes and have paid or accrued all material state and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and
for which adequate reserves have been provided in accordance with GAAP. To the knowledge of the Responsible Officers of the Borrower, there is no proposed Tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect. No Loan Party nor any Subsidiary thereof is party to any Tax sharing agreement. 


6.12    ERISA Compliance.    


        (a)   Each
Plan is in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state Laws. The IRS has
issued to each Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code a favorable determination or opinion letter and, to the knowledge of the Responsible Officers
of the Loan Parties, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate have made all required contributions to each Plan
subject to Section 412 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Internal Revenue
Code has been made with respect to any Plan. 


        (b)   There
are no pending or, to the knowledge of the Responsible Officers of the Loan Parties, threatened in writing, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could be 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 or could reasonably be expected to result in a Material Adverse Effect. 


        (c)   (i) No
ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan 


57







 



(other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party nor any 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 Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) no Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA. 


6.13    Subsidiaries.    


        Set
forth on Schedule 6.13 is a complete and accurate list as of the Closing Date of each Subsidiary, together with
(i) jurisdiction of formation, (ii) number of shares of each class of Equity Interests outstanding, (iii) number and percentage of outstanding shares of each class owned (directly
or indirectly) by the Borrower or any Subsidiary and (iv) number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and all other similar rights
with respect thereto. The outstanding Equity Interests of each Subsidiary are validly issued, fully paid and non-assessable. 


6.14    Margin Regulations; Investment Company Act.    


        (a)   The
Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing or drawing
under each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis), subject to the provisions of  Section 8.01 or Section 8.05 or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness will be margin stock. 


        (b)   None
of the Borrower or any Subsidiary is or is required to be registered as an "investment company" under the Investment Company Act of 1940, as amended. 


6.15    Disclosure.    


        No
report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;  provided that,
with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based
upon assumptions believed by them to be reasonable at the time. 


6.16    Compliance with Laws and Material Contractual Obligations.    


        Each
of the Borrower and each Subsidiary is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, and all
Contractual Obligations, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. 


6.17    Intellectual Property; Licenses, Etc.    


        The
Borrower and its Subsidiaries own, or possess the legal right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are reasonably necessary for the operation of their Businesses. Set forth on  Schedule 6.17 is a list of all IP Rights registered or pending registration with 


58







 



the
United States Copyright Office or the United States Patent and Trademark Office and owned by each Loan Party as of the Closing Date. Except for such claims and infringements that could not
reasonably be expected to have a Material Adverse Effect and except for such claim set forth on Schedule 6.17, (a) no claim has been
asserted and is pending by any Person challenging or questioning the use of any IP Rights or the validity or effectiveness of any IP Rights, and (b) to the knowledge of the Responsible Officers
of the Loan Parties, the use of any IP Rights by the Borrower or any Subsidiary or the granting of a right or a license in respect of any IP Rights from the Borrower or any Subsidiary does not
infringe on the rights of any Person. As of the Closing Date, none of the IP Rights owned by any of the Loan Parties is subject to any licensing agreement, franchise agreement or similar arrangement
except as set forth on Schedule 6.17. For the avoidance of doubt, if the claim on  Schedule 6.17 shall result in a Material Adverse Effect, the
Loan Parties hereby agree that the Lenders shall be under no obligation to make any
Loan and the L/C Issuer shall be under no obligation to issue or extend any Letter of Credit hereunder. 


6.18    Solvency.    



        The
Loan Parties are Solvent on a consolidated basis. 


6.19    Perfection of Security Interests in the Collateral.    


        The
Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens upon filing of all
applicable financing statements or filing of notices with respect to intellectual property or delivery of Collateral, as applicable, and except as otherwise contemplated or otherwise not required by
the Collateral Documents, will be perfected security interests and Liens, prior to all other Liens other than Permitted Liens. 


6.20    Business Locations.    


        As
of the Closing Date, no Loan Party owns any real Property. Set forth on Schedule 6.20(a) is a list of all locations where any
tangible personal property of any Loan Party (other than any tangible personal Property in the possession of a sales representative of any Loan Party) is located as of the Closing Date. Set forth on  Schedule 6.20(b)
 is the chief executive office, federal tax payer identification number and organizational identification number of each Loan
Party as of the Closing Date. The exact legal
name and state of organization of each Loan Party as of the Closing Date is as set forth on the signature pages hereto. 


6.21    Labor Matters.    


        There
are no collective bargaining agreements or Multiemployer Plans covering the employees of the Borrower or any Subsidiary as of the Closing Date and neither the Borrower nor any
Subsidiary has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the last five (5) years prior to the Closing Date. Neither the business nor properties of
any Loan Party are affected by any strikes, walkouts, work stoppages or other labor dispute that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. 


ARTICLE VII  


 AFFIRMATIVE COVENANTS  


        So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than
(x) contingent reimbursement or indemnification obligations and (y) obligations under Swap Contracts that, at any time, are allowed by the terms thereof to remain outstanding), or any
Letter of Credit shall remain outstanding (except for 


59







 



Letters
of Credit that have been Cash Collateralized), the Loan Parties shall and shall cause each Subsidiary to: 


7.01    Financial Statements.    


        Deliver
to the Administrative Agent for the Administrative Agent to deliver to each Lender, in form and detail reasonably satisfactory to the Administrative Agent: 



        (a)   as
soon as available, but in any event within ninety (90) days after the end of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations and cash flows for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and
opinion of an independent certified public accounting firm of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any "going concern" or like qualification or exception or any qualification or exception as to the scope of such audit; and 


        (b)   as
soon as available, but in any event within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal
year of the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations and cash
flows for such fiscal quarter and for the portion of the Borrower's fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material
respects the financial condition, results of operations, shareholders' equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to year-end audit
adjustments and the absence of footnotes. 


As
to any information contained in materials furnished pursuant to Section 7.02(d), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in
subsections (a) and (b) above at the times specified therein. 




7.02    Certificates; Other Information.    


        Deliver
to the Administrative Agent for the Administrative Agent to deliver to each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required
Lenders: 



        (a)   concurrently
with the delivery of the financial statements referred to in Section 7.01(a), a certificate of its
independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Event of Default under  Section 8.11 or, if any such Event of Default shall exist, stating the nature and status of such event; 


        (b)   concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and  (b), a duly completed Compliance Certificate signed by a Responsible
Officer of the Borrower; 


        (c)   at
least thirty (30) days prior to the end of each fiscal year of the Borrower, beginning with the fiscal year ending December 31, 2007, an annual budget
of the Borrower and its Subsidiaries containing, among other things, financial information for each quarter of the next fiscal year. 


        (d)   concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and  (b), a certificate of a Responsible Officer of the Borrower containing
information regarding 



60








 




the
amount of all Dispositions, Debt Issuances, Extraordinary Receipts and Acquisitions that occurred during the period covered by such financial statements; 


        (e)   promptly
after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board
of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of
any of them; 


        (f)    promptly
after the same are available (but in any event not later than ten (10) Business Days after delivery), (i) copies of each annual report, proxy or
financial statement sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to
file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, or sent to a holder of any Indebtedness owed by the Borrower or any Subsidiary in its capacity as
such a holder and not otherwise required to be delivered to the Administrative Agent pursuant hereto and (ii) upon the request of the Administrative Agent, all reports and written information
to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or
any state or local agency responsible for health and safety matters, or any successor agencies or authorities concerning environmental, health or safety matters; 


        (g)   promptly,
such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time reasonably request; and 


        (h)   concurrently
with the delivery of the financial statements referred to in Section 7.01(a) and  Section 7.01(b) for the quarter ending June 30 of each
fiscal year, a certificate of a Responsible Officer of the Borrower
(i) listing (A) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made since the date of the prior certificate (or, in
the case of the first such certificate, the Closing Date), (B) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as
defined in the Security Agreement) received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (C) all Trademark Licenses, Copyright
Licenses and Patent Licenses (each such term as defined in the Security Agreement) entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing
Date) and (D) each material Copyright, Trademark and Patent (each such term as defined in the Security Agreement) that has expired or become unenforceable since the date of the prior
certificate (or, in the case of the first such certificate, the Closing Date), and (ii) attaching the insurance binder or other evidence of insurance for any insurance coverage of the Borrower
or any Subsidiary that was renewed, replaced or modified during the period covered by such financial statements. 




        Documents
required to be delivered pursuant to Section 7.01(a) or (b) or  Section 7.02(f) (to the extent any
such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower's website on the Internet at the
website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Borrower's behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent);  provided
that: (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower shall notify (which may be by
facsimile or electronic mail) 


61







 

the
Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper
copies of the Compliance Certificates required by Section 7.02(b) to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. 


        The
Borrower hereby acknowledges that (a) the Administrative Agent and/or BAS will make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, the "Borrower Materials") by posting the Borrower Materials on IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders (each, a "Public Lender") may have personnel who do not wish to receive material non-public information with respect to the
Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person's securities. The
Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by marking Borrower Materials "PUBLIC," the Borrower shall be deemed to have authorized the Administrative Agent, BAS
and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States federal
and state securities laws (provided, however, that to the extent such Borrower Materials constitute
Information (as defined in Section 11.07), they shall be treated as set forth in  Section 11.07); (y) all Borrower Materials marked "PUBLIC"
are permitted to be made available through a portion of the Platform designated
as "Public Investor;" and (z) the Administrative Agent and BAS shall be entitled to treat any Borrower Materials that are not marked "PUBLIC" as being suitable only for posting on a portion of
the Platform not marked as "Public Investor." Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials "PUBLIC". 


7.03    Notices.    


        Promptly
notify the Administrative Agent, for further dissemination to the Lenders, of: 



        (a)   The
occurrence of any Default. 


        (b)   Any
matter that has resulted in a Material Adverse Effect, including, if applicable (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws. 


        (c)   The
occurrence of any ERISA Event. 


        (d)   Any
material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary, including any determination by the Borrower referred to in  Section 2.10(b). 




        Each
notice pursuant to this Section 7.03(a) through (e) shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. 


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7.04    Payment of Obligations.    



        Pay
and discharge as the same shall become due and payable, all its material obligations and liabilities, including (a) all material Tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and reserves reasonably believed by the
Responsible Officers of the Borrower or such Subsidiary to be adequate and in accordance with GAAP are being maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if
unpaid, would by Law become a Lien upon its property (other than any Permitted Lien); and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness. 


7.05    Preservation of Existence, Etc.    


        (a)   Preserve,
renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 8.04 or 8.05. 


        (b)   Take
all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to
the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect. 


        (c)   Preserve
or renew all of its material registered patents, trademarks, trade names and service marks, the non-preservation or non-renewal of which
could reasonably be expected to have a Material Adverse Effect. 


7.06    Maintenance of Properties.    



        (a)   Maintain,
preserve and protect in a commercially reasonable manner all of its material properties and equipment necessary in the operation of its business in good
working order and condition, ordinary wear and tear excepted. 


        (b)   Make
all necessary repairs thereto and renewals and replacements thereof, except where the failure to do so could not reasonably be expected to have a Material Adverse
Effect. 


        (c)   Use
the standard of care typical in the industry in the operation and maintenance of its facilities. 


7.07    Maintenance of Insurance.    



        Maintain
in full force and effect insurance (including worker's compensation insurance, liability insurance, casualty insurance and business interruption insurance) with financially
sound and reputable insurance companies not, to the knowledge of the Responsible Officers of the Loan Parties, Affiliates of the Borrower, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Subsidiary operates. The Administrative
Agent shall be named as loss payee or mortgagee, as its interest may appear, and/or additional insured with respect to any such insurance providing coverage in respect of any Collateral. The Borrower
agrees that it shall provide
prompt notice to the Administrative Agent of any material alteration or cancellation of any the above-referenced insurance, together with a reasonably detailed description of such alteration or
cancellation. 


7.08    Compliance with Laws.    


        Comply
with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently 


63







 



conducted;
or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. 


7.09    Books and Records.    


        (a)   Maintain
proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower or such Subsidiary, as the case may be. 



        (b)   Maintain
such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the
Borrower or such Subsidiary, as the case may be. 


7.10    Inspection Rights.    


        (a)   Permit
representatives and independent contractors of the Administrative Agent, at the reasonable expense of the Borrower no more than once in any calendar year, and
each Lender, at such Lender's expense, as often as may be reasonably desired, to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants at such reasonable times during normal business
hours, upon reasonable advance notice to the Borrower; provided, however, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during
normal business hours upon advance notice of at least one (1) Business Day. 


        (b)   If
an Event of Default has occurred and is continuing, (i) permit the Administrative Agent, and its representatives, upon reasonable advance notice to the
Borrower, to conduct an audit of the Collateral at the expense of the Borrower and (ii) promptly deliver to the Administrative Agent (to the extent requested by the Administrative Agent in its
sole discretion) (A) asset appraisal reports with respect to the Collateral, and (B) a written audit of the accounts receivable, inventory, payables, controls and systems of the Borrower
and its Subsidiaries. 


7.11    Use of Proceeds.    


        Use
the proceeds of the Credit Extensions for any or all of the following purposes: (a) to refinance Indebtedness outstanding under the Existing Credit Agreement and to pay fees
and expenses incurred in connection with the transactions contemplated by this Agreement, (b) to finance the Product Acquisition (and costs and expenses related thereto) or (c) for
working capital, capital expenditures and other lawful corporate purposes; provided that in no event shall the proceeds of the Credit Extensions be used
in contravention of any Law or of any Loan Document. 


7.12    Additional Subsidiaries.    


        Within
thirty (30) days after the acquisition or formation of any Subsidiary: 



        (a)   notify
the Administrative Agent thereof in writing, together with the (i) jurisdiction of formation, (ii) number of shares of each class of Equity
Interests outstanding, (iii) number and percentage of outstanding shares of each class owned (directly or indirectly) by the Borrower or any Subsidiary and (iv) number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or purchase and all other similar rights with respect thereto; and 


        (b)   if
such Subsidiary is (A) a Domestic Subsidiary that is a Wholly-Owned Subsidiary or (B) a Domestic Subsidiary that is not wholly-owned (directly or
indirectly) by the Borrower but could become a Guarantor without violating the terms of its organizational documents, cause such Person to (1) become a Guarantor by executing and delivering to
the Administrative Agent a Joinder Agreement or such other documents as the Administrative Agent shall deem appropriate 



64







 




for
such purpose, and (2) if requested by the Administrative Agent, deliver to the Administrative Agent documents of the types referred to in Sections
5.01(b), (f) and (g), all in form, content and scope reasonably satisfactory to
the Administrative Agent. 




7.13    ERISA Compliance.    


        Do,
and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the
Internal Revenue Code and other federal or state Law; (b) cause each Plan that is qualified under Section 401(a) of the Internal Revenue Code to maintain such qualification; and
(c) make all required contributions to any Plan subject to Section 412 of the Internal Revenue Code. 


7.14    Pledged Assets.    


        (a)   Each
Loan Party will (i) cause all of its owned and leased real and personal Property other than Excluded Property to be subject at all times to first priority,
perfected (other than deposit accounts and cash and except as otherwise contemplated or otherwise not required by the Collateral Documents) and, in the case of real Property which is ground leased or
owned, title insured Liens in favor of the Administrative Agent to secure the Obligations pursuant to the terms and conditions of the Collateral Documents or, with respect to any such Property
acquired subsequent to the Closing Date, such other additional security documents as the Administrative Agent shall reasonably request, subject in any case to Permitted Liens and (ii) deliver
such other documentation as the Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, appropriate UCC-1 financing statements, real
estate title insurance policies, surveys, environmental reports, landlord's waivers, certified resolutions and other organizational and authorizing documents of such Person, favorable opinions of
counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above and the perfection of the Administrative
Agent's Liens thereunder) and other items of the types required to be delivered pursuant to Section 5.01(g), all in form, content and scope
reasonably satisfactory to the Administrative Agent. 


        (b)   Each
Loan Party will cause 100% of the issued and outstanding Equity Interests owned by it of each Domestic Subsidiary and sixty-five percent (65%) (or such
greater percentage that, due to a change in applicable Law after the date hereof, (A) could not reasonably be expected to cause the undistributed earnings of such First-Tier Foreign
Subsidiary as determined for United States federal income Tax purposes to be treated as a deemed dividend to such First-Tier Foreign Subsidiary's United States parent and (B) could
not reasonably be expected to cause any material adverse Tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) and one hundred percent (100%) of the issued and outstanding Equity Interests owned by it that are not entitled to vote of each First-Tier Foreign
Subsidiary (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent pursuant to
the terms and conditions of the Collateral Documents or such other security documents as the Administrative Agent shall reasonably request. 


        (c)   Notwithstanding
anything to the contrary in this Section 7.14, paragraphs (a) and (b) of this  Section 7.14 shall not require the creation or perfection
of a security interest in favor of the Administrative Agent or any holder of any
Obligation in, or the obtaining of title insurance, surveys or any other documents with respect to, any Property acquired after the Closing Date if and for so long as the Administrative Agent has
determined in its sole discretion that the collateral value thereof is insufficient to justify the cost of creating or perfecting such security interests in such Property or obtaining title insurance,
surveys or such other documents in respect of such Property. 


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7.15    Landlord Consents.    


        The
Loan Parties shall use commercially reasonable efforts to obtain and deliver to the Administrative Agent, in the case of any personal Property Collateral located at a premises not
owned by a Loan Party (other than leased office space), estoppel letters, consents and waivers from the landlords, warehousemen or bailees, as applicable, with respect to such personal Property in
form and substance reasonably satisfactory to the Administrative Agent. 


ARTICLE VIII  


 NEGATIVE COVENANTS  


        So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than
(x) contingent reimbursement or indemnification obligations and (y) obligations under Swap Contracts that, at any time, are allowed by the terms thereof to remain outstanding), or any
Letter of Credit shall remain outstanding (except for Letters of Credit that have been Cash Collateralized), no Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly: 


8.01    Liens.    


        Create,
incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following: 



        (a)   Liens
pursuant to any Loan Document; 


        (b)   Liens
existing on the date hereof and listed on Schedule 8.01 and any renewals or extensions thereof,  provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not materially increased,
(iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by  Section 8.03(b); 


        (c)   Liens
(other than Liens imposed under ERISA) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; 


        (d)   statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by Law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business, provided that such Liens secure only amounts not yet due and payable or,
if due and payable, are unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established; 



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        (e)   pledges
or deposits in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation, other than
any Lien imposed by ERISA; 


        (f)    deposits
to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to
judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business; 


        (g)   easements,
rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person; 



        (h)   Liens
securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under  Section 9.01(i); 


        (i)    Liens
securing Indebtedness permitted under Section 8.03(e);  provided that (i) such Liens do not at any time encumber any Property other than the
Property financed by such Indebtedness, (ii) the
Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the Property being acquired on the date of acquisition and (iii) such Liens attach to such
Property concurrently with or within ninety (90) days after the acquisition thereof; 


        (j)    licenses,
leases or subleases granted to others in the ordinary course of business not interfering in any material respect with the business of the Borrower or any of
its Subsidiaries; 


        (k)   any
interest of title of a lessor or a licensor (or any secured creditor of any such lessor or licensor) under, and Liens arising from UCC financing statements (or
equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases and/or licenses permitted by this Agreement; 


        (l)    Liens
deemed to exist in connection with Investments in repurchase agreements permitted under Section 8.02; 


        (m)  normal
and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions; 


        (n)   Liens
of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection; 


        (o)   Liens
of sellers of goods to the Borrower and any of its Subsidiaries arising under Article II of the Uniform Commercial Code or similar provisions of applicable
Law in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses; 



        (p)   Liens
on any Property subject to an escrow arrangement entered into in connection with the Product Acquisition (subject in the case of cash or Cash Equivalents to the
applicable limitation on the amount of such escrow deposit set forth in the definition thereof); 


        (q)   Liens
consisting of or incurred pursuant to an agreement to sell, transfer, lease or dispose of any Property in a sale, lease transfer or other disposition, solely to
the extent such sale, lease transfer or other disposition would have been permitted on the date of the creation of such Lien; 



        (r)   with
respect to any Property that is the subject of and used, developed or created by the Borrower in connection with the Entocort® EC Distribution Agreement
or 1996 License Agreement, respectively, Liens on such Property arising under the Entocort® EC Distribution Agreement or 1996 License Agreement, respectively; and 



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        (s)   additional
Liens not otherwise permitted by this Section 8.01 and not securing Indebtedness;  provided that neither (i) the aggregate outstanding amount of
the applicable obligations secured thereby nor (ii) the aggregate book value
(determined, in the case of each such Lien, as of the date such Lien is incurred) of the assets subject thereto exceeds $500,000. 




8.02    Investments.    


        Make
any Investments, except: 



        (a)   Investments
held by the Borrower or such Subsidiary in the form of cash or Cash Equivalents; 


        (b)   Investments
existing as of the Closing Date and set forth in Schedule 8.02(b); 



        (c)   Investments
made in compliance with the investment policy identified in Schedule 8.02(c) (including any
Investments existing on the Closing Date made pursuant to such investment policy); 


        (d)   Investments
in any Person that is a Loan Party; 


        (e)   Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss; 



        (f)    Guarantees
permitted by Section 8.03; 


        (g)   Permitted
Acquisitions; 


        (h)   Investments
consisting of advances or loans to directors, officers or employees in an aggregate principal amount not to exceed $500,000 in the aggregate at any time
outstanding; provided, that all such advances shall be in compliance with all Laws; 



        (i)    Investments
made by the Borrower in connection with its employee deferred compensation plans; and 


        (j)    the
Product Acquisition; 


        (k)   promissory
notes and other non-cash consideration received in connection with Dispositions and any other sale, transfer or other disposition of any Property
permitted hereunder; and 


        (l)    Investments
of a nature not contemplated in the foregoing clauses in an amount not to exceed $5,000,000 in the aggregate at any time outstanding. 




8.03    Indebtedness.    


        Create,
incur, assume or suffer to exist any Indebtedness, except: 



        (a)   Indebtedness
under the Loan Documents; 


        (b)   Indebtedness
of the Borrower and its Subsidiaries set forth in Schedule 8.03 (and renewals, refinancings and
extensions thereof on terms and conditions not materially less favorable to the applicable debtor(s)); 


        (c)   intercompany
Indebtedness permitted under Section 8.02(d); 


        (d)   obligations
(contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract,  provided that (i) such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly
mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person,
and not for purposes of 



68







 




speculation
or taking a "market view;" and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party; 


        (e)   purchase
money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to
finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided that (i) the total of all such Indebtedness for
all such Persons taken together shall not exceed an aggregate principal amount of $5,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase
price of the asset(s) financed; (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing; 


        (f)    Indebtedness
that may exist or may be deemed to exist under the Product Acquisition Documents, the Entocort® EC Distribution Agreement, the 1996 License
Agreement and any other agreements providing for indemnification, purchase price adjustments and similar obligations (including Earn-Out Obligations) in connection with the lease, license,
purchase or sale of assets effected in accordance with the requirements of this Agreement; 


        (g)   other
unsecured Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding;  provided, that (i) the Loan Parties shall be in
compliance with Section 8.11 after giving
effect to such additional Indebtedness, (ii) no Default or Event of Default exists prior to or after giving effect to such Indebtedness and (iii) if such Indebtedness results from seller
financing, such Indebtedness is not evidenced by a demand note but rather has a stated maturity; and 


        (h)   Guarantees
with respect to Indebtedness permitted under clauses (a) through (g) of this  Section 8.03. 




8.04    Fundamental Changes.    



        Merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to or in favor of any Person; provided that, notwithstanding the foregoing provisions of this  Section 8.04 but subject to the terms of Sections 7.12 and  7.14, (a) the Borrower may merge or consolidate with any of its Subsidiaries provided that the Borrower shall be the continuing or surviving
corporation, (b) any Loan Party other than the Borrower may merge or consolidate with any other Loan Party other than the Borrower, (c) any Foreign Subsidiary may be merged or
consolidated with or into any Loan Party provided that such Loan Party shall be the continuing or surviving Person, (d) any Foreign Subsidiary may be merged or consolidated with or into any
other Foreign Subsidiary, (e) any Subsidiary of the Borrower may merge with any Person that is not a Loan Party in connection with a Permitted Acquisition provided that, if such Permitted
Acquisition involves the Borrower, the Borrower shall be the continuing or surviving corporation, (f) any Loan Party may Dispose of any or all of its Property (upon voluntary liquidation or
otherwise) to the Borrower, and (g) the Borrower may consummate the Reorganization pursuant to and in accordance with the following paragraph of this  Section 8.04. 



Notwithstanding
the foregoing, but subject to the following provisions of this paragraph, the Borrower will be permitted to effect an internal reorganization that will result in the parent company
(currently the Borrower) changing its state of incorporation from California to Delaware and that will be accomplished either by (a) the Borrower merging with and into a new wholly-owned
Subsidiary of the Borrower, which Subsidiary (i) will be incorporated in the state of Delaware and the surviving corporation of such merger, (ii) shall, as a result of such merger,
assume by operation of law all of the rights and obligations of the Borrower under the Agreement, and (iii) shall, immediately after the 


69







 



consummation
of such merger, have management and controlling ownership substantially similar to that of the Borrower immediately prior to the consummation of such merger or (b) the Borrower
becoming a wholly-owned Subsidiary of a new holding company incorporated in the State of Delaware, the outstanding capital stock of which holding company will be owned by the current shareholders of
the Borrower (either such transaction, the "Reorganization"). The Lenders hereby agree that the Borrower shall be permitted to consummate the
Reorganization so long as (i) the consummation of the Reorganization shall not result in a material and adverse impact to the interests of the Administrative Agent and/or the Lenders under this
Agreement and the other Loan Documents and (ii) the management and controlling ownership of the Borrower (or new parent corporation, if applicable) immediately after the consummation of the
Reorganization are substantially similar to that of the Borrower immediately prior to the consummation of the Reorganization. The Loan Parties hereby agree (i) to provide the Administrative
Agent and the Lenders with such additional information and documents related to the Reorganization as may be reasonably requested by the Administrative Agent and/or any Lender and (ii) to
execute and deliver (or to cause to be executed and delivered) prior to or concurrently with the consummation of the Reorganization such appropriate amendments, corporate authority documents and other
supporting documents to or under this Agreement or the other Loan Documents evidencing any changes made necessary by the consummation of the Reorganization (including, without limitation,
(A) in the event the Borrower merges with and into a new wholly-owned Subsidiary of the Borrower, a legal opinion of Borrower's counsel, in form and substance reasonably acceptable to the
Administrative Agent's legal counsel, addressing the enforceability of the Loan Documents with respect to such surviving Subsidiary and (B) in the event that the Borrower becomes a wholly-owned
subsidiary of a new parent holding company incorporated in Delaware, such new parent holding company will become a Guarantor hereunder and, subject to any applicable limitations set forth in  Section 7.14 and/or the Collateral Documents, cause all of its owned and leased real and personal Property to be subject to a first priority,
perfected lien in favor of the Administrative Agent to secure the Obligations, including without limitation 100% of the issued and outstanding Equity Interests of the Borrower owned by such new parent
holding company) and such other changes as may be mutually agreed to by the Borrower (or its successor, if applicable) and the Administrative Agent, each in form and substance reasonably acceptable to
the Borrower (or its successor, if applicable), the Administrative Agent and the Required Lenders. The Borrower acknowledges that the agreement of the Lenders evidenced in this paragraph is given in
reliance upon the foregoing conditions and agreements and shall be deemed revoked if any such condition or agreement is breached. 


8.05    Dispositions.    


        Make
any Disposition unless (a) the consideration paid shall be cash or Cash Equivalents paid contemporaneously with consummation of the transaction and shall be in an amount not
less than the fair market value of the Property disposed of, (b) if such transaction is a Sale and Leaseback
Transaction, such transaction is not prohibited by the terms of Section 8.16, (c) such transaction does not involve the sale or other
disposition of a minority equity interest in any Subsidiary, (d) such transaction does not involve a sale or other disposition of receivables other than receivables owned by or attributable to
other Property concurrently being disposed of in a transaction otherwise permitted under this Section 8.05 and (e) the aggregate fair
market value of all the assets sold or otherwise disposed of by the Borrower and its Subsidiaries in all such transactions during the term of this Agreement shall not exceed 10% of Consolidated Total
Assets at the time of any such Disposition. 


8.06    Restricted Payments.    


        Declare
or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: 



        (a)   each
Subsidiary may make Restricted Payments (directly or indirectly) to any Loan Party; 



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        (b)   the
Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests of such Person; 


        (c)   the
Borrower may make cash payments to its shareholders in an aggregate amount not to exceed $500,000 during the term of this Agreement;  provided that such payments are not dividend payments or similar type
distributions; and 



        (d)   the
Borrower may repurchase (i) Warrants and Warrant Shares for fair market value pursuant to the terms of Section 8.8 of the Securities Purchase
Agreement; provided that the Borrower does not use any proceeds of any Credit Extension (which term is intended to include Borrowings made under any additional commitments provided pursuant to  Section 2.02(f)
) to repurchase any such Warrants and Warrant Shares and (ii) Warrants and Warrant Shares based on any notice given by, or
received from, any holders of Warrants or Warrant Shares between April 30, 2007 and April 30, 2008 for fair market value pursuant to the terms of Section 8.9 of the Securities
Purchase Agreement; provided that the Borrower does not use any proceeds of any Credit Extension (which term is intended to include Borrowings made under any additional commitments provided pursuant
to Section 2.02(f)) to repurchase any such Warrants and Warrant Shares. 




8.07    Change in Nature of Business.    


        Engage
in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on the Closing Date or any business
substantially related or incidental thereto. 


8.08    Transactions with Affiliates and Insiders.    



        Enter
into or permit to exist any transaction or series of transactions with any officer or director of such Person or with any Person known to be an Affiliate of such Person other than
(a) advances of working capital to any Loan Party, (b) transfers of cash and assets to any Loan Party and any other transactions among the Loan Parties, (c) intercompany
transactions expressly permitted by Section 8.02, Section 8.03,  Section 8.04, Section 8.05 or  Section 8.06, (d) normal and reasonable compensation and reimbursement of expenses of officers and directors and (e) except as
otherwise specifically limited in this Agreement, other transactions which are entered into on terms and conditions substantially as favorable to such Person as would be obtainable by it in a
comparable arms-length transaction with a Person other than an officer, director or Affiliate. 


8.09    Burdensome Agreements.    


        (a)   Enter
into, or permit to exist, any Contractual Obligation that encumbers or restricts the ability of any such Person to (i) pay dividends or make any other
distributions to any Loan Party on its Equity Interests or with respect to any other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or other obligation
owed to any Loan Party, (iii) make loans or advances to any Loan Party, (iv) sell, lease or transfer any of its Property to any Loan Party, (v) pledge its Property pursuant to the
Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof (provided that the Loan Parties may enter into and permit to exist Contractual Obligations that contain
customary "no assignment" provisions) or (vi) act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of
any of the matters referred to in clauses (i)-(v) above) for (1) this Agreement and the other Loan Documents, (2) any document or instrument governing Indebtedness incurred
pursuant to Section 8.03(e), provided that any such restriction contained therein relates only to
the asset or assets constructed or acquired in connection therewith, (3) any Permitted Lien or any document or instrument governing any Permitted Lien,  provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien, (4) customary
restrictions and conditions contained in any agreement relating to the sale of any Property permitted under Section 8.05 pending the 


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consummation
of such sale, (5) the Product Acquisition Documents (to the extent received and approved by the Administrative Agent and Required Lenders prior to the consummation of the Product
Acquisition), (6) the Securities Purchase Agreement, Warrants and/or Warrant Shares, (7) the Proprius License Agreement; provided that any
such restriction contained in the Proprius License Agreement relates only to the Equity Interests of Proprius, Inc. owned by the Borrower and (8) customary provisions restricting
assignment or transfer of any license for intellectual property permitted hereunder or any other agreement entered into in the ordinary course of business. 


        (b)   Enter
into, or permit to exist, any Contractual Obligation that prohibits or otherwise restricts the existence of any Lien upon any of its Property in favor of the
Administrative Agent (for the benefit of the Lenders) for the purpose of securing the Obligations, whether now owned or hereafter acquired, or requiring the grant of any security for any obligation if
such Property is given as security for the Obligations, except (i) any document or instrument governing Indebtedness incurred pursuant to  Section 8.03(e), provided that any such restriction contained therein relates only to the
Property constructed or acquired in connection therewith, (ii) in connection with any Permitted Lien or any document or instrument governing any Permitted Lien,  provided that any such restriction
contained therein relates only to the Property subject to such Permitted Lien, (iii) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale of any Property permitted under Section 8.05, pending the
consummation of such sale, (iv) the Product Acquisition Documents (to the extent received and approved by the Administrative Agent and Required Lenders prior to the consummation of the Product
Acquisition), (v) the Proprius License Agreement; provided that any such restriction contained in the Proprius License Agreement relates only to
the Equity Interests of Proprius, Inc. owned by the Borrower, and (vi) customary provisions restricting assignment or transfer of any license for intellectual property permitted
hereunder or any other agreement entered into in the ordinary course of business. 


8.10    Use of Proceeds.    



        Use
the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose. 


8.11    Financial Covenants.    


        (a)   Consolidated Leverage Ratio.    Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of
the Borrower (beginning with the fiscal quarter ending December 31, 2007) to be greater than 2.50:1.0. 


        (b)   Consolidated Fixed Charge Coverage Ratio.    Permit the Consolidated Fixed Charge Coverage Ratio as of the end
of any fiscal quarter of the Borrower (beginning with the fiscal quarter ending December 31, 2007) to be less than 2.0 to 1.0. 


        (c)   Minimum Liquidity.    During the period from June 30, 2010 until December 31, 2011, the Loan
Parties shall have available at all times unrestricted cash, Cash Equivalents or marketable securities that are not subject to any Lien (other than a Lien created by the Collateral Documents) in an
amount equal to the lesser of (i) $30,000,000 and (ii) the aggregate Outstanding Amount of all Loans and L/C Obligations. 


8.12    Capital Expenditures.    


        Permit
Consolidated Capital Expenditures in any fiscal year, commencing with the fiscal year ending December 31, 2007, to exceed the sum of (a) $5,000,000  plus (b) any unused amount available
for Consolidated Capital Expenditures under this  Section 8.12 for the immediately preceding fiscal year (excluding any carry forward available from any prior fiscal year).
 


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8.13    Prepayment of Other Indebtedness, Etc.    


        (a)   Amend
or modify any of the terms of any Indebtedness existing on the Closing Date of the Borrower or any Subsidiary (excluding Indebtedness arising under the Loan
Documents) if such amendment or modification would (i) add or change any terms in a manner materially adverse to the Borrower or any Subsidiary or (ii) shorten the final maturity or
average life to maturity or require any payment to be made sooner than originally scheduled or increase the interest rate applicable thereto. 


        (b)   Make
(or give any notice with respect thereto) any voluntary or optional payment, prepayment, redemption or acquisition for value of (including without limitation, by
way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of (i) any Indebtedness of the Borrower
or any Subsidiary (other than Indebtedness arising under the Loan Documents) or (ii) the Existing Preferred Stock. For the purposes of clarification, this  Section 8.13(b) shall not prohibit
any such voluntary or optional payment, prepayment, redemption or acquisition for value of, refund, refinance
or exchange of the Warrants and/or Warrant Shares. 


        (c)   Amend
or modify any of the terms of the Securities Purchase Agreement, the Warrants, the Warrant Shares, the Entocort® EC Distribution Agreement and/or the
1996 License Agreement, in each case if such amendment or modification would add or change any terms in a manner materially adverse to the Borrower, any Subsidiary or any Lender. 


8.14    Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity.    



        (a)   Amend,
modify or change its Organization Documents in a manner materially adverse to the Lenders. 


        (b)   Change
its fiscal year. 


        (c)   Without
providing ten (10) days prior written notice to the Administrative Agent, change its name, state of formation or form of organization. 


        provided, however, that this  Section 8.14 shall not be construed to prohibit the consummation of a Reorganization
permitted pursuant to  Section 8.04 hereof. 



8.15    Ownership of Subsidiaries.    


        Notwithstanding
any other provisions of this Agreement to the contrary, (a) permit any Subsidiary of the Borrower to issue or have outstanding any shares of preferred Equity
Interests or (b) create, incur, assume or suffer to exist any Lien on any Equity Interests of any Subsidiary of the Borrower owned directly or indirectly by the Borrower, except for Permitted
Liens. 



8.16    Sale Leasebacks.    


        Enter
into any Sale and Leaseback Transaction. 


ARTICLE IX  


 EVENTS OF DEFAULT AND REMEDIES  


9.01    Events of Default.    


        Any
of the following shall constitute an Event of Default: 



        (a)   Non-Payment.    The Borrower or any other Loan Party fails to pay (i) when and as required
to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within three (3) days after the same becomes due, any interest on any Loan or on any L/C Obligation,
or any commitment fee or other fee due hereunder, or (iii) within five (5) days after 



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the
same becomes due, any other amount payable hereunder or under any other Loan Document; or 


        (b)   Specific Covenants.    Any Loan Party fails to perform or observe any term, covenant or agreement contained in
any of Sections 7.02(a), (b) or (d),  7.03(a), 7.05(a), 7.10 or  7.11 or Article VIII; or
 


        (c)   Other Covenants.    Any Loan Party fails to perform or observe any term, covenant or agreement contained in  Section 7.01 or subsections (b),
(c) or (d) of Section 7.03 and such failure
continues for five (5) Business Days; 


        (d)   Other Defaults.    Any Loan Party fails to perform or observe any other covenant or agreement (not specified in
subsection (a), (b) or (c) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days after the earlier of
(i) the date on which a Responsible Officer of a Loan Party becomes aware of such failure or (ii) the date on which notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or 


        (e)   Representations and Warranties.    Any representation, warranty, certification or statement of fact made or
deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or 



        (f)    Cross-Default.    (i) The Borrower or any Subsidiary (A) fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts between
any Loan Party and any Lender or any Affiliate of a Lender) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under
any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or to become
payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from
(A) any event of default under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as
so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or 


        (g)   Insolvency Proceedings, Etc.    Any Loan Party or any of its Subsidiaries institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor
Relief Law relating to any such Person or to all or any material part 



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of
its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or 



        (h)   Inability to Pay Debts; Attachment.    (i) The Borrower or any Subsidiary becomes unable or admits in
writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any
material part of the property of any such Person and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or 


        (i)    Judgments.    There is entered against the Borrower or any Subsidiary (i) one or more final judgments or
orders for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and,
in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of ten (10) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or 


        (j)    ERISA.    (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the
Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or 


        (k)   Invalidity of Loan Documents.    Any Loan Document, at any time after its execution and delivery and for any
reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests
in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate
or rescind any Loan Document; or 


        (l)    Change of Control.    There occurs any Change of Control. 




9.02    Remedies Upon Event of Default.    



        If
any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following
actions: 



        (a)   declare
the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated; 


        (b)   declare
the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; 


        (c)   require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and 


        (d)   exercise
on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law; 




provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with
respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each 


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Lender
to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each
case without further act of the Administrative Agent or any Lender. 


9.03    Application of Funds.    


        After
the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 9.02), any
amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order: 



First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity as such; 


Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to
the Lenders (including Attorney Costs and amounts payable under Article III), ratably among them in proportion to the amounts described in this
clause Second payable to them; 


Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and L/C Borrowings and fees, premiums and
scheduled periodic payments, and any interest accrued thereon, due under any Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is
permitted by Section 8.03(d), ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders) in proportion to the
respective amounts described in this clause Third held by them; 


Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings and breakage, termination or other
payments, and any interest accrued thereon, due under any Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is permitted by  Section 8.03(d), and to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit,
ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders) in proportion to the respective amounts described in this clause  Fourth held by them; and 


Last, the balance, if any, after all of the Obligations (other than contingent reimbursement or indemnification obligations) have been indefeasibly paid
in full, to the Borrower or as otherwise required by Law. 




        Subject
to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause  Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after
all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. 


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   ARTICLE X  


 ADMINISTRATIVE AGENT  


10.01    Appointment and Authority.    



        (a)   Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither
the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. 



        (b)   The
Administrative Agent shall also act as the "collateral agent" under the Loan Documents, and each of the Lenders and
the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all
Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the
Administrative Agent, as "collateral agent" and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to  Section 10.05 for purposes of holding or enforcing
any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or
for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this  Article X and Article XI (including  Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the "collateral
agent" under the Loan Documents) as if set forth in full herein with respect thereto. 


10.02    Rights as a Lender.    


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


10.03    Exculpatory Provisions.    



        The
Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the
foregoing, the Administrative Agent: 



        (a)   shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; 


        (b)   shall
not have any duty to take any discretionary action or exercise any discretionary powers, except with respect to the Administrative Agent's discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law; and 



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




        The
Administrative Agent shall not be liable to any Lender for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in  Sections 11.01 and
9.02) or (ii) in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer. 


        The
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in, or in connection with,
this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in  Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. 


10.04    Reliance by Administrative Agent.    


        The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel
(who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts. 


10.05    Delegation of Duties.    


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


10.06    Resignation of the Administrative Agent.    


        The
Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall 


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have
the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;  provided
that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor's appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent's resignation hereunder and under the other Loan
Documents, the provisions of this Section and Section 11.04 shall continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative
Agent. 


        Any
resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor's appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and
(c) the successor L/C Issuer and Swing Line Lender shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring L/C Issuer and Swing Line Lender to effectively assume the obligations of the retiring L/C Issuer and Swing Line Lender with respect to such Letters of
Credit. 


10.07    Non-Reliance on Administrative Agent and Other Lenders.    


        Each
Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on
such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Credit Agreement. Each Lender and the L/C Issuer also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder. 


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10.08    No Other Duties; Etc.    


        Anything
herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication agents, documentation agents or co-agents shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder. 


10.09    Administrative Agent May File Proof of Claims.    



        In
case of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any
Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise: 



        (a)   to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other
than obligations under Swap Contracts between a Loan Party and any Lender, or any Affiliate of a Lender, to which the Administrative Agent is not a party) that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the
Administrative Agent under Sections 2.03(i) and (j),  2.09 and 11.04) allowed in such judicial proceeding; and 



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




and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04. 


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


10.10    Collateral and Guaranty Matters.    


        The
Lenders and the L/C Issuer irrevocably authorize the Administrative Agent at its option and in its discretion: 



        (a)   to
release any Lien on any property granted to or held by the Administrative Agent, as applicable, under any Loan Document (i) upon termination of the Commitments
and payment in full of all Obligations (other than (A) contingent indemnification or reimbursement obligations and (B) obligations under Swap Contracts that, at any time, are allowed by
the terms thereof to remain outstanding) and the expiration or termination of all Letters of Credit (other than Letters of Credit that have been Cash Collateralized), (ii) that is sold or to be
sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) subject to Section 11.01, if
approved, authorized or ratified in writing by the Required Lenders; 



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        (b)   to
subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is
permitted by Section 8.01(i); and 



        (c)   to
release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. 




        Upon
request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent's authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 10.10. 


ARTICLE XI  


 MISCELLANEOUS  


11.01    Amendments, Etc.    


        No
amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be
effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the specific purpose for which given; provided,  however, that no such amendment, waiver or
consent shall: 



        (a)   extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02)
without the written consent of such Lender (it being understood and agreed that a waiver of any condition precedent set forth in Section 5.02 or
of any Default or Event of Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender); 



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


        (c)   reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby; provided, however, that
only the consent of the
Required Lenders shall be necessary (i) to amend the definition of "Default Rate" or to waive any obligation of the Borrower to pay interest at the Default Rate or (ii) to amend any
financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder; 


        (d)   change
Section 2.13 or Section 9.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written consent of each Lender directly affected thereby; 



        (e)   waive
or amend Section 8.13(b)(ii) without the written consent of each Lender; 


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



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        (g)   except
in connection with a Disposition permitted under Section 8.05, release all or substantially all of the
Collateral without the written consent of each Lender directly affected thereby; 


        (h)   release
the Borrower or, except in connection with a merger or consolidation permitted under Section 8.04 or a
Disposition permitted under Section 8.05, all or substantially all of the Guarantors, from its or their obligations under the Loan Documents
without the written consent of each Lender directly affected thereby; 



        (i)    without
the consent of Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the Revolving Commitments (or if the Revolving Commitments
have been terminated, the outstanding Revolving Loans (and participations in any Swing Line Loans and L/C Obligations)), (i) waive any Default or Event of Default for purposes of  Section 5.02
for purposes of any Revolving Loan borrowing or L/C Credit Extension and (ii) amend, change, waive, discharge or terminate  Section 2.01(a), 2.02,
2.03,  2.05(b)(i) or 2.06 or any term, covenant or agreement contained in  Article VIII or Article IX;
 


        (j)    without
the consent of Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the outstanding Term Loan (and participations therein),
amend, change, waive, discharge or terminate Section 2.05(b)(vi) so as to alter the manner of application of proceeds of any mandatory prepayment
required by Section 2.05(b)(ii), (iii), (iv) or  (v)
hereof; or 



        (k)   change,
amend, modify or waive Section 8.06(d) without the consent of each Lender; 




and,
provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders
required above, affect the rights or duties of the L/C Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this
Agreement or any other Loan Document, (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended without the consent of such Lender. 


        Notwithstanding
the fact that the consent of all the Lenders is required in certain circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit
on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and
such determination shall be binding on all of the Lenders. 


        Notwithstanding
anything herein to the contrary, the Administrative Agent is authorized by the Lenders and the L/C Issuer to enter into amendments to this Agreement and any other Loan
Document with any Loan Party or its Subsidiaries, without any further consent of the Lenders or the L/C Issuer, for the purpose of (a) implementing the additional Commitments (and any
extensions of credit thereunder) and/or to implement and set forth the terms of any Additional Term Loans, in each case as contemplated by and subject to the limitations set forth in  Section 2.02(f), including without limitation such amendments as may be necessary to (i) provide for ratable sharing of benefits of this
Agreement and the other Loan Documents in respect of the extensions of credit from time to time 


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outstanding
in the form of Additional Term Loans (including changes to Section 2.05 to provide any Additional Term Loan the right to ratable
(with the Term Loan and each other Additional Term Loan then outstanding) prepayment in connection with any voluntary or mandatory prepayment), (ii) include appropriately the lenders providing
any Additional Term Loan in any determination of the Required Lenders and/or the determination of the requisite Lenders under subsections (f) and (j) of  Section 11.01 corresponding to the
consent rights of the other Lenders thereunder and (iii) make such other changes as the Borrower and
the Administrative Agent shall deem necessary or advisable in connection with the establishment of any Additional Term Loan, or (b) curing any typographical error, incorrect cross-reference,
defect in form, inconsistency, omission or ambiguity in this Agreement or any other Loan Document to which it is a party. 


11.02    Notices and Other Communications; Facsimile Copies.    


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



          (i)  if
to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 11.02; and 


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




        Notices
sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed
to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the
recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b). 


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



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


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        (c)    The Platform.    THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses
of any kind (whether in tort, contract or otherwise) arising out of the Borrower's or the Administrative Agent's transmission of Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses result from the gross negligence or willful misconduct of such Agent Party; provided,  however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages). 


        (d)    Change of Address, Etc.    Each of the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier
or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to
notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one
individual at or on behalf of such Public Lender to at all times have selected the "Private Side Information" or similar designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public Lender's compliance procedures and applicable Law, including United States Federal and state securities Laws, to make
reference to Borrower Materials that are not made available through the "Public Side Information" portion of the Platform and that may contain material non-public information with respect
to the Borrower or its securities for purposes of United States Federal or state securities laws. 



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


11.03    No Waiver; Cumulative Remedies.    


        No
failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The 


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rights,
remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 


11.04    Expenses; Indemnity; Damage Waiver.    



        (a)    Costs and Expenses.    The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication
of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the Attorney Costs for the Administrative Agent, any Lender or the L/C
Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or
(B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit. 


        (b)    Indemnification by the Borrower.    The Borrower shall indemnify the Administrative Agent (and any
sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the
Attorney Costs of any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of
their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses (x) resulted from the gross negligence or willful misconduct of such Indemnitee or (y) resulted from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder or under any other Loan Document. 


        (c)    Reimbursement by Lenders.    To the extent that the Borrower for any reason fails to indefeasibly pay any
amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender's Pro
Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related 


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expense,
as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of
any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection
(c) are subject to the provisions of Section 2.12(d). 


        (d)    Waiver of Consequential Damages, Etc.    To the fullest extent permitted by applicable Law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising
out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or
Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such
Indemnitee. 


        (e)    Payments.    All amounts due under this Section shall be payable not later than ten (10) Business Days
after demand therefor. 


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


11.05    Payments Set Aside.    


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


11.06    Successors and Assigns.    


        (a)    Successors and Assigns Generally.    The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of the Administrative Agent and each Lender other than in connection with a Reorganization permitted by  Section 8.04 hereof, and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee
in accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with the provisions of  Section 11.06(d),
or (iii) by way of pledge or assignment of a security interest subject to the restrictions of  Section 11.06(f) (and any other attempted assignment or transfer by any party hereto shall be null
and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and 


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assigns
permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. 


        (b)    Assignments by Lenders.    Any Lender may at any time assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this  Section 11.06(b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it);  provided that any such assignment shall be subject to the following conditions:
 



        (i)    Minimum Amounts.    



        (A)  in
the case of an assignment of the entire remaining amount of the assigning Lender's Commitment under the revolving or term loan credit facility hereunder together with
the Loans at the time owing to
it under such facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and 


        (B)  in
any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than
$2,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for
purposes of determining whether such minimum amount has been met; 




        (ii)    Proportionate Amounts.    Each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not (A) apply to the Swing
Line Lender's rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations among the revolving or term loan
credit facility hereunder on a non-pro rata basis; 


        (iii)    Required Consents.    No consent shall be required for any assignment except to the extent required by
subsection (b)(i)(B) of this Section and, in addition: 



        (A)  the
consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; 


        (B)  the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (1) any
Revolving Commitment if such assignment is to a Person that is not a Lender with a Revolving Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) any
Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; 




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        (C)  the
consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the
assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and 



        (D)  the
consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment of a Revolving Commitment if such
assignment is to a Person that is not a Lender with a Revolving Commitment. 




        (iv)    Assignment and Assumption.    The parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided,  however, that the Administrative
Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.
The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. 


        (v)    No Assignment to Borrower.    No such assignment shall be made to the Borrower or any of the Borrower's
Affiliates or Subsidiaries. 


        (vi)    No Assignment to Natural Persons.    No such assignment shall be made to a natural person. 




        Subject
to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and,
in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Section 3.01, 3.04,  3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection
(d) of this Section. 


        (c)    Register.    The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at the Administrative Agent's Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive
change to the Loan Documents is pending, any Lender may request and receive from the Administrative Agent a copy of the Register. 


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


        Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that
affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of  Sections 3.01, 3.04 and 3.05 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by Law, each Participant also shall be entitled to the
benefits of Section 11.08 as though it were a Lender; provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender. 


        (e)    Limitations upon Participant Rights.    A Participant shall not be entitled to receive any greater payment
under Section 3.01, 3.04 or 3.05 than the
applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with  Section 3.01(e) as though it were a
Lender. 


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


        (g)    Electronic Execution of Assignments.    The words "execution," "signed," "signature," and words of like import
in any Assignment and Assumption shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as
the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act. 



        (h)    Resignation as L/C Issuer or Swing Line Lender after Assignment.    Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing
Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,  however,
that no failure by the Borrower to appoint any such successor shall affect 


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the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right
to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of
America resigns as Swing Line Lender, it shall retain all the rights and duties of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to  Section 2.04(c). Upon
the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit. 


11.07    Confidentiality.    


        Each
of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates' respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by
applicable Laws or by any subpoena or similar legal process, (d) to any other party hereto, (e) to the extent reasonably necessary, in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section (with the Borrower as an express third-party beneficiary), to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Person invited to become a Lender under  Section 2.02(f)
or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. 



        For
purposes of this Section, "Information" means all information received from the Borrower or any Subsidiary relating to the Borrower or
any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to
disclosure by the Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. 



        Each
of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning the
Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such
material non-public information in accordance with applicable Law, including Federal and state securities Laws. 


90







 



11.08    Set-off.    



        In
addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and any Affiliate of any Lender
is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each
Loan Party) to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at
any time owing by, such Lender to or for the credit or the account of the respective Loan Parties against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now
or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may
be contingent or unmatured or denominated in a currency different from that of the applicable deposit or indebtedness. Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and application. 


11.09    Interest Rate Limitation.    



        Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or any Lender shall receive interest in
an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (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 equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. 


11.10    Counterparts.    


        This
Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of
an executed counterpart by electronic transmission shall be effective as delivery of a manually executed counterpart. 


11.11    Integration.    


        This
Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall
control; provided that the inclusion of supplemental rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of
any party, but rather in accordance with the fair meaning thereof. 


11.12    Survival of Representations and Warranties.    


        All
representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall
survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be 


91







 



relied
upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative
Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation
hereunder (other than (x) contingent reimbursement or indemnification obligations or (y) Swap Contracts that, at any time, are allowed by the terms thereof to remain outstanding) shall
remain unpaid or unsatisfied or any Letter of Credit (other than Letters of Credit that have been Cash Collateralized) shall remain outstanding. 


11.13    Severability.    


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


11.14    Replacement of Lenders.    


        If
(a) any Lender requests compensation under Section 3.04, (b) the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender pursuant to Sections 3.01 or  3.04, (c) any Lender is subject to
illegality under Section 3.02, (d) a Lender (a
"Non-Consenting Lender") does not consent to a proposed change, waiver, discharge or termination with respect to any Loan Document that has
been approved by the Required Lenders as provided in Section 11.01 but requires unanimous consent of all Lenders or all Lenders directly affected
thereby (as applicable) or (e) any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by,  Section 11.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that: 



          (i)  Administrative
Agent shall have received the assignment fee specified in Section 11.06(b); 


         (ii)  such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts); 


        (iii)  in
the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments
required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; 


        (iv)  such
assignment does not conflict with applicable Laws; and 


         (v)  in
the case of any such assignment resulting from a Non-Consenting Lender's failure to consent to a proposed change, waiver, discharge or termination with
respect to any Loan Document, the applicable replacement bank, financial institution or Fund consents to the proposed change, waiver, discharge or termination;  provided that the failure by such
Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair the validity of
the removal of such Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender's Commitments and outstanding Loans and participations in L/C Obligations
and Swing Line Loans 



92







 




pursuant
to this Section 11.14 shall nevertheless be effective without the execution by such Non-Consenting Lender of an Assignment
and Assumption. 




        A
Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower
to require such assignment and delegation cease to apply. 


11.15    Governing Law; Jurisdiction, Etc.    


        (a)   THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICTS OF
LAWS TO THE EXTENT THAT THE SAME ARE NOT MANDATORILY APPLICABLE BY STATUTE AND THE APPLICATION OF THE LAWS OF ANOTHER STATE WOULD BE REQUIRED THEREBY;  PROVIDED THAT THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. 



        (b)   ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK, NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF  FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. 


        (c)   EACH
PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02.
NOTHING IN THS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. 


11.16    California Judicial Reference.    


        If
any action or proceeding is filed (other than by an Indemnitee) in a court of the State of California by or against any party hereto in connection with any of the transactions
contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure
Section 638 to a referee (who shall be a single active or retired judge) to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a
statement of decision, provided that at the option of any party to such proceeding, any such issues pertaining to a "provisional remedy" as defined in
California Code of Civil Procedure Section 1281.8 shall be heard and determined by the court, and (b) without limiting the generality of  Section 11.04, the Borrower shall be solely
responsible to pay all fees and expenses of any referee appointed in such action or proceeding;  provided, that the Borrower shall not be responsible for or required to pay any such fees or expenses to
the extent that any such action or proceeding
arises or results from, or in connection with, the gross negligence or willful misconduct of any Indemnitee or any claim brought by the Borrower or any Loan Party against an Indemnitee for breach in
bad faith by such Indemnitee of such Indemnitee's obligations hereunder or under any other Loan Document. 


93







 



11.17    Waiver of Right to Trial by Jury.    


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


11.18    USA PATRIOT Act Notice.    



        Each
Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into Law October 26, 2001)) (the "Act"),
it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act. 


11.19    No Advisory or Fiduciary Relationship.    



        In
connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document, the
Borrower acknowledges and agrees, and acknowledges its Affiliates' understanding, that: (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent and
BAS, are arm's-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent and BAS, on the other hand, (ii) the Borrower has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands and accepts, the terms, risks
and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the Administrative Agent and BAS each is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as an advisor, agent or fiduciary, for the Borrower or any of Affiliates or any other Person and
(ii) neither the Administrative Agent nor BAS has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Loan Documents; and (c) the Administrative Agent and BAS and their respective Affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent nor BAS has any obligation to disclose any of such interests to the Borrower or its Affiliates. To the
fullest extent permitted by law, the Borrower hereby waives and releases, any claims that it may have against the Administrative Agent or BAS with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction contemplated hereby. 


[SIGNATURE
PAGES FOLLOW] 


94







 

        IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. 



	BORROWER:	 	PROMETHEUS LABORATORIES INC.,

a California corporation
	

 	
 	

By:	
 	

/s/  JOSEPH M. LIMBER      

	 	 	Name:	 	Joseph M. Limber
	 	 	Title:	 	President & Chief Executive Officer
	

GUARANTOR:	
 	
PATIENTCOMMUNITY.COM, INC.

a California corporation
	

 	
 	

By:	
 	

/s/  JOSEPH M. LIMBER      

	 	 	Name:	 	Joseph M. Limber
	 	 	Title:	 	President & Chief Executive Officer
	

ADMINISTRATIVE

AGENT:	
 	
BANK OF AMERICA, N.A.,

as Administrative Agent
	

 	
 	

By:	
 	

/s/  BRENDA H. LITTLE      

	 	 	Name:	 	Brenda H. Little
	 	 	Title:	 	Assistant Vice President
	

LENDERS:	
 	
BANK OF AMERICA, N.A.,

as a Lender, L/C Issuer and Swing Line Lender
	

 	
 	

By:	
 	

/s/  KARIN S. BARNES      

	 	 	Name:	 	Karin S. Barnes
	 	 	Title:	 	Senior Vice President
	

 	
 	
BANK OF THE WEST, N.A.
	

 	
 	

By:	
 	

/s/  KRISTIAN T. ILKOV      

	 	 	Name:	 	Kristian T. Ilkov
	 	 	Title:	 	Vice President
	

 	
 	
MANUFACTURERS BANK
	

 	
 	

By:	
 	

/s/  SANDY LEE      

	 	 	Name:	 	Sandy Lee
	 	 	Title:	 	Vice President
	

 	
 	
US BANK NA
	

 	
 	

By:	
 	

/s/  CYRUS M. VAFI      

	 	 	Name:	 	Cyrus M. Vafi
	 	 	Title:	 	Vice President
	 	 	 	 	 





95







 

	

 	
 	
COMERICA BANK
	

 	
 	

By:	
 	

/s/  DENNIS KIM      

	 	 	Name:	 	Dennis Kim
	 	 	Title:	 	Corporate Banking Officer
	

 	
 	
UNION BANK OF CALIFORNIA NA
	

 	
 	

By:	
 	

/s/  PAUL K. MOYER      

	 	 	Name:	 	Paul K. Moyer
	 	 	Title:	 	Vice President




96








EXHIBIT A  


FORM OF LOAN NOTICE  


        Date:                        ,
            


	To:
	Bank
of America, N.A., as Administrative Agent 



Ladies
and Gentlemen: 


        Reference
is made to that certain Credit Agreement (as amended, modified, supplemented or extended from time to time, the "Credit
Agreement") dated as of September 21, 2007 among Prometheus Laboratories Inc., a California corporation (the
"Borrower"), the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. 


        The
undersigned hereby requests (select one): 



	 	o  A Borrowing of Revolving Loans	 	o  A conversion or continuation of Revolving Loans
	

 	

o  A Borrowing of the Term Loan	
 	

o  A conversion or continuation of Term Loans




	1.
	On            ,
20            (which is a Business Day).



	2.
	In
the amount of $                  .



	3.
	Comprised
of            (Type of Loan requested).



	4.
	For
Eurodollar Rate Loans: with an Interest Period of            months. 




        (a)   With
respect to any Borrowing or any conversion or continuation requested herein, the Borrower hereby represents and warrants that after giving effect to any Borrowing
of Revolving Loans, the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments and (b) with respect to any Borrowing, each of the conditions set forth in  Section 5.02 of the Credit Agreement has been satisfied on and as of the date of such Borrowing. 


        The
undersigned is executing this Loan Notice not in the undersigned's individual capacity, but in the undersigned's capacity as a Responsible Officer of the Borrower. 



	 	 	PROMETHEUS LABORATORIES INC.,

a California corporation
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:

Title:









EXHIBIT B  


FORM OF SWING LINE LOAN NOTICE  


        Date:                        ,
            


	To:
	Bank
of America, N.A., as Swing Line Lender

Bank of America, N.A., as Administrative Agent 



Ladies
and Gentlemen: 


        Reference
is made to that certain Credit Agreement (as amended, modified, supplemented or extended from time to time, the "Credit
Agreement") dated as of September 21, 2007 among Prometheus Laboratories Inc., a California corporation (the
"Borrower"), the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer. 


        The
undersigned hereby requests a Swing Line Loan: 



	1.
	On                        (a
Business Day).



	2.
	In
the amount of $                        . 




        The
Borrower hereby represents and warrants that each of the conditions set forth in Section 5.02 of the Credit Agreement have been
satisfied on and as of the date of the requested Borrowing of a Swing Line Loan. 


        The
undersigned is executing this Swing Line Loan Notice not in the undersigned's individual capacity, but in the undersigned's capacity as a Responsible Officer of the Borrower. 



	 	 	PROMETHEUS LABORATORIES INC.,

a California corporation
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:

Title:









EXHIBIT C-1  


FORM OF REVOLVING NOTE  


                    ,            


        FOR
VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay
to                        or its registered assigns (the
"Lender"), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Revolving Loan from time to
time made by the Lender to the Borrower under that certain Credit Agreement dated as of September 21, 2007 (as amended, modified, supplemented or extended from time to time, the
"Credit Agreement") among the Borrower, the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank of America,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. 


        The
Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from the date of such Revolving Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent's Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due
date thereof until the date of actual payment computed at the per annum rate set forth in the Credit Agreement. 



        This
Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. Upon the occurrence and during the continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this
Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Revolving Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its
Revolving Loans and payments with respect thereto. 


        The
Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Revolving
Note. 


        THIS
REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 



	 	 	PROMETHEUS LABORATORIES INC.,

a California corporation
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:

Title:









EXHIBIT C-2  


FORM OF SWING LINE NOTE  


                    ,            



        FOR
VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to BANK OF AMERICA, N.A. or its registered assigns (the
"Swing Line Lender"), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Swing Line Loan
from time to time made by the Swing Line Lender to the Borrower under that certain Credit Agreement dated as of September 21, 2007 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Credit Agreement") among the Borrower, the Guarantors from time to time party thereto, the Lenders from time
to time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer. Capitalized terms used but not otherwise defined herein have the meanings provided in the
Credit Agreement. 


        The
Borrower promises to pay interest on the unpaid principal amount of each Swing Line Loan from the date of such Swing Line Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be
made to the Administrative Agent for the account of the Swing Line Lender in Dollars in immediately available funds at the Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment computed at the per annum rate set forth in the Credit Agreement. 


        This
Swing Line Note is the Swing Line Note referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Swing Line Note
shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Swing Line Loans made by the Swing Line Lender shall be evidenced by one or more loan
accounts or records maintained by the Swing Line Lender in the ordinary course of business. The Swing Line Lender may also attach schedules to this Swing Line Note and endorse thereon the date,
amount, currency and maturity of its Swing Line Loans and payments with respect thereto. 


        The
Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this
Swing Line Note. 


        THIS
SWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 



	 	 	PROMETHEUS LABORATORIES INC.,

a California corporation
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:

Title:









EXHIBIT C-3  


FORM OF TERM NOTE  


                    ,            


        FOR
VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay
to                        or its registered assigns (the
"Lender"), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Term Loan from time to time
made by the Lender to the Borrower under that certain Credit Agreement dated as of September 21, 2007 (as amended, modified, supplemented or extended from time to time, the
"Credit Agreement") among the Borrower, the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank of America,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. 


        The
Borrower promises to pay interest on the unpaid principal amount of each Term Loan from the date of such Term Loan until such principal amount is paid in full, at such interest rates
and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent's Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof
until the date of actual payment computed at the per annum rate set forth in the Credit Agreement. 



        This
Term Note is one of the Term Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. Upon the occurrence and during the continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Term
Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Term Loans made by the Lender shall be evidenced by one or more loan accounts or
records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Term Note and endorse thereon the date, amount and maturity of its Term Loans and
payments with respect thereto. 


        The
Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Term Note. 


        THIS
TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 



	 	 	PROMETHEUS LABORATORIES INC.,

a California corporation
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:

Title:










EXHIBIT D  


FORM OF COMPLIANCE CERTIFICATE  


Financial
Statement Date:            ,    


To:  Bank
of America, N.A., as Administrative Agent 


Ladies
and Gentlemen: 


        Reference
is made to that certain Credit Agreement, dated as of September 21, 2007 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the "Credit Agreement;" the terms defined therein being used herein as therein defined), among Prometheus Laboratories Inc., a California
corporation (the "Borrower"), the Guarantors from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer. 


        The
undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                        of the Borrower,
and that, in his/her capacity as such, he/she is authorized
to execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of the Borrower, and that: 


[Use following paragraph 1 for fiscal year-end financial statements]



        1.     Attached
hereto as Schedule 1 are the year-end audited financial statements required by  Section 7.01(a) of the Credit Agreement for the fiscal year of the
Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section. Such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of
the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period. 


[Use following paragraph 1 for fiscal quarter-end financial statements]



        1.     Attached
hereto as Schedule 1 are the unaudited financial statements required by  Section 7.01(b) of the Credit Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly
present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period, subject
to year-end audit adjustments and the absence of footnotes. 


        2.     The
undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a reasonably
detailed review of the transactions and condition (financial or otherwise) of the Loan Parties during the accounting period covered by the attached financial statements. 


        3.     A
review of the activities of the Loan Parties during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during
such fiscal period each Loan Party performed and observed all its Obligations under the Loan Documents, and 


[select one:]


        [to
the knowledge of the undersigned, each Loan Party performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default or Event of
Default has occurred and is continuing.] 


—or—


        [the
following covenants or conditions have not been performed or observed and the following is a list of each such Default or Event of Default and its nature and
status:] 


        4.     The
financial covenant analyses and information set forth on Schedule 2 attached hereto are true and accurate in
all material respects on and as of the date of this Compliance Certificate. 










        The
undersigned is executing this Compliance Certificate not in the undersigned's individual capacity, but in the undersigned's capacity as a Responsible Officer of the Borrower. 


        IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as
of                        ,        . 



	 	 	PROMETHEUS LABORATORIES INC.,

a California corporation
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:	 
	 	 	 	

	 	 	Title:	 
	 	 	 	










For the Quarter/Year ended                        


SCHEDULE 2
  to the Compliance Certificate

($ in 000's) 



	I.	Section 8.11(a)—CONSOLIDATED LEVERAGE RATIO.
	

 	

(a)	

Consolidated Funded Indebtedness	
 	
$	

 
	

 	

(b)	

Consolidated EBITDA	
 	
 	

 
	

 	

 	

(i)	

Consolidated Net Income	
 	
$	

 
	

 	

 	

(ii)	

Consolidated Interest Expense(1)	
 	
$	

 
	

 	

 	

(iii)	

provision for federal, state, local and foreign income taxes(1)	
 	
$	

 
	

 	

 	

(iv)	

depreciation and amortization expense(1)	
 	
$	

 
	

 	

 	

(v)	

non-cash, non-recurring charges (including non-cash stock-based compensation charges and option-based severance expenses)(1)(2)	
 	
$	

 
	

 	

 	

(vi)	

federal, state, local and foreign income tax credits(3)	
 	
$	

 
	

 	

 	

(vii)	

interest income of the Borrower and its Subsidiaries on a consolidated basis(3)	
 	
$	

 
	

 	

 	

(viii)	

Consolidated EBITDA

[(i) + (ii) + (iii) + (iv) + (v) – (vi) – (vii)]	
 	
$	

 
	

 	

(c)	

Consolidated Leverage Ratio

[(a) / (b)(viii)]            	
 	
 	

:1.0
	
 	

 	

 	

 	
 	
 	

 
	II.	Section 8.11(b)—CONSOLIDATED FIXED CHARGE COVERAGE RATIO.
	

 	

(a)	

Consolidated EBITDA [I(b)(viii) above]	
 	
$	

 
	

 	

(b)	

Consolidated Cash Taxes	
 	
$	

 
	

 	

(c)	

Consolidated Fixed Charges	
 	
 	

 
	

 	

 	

(i)	

cash Consolidated Interest Expense	
 	
$	

 
	

 	

 	

(ii)	

Consolidated Scheduled Funded Debt Payments	
 	
$	

 
	

 	

 	

(iii)	

Consolidated Fixed Charges

[(i) + (ii)]	
 	
$	

 
	

 	

(d)	

Consolidated Fixed Charge Coverage Ratio

[((a) – (b)) / (c)(iii)]	
 	
$	

 






	(1)
	To
the extent deducted in calculating Consolidated Net Income.



	(2)
	Subject
to the proviso set forth in the definition of "Consolidated EBITDA" in the Credit Agreement.



	(3)
	To
the extent included in calculating Consolidated Net Income. 








EXHIBIT E  


FORM OF ASSIGNMENT AND ASSUMPTION  


        This Assignment and Assumption (this "Assignment and Assumption") is dated as of the Effective Date set forth
below and is entered into by and between [the][each] Assignor identified in item 1 below ([the][each,
an] "Assignor") and [the][each] Assignee identified in item 2 below
([the][each, an] "Assignee"). [It is understood and agreed that the rights and obligations
of [the Assignors][the Assignees] hereunder are several and not joint.] Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit Agreement"), receipt of a copy of which is hereby acknowledged by
[the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby
agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. 


        For
an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from
[the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor's][the respective Assignors'] rights and
obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the
Assignor][the respective Assignors] under the respective facilities identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities) and (ii) to the extent permitted to be assigned under applicable Law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to
[the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as
[the][an] "Assigned Interest"). Each such sale and assignment is without recourse to
[the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by
[the][any] Assignor. 



	 	1.	Assignor[s]:	 	 	 	 
	 	 	 	 	
	 	 
	

 	

 	

 	
 	

	
 	

 
	

 	

2.	

Assignee[s]:	
 	

 	
 	

 
	 	 	 	 	
	 	 
	

 	

 	

 	
 	

	
 	

 
	

 	

[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	

 	

3.	
Borrower: Prometheus Laboratories Inc., a California corporation
	

 	

4.	
Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit Agreement
	

 	

5.	
Credit Agreement: Credit Agreement, dated as of September 21, 2007 among Prometheus Laboratories Inc., a California corporation (the "Borrower"), the Guarantors from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer
	 	 	 	 	 	 	 









	

 	

6.	

Assigned Interest:





	Assignor[s](1)
	Assignee[s](2)
	Facility

Assigned(3)
	 	Aggregate

Amount of

Commitment/Loans

for all Lenders(4)
	 	Amount of

Commitment/Loans

Assigned
	 	Percentage

Assigned of

Commitment/

Loans(5)
	 	CUSIP

Number

	    	 	 	 	$	 	 	$	 	 	 	%	 
	    	 	 	 	$	 	 	$	 	 	 	%	 
	    	 	 	 	$	 	 	$	 	 	 	%	 
	    	 	 	 	 	 	 	 	 	 	 	 	 





	 	[7.	Trade Date:                        ](6)
	

 	

 	

Effective Date:                        , 20    [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
	

 	

 	

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





	 	 	 	ASSIGNOR

[NAME OF ASSIGNOR]
	

 	

 	
 	

By:	

 
	 	 	 	 	
        Title:
	

 	

 	
 	
ASSIGNEE

[NAME OF ASSIGNEE]
	

 	

 	
 	

By:	

 
	 	 	 	 	
        Title:
	

[Consented to and](7) Accepted:	
 	

 	

 
	

BANK OF AMERICA, N.A.,

as Administrative Agent	
 	

 	

 
	

By:	

 	
 	

 	

 
	 	
 Title:	 	 	 
	

[Consented to:](8)	
 	

 	

 
	

By:	

 	
 	

 	

 
	 	
 Title:	 	 	 






	(1)
	List
each Assignor, as appropriate.



	(2)
	List
each Assignee, as appropriate.



	(3)
	Fill
in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. "Revolving Commitment", "Term Loan
Commitment", etc.).



	(4)
	Amounts
in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and
the Effective Date.



	(5)
	Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.



	(6)
	To
be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. 
	(7)
	To
be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.



	(8)
	To
be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of
the Credit Agreement. 








ANNEX 1 TO ASSIGNMENT AND ASSUMPTION  


STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION  


        1.     Representations and Warranties. 


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


        1.2.  Assignee.    [The][Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under  Section 11.06(b)(iii), (v)
and (vi) of the Credit
Agreement (subject to such consents, if any, as may be required under Section 11.06(b)(iii) of the Credit Agreement), (iii) from and after
the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant]
Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by
[the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire
[the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has
received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 7.01 thereof, as applicable, and such other documents and
information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant
to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently
and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of
the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. 



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


        3.     General Provisions.    This Assignment and Assumption shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by, and construed in accordance with, the Law of the State of New York. 







EXHIBIT F  


FORM OF JOINDER AGREEMENT  


        THIS JOINDER AGREEMENT (the "Agreement") dated as
of                        , 20    is by and among
                        ,
a                        (the "New Subsidiary"), and Bank of America, N.A., in its
capacity as Administrative Agent under that certain Credit
Agreement dated as of September 21, 2007 (as amended, modified, supplemented or extended from time to time, the "Credit Agreement") among
Prometheus Laboratories Inc., a California corporation (the "Borrower"), the Guarantors from time to time party thereto, the Lenders from time to
time party thereto and Bank of America, N.A., as the Administrative Agent, Swing Line Lender and L/C Issuer. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. 


        The
Loan Parties are required by Section 7.12 of the Credit Agreement to cause the New Subsidiary to become a "Guarantor"
thereunder. Accordingly, the New Subsidiary hereby agrees as follows with the Administrative Agent, for the benefit of the Lenders: 


        1.     The
New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Credit
Agreement and a "Guarantor" for all purposes of the Credit Agreement, and shall have all of the obligations of a Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary
hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions applicable to the Guarantors contained in the Credit Agreement. Without limiting the
generality of the foregoing terms of this paragraph 1, the New Subsidiary hereby jointly and severally together with the other Guarantors, guarantees to each Lender and the Administrative
Agent, as provided in Article IV of the Credit Agreement, the prompt payment and performance of the Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof. 


        2.     The
New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Security
Agreement and a "Grantor" for all purposes of the Security Agreement, and shall have all the obligations of a Grantor thereunder as if it had executed the Security Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Security Agreement. Without limiting the generality of the foregoing terms of
this paragraph 2, the New Subsidiary hereby grants to the Administrative Agent, for the benefit of the holders of the Secured Obligations (as defined in the Security Agreement), a continuing
security interest in any and all right, title and interest of the New Subsidiary in and to the Collateral (as defined in the Security Agreement) of the New Subsidiary to secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations (as defined in the Security Agreement). 



        3.     The
New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Pledge
Agreement and a "Pledgor" for all purposes of the Pledge Agreement, and shall have all the obligations of a Pledgor thereunder as if it had executed the Pledge Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Pledge Agreement. Without limiting the generality of the foregoing terms of
this paragraph 3, the New Subsidiary hereby grants, pledges and assigns to the Administrative Agent, for the benefit of the holders of the Secured Obligations (as defined in the Pledge
Agreement), a continuing security interest in any and all right, title and interest of the New Subsidiary in and to the Equity Interests identified on  Schedule 7 hereto and all other Pledged
Collateral (as defined in the Pledge Agreement) of the New Subsidiary to secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations (as defined in the Pledge Agreement). 










        4.     The
New Subsidiary hereby represents and warrants to the Administrative Agent and the Lenders that as of the date hereof: 



        (a)   The
New Subsidiary's exact legal name and state of formation are as set forth on the signature pages hereto. 



        (b)   The
New Subsidiary's chief executive office is located at the location set forth on Schedule 1 hereto. The New
Subsidiary's federal taxpayer identification number and organization number are set forth on Schedule 1 hereto. 


        (c)   Other
than as set forth on Schedule 2 hereto, the New Subsidiary has not changed its legal name, changed its state
of formation, been party to a merger, consolidation or other change in structure or used any tradename in the five years preceding the date hereof. 



        (d)   Schedule 3 hereto includes all of the trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, "IP Rights") registered or pending registration with the United States
Copyright Office or the United States Patent and Trademark Office and owned by the New Subsidiary as of the date hereof. None of the IP Rights of the New Subsidiary set forth in  Schedule 3 hereto
is subject to any licensing agreement or similar arrangement, except as set forth on  Schedule 3 hereto. 



        (e)   Schedule 4 hereto includes all Commercial Tort Claims (as defined in the Security Agreement) before any
Governmental Authority by or in favor of the New Subsidiary. 


        (f)    Schedule 5 hereto lists all real property located in the United States that is owned or leased by the New
Subsidiary. 


        (g)   Schedule 6 hereto lists all locations in the United States of tangible personal property (other than any tangible
personal property that is in the possession of a sales representative of any Loan Party) that is owned or leased by the New Subsidiary. 


        (h)   Schedule 7 hereto includes each Subsidiary of the New Subsidiary, including (i) jurisdiction of formation,
(ii) number of shares of each class of Equity Interests outstanding, (iii) the certificate number(s) of the certificates evidencing such Equity Interests and number and percentage of
outstanding shares of each class owned by the New Subsidiary (directly or indirectly) of such Equity Interests and (iv) number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and all other similar rights with respect thereto. 




        5.     The
address of the New Subsidiary for purposes of all notices and other communications is the address designated for all Loan Parties on  Schedule 11.02 to the Credit Agreement or such other address as
the New Subsidiary may from time to time notify the Administrative Agent in
writing. 


        6.     The
New Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders of the guaranty by the New Subsidiary under  Article IV of the Credit Agreement upon the execution of this
Agreement by the New Subsidiary. 


        7.     This
Agreement may be executed in multiple counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract. 



        8.     THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 








        IN
WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly executed by its authorized officer, and the Administrative Agent, for the benefit of the Lenders, has caused
the same to be accepted by its authorized officer, as of the day and year first above written. 



	 	 	 	 	[NEW SUBSIDIARY]
	

 	
 	

 	
 	

 	
 	

By:	
 	

 

	 	 	 	 	Name:	 	 	 	 
	 	 	 	 	Title:	 	 	 	 
	

Acknowledged and accepted:	
 	

 	
 	

 	
 	

 
	

BANK OF AMERICA, N.A.,

as Administrative Agent	
 	

 	
 	

 	
 	

 
	

By:	
 	

 
	
 	

 	
 	

 	
 	

 
	Name:	 	 	 	 	 	 	 	 
	Title:	 	 	 	 	 	 	 	 









Schedule 1


Location
of Chief Executive Office;

Federal Taxpayer Identification Number; Organizational Number 


Schedule 2


Changes
in Legal Name or State of Formation;

Mergers, Consolidations and other Changes in Structure; Tradenames 


Schedule 3


IP
Rights 


Schedule 4


Commercial
Tort Claims 


Schedule 5


Real
Property Locations 


Schedule 6


Tangible
Personal Property Locations 


Schedule 7


Equity
Interests 











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