SECOND
AMENDMENT





THIS SECOND AMENDMENT (this “Amendment”) dated as
of July 30, 2010 is by and among the Borrowers identified on the signature pages
hereto (the “Borrowers”), the
Guarantor identified on the signature pages hereto (the “Guarantor”), the
Lenders identified on the signature pages hereto and Bank of America, N.A., as
Administrative Agent (in such capacity, the “Administrative
Agent”).





WITNESSETH





WHEREAS, credit facilities have been
extended to the Borrowers pursuant to the Amended and Restated Credit Agreement
(as amended, modified, supplemented, increased and extended from time to time,
the “Credit
Agreement”) dated as of July 29, 2005 among the Borrowers, the Lenders
identified therein and the Administrative Agent;





WHEREAS, the Guarantor guaranteed the
obligations of the Borrowers under the Credit Agreement pursuant to the Amended
and Restated Guaranty dated as of August 31, 2005 between the Guarantor and the
Administrative Agent; and





WHEREAS, the Borrowers have requested
certain modifications to the Credit Agreement and all the Lenders have agreed to
the requested modifications on the terms and conditions set forth
herein.





NOW, THEREFORE, IN CONSIDERATION of the
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:





1.           Defined
Terms.  Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit
Agreement.





2.           Amendments to Credit
Agreement.  The Credit Agreement is amended as
follows:





2.1         The
Aggregate Commitments are permanently reduced to $25 million.  Such
reduction shall be applied to the Commitment of each Lender according to its Pro
Rata Share





2.2         The
Credit Agreement is amended in its entirety to read in the form of such Credit
Agreement attached hereto as Schedule 1 to this
Amendment.





3.           Amendments to Pledge
Agreements.  Each Domestic Pledge Agreement outstanding on the
date hereof is amended to include in the definition of “Stock Collateral”
therein all other equity interests of, or other ownership or profit interests
in, the Corporation or Limited Liability Company identified
therein.  Without limiting the generality of the foregoing, as
security for the prompt and full performance of the Obligations, the Pledgor
identified in each Domestic Pledge Agreement grants to the Administrative Agent,
for the benefit of the holders of the Obligations, a security interest in all
equity interests of, or other ownership or profit interests in, the Corporation
or Limited Liability Company identified therein.





4.           Termination of Negative
Pledge.  The Covenant Not To Convey and Negative Pledge
Agreement dated July 31, 2005 given by the Borrowers to the Administrative Agent
is terminated.





5.           Subsidiaries.  Each
Borrower represents and warrants to the Administrative Agent and the Lenders
that set forth on Schedule 2 hereto is
a complete and accurate list as of the date hereof of each Subsidiary of
MICROS.





6.           Authorization to File
Financing Statements.  Each Borrower hereby authorizes the
Administrative Agent to prepare and file such financing statements (including
continuation statements) or amendments thereof or supplements thereto or other
instruments as the Administrative Agent may from time to time deem necessary or
appropriate in order to perfect and maintain the security interests granted
hereunder in accordance with the Uniform Commercial Code.





7.           Conditions
Precedent.  This Amendment shall be effective as of the date
hereof upon the satisfaction of the following conditions each in a manner
satisfactory to the Administrative Agent:





(a)           execution
of this Amendment by the Loan Parties and all the Lenders;





(b)           receipt
by the Administrative Agent of each of the following with respect to each of
Fry, Inc., a Michigan corporation, and TIG Global, LLC, a Delaware limited
liability company (each a “New Borrower”):(i) an Additional
Borrower Joinder Supplement executed by such New Borrower and (ii) a Domestic
Pledge Agreement pursuant to which MICROSpledges the equity
interests of such New Borrower to the Administrative Agent to secure the
Obligations;





(c)           receipt
by the Administrative Agent of each of the following with respect to MICROS: (i)
a certificate of an officer of MICROS attaching and certifying (A) the
Organization Documents of MICROS, (B) an incumbency certificate of the
Responsible Officers of MICROS and (C) resolutions of the board of directors or
equivalent governing body of MICROS approving this Amendment and each document,
agreement and instrument required in connection with this Amendment; and (ii) a
good standing certificate or its equivalent from the jurisdiction of formation
of MICROS;





(d)           the
execution of the Intercreditor Agreement by the Borrowers, the Administrative
Agent and Bank of America in its capacity as Administrative Agent under the
Foreign Credit Facility;





(e)           receipt
by the Administrative Agent of a certificate of an officer of the Guarantor
certifying that the resolutions of the board of directors of the Guarantor
delivered at the closing of the Credit Agreement have not been rescinded or
modified and remain in full force; and





(f)           the
receipt by the Administrative Agent, for the account of each Lender that
executes this Amendment, an amendment fee equal to fifteen basis points (0.15%)
on the amount of such Lender’s Commitment.





8.           Reaffirmation of
Obligations.  Each Loan Party (a) acknowledges and consents to
all of the terms and conditions of this Amendment, (b) affirms all of its
obligations under the Loan Documents and (c) agrees that this Amendment and all
documents executed in connection herewith do not operate to reduce or discharge
such Loan Party’s obligations under the Loan Documents.





9.           Reaffirmation of Security
Interests.  Each Loan Party (a) affirms that each of the Liens
granted in or pursuant to the Loan Documents are valid and subsisting and (b)
agrees that this Amendment shall in no manner impair or otherwise adversely
effect any of the Liens granted in or pursuant to the Loan
Documents.





10.           No Other
Changes.  Except as modified hereby, all of the terms and
provisions of the Loan Documents shall remain in full force and
effect.





11.           Counterparts;
Delivery.  This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart. Delivery of an executed
counterpart of this Amendment by facsimile or other electronic imaging means
shall be effective as an original.





12.           Governing
Law.  This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of Maryland.





[Signature
Pages Follow]





IN WITNESS WHEREOF, each of the parties
hereto has caused a counterpart of this Second Amendment to be duly executed and
delivered as of the date first above written.





BORROWERS:
                                                                                          MICROS
      SYSTEMS, INC., a Maryland corporationDV
      TECHNOLOGY HOLDINGS CORPORATION, a Delaware corporationDATAVANTAGE
      CORPORATION, an Ohio corporationMICROS-FIDELIO
      WORLDWIDE, INC., a Nevada corporationJTECH
      COMMUNICATIONS, INC., a Delaware corporationFRY,
      INC., a Michigan corporationTIG
      GLOBAL, LLC, a Delaware limited liability companyBy:Name:Title:GUARANTOR:
                                                                                          MICROS-FIDELIO
      (IRELAND) LTD,a
      corporation organized under the laws of IrelandBy:Name:Title:ADMINISTRATIVE
                                                                                            AGENT:
                                                                                          BANK
      OF AMERICA, N.A., as Administrative AgentBy:Name:Title:LENDERS:
                                                                                          BANK
      OF AMERICA, N.A., as a LenderBy:Name:Title:WELLS
      FARGO BANK, N.A.By:Name:Title:U.S.
      BANK NATIONAL ASSOCIATIONBy:Name:Title:





Schedule
1





AMENDED
CREDIT AGREEMENT










SCHEDULE
1
 
 CREDIT
AGREEMENT AS AMENDED BY
 THE
FIRST AMENDMENT DATED DECEMBER 11, 2008 AND
 THE
SECOND AMENDMENT DATED JULY 30, 2010
 
 AMENDED
AND RESTATED CREDIT AGREEMENT
 
 Dated as
of July 29, 2005
 Among
 
 MICROS
SYSTEMS, INC.
 DV
TECHNOLOGY HOLDINGS CORPORATION
 DATAVANTAGE
CORPORATION
 MICROS-FIDELIO
WORLDWIDE, INC.
 JTECH
COMMUNICATIONS, INC.
 FRY,
INC.
 and
 TIG
GLOBAL, LLC
 
 as
Borrower,
 
 BANK OF
AMERICA, N.A.,
 as
Administrative Agent, Swing Line Lender and L/C Issuer
 
 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
                              1Section
      1.1
                              
                              Defined
      Terms
                              1Section
      1.2
                              
                              Other
      Interpretive Provisions.
                              18Section
      1.3
                              
                              Accounting
      Terms
                              18Section
      1.4
                              
                              Rounding
                              19Section
      1.5
                              
                              References
      to Agreements and Laws
                              19Section
      1.6
                              
                              Times
      of Day
                              19Section
      1.7
                              
                              Letter
      of Credit Amounts
                              19ARTICLE
      II THE COMMITMENTS AND CREDIT EXTENSIONS
                              19Section
      2.1
                              
                              Committed
      Loans
                              19Section
      2.2
                              
                              Borrowings,
      Conversions and Continuations of Committed Loans
                              20Section
      2.3
                              
                              Letters
      of Credit
                              21Section
      2.4
                              
                              Swing
      Line Loans
                              28Section
      2.5
                              
                              Prepayments
                              31Section
      2.6
                              
                              Reduction
      or Termination of Commitments
                              31Section
      2.7
                              
                              Repayment
      of Loans
                              32Section
      2.8
                              
                              Interest
                              32Section
      2.9
                              
                              Fees
                              32Section
      2.10
                              
                              Computation
      of Interest and Fees
                              33Section
      2.11
                              
                              Evidence
      of Debt
                              33Section
      2.12
                              
                              Payments
      Generally
                              33Section
      2.13
                              
                              Extension
      of Maturity Date
                              35Section
      2.14
                              
                              Sharing
      of Payments
                              36Section
      2.15
                              
                              Guaranty
                              36Section
      2.16
                              
                              Cash
      Collateral
                              39Section
      2.17
                              
                              Defaulting
      Lenders
                              40ARTICLE
      III TAXES, YIELD PROTECTION AND ILLEGALITY
                              42Section
      3.1
                              
                              Taxes
                              42Section
      3.2
                              
                              Illegality
                              45Section
      3.3
                              
                              Inability
      to Determine Rates
                              45Section
      3.4
                              
                              Increased
      Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate
      Committed Loans
                              46Section
      3.5
                              
                              Funding
      Losses
                              46Section
      3.6
                              
                              Matters
      Applicable to all Requests for Compensation
                              47Section
      3.7
                              
                              Survival
                              47ARTICLE
      IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
                              47Section
      4.1
                              
                              [Reserved]
                              47Section
      4.2
                              
                              Conditions
      to all Credit Extensions and Conversions and Continuations
                              47ARTICLE
      V REPRESENTATIONS AND WARRANTIES
                              48Section
      5.1
                              
                              Existence,
      Qualification and Power; Compliance with Laws
                              48Section
      5.2
                              
                              Authorization;
      No Contravention
                              48
  
 
 Section
      5.3
                          
                          Governmental
      Authorization
                          48Section
      5.4
                          
                          Binding
      Effect
                          48Section
      5.5
                          
                          Financial
      Statements; No Material Adverse Effect
                          48Section
      5.6
                          
                          Litigation
                          49Section
      5.7
                          
                          No
      Default
                          49Section
      5.8
                          
                          Ownership
      of Property; Liens
                          49Section
      5.9
                          
                          Environmental
      Compliance
                          49Section
      5.10
                          
                          Insurance
                          50Section
      5.11
                          
                          Taxes
                          50Section
      5.12
                          
                          ERISA
      Compliance
                          50Section
      5.13
                          
                          Subsidiaries
                          50Section
      5.14
                          
                          Disclosure
                          51Section
      5.15
                          
                          Compliance
      with Laws
                          51Section
      5.16
                          
                          Margin
      Regulations; Investment Company Act.
                          51Section
      5.17
                          
                          Collateral
      Matters
                          51Section
      5.18
                          
                          Rights
      in Collateral; Priority of Liens
                          51ARTICLE
      VI AFFIRMATIVE COVENANTS
                          51Section
      6.1
                          
                          Financial
      Statements
                          52Section
      6.2
                          
                          Certificates;
      Other Information
                          53Section
      6.3
                          
                          Notices
                          54Section
      6.4
                          
                          Payment
      of Obligations
                          55Section
      6.5
                          
                          Preservation
      of Existence, Etc
                          55Section
      6.6
                          
                          Maintenance
      of Properties
                          55Section
      6.7
                          
                          Maintenance
      of Insurance
                          55Section
      6.8
                          
                          Compliance
      with Laws
                          56Section
      6.9
                          
                          Books
      and Records
                          56Section
      6.10
                          
                          Inspection
      Rights
                          56Section
      6.11
                          
                          Use
      of Proceeds
                          56Section
      6.12
                          
                          Financial
      Covenants
                          56Section
      6.13
                          
                          Additional
      Borrowers
                          57Section
      6.14
                          
                          Collateral
      Records
                          57Section
      6.15
                          
                          Security
      Interests
                          57ARTICLE
      VII NEGATIVE COVENANTS
                          58Section
      7.1
                          
                          Liens
                          58Section
      7.2
                          
                          Investments
                          59Section
      7.3
                          
                          Indebtedness
                          60Section
      7.4
                          
                          Fundamental
      Changes
                          60Section
      7.5
                          
                          Dispositions
                          61Section
      7.6
                          
                          Restricted
      Payments
                          61Section
      7.7
                          
                          Change
      in Nature of Business
                          62Section
      7.8
                          
                          Transactions
      with Affiliates
                          62Section
      7.9
                          
                          Margin
      Regulations
                          62Section
      7.10
                          
                          Change
      of Control
                          62Section
      7.11
                          
                          CommerzBank
      Debt
                          63Section
      7.12
                          
                          Change
      in Legal Name or State of Formation
                          63
  ii
 
 ARTICLE
      VIII EVENTS OF DEFAULT AND REMEDIES
                      63Section
      8.1
                      
                      Events
      of Default
                      63Section
      8.2
                      
                      Remedies
      Upon Event of Default
                      65Section
      8.3
                      
                      Application
      of Funds
                      65ARTICLE
      IX ADMINISTRATIVE AGENT
                      66Section
      9.1
                      
                      Appointment
      and Authorization of Administrative Agent
                      66Section
      9.2
                      
                      Delegation
      of Duties
                      67Section
      9.3
                      
                      Liability
      of Administrative Agent
                      67Section
      9.4
                      
                      Reliance
      by Administrative Agent
                      67Section
      9.5
                      
                      Notice
      of Default
                      68Section
      9.6
                      
                      Credit
      Decision; Disclosure of Information by Administrative
Agent
                      68Section
      9.7
                      
                      Indemnification
      of Administrative Agent
                      69Section
      9.8
                      
                      Administrative
      Agent in its Individual Capacity
                      69Section
      9.9
                      
                      Successor
      Administrative Agent
                      69Section
      9.10
                      
                      Administrative
      Agent May File Proofs of Claim
                      70Section
      9.11
                      
                      Guaranty
      Matters
                      70Section
      9.12
                      
                      Collateral
      Matters
                      71Section
      9.13
                      
                      No
      Fiduciary Responsibility
                      72ARTICLE
      X MISCELLANEOUS
                      72Section
      10.1
                      
                      Amendments,
      Etc
                      72Section
      10.2
                      
                      Notices
      and Other Communications; Facsimile Copies
                      74Section
      10.3
                      
                      No
      Waiver; Cumulative Remedies
                      75Section
      10.4
                      
                      Attorney
      Costs, Expenses and Taxes
                      76Section
      10.5
                      
                      Indemnification
      by Borrower
                      76Section
      10.6
                      
                      Payments
      Set Aside
                      77Section
      10.7
                      
                      Successors
      and Assigns
                      77Section
      10.8
                      
                      Confidentiality
                      80Section
      10.9
                      
                      Set-off
                      81Section
      10.10
                      
                      Interest
      Rate Limitation
                      81Section
      10.11
                      
                      Counterparts
                      81Section
      10.12
                      
                      Integration
                      81Section
      10.13
                      
                      Survival
      of Representations and Warranties
                      82Section
      10.14
                      
                      Severability
                      82Section
      10.15
                      
                      Governing
      Law; Submission to Jurisdiction
                      82Section
      10.16
                      
                      Waiver
      of Right to Trial by Jury
                      83Section
      10.17
                      
                      USA
      Patriot Act Notice
                      83Section
      10.18
                      
                      Time
      of the Essence
                      83Section
      10.19
                      
                      Right
      To Terminate
                      83Section
      10.20
                      
                      Intercreditor
      Agreement
                      83
  iii
  SIGNATURES 
S-1
 
 SCHEDULES
 2.1
              Commitments
      and Pro Rata Shares
 5.6
              Litigation
 5.9
              Environmental
      Matters
 5.13
              Subsidiaries
 7.1
              Existing
      Liens
 7.3
              Existing
      Indebtedness
 10.2
              Addresses
      for Notices
 
 EXHIBITS
 Form
of
 A
              Committed
      Loan Notice
 B
              Swing
      Line Loan Notice
 C
              Note
 D
              Compliance
      Certificate
 E
              Assignment
      and Assumption Agreement
 F
              Additional
      Borrower Joinder Supplement
  
  AMENDED AND RESTATED CREDIT
AGREEMENT
 
 This
AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is
entered into as of July 29, 2005, among MICROS SYSTEMS, INC., a Maryland
corporation (“MICROS”), DV
TECHNOLOGY HOLDINGS CORPORATION, a Delaware corporation, DATAVANTAGE
CORPORATION, an Ohio corporation, MICROS-FIDELIO WORLDWIDE, INC., a Nevada
corporation, JTECH COMMUNICATIONS, INC., a Delaware corporation, FRY, INC., a
Michigan corporation, and TIG GLOBAL, LLC, a Delaware limited liability company
(each of the foregoing, together with MICROS and each Additional Borrower (as
hereinafter defined), individually or collectively as the context implies,
“Borrower”),
each lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), and BANK OF
AMERICA, N.A., as Administrative Agent (the “Administrative
Agent”).
 
 Borrower
has requested that the Lenders provide 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
 
 Section
1.1          Defined Terms.  As
used in this Agreement, the following terms shall have the meanings set forth
below:
 
 “Additional Borrower”
means each Domestic Subsidiary that has executed and delivered an Additional
Borrower Joinder Supplement that has been accepted and approved by
Administrative Agent, including, but not limited to, each Material Domestic
Entity.
 
 “Additional Borrower Joinder
Supplement” means an Additional Borrower Joinder Supplement in
substantially the form attached hereto as EXHIBIT F or such
other document requested by the Administrative Agent for such
purpose.
 
 “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 Administrative Agent’s address and, as appropriate, account
as set forth on Schedule 10.2, or
such other address or account as Administrative Agent may from time to time
notify Borrower and Lenders.
 
 “Affiliate” means,
with respect to any Person, another Person that directly or indirectly through
one or more intermediaries, Controls, or is Controlled by or is under common
Control with, the Person specified.
 
 “Agent-Related
Persons” means Administrative Agent, together with its Affiliates
(including, in the case of Bank of America in its capacity as Administrative
Agent, the Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
 
 “Aggregate
Commitments” means the Commitments of all Lenders.
  1
 
 “Agreement” means this
Amended and Restated Credit Agreement, as amended, modified, substituted,
extended, and renewed from time to time in accordance with the provisions of
Section
10.1.
 
 “Applicable Margin”
means the following percentages per annum, based upon the Minimum EBITDA
Covenant (the “Financial Covenant”)
as set forth in the most recent Compliance Certificate received by
Administrative Agent pursuant to Section 6.2(b):
 
 Applicable
Margin
 
 Pricing
                      Level
                    
                    Minimum EBITDA for the four (4)
                      quarters ending on the date of
                      calculation:
                    
                    Commitment
                      Fee
                      (in bps)
                    
                    Letter of Credit Fees/ Eurodollar
                      Rate Committed Loans
                      (in bps)
                    
                    Base Rate
                      Loans
                      (in bps)1
                    
                    ≤$25,000,000
                    
                    37.5
                    
                    200
                    
                    02
                    
                    >$25,000,000
      but ≤
      $35,000,000
                    
                    25
                    
                    175
                    
                    03
                    
                    >$35,000,000
      but ≤
      $50,000,000
                    
                    25
                    
                    150
                    
                    04
                    
                    >$50,000,000
                    
                    20
                    
                    125
                    
                    0
 
 Any
increase or decrease in the Applicable Margin resulting from a change in the
Financial Covenant shall become effective as of the first Business Day of the
month immediately following the date a Compliance Certificate is delivered
pursuant to Section
6.2(b); provided, however, that if no
Compliance Certificate is delivered when due in accordance with such Section,
then Pricing Level 1 shall apply as of the first Business Day of the month
immediately following the date such Compliance Certificate was required to have
been delivered.
 
 “Applicable Rate”
means a per annum rate equal to Applicable Margin.
 
 “Arranger” means Banc
of America Securities LLC, in its capacity as sole lead arranger and sole book
manager.
 
 “Assignment and Assumption
Agreement” means an Assignment and Assumption Agreement 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, and (b) in
respect of any Synthetic Lease Obligation, 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.
 
 “Audited Financial
Statements” means the audited consolidated and consolidating balance
sheet of MICROS and its Subsidiaries for the fiscal year ended June 30, 2004,
and the related consolidated and consolidating statements of income or
operations, shareholders’ equity and cash flows for such fiscal year of MICROS
and its Subsidiaries, including the notes thereto.
 
 “Availability Period”
means the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant
to Section 2.6,
and (c) the date of termination of the commitment of each Lender to make Loans
and of the obligation of L/C Issuer to make L/C Credit Extensions pursuant to
Section
8.2.
  2
 
 “Bank of America”
means Bank of America, N.A.  and its successors.
 
 “Base Rate” means for
any day a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Rate plus 1⁄2 of 1%, (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” and
(c) the Eurodollar Rate plus 1.25%.  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 prime 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 Committed
Loan” means a Committed Loan that is a Base Rate Loan.  “Base
Rate Loan” means a Loan that bears interest based on the Base Rate.
 
 “Borrower” has the
meaning specified in the introductory paragraph hereto and each Additional
Borrower.
 
 “Borrowing” means a
Committed Borrowing or a Swing Line Borrowing, as the context may
require.
 
 “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
Administrative Agent’s Office is located and, if such day relates to any
Eurodollar Rate Committed Loan, means any such day on which dealings in Dollar
deposits are conducted by and between banks in the London interbank eurodollar
market.
 
 “Cash Collateralize”
means to pledge and deposit with or deliver to Administrative Agent, for the
benefit of Administrative Agent, L/C Issuer or Swing Line Lender (as applicable)
and the Lenders, as collateral for the L/C Obligations, Obligations in respect
of Swing Line Loans or obligations of Lenders to fund participations in respect
of either thereof (as the context may require), cash or deposit account balances
or, if L/C Issuer or Swing Line Lender benefitting from such collateral shall
agree in its sole discretion, other credit support, in each case pursuant to
documentation in form and substance satisfactory to (a) Administrative Agent and
(b) L/C Issuer or Swing Line Lender (as applicable).  “Cash Collateral”
shall have a meaning correlative to the foregoing and shall include the proceeds
of such cash collateral and other credit support.
 
 “Change of Control”
means, with respect to any Person, 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, but excluding any employee benefit plan of such
person or its subsidiaries, and any person or entity 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 25% or more of the equity securities of such
Person entitled to vote for members of the board of directors or equivalent
governing body of such Person 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
  3
 
 (b)           during
any period of twelve (12) consecutive months, fifty one percent (51%) of the
members of the board of directors or other equivalent governing body of such
Person 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).
 
 “Closing Date” means
the first date all the conditions precedent in Section 4.1 are
satisfied or waived in accordance with Section 10.1 (or, in
the case of Section
4.1(b), waived by the Person entitled to receive the applicable
payment).
 
 “Code” means the
Internal Revenue Code of 1986.
 
 “Collateral” means,
with respect to each Borrower, (a) all “Collateral” under, and as described in,
the Security Agreement, (b) all equity interests in each Borrower (other than
the equity interests in MICROS) and (c) upon the occurrence of a Trigger Event
under, and as defined in, the Foreign Pledge Agreement, 65% of the equity
interests in MICROS-Fidelio (Ireland) Ltd.
 
 “Collateral Documents”
means the Security Agreement, each of the Pledge Agreements and all other
agreements, instruments and documents now or hereafter executed and delivered in
connection with this Agreement pursuant to which Liens are granted or purported
to be granted to Administrative Agent in Collateral securing all or part of the
Obligations each in form and substance satisfactory to Administrative
Agent.
 
 “CommerzBank Debt”
means all Indebtedness of any Foreign Borrowers in favor of CommerzBank, AG, in
an aggregate amount not to exceed the equivalent of $10,000,000.
 
 “Commitment” means, as
to each Lender, its obligation to (a) make Committed Loans to Borrower pursuant
to Section 2.1,
(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 2.1,
or in the Assignment and Assumption Agreement 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, but does not include the Foreign
Credit Facility Aggregate Commitments.
 
 “Committed Borrowing”
means a borrowing consisting of simultaneous Committed Loans of the same Type
and, in the case of Eurodollar Rate Committed Loans, having the same Interest
Period made by each of Lenders pursuant to Section
2.1.
 
 “Committed Loan” has
the meaning specified in Section
2.1.
  4
 
 “Committed Loan
Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of
Committed Loans from one Type to the other, or (c) a continuation of Eurodollar
Rate Committed Loans, pursuant to Section 2.2(a),
which, if in writing, shall be substantially in the form of Exhibit
A.
 
 “Compliance
Certificate” means a certificate substantially in the form of Exhibit
D.
 
 “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.  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 fifty one percent (51%) or more of the securities having ordinary voting
power for the election of directors, managing general partners or equivalent
governing body of such Person.
 
 “Converted Borrowings”
has the meaning specified in Section
2.1(c).
 
 “Credit Extension”
means a Borrowing, or an L/C Credit Extension.
 
 “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 two percent (2.0%) per annum in excess of the
Applicable Rate, applying the highest Applicable Margin set forth in Pricing
Level 1.
 
 “Defaulting Lender”
means, subject to Section 2.17(b), any
Lender that, as determined by Administrative Agent, (a) has failed to perform
any of its funding obligations hereunder, including in respect of its Loans or
participations in respect of Letters of Credit or Swing Line Loans, within three
Business Days of the date required to be funded by it hereunder, (b) has
notified Borrower or Administrative Agent that it does not intend to comply with
its funding obligations or has made a public statement to that effect with
respect to its funding obligations hereunder or under other agreements in which
it commits to extend credit, (c) has failed, within three Business Days after
request by Administrative Agent, to confirm in a manner satisfactory to
Administrative Agent that it will comply with its funding obligations, or (d)
has, or has a direct or indirect parent company that has, (i) become the subject
of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or a custodian
appointed for it, or (iii) taken any action in furtherance of, or indicated its
consent to, approval of or acquiescence in any such proceeding or appointment;
provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority.
 
 “Disposition” or
“Dispose” means
the sale, transfer, license, lease or other disposition (including any sale and
leaseback transaction) of any property by any Person, 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.
  5
 
 “Dollar” and “$” mean lawful money
of the United States.
 
 “Domestic Pledge
Agreements” means, collectively, (a) the Pledge, Assignment and Security
Agreement (DV Technologies Holdings - Domestic) dated as of July 31, 2005 given
by MICROS to the Administrative Agent, (b) the Pledge, Assignment and Security
Agreement (Datavantage Corporation – Domestic - Micros) dated as of July 31,
2005 given by MICROS to the Administrative Agent, (c) the Pledge, Assignment and
Security Agreement (Datavantage Corporation – Domestic – DV Technology) dated as
of July 31, 2005 given by MICROS to the Administrative Agent, (d) the Pledge,
Assignment and Security Agreement (Micros-Fidelio Worldwide - Domestic) dated as
of July 31, 2005 given by MICROS to the Administrative Agent, (e) the Pledge,
Assignment and Security Agreement (JTech Communications, Inc. - Domestic) dated
as of July 31, 2005 given by MICROS to the Administrative Agent, (f) the Pledge,
Assignment and Security Agreement (Fry, Inc. - Domestic) dated as of July 30,
2010 given by MICROS to the Administrative Agent, (g) the Pledge, Assignment and
Security Agreement (TIG Global, LLC - Domestic) dated as of July 30, 2010 given
by MICROS to the Administrative Agent, and (h) each other pledge agreement
hereafter executed and delivered in connection with this Agreement pursuant to
which Liens are granted or purported to be granted to Administrative Agent in
equity interests of Borrowers.
 
 “Domestic Subsidiary”
means a Subsidiary organized under the laws of any jurisdiction within the
United States.
 
 “EBITDA” means net
income, less income or plus loss from discontinued operations and extraordinary
items, plus income taxes, plus interest expense, plus depreciation, depletion,
and amortization.
 
 “Eligible Assignee”
has the meaning specified in Section
10.7(h).
 
 “Environmental Laws”
means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
 
 “Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of 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.
 
 “ERISA” means the
Employee Retirement Income Security Act of 1974.
 
 “ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
  6
 
 “ERISA Event” means
(a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
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 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 might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or
any ERISA Affiliate.
 
 “Eurodollar Base Rate”
has the meaning set forth in the definition of Eurodollar Rate.
 
 “Eurodollar Rate”
means for any Interest Period with respect to any Eurodollar Rate Committed
Loan, a rate per annum determined by Administrative Agent pursuant to the
following formula:
 
 Eurodollar
      Rate   =
              Eurodollar
      Base
      Rate
 1.0
      – Eurodollar Reserve Percentage
Where,
 
 “Eurodollar Base Rate”
means:
 
 (a)           for
any Interest Period with respect to a Eurodollar Rate Committed Loan, the rate
per annum equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as selected by Administrative Agent from time to time)
at approximately 11:00 a.m. (London time) two (2) Business Days before 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, or (ii) if the rate referenced in the preceding clause (i) is not
available at such time for any reason, the rate per annum equal to the rate
determined by 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 Committed Loan being made, continued
or converted 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
Business Days prior to the commencement of such Interest Period;
and
 
 (b)           for
any interest calculation with respect to a Base Rate Loan on any date, the rate
per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m. (London time) two
(2) Business Days prior to such date for Dollar deposits being delivered in the
London interbank market for a term of one month commencing that day or (ii) if
the rate referenced in the preceding clause (i) is not available at such time
for any reason, the rate per annum determined by Administrative Agent as the
rate at which deposits in Dollars for delivery on the date of determination in
same day funds in the approximate amount of the Base Rate Loan being made or
maintained and with a term equal to one month would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar market
at their request at the date and time of determination.
  7
  “Eurodollar Reserve
Percentage” means, for any day, the reserve percentage (expressed as a
decimal, carried out to five decimal places) in effect on such day, whether or
not applicable to any Lender, under regulations issued from time to time by the
Board of Governors of the Federal Reserve System of the United States for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as “Eurocurrency liabilities”).  The
Eurodollar Rate for each outstanding Eurodollar Rate Committed Loan and for each
outstanding Base Rate Loan bearing interest at a rate based on the Eurodollar
Rate shall be adjusted automatically as of the effective date of any change in
the Eurodollar Reserve Percentage.
 
 “Eurodollar Rate Committed
Loan” means a Committed Loan that bears interest at a rate based on
clause (a) of the definition of the Eurodollar Base Rate.
 
 “Event of Default” has
the meaning specified in Section
8.1.
 
 “Excluded Taxes”
means, with respect to Administrative Agent, any Lender, L/C Issuer or any other
recipient of any payment to be made by or on account of any obligation of
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 tax imposed by any other jurisdiction in which Borrower is located, (c)
any backup withholding tax that is required by the Code to be withheld from
amounts payable to a Lender that has failed to comply with clause (A) of Section 3.1(e)(ii),
and (d) in the case of a Foreign Lender, any United States withholding tax that
(i) is required to be imposed on amounts payable to such Foreign Lender pursuant
to the Laws in force at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or (ii) is attributable to such Foreign
Lender’s failure or inability (other than as a result of a change in Law) to
comply with clause (B) of Section 3.1(e)(ii),
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 Borrower with respect to such withholding tax
pursuant to Section
3.1(a)(ii) or (c).
 
 “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 Administrative Agent.
 
 “Fee Letter” means the
letter agreement dated July 25, 2005, among Borrower, Administrative Agent and
Arranger.
 
 “Fixed Charge Coverage
Ratio” means the ratio of (a) EBITDA minus income tax expense, to (b) the
sum of interest expense, plus the current
portion of long term liabilities, plus capital
expenditures.
 
 “Foreign Borrowers”
means MICROS-Fidelio (Ireland) Ltd. and each other Foreign Subsidiary that is or
becomes a “Borrower” under the Foreign Credit Facility and their respective
successors and assigns.
  8
  “Foreign Credit
Facility” means the credit facility extended to the Foreign Borrowers
pursuant to the Amended and Restated Credit Agreement of even date herewith by
and among Bank of America as Administrative Agent, the lenders party thereto and
the Foreign Borrowers in the amount of the Foreign Credit Facility Aggregate
Commitments, as amended, modified, substituted, extended, and renewed from time
to time.
 
 “Foreign Credit Facility
Aggregate Commitments” means the “Aggregate Commitments” under, and as
defined in, the Foreign Credit Facility.  As of the Closing Date, the
amount of the Foreign Credit Facility Aggregate Commitments is
$25,000,000.
 
 “Foreign Lender” means
any Lender that is organized under the Laws of a jurisdiction other than that in
which Borrower is resident for tax purposes (including such a Lender when acting
in the capacity of L/C Issuer).  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 Pledge
Agreement” means the Charge of Shares dated as of July 17, 2003 between
MICROS and the Administrative Agent relating to the equity interests of
MICROS-Fidelio (Ireland) Ltd.
 
 “Foreign Subsidiary”
means a Subsidiary that is not a Domestic Subsidiary.
 
 “FRB” means the Board
of Governors of the Federal Reserve System of the United States.
 
 “Fronting Exposure”
means, at any time there is a Defaulting Lender, (a) with respect to L/C Issuer,
such Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations other
than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in
accordance with the terms hereof, and (b) with respect to Swing Line Lender,
such Defaulting Lender’s Pro Rata Share of Swing Line Loans other than Swing
Line Loans as to which such Defaulting Lender’s participation obligation has
been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof.
 
 “GAAP” means generally
accepted accounting principles in the United States set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or such other principles as may be approved
by a significant segment of the accounting profession in the United States, that
are applicable to the circumstances as of the date of determination,
consistently applied.
 
 “Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
 
 “Guarantee” means, as
to any Person, (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 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 respect thereof as
determined by the guaranteeing Person in good faith.  The term
“Guarantee” as a verb has a corresponding meaning.
  9
 
 “Guarantor” means
MICROS-Fidelio (Ireland) Ltd., an Irish registered limited liability
company.
 
 “Guaranty” means the
Amended and Restated Guaranty dated as of the Closing Date made by the Guarantor
in favor of Administrative Agent on behalf of Lenders, as amended, modified,
substituted, extended, and renewed from time to time.
 
 “Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
 
 “Honor Date” has the
meaning specified in Section 2.3(c)(i).
 
 “Indebtedness” means,
as to any Person at a particular time, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:
 
 (a)           all
obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
 
 (b)           all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;
 
 (c)           net
obligations of such Person under any Swap Contract;
 
 (d)           all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business);
 
 (e)          
indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in
recourse;
 
 (f)          
 capital leases and Synthetic Lease Obligations; and
 
 (g)           all
Guarantees of such Person in respect of any of the foregoing.
 
 For all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
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 a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.  The amount of any net obligation under
any Swap Contract on any date shall be Swap Termination Value thereof as of such
date.  The amount of any capital lease or Synthetic Lease Obligation
as of any date shall be deemed to be the amount of Attributable Indebtedness in
respect thereof as of such date.
  10
 
 “Indemnified
Liabilities” has the meaning specified in Section
10.5.
 
 “Indemnified Taxes”
means Taxes other than Excluded Taxes.
 
 “Indemnitees” has the
meaning specified in Section
10.5.
 
 “Information” has the
meaning specified in Section
10.8.
 
 “Intercreditor
Agreement” means the Intercreditor Agreement dated as of the date of the
Second Amendment to this Agreement among (a) the Administrative Agent, (b) Bank
of America, in its capacity as Administrative Agent under the Foreign Credit
Facility, and (c) the Borrowers.
 
 “Interest Payment
Date” means (a) for each Eurodollar Rate Committed Loan, the last day of
each Interest Period and the Maturity Date; provided, however, that if any
Interest Period exceeds three 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) for each Swing Line Loan and each Base Rate
Committed Loan, the first day of each calendar month.
 
 “Interest Period”
means as to each Eurodollar Rate Committed Loan, the period commencing on the
date such Eurodollar Rate Committed Loan is disbursed or converted to or
continued as a Eurodollar Rate Committed Loan and ending on the date one, two,
three or six months thereafter, or as otherwise agreed to by Administrative
Agent and Lenders, as selected by Borrower in its Committed Loan Notice; provided
that:
 
 (a)           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;
 
 (b)           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 Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
 
 (c)           no
Interest Period shall extend beyond the Maturity Date.
 
 “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 capital stock or
other securities 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) the purchase
or other acquisition (in one transaction or a series of transactions) of assets
of another Person that constitute a business unit.  For purposes of
covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value
of such Investment.
 
 “IRS” means the United
States Internal Revenue Service.
 
 “ISP” has the meaning
given to such term in Section
2.3(h).
  11
 
 “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 Committed
Borrowing.
 
 “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 face amount of all
outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings.  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 Letter of Credit shall be deemed to be “outstanding” in the amount
so remaining available to be drawn.
 
 “Lender” has the
meaning specified in the introductory paragraph hereto and, as the context
requires, includes L/C Issuer and Swing Line Lender.
 
 “Lending Office”
means, as to any Lender, the office or offices of such Lender described as such
on Schedule
10.2, or such other office or offices as a Lender may from time to time
notify Borrower and Administrative Agent.
 
 “Letter of Credit”
means any letter of credit issued hereunder.  A Letter of Credit may
be a commercial letter of credit or a standby letter of
credit.  Unless otherwise agreed by Administrative Agent and Lenders,
all Letters of Credit shall be denominated in Dollars.
 
 “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 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 Five Million Dollars ($5,000,000).  The Letter
of Credit Sublimit is part of, and not in addition to, the Aggregate
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.
  12
 
 “Liquidity” means, as
of any date of determination, an amount equal to the sum of (a) the Aggregate
Commitments less the Total
Outstandings plus (b) cash and
cash equivalents of MICROS and its Subsidiaries plus (c) the Foreign
Credit Facility Agreement Commitments less the “Total
Outstandings” under, and as defined in, the Foreign Credit
Facility.
 
 “Loan” means an
extension of credit by a Lender to Borrower under ARTICLE II in the
form of a Committed Loan or a Swing Line Loan.
 
 “Loan Documents” means
this Agreement, each Note, the Fee Letter, each Collateral Document, the
Intercreditor Agreement and the Guaranty.
 
 “Loan Parties” means,
collectively, Borrower and each Person (other than Administrative Agent or any
Lender) executing a Loan Document including, without limitation, each Guarantor
and each Person executing a Collateral Document.
 
 “Material Adverse
Effect” means (a) a material adverse change in, or a material adverse
effect upon, the operations, business, properties, liabilities (actual and
contingent), condition (financial or otherwise) or prospects of Borrower or
Borrower and its Subsidiaries taken as a whole or the Collateral; (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.
 
 “Material Domestic
Entity” means any Domestic Subsidiary that has revenue in excess of
Twenty-Five Million Dollars ($25,000,000) in a fiscal year.
 
 “Maturity Date” means
the later of (a) July 31, 2013 and (b) if maturity is extended pursuant to
Section 2.13,
such extended maturity date as determined pursuant to such Section 2.13.
 
 “Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
 
 “Note” means a
promissory note made by Borrower in favor of a Lender evidencing Loans made by
such Lender, substantially in the form of Exhibit C; “Notes”
means collectively each Note, and any other promissory note which may from time
to time evidence all or any portion of the Obligations.
 
 “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 or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.  The foregoing shall also include (a) all obligations
under any Swap Contract between Borrower or any Subsidiary and any Lender or
Affiliate of a Lender that is permitted to be incurred pursuant to Section 7.3(d) and
(b) all obligations under any Treasury Management Agreement between Borrower or
any Subsidiary and any Lender or Affiliate of a Lender.
  13
 
 “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.
 
 “Outstanding Amount”
means (a) with respect to Committed Loans and Swing Line Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Committed Loans and Swing Line
Loans, as the case may be, occurring on such date; and (b) with respect to any
L/C Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings under
any Letters of Credit or any reductions in the maximum amount available for
drawing under Letters of Credit taking effect on such date.
 
 “Participant” has the
meaning specified in Section
10.7(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 Borrower or any ERISA Affiliate or to which
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 plan years.
 
 “Permitted
Acquisition” means an acquisition by a Borrower provided that (a) a
Borrower is the surviving entity, (b) 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,
(c) if the aggregate consideration for such acquisition exceeds $75 million,
Borrower shall have furnished financial projections to the Administrative Agent
in form and detail reasonably acceptable to the Administrative Agent
demonstrating that, after giving effect to such acquisition (and the incurrence
of any Total Funded Debt in connection therewith) on a Pro Forma Basis Borrower
would be in compliance with the financial covenants set forth in Section 6.12
for each of the next four fiscal quarters, and (d) after giving effect to such
acquisition (and the incurrence of any Total Funded Debt in connection
therewith) on a Pro Forma Basis (i) no Default or Event of Default shall exist,
(ii) the Total Leverage Ratio shall not exceed 1.75:1.0 as of the end of the
most recent fiscal quarter for which Borrower has delivered financial statements
pursuant to Section
6.1(a) or (b) and (iii)
Liquidity exceeds $25 million.
 
 “Person” means any
individual, trustee, corporation, general partnership, limited partnership,
limited liability company, joint stock company, trust, unincorporated
organization, bank, business association, firm, joint venture or Governmental
Authority.
  14
 
 “Plan” means any
“employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by Borrower or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
 
 “Pledge Agreements”
means the Domestic Pledge Agreements and the Foreign Pledge
Agreement.
 
 “Pro Forma Basis”
means, with respect to any transaction (including, without limitation, any
Restricted Payment), that such transaction 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 Borrowers were required to deliver
financial statements pursuant to Section 6.1(a) or
(b).
 
 “Pro Rata Share”
means, with respect to each Lender, 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 Commitment of such Lender at such time and the denominator of
which is the amount of the Aggregate Commitments at such time; provided that if the
commitment of each Lender to make Loans and the obligation of L/C Issuer to make
L/C Credit Extensions have been terminated pursuant to Section 8.2, then the
Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of
such Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to Section
10.7.  The initial Pro Rata Share of each Lender is set forth
opposite the name of such Lender on Schedule 2.1 or in
the Assignment and Assumption Agreement pursuant to which such Lender becomes a
party hereto, as applicable.  The Pro Rata Share of each Lender is
subject to adjustment as provided in Section
2.17.
 
 “Register” has the
meaning set forth in Section
10.7(c).
 
 “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 Committed Loans, a Committed 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, as of any date of determination, if there are two or less Lenders, than
all Lenders, at all other times, Lenders having more than 50% of the Aggregate
Commitments or, if the commitment of each Lender to make Loans and the
obligation of L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section
8.2, Lenders holding in the aggregate more than 50% of the Total
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); provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
 
 “Responsible Officer”
means the chief executive officer, president, chief financial officer, corporate
controller, treasurer or assistant treasurer 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.
  15
  “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 Borrower
or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such capital stock or other equity interest or of any option, warrant or
other right to acquire any such capital stock or other equity
interest.
 
 “Security Agreement”
means the Amended and Restated Security Agreement dated as of July 31, 2005
given by each Borrower in favor of the Administrative Agent.
 
 “Subordinated
Liabilities” means liabilities subordinated to the Obligations in a
manner acceptable to Required Lenders in their sole discretion.
 
 “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 securities
or other interests having ordinary voting power for the election of directors or
other governing body (other than securities or interests having such power only
by reason of the happening of a contingency) are 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
MICROS.
 
 “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, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement, and (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.  Any and all
Swap Contracts, whether with Administrative Agent or any Lender, must be
approved by Administrative Agent.  Administrative Agent agrees to
notify Lenders of any and all Swap Contracts approved by Administrative
Agent.
 
 “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” means the
uncommitted and discretionary revolving credit facility made available by Swing
Line Lender pursuant to Section
2.4.
 
 “Swing Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section
2.4.
  16
 
 “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
2.4(a).
 
 “Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.4(b),
which, if in writing, shall be substantially in the form of Exhibit
B.
 
 “Swing Line Sublimit”
means Two Million Five Hundred Thousand Dollars
($2,500,000).  Borrowers may from time to time decrease and thereafter
from time to time increase and decrease the amount of the Swing Line Sublimit
upon three Business Days prior written notice from MICROS to the Swing Line
Lender and the Administrative Agent provided that the amount of the Swing Line
Sublimit shall not at any time exceed ten percent (10%) of the Aggregate
Commitments.  The Swing Line Sublimit is part of, and not in addition
to, the Aggregate Commitments.
 
 “Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do not
appear on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
 
 “Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
 
 “Threshold Amount”
means Five Million Dollars ($5,000,000).
 
 “Total Funded Debt”
means all outstanding liabilities for borrowed money, including, without
limitation, all Subordinated Liabilities, capital leases, standby letters of
credit, and other interest-bearing liabilities, including current and long-term
debt and the CommerzBank Debt.
 
 “Total Leverage Ratio”
means, as of any date of determination, the ratio of (a) Total Funded Debt of
MICROS and its Subsidiaries on a consolidated basis as of such date to(b) EBITDA of MICROS
and its Subsidiaries on a consolidated basis for the twelve month period ending
on such date.
 
 “Total Liabilities”
means the sum of current liabilities plus long term liabilities.
 
 “Total Outstandings”
means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.
 
 “Treasury Management
Agreement” means any agreement governing the provision of treasury or
cash management services, including deposit accounts, overnight draft, credit
cards, debit cards, p-cards (including purchasing cards and commercial cards),
funds transfer, automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, account reconciliation and
reporting and trade finance services and other cash management
services.
 
 “Type” means with
respect to a Committed Loan, its character as a Base Rate Committed Loan or a
Eurodollar Rate Committed 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 Code for the applicable plan
year.
  17
 
 “United States” and
“U.S.” mean the
United States of America.
 
 “Unreimbursed Amount”
has the meaning set forth in Section
2.3(c)(i).
 
 Section
1.2            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
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
 
 (b)           (i)
The words “herein”, “hereto”, “hereof” and “hereunder” and words
of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof; (ii) Article,
Section, Exhibit and Schedule references are to the Loan Document in which such
reference appears; (iii) the term “including” is by way
of example and not limitation; and (iv) the term “documents” includes
any and all instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in physical
or electronic form.
 
 (c)           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.”
 
 (d)           Section
headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.
 
 Section
1.3            Accounting Terms.
 
 (a)           All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.
 
 (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 Borrower or the
Required Lenders shall so request, Administrative Agent, Lenders and 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); 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) Borrower shall
provide to Administrative Agent and 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.
  18
  Section
1.4            Rounding.
 
 Any
financial ratios required to be maintained by any Loan Party 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).
 
 Section
1.5            References to Agreements and
Laws.
 
 Unless
otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
not prohibited by any Loan Document; and (b) references to any Law shall include
all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.
 
 Section
1.6            Times of Day.
 
 Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).
 
 Section
1.7            Letter of Credit
Amounts.
 
 Unless
otherwise specified, all references herein to the amount of a Letter of Credit
at any time shall be deemed to mean the maximum face amount of such Letter of
Credit after giving effect to all increases thereof contemplated by such Letter
of Credit or the Letter of Credit Application, whether or not such maximum face
amount is in effect at such time.
 
 ARTICLE
II
 THE COMMITMENTS AND CREDIT
EXTENSIONS.
 
 Section
2.1            Committed Loans.
 
 (a)           Subject
to the terms and conditions set forth herein, each Lender severally agrees to
make loans in Dollars (each such loan, a “Committed Loan”) to
Borrower 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 Commitment; provided, however, that after
giving effect to any Committed Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Committed 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
Commitment.  Within the limits of each Lender’s Commitment, and
subject to the other terms and conditions hereof, Borrower may borrow under this
Section 2.1,
prepay under Section
2.5, and reborrow under this Section
2.1.  Neither Administrative Agent nor any Lender shall be
responsible for the Commitment of any other Lender, nor will the failure of any
Lender to perform its obligations under its Commitment in any way relieve any
other Lender from performing its obligations under its
Commitment.
  19
  (b)           The
Borrower may, at its option, not more than once per calendar quarter, elect to
increase the Aggregate Commitments, provided that (i) the
Borrower shall give ten (10) Business Days prior written notice to the
Administrative Agent of such election; (ii) the Borrower shall decrease the
Foreign Credit Facility Aggregate Commitments on a dollar for dollar basis
concurrent with the effective date of such increase; (iii) each of the
conditions precedent set forth in Section 4.2 shall be satisfied as of the
effective date of such increase; (iv) the aggregate amount of the Aggregate
Commitments and the Foreign Credit Facility Aggregate Commitments shall not
exceed $50,000,000 (less (x) the amount of any prior reduction in the Aggregate
Commitments pursuant to Section 2.6 and (y)
the amount of any prior reduction in the Foreign Credit Facility Aggregate
Commitments pursuant to Section 2.6 of the credit agreement for the Foreign
Credit Facility); (v) such increase shall be in a minimum amount of $5,000,000
and in integral multiples of $1,000,000 in excess thereof; (vi) such requested
increase shall only be effective upon receipt by the Administrative Agent of (A)
additional Commitments in a corresponding amount of such increase from either
existing Lenders and/or one or more other institutions that qualify as Eligible
Assignees (it being understood and agreed that no existing Lender shall be
required to provide an additional Commitment) and (B) documentation from each
institution providing an additional Commitment evidencing its additional
Commitment and its obligations under this Agreement in form and substance
reasonably acceptable to the Administrative Agent including, without limitation,
Notes evidencing each Lender’s Pro Rata Share of the Aggregate Commitments as
increase; and (vii) if any Loans are outstanding at the time of the increase in
the Aggregate Commitments, the Borrower shall, if applicable and notwithstanding
any provision in any Loan Document requiring the application of payments or
prepayments on a pro rata basis, including, without limitation, Section 2.14, prepay
one or more existing Loans (such prepayment to be subject to Section 3.5) in an
amount necessary such that after giving effect to the increase in the Aggregate
Commitments, each Lender will hold its pro rata share (based on its Pro Rata
Share of the increased Aggregate Commitments) of outstanding Loans.
 
 (c)           Borrower
may elect to convert Committed Borrowings to term loans (“Converted
Borrowings”) upon approval of Agent and Lenders provided that the
Converted Borrowings shall occur in minimum original principal amounts of not
less than $1,000,000 and increments of $500,000 and such other terms as are
approved by Agent and Lenders.  The obligation of the Borrower to
repay Converted Borrowings shall be evidenced by promissory notes payable to the
Lenders substantially in the in the form of Exhibit C with
necessary revisions to incorporate the repayment terms agreed upon by the Agent,
Lenders and Borrower.  In no event will the maturity of any Converted
Borrowings exceed the Maturity Date.  All outstanding Converted
Borrowings shall reduce the amounts otherwise available to Borrower under the
Committed Loan.  Borrower shall give Agent at least ten (10) Business
Days’ notice of each proposed Converted Borrowing.
 
 Section
2.2            Borrowings, Conversions and
Continuations of Committed Loans.
 
 (a)           Each
Committed Borrowing and each conversion to or continuation of Eurodollar Rate
Committed Loans shall be made upon Borrower’s irrevocable notice to
Administrative Agent, which may be given by telephone.  Each such
notice must be received by Administrative Agent not later than 11:00 a.m., New
York time, three (3) Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Committed
Loans.  Each telephonic notice by Borrower pursuant to this Section 2.2(a) must
be confirmed promptly by delivery to Administrative Agent of a written Committed
Loan Notice, appropriately completed and signed by a Responsible Officer of
Borrower.  Except as provided in Section 2.3(c) and
Section 2.4(c),
each Borrowing of, conversion to or continuation of Eurodollar Rate Committed
Loans shall be in a principal amount of $250,000 or a whole multiple of $100,000
in excess thereof.  Each Committed Loan Notice (whether telephonic or
written) shall specify (i) whether Borrower is requesting a Committed Borrowing
or conversion of Committed Loans from one Type to the other, or a continuation
of, Eurodollar Rate Committed 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 Committed Loans to be borrowed, converted or
continued, (iv) the duration of the Interest Period with respect thereto, and
(v) if requested by Administrative Agent or any Lender, the purpose of the
requested Borrowing.  If Borrower fails to give a timely notice
requesting a continuation, then the applicable Committed Loans shall be made as
Eurodollar Rate Committed Loans with an Interest Period of one (1)
month.  Any such automatic continuation of Eurodollar Rate Committed
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Committed
Loans.  If Borrower requests a Borrowing of, conversion to or
continuation of Eurodollar Rate Committed Loans in any such Committed Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one (1) month.
  20
 
 (b)           Following
receipt of a Committed Loan Notice, Administrative Agent shall promptly notify
each Lender of the amount of its Pro Rata Share of the applicable Committed
Loans, and if no timely notice of a continuation is provided by Borrower,
Administrative Agent shall notify each Lender of the details of any automatic
continuation of Eurodollar Rate Committed Loans described in the preceding
subsection.  In the case of a Committed Borrowing, each Lender shall
make the amount of its Committed Loan available to Administrative Agent in
immediately available funds at Administrative Agent’s Office not later than 1:00
p.m., New York time, on the Business Day specified in the applicable Committed
Loan Notice, provided that such Lender has received notice from Administrative
Agent of Borrower’s request for such Committed Borrowing.  Upon
satisfaction of the applicable conditions set forth in Section 4.2 (and, if
such Borrowing is the initial Credit Extension, Section 4.1),
Administrative Agent shall make all funds so received available to Borrower in
like funds as received by Administrative Agent either by (i) crediting the
account of 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) Administrative Agent by
Borrower; provided, however, that if, on
the date of the Committed Loan Notice with respect to such Borrowing is given by
Borrower 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 Borrower
as provided above.
 
 (c)           During
the existence of a Default, the Required Lenders may demand that any or all of
the then outstanding Eurodollar Rate Committed Loans be converted immediately to
accrue interest at the Base Rate and Borrower agrees to pay all amounts due
under Section
3.5 in accordance with the terms thereof due to any such
conversion.
 
 (d)           Administrative
Agent shall promptly notify Borrower and Lenders of the interest rate applicable
to any Interest Period for Eurodollar Rate Committed Loans upon determination of
such interest rate.  The determination of the Eurodollar Rate by
Administrative Agent shall be conclusive in the absence of manifest
error.
 
 (e)           After
giving effect to all Committed Borrowings, all conversions of Committed Loans
from one Type to the other, and all continuations of Committed Loans as the same
Type, there shall not be more than ten (10) Interest Periods in effect with
respect to Committed Loans.
 
 Section
2.3            Letters of
Credit.
 
 (a)         The Letter of Credit
Commitment.
 
 (i)           Subject
to the terms and conditions set forth herein and as part of the Aggregate
Commitments, (A) L/C Issuer agrees, in reliance upon the agreements of the other
Lenders set forth in this Section
2.3:  (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 Borrower, and to amend or renew
Letters of Credit previously issued by it, in accordance with subsection (b)
below, and (2) to honor drafts under the Letters of Credit; and (B) Lenders
severally agree to participate in Letters of Credit issued for the account of
Borrower; provided that L/C
Issuer shall not be obligated to make any L/C Credit Extension with respect to
any Letter of Credit, and no Lender shall be obligated to participate in, any
Letter of Credit if as of the date of such L/C Credit Extension, if (x) the
Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate
Outstanding Amount of the Committed 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 would exceed
such Lender’s Commitment, or (z) the Outstanding Amount of the L/C Obligations
would exceed the Letter of Credit Sublimit.  Within the foregoing
limits, and subject to the terms and conditions hereof, Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly 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.
  21
 
 (ii)         L/C
Issuer shall be under no obligation to issue any Letter of Credit
if:
 
 (A)          any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain L/C Issuer from issuing such Letter of
Credit, or any Law applicable to L/C Issuer or any request or directive (whether
or not having the force of law) from any Governmental Authority with
jurisdiction over L/C Issuer shall prohibit, or request that L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which L/C Issuer in good faith deems material
to it;
 
 (B)           the
expiry date of such requested Letter of Credit would occur more than twelve (12)
months after the date of issuance, unless the Required Lenders have approved
such expiry date;
 
 (C)           the
expiry date of such requested Letter of Credit would occur after the Maturity
Date, unless all Lenders have approved such expiry date;
 
 (D)           the
issuance of such requested Letter of Credit would violate one or more policies
of L/C Issuer;
 
 (E)           such
Letter of Credit is in an initial amount less than $100,000, in the case of a
commercial Letter of Credit, or $250,000, in the case of a standby Letter of
Credit;
 
 (F)           any
Lender is at such time a Defaulting Lender hereunder, unless L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral,
satisfactory to L/C Issuer (in its sole discretion) with Borrower or such Lender
to eliminate L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.17(a)(iv))
with respect to the Defaulting Lender arising from either the Letter of Credit
then proposed to be issued or that Letter of Credit and all other L/C
Obligations as to which L/C Issuer has actual or potential Fronting Exposure, as
it may elect in its sole discretion; or
 
 (G)           such
Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder.
 
 (iii)         L/C
Issuer shall be under no obligation to amend any Letter of Credit if (A) 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.
  22
 
 (iv)          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 L/C Issuer shall have
all of the benefits and immunities (A) provided to Administrative Agent in ARTICLE IX with
respect to any acts taken or omissions suffered by 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 IX included
L/C Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to 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
Borrower delivered to L/C Issuer (with a copy to Administrative Agent) in the
form of a Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of Borrower.  Such Letter of Credit Application
must be received by L/C Issuer and Administrative Agent not later than 11:00
a.m., New York time, at least two (2) Business Days (or such later date and time
as L/C Issuer may agree in a particular instance in its sole discretion) prior
to the proposed issuance date or date of amendment, as the case may
be.  In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to 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; and (G) such
other matters as L/C Issuer may require.  In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to 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 L/C Issuer may require.
 
 (ii)           Promptly
after receipt of any Letter of Credit Application L/C Issuer will confirm with
Administrative Agent (by telephone or in writing) that Administrative Agent has
received a copy of such Letter of Credit Application from Borrower and, if not,
L/C Issuer will provide Administrative Agent with a copy
thereof.  Unless L/C Issuer has received written notice from any
Lender, Administrative Agent or Borrower, at least one 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, L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of
Borrower or enter into the applicable amendment, as the case may be, in each
case in accordance with L/C Issuer’s usual and customary business
practices.  Immediately upon the issuance of each Letter of Credit in
accordance with the terms of this Agreement, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from L/C Issuer a
risk participation in such Letter of Credit and all related L/C Obligations in
an amount equal to the product of such Lender’s Pro Rata Share times the amount of
such Letter of Credit.
  23
  (iii)           If
Borrower so requests in any applicable Letter of Credit Application, the L/C
Issuer may, in its sole 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, Borrower shall not be required to make a 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 Maturity 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 2.3(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 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 Borrower that one or more of the applicable conditions
specified in Section
4.2 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,
L/C Issuer will also deliver to Borrower and 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 drawing under such Letter of Credit, L/C
Issuer shall notify Borrower and Administrative Agent thereof.  Not
later than 11:00 a.m., New York time, on the date of any payment by L/C Issuer
under a Letter of Credit (each such date, an “Honor Date”),
Borrower shall reimburse L/C Issuer through Administrative Agent in an amount
equal to the amount of such drawing.  If Borrower fails to so
reimburse L/C Issuer by such time, 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, Borrower shall be deemed to have requested a
Committed Borrowing of 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 2.2(a) of the
principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Commitments and the conditions set forth in Section 4.2 (other
than the delivery of a Committed Loan Notice).  Any notice given by
L/C Issuer or Administrative Agent pursuant to this Section 2.3(c)(i) may
be given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
 
 (ii)           Each
Lender (including the Lender acting as L/C Issuer) shall upon any notice
pursuant to Section
2.3(c)(i) make funds available (and Administrative Agent may apply Cash
Collateral provided for this purpose) to Administrative Agent for the account of
L/C Issuer at Administrative Agent’s Office in an amount equal to its Pro Rata
Share of the Unreimbursed Amount not later than 1:00 p.m., New York time, on the
Business Day specified in such notice by Administrative Agent, if such Lender
has received notice from Administrative Agent of such Lender’s Pro Rata Share of
the Unreimbursed Amount, whereupon, subject to the provisions of Section 2.3(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Committed Loan to Borrower in such amount.  Administrative Agent
shall remit the funds so received to L/C Issuer.
  24
  (iii)          With
respect to any Unreimbursed Amount that is not fully refinanced by a Committed
Borrowing of Base Rate Loans because the conditions set forth in Section 4.2 cannot be
satisfied or for any other reason, Borrower shall be deemed to have incurred
from 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 Administrative Agent
for the account of L/C Issuer pursuant to Section 2.3(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
2.3.
 
 (iv)          Until
each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.3(c) to
reimburse 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 L/C Issuer.
 
 (v)           Each
Lender’s obligation to make Committed Loans or L/C Advances to reimburse L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.3(c), shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against L/C Issuer, 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 that all payments of such amounts by each Lender shall be
without prejudice to the rights of each of the other Lenders with respect to L/C
Issuer’s gross negligence or willful misconduct.  Any claim any Lender
may have against L/C Issuer as a result of L/C Issuer’s gross negligence or
willful misconduct may be brought by such Lender in a separate action against
L/C Issuer but may not be used as a defense to payment under the provisions of
this Section.  No Lender shall have any obligation to pay to L/C
Issuer such Lender’s Pro Rata Share of any L/C Obligations or Unreimbursed
Amount if Borrower shall not be obligated to reimburse L/C Issuer for such
unpaid L/C Obligations or Unreimbursed Amount because of L/C Issuer’s wrongful
payment under a Letter of Credit.  No such making of an L/C Advance
shall relieve or otherwise impair the obligation of Borrower to reimburse L/C
Issuer for the amount of any payment made by L/C Issuer under any Letter of
Credit, together with interest as provided herein.
 
 (vi)          If
any Lender fails to make available to Administrative Agent for the account of
L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.3(c) by the
time specified in Section 2.3(c)(ii),
L/C Issuer shall be entitled to recover from such Lender (acting through
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 L/C Issuer at a rate per annum equal to the Federal
Funds Rate from time to time in effect.  A certificate of L/C Issuer
submitted to any Lender (through 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 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 2.3(c), if
Administrative Agent receives for the account of L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly
from Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by Administrative Agent), Administrative Agent will distribute to such
Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by Administrative
Agent.
  25
 
 (ii)           If
any payment received by Administrative Agent for the account of L/C Issuer
pursuant to Section
2.3(c)(i) is required to be returned under any of the circumstances
described in Section
10.6 (including pursuant to any settlement entered into by L/C Issuer in
its discretion, but excluding any payments that must be returned due to the
gross negligence or willful misconduct of L/C Issuer), each Lender shall pay to
Administrative Agent for the account of L/C Issuer its Pro Rata Share thereof on
demand of 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.
 
 (e)         Obligations
Absolute.  The obligation of Borrower to reimburse 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 agreement or instrument relating thereto;
 
 (ii)           the
existence of any claim, counterclaim, set-off, defense or other right that
Borrower 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), 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 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 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, Borrower.
 
 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 Borrower’s instructions or other irregularity, Borrower will immediately
notify L/C Issuer.  Borrower shall be conclusively deemed to have
waived any such claim against L/C Issuer and its correspondents unless such
notice is given as aforesaid.
  26
 
 (f)          Role of L/C
Issuer.  Each Lender and Borrower agree that, in paying any
drawing under a Letter of Credit, L/C Issuer shall not have any responsibility
to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the
validity or accuracy of any such document or the authority of the Person
executing or delivering any such document, except to the extent required by
applicable law.  None of L/C Issuer, any Agent-Related Person nor any
of the respective correspondents, participants or assignees of 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 Lenders or the Required Lenders,
as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter
of Credit or Letter of Credit Application.  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 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 L/C Issuer, any Agent-Related
Person, nor any of the respective correspondents, participants or assignees of
L/C Issuer, shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.3(e); provided, however, that
anything in such clauses to the contrary notwithstanding, Borrower may have a
claim against L/C Issuer, and L/C Issuer may be liable to Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by Borrower which Borrower proves were caused by L/C
Issuer’s willful misconduct or gross negligence or 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 such Letter of Credit.  In furtherance and not
in limitation of the foregoing, 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 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)         [Reserved].
 
 (h)         Applicability of ISP98 and
UCP.  Unless otherwise expressly agreed by L/C Issuer and
Borrower when a Letter of Credit is issued, (i) the rules of the “International
Standby Practices 1998” published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance) (the “ISP”) shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce (the “ICC”) at the time of
issuance (including the ICC decision published by the Commission on Banking
Technique and Practice on April 6, 1998 regarding the European single currency
(euro)) shall apply to each commercial Letter of Credit.
 
 (i)          Letter of Credit
Fees.  Borrower shall pay to Administrative Agent for the
ratable account of each Lender in accordance with its Pro Rata Share (i) a
Letter of Credit fee for each commercial Letter of Credit equal to the
Applicable Rate per annum times the daily
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), and (ii) a Letter
of Credit fee for each standby Letter of Credit equal to the Applicable Rate
times the daily
amount available to be drawn under such Letter of Credit; provided, however, any
Letter of Credit Fees otherwise payable for the account of a Defaulting Lender
with respect to any Letter of Credit as to which such Defaulting Lender has not
provided Cash Collateral satisfactory to L/C Issuer pursuant to this Section 2.3
shall be payable, to the maximum extent permitted by applicable Law, to the
other Lenders in accordance with the upward adjustments in their respective Pro
Rata Shares allocable to such Letter of Credit pursuant to Section 2.17(a)(iv),
with the balance of such fee, if any, payable to L/C Issuer for its own
account.  Such Letter of Credit fees shall be computed on a quarterly
basis in arrears.  Such Letter of Credit fees shall be 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 Maturity Date and thereafter on
demand.  If there is any change in the Applicable Rate during any
quarter, the actual daily amount of 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.
  27
  (j)          Fronting Fee and Documentary
and Processing Charges Payable to L/C Issuer.  Borrower shall
pay directly to L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit in the amounts and at the times specified in the Fee
Letter.  In addition, Borrower shall pay directly to L/C Issuer for
its own account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of 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 Letter of
Credit Application.  In the event of any conflict between the
terms hereof and the terms of any Letter of Credit Application, the terms hereof
shall control.
 
 Section2.4           Swing Line Loans.
 
 (a)           The Swing
Line.  Subject to the terms and conditions set forth herein,
Swing Line Lender agrees to consider in its sole and absolute discretion making
loans (each such loan, a “Swing Line Loan”) to
Borrower 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 Committed Loans
and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the
amount of such Lender’s Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Committed 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 Commitment.  The Swing Line is a discretionary,
uncommitted facility and Administrative Agent may terminate or suspend the Swing
Line at any time in its sole discretion upon notice to Borrower which notice may
be given by Administrative Agent before or after Borrower requests a Swing Line
Loan hereunder; provided, further, that 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, Borrower may borrow under this Section 2.4 above,
prepay under Section 2.5 and reborrow
under this Section
2.4.  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 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.  Swing Line Loans shall be used only for the
purposes permitted for Committed Loans under the terms of this
Agreement.
  28
  (b)         Borrowing
Procedures.  Each Swing Line Borrowing shall be made upon
Borrower’s irrevocable notice to Swing Line Lender and Administrative Agent,
which may be given by telephone, unless Swing Line Lender has notified, or after
receiving notice of a Swing Line Borrowing notifies, Borrower that the Swing
Line has been or is terminated or suspended as provided in Section 2.4(a). Each
such notice must be received by Swing Line Lender and Administrative Agent not
later than 1:00 p.m., New York time, on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $50,000 or
multiple thereof, and (ii) the requested borrowing date, which shall be a
Business Day.  Each such telephonic notice must be confirmed promptly
by delivery to Swing Line Lender and Administrative Agent of a written Swing
Line Loan Notice, appropriately completed and signed by a Responsible Officer of
Borrower.  Promptly after receipt by Swing Line Lender of any
telephonic Swing Line Loan Notice, Swing Line Lender will confirm with
Administrative Agent (by telephone or in writing) that Administrative Agent has
also received such Swing Line Loan Notice and, if not, Swing Line Lender will
notify Administrative Agent (by telephone or in writing) of the contents
thereof.  Unless Swing Line Lender has received notice (by telephone
or in writing) from Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing 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 2.5(a) or (B)
that one or more of the applicable conditions specified in ARTICLE IV is not
then satisfied or the Swing Line has been or is terminated or suspended by Swing
Line Lender as provided above, then, subject to the terms and conditions hereof,
Swing Line Lender will, not later than 3:00 p.m.  New York time, on
the borrowing date specified in such Swing Line Loan Notice, make the amount of
its Swing Line Loan available to Borrower at its office by crediting the account
of Borrower on the books of Swing Line Lender in immediately available
funds.  Lenders agree that Swing Line Lender may agree to modify the
borrowing procedures used in connection with the Swing Line in its discretion
and without affecting any of the obligations of Lenders hereunder.
 
 (c)         Refinancing of Swing Line
Loans.
 
 (i)           Swing
Line Lender at any time in its sole and absolute discretion (including if Swing
Line Lender has terminated or suspended the Swing Line as provided above) may
request, on behalf of Borrower (which hereby irrevocably authorizes Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate Committed
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 Committed Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.1(b),
without regard to the minimum and multiples specified in Section 2.2(a) for
the principal amount of Base Rate Loans, but subject to the unutilized portion
of the Aggregate Commitments and the conditions set forth in Section
4.2.  Swing Line Lender shall furnish Borrower with a copy of
the applicable Committed Loan Notice promptly after delivering such notice to
Administrative Agent.  Each Lender shall make an amount equal to its
Pro Rata Share of the amount specified in such Committed Loan Notice available
to Administrative Agent (and Administrative Agent may apply Cash Collateral for
this purpose) in immediately available funds for the account of Swing Line
Lender at Administrative Agent’s Office not later than 1:00 p.m., New York time,
on the day specified in such Committed Loan Notice if such Lender has received
notice from Administrative Agent, whereupon, subject to Section 2.4(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Committed Loan to Borrower in such amount.  Administrative Agent
shall remit the funds so received to Swing Line Lender.
 
 (ii)           If
for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.4(c)(i),
the request for Base Rate Committed Loans submitted by Swing Line Lender as set
forth herein shall be deemed to be a request by Swing Line Lender that each of
the Lenders fund its risk participation in the relevant Swing Line Loan and each
Lender’s payment to Administrative Agent for the account of Swing Line Lender
pursuant to Section
2.4(c)(i) shall be deemed payment in respect of such
participation.
  29
  (iii)          If
any Lender fails to make available to Administrative Agent for the account of
Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.4(c) by the
time specified in Section 2.4(c)(i),
Swing Line Lender shall be entitled to recover from such Lender (acting through
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 Swing Line Lender at a rate per annum equal to the
Federal Funds Rate from time to time in effect.  A certificate of
Swing Line Lender submitted to any Lender (through 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 Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.4(c) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against Swing Line Lender, 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 all payments of such amounts by
any Lender shall be without prejudice to the rights of each of the other Lenders
with respect to Swing Line Lender’s gross negligence or willful
misconduct.  Any claim any Lender may have against Swing Line Lender
as a result of Swing Line Lender’s gross negligence or willful misconduct may be
brought by such Lender in a separate action against Swing Line Lender but may
not be used as a defense to payment under the provisions of this Section
2.4(c).  Each Lender’s obligation to make Committed Loans
pursuant to this Section 2.4(c) is
subject to the conditions set forth in Section
4.2.  No such funding of risk participations shall relieve or
otherwise impair the obligation of 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 Swing Line Lender receives any payment on account of such
Swing Line Loan, Swing Line Lender will distribute to such Lender its Pro Rata
Share of such payment (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender’s risk participation was
funded) in the same funds as those received by Swing Line Lender.
 
 (ii)           If
any payment received by Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by Swing Line Lender under any of
the circumstances described in Section 10.6
(including pursuant to any settlement entered into by Swing Line Lender in its
discretion), each Lender shall pay to Swing Line Lender its Pro Rata Share
thereof on demand of 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.  Administrative Agent will make such demand
upon the request of Swing Line Lender.
 
 (e)         Interest for Account of
Swing Line Lender.  Swing Line Lender shall be responsible for
invoicing Borrower for interest on the Swing Line Loans and interest shall be
paid in accordance with Section
2.8.  Until each Lender funds its Base Rate Committed Loan or
risk participation pursuant to this Section 2.4 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 Swing Line
Lender.
 
 (f)          Payments Directly to Swing
Line Lender.  Borrower shall make all payments of principal and
interest in respect of the Swing Line Loans directly to Swing Line
Lender.
  30
 
 Section2.5           Prepayments.
 
 (a)           Borrower
may, upon notice to Administrative Agent, at any time or from time to time
voluntarily prepay Committed Loans in whole or in part without premium or
penalty; provided that (i)
such notice must be received by Administrative Agent not later than 11:00 a.m.,
New York time, (A) three (3) Business Days prior to any date of prepayment of
Eurodollar Rate Committed Loans, and (B) on the date of prepayment of Base Rate
Committed Loans; (ii) any prepayment of Eurodollar Rate Committed Loans shall be
in a principal amount of $250,000 or a whole multiple of $100,000 in excess
thereof or, if less, the entire principal amount thereof then outstanding; and
(iii) any prepayment of Base Rate Committed Loans shall be in a principal amount
of $250,000 or a whole multiple of $100,000 in excess thereof, or, if less, the
entire principal amount thereof then outstanding.  Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid.  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 Borrower, 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 Committed Loan shall be
accompanied by all accrued interest thereon, together with any additional
amounts required pursuant to Section
3.5.  Each such prepayment shall be applied to the Committed
Loans of Lenders in accordance with their respective Pro Rata
Shares.
 
 (b)           Borrower
may, upon notice to Swing Line Lender (with a copy to 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 Swing Line Lender and Administrative Agent not
later than 1:00 p.m., New York time, on the date of the prepayment, and (ii) any
such prepayment shall be in a minimum principal amount of
$50,000.  Each such notice shall specify the date and amount of such
prepayment.  If such notice is given by Borrower, Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.
 
 (c)           If
for any reason the Total Outstandings at any time exceed the Aggregate
Commitments then in effect, Borrower shall immediately prepay Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that Borrower shall not be required to Cash Collateralize the
L/C Obligations pursuant to this Section 2.5(c) unless
after the prepayment in full of the Committed Loans and Swing Line Loans the
Total Outstandings exceed the Aggregate Commitments then in effect.
 
 Section2.6           Reduction or Termination of
Commitments.
 
 Borrower
may, upon notice to Administrative Agent, terminate the Aggregate Commitments,
or from time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by Administrative Agent not later than 11:00 a.m.,
five (5) Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments and (iv) if, after giving effect to any reduction of
the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of such excess.  Administrative
Agent will promptly notify Lenders of any such notice of termination or
reduction of the Aggregate Commitments.  Once reduced in accordance
with this Section, the Aggregate Commitments may not be increased except in
accordance with Section
2.1(b).  Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Pro Rata
Share.  All Commitment fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of
such termination.
  31
  Section2.7           Repayment of
Loans.
 
 (a)           Borrower
shall repay to Lenders on the Maturity Date the aggregate principal amount of
Committed Loans outstanding on such date.
 
 (b)           Borrower
shall repay to Administrative Agent each Swing Line Loan on the Maturity
Date.
 
 Section2.8           Interest.
 
 (a)           Subject
to the provisions of subsection (b) below, (i) each Eurodollar Rate Committed
Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable
Margin; (ii) each Base Rate Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable
Margin; 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
Margin.
 
 (b)           If
any amount payable by Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.  Furthermore, while
any Event of Default exists, upon the request of the Required Lenders, Borrower
shall pay interest on the principal amount of all outstanding Obligations at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.  Accrued and unpaid
interest on past due amounts (including interest on past due interest) shall be
due and payable upon demand.
 
 (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.
 
 Section2.9           Fees.
 
 In
addition to certain fees described in subsections (i) and (j) of Section
2.3:
 
 (a)           Commitment
Fee.  Borrower shall pay to Administrative Agent for the
ratable account of each Lender in accordance with its Pro Rata Share, a
commitment fee equal to the Applicable Rate times the actual
daily amount by which the Aggregate Commitments exceed the sum of (i) the
Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section
2.17.  The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more conditions
in ARTICLE IV
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 Maturity
Date.  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.  Borrower acknowledges that Swing Line Loans outstanding from
time to time are not considered Committed Loans in calculating the commitment
fee.
  32
 
 (b)           Agency
Fees.  Borrower shall pay an agency fee to Administrative Agent
for Administrative Agent’s own account, in the amounts and at the times
specified in the letter agreement, dated July 25, 2005 (the “Fee Letter”), between
Borrower and Administrative Agent.  Such fees shall be fully earned
when paid and shall be nonrefundable for any reason whatsoever.
 
 (c)           [Reserved].
 
 (d)           Other
Fees.  Borrower shall pay to Arranger and 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 not be refundable for any reason whatsoever.
 
 Section
2.10         Computation of
Interest and Fees.
 
 All
computations of interest for Base Rate Loans 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 number of 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 day.
 
 Section2.11         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 Administrative Agent in the ordinary
course of business.  The accounts or records maintained by
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by Lenders to 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
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 Administrative
Agent in respect of such matters, the accounts and records of Administrative
Agent shall control in the absence of manifest error.  Upon the
request of any Lender made through Administrative Agent, Borrower shall execute
and deliver to such Lender (through Administrative Agent) a Note, which shall
evidence, such Lender’s Loans, in addition to such accounts or
records.  Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of the applicable
Loans and payments with respect thereto.
 
 (b)           In
addition to the accounts and records referred to in subsection (a), each Lender
and 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
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of Administrative Agent shall control in
the absence of manifest error.
 
 Section2.12         Payments
Generally.
 
 (a)           All
payments to be made by Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff.  Except as otherwise
expressly provided herein, all payments by Borrower hereunder shall be made to
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at Administrative Agent’s Office in Dollars and in immediately
available funds not later than 2:00 p.m., New York time, on the date specified
herein.  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 Administrative Agent after 2:00
p.m., New York time, shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to
accrue.
  33
  (b)         If
any payment to be made by 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.
 
 (c)         Unless
Borrower or any Lender has notified Administrative Agent, prior to the date any
payment is required to be made by it to Administrative Agent hereunder, that
Borrower or such Lender, as the case may be, will not make such payment,
Administrative Agent may assume that Borrower or such Lender, as the case may
be, has timely made such payment and may (but shall not be so required to), in
reliance thereon, make available a corresponding amount to the Person entitled
thereto.  If and to the extent that such payment was not in fact made
to Administrative Agent in immediately available funds, then:
 
 (i)           if
Borrower failed to make such payment, each Lender shall forthwith on demand
repay to Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such amount was made
available by Administrative Agent to such Lender to the date such amount is
repaid to Administrative Agent in immediately available funds, at the Federal
Funds Rate from time to time in effect; and
 
 (ii)           if
any Lender failed to make such payment, such Lender shall forthwith on demand
pay to Administrative Agent the amount thereof in immediately available funds,
together with interest thereon for the period from the date such amount was made
available by Administrative Agent to Borrower to the date such amount is
recovered by Administrative Agent (the “Compensation Period”)
at a rate per annum equal to the Federal Funds Rate from time to time in
effect.  If such Lender pays such amount to Administrative Agent, then
such amount shall constitute such Lender’s Committed Loan included in the
applicable Borrowing.  If such Lender does not pay such amount
forthwith upon Administrative Agent’s demand, Administrative Agent may make a
demand upon Borrower, and Borrower shall pay such amount to Administrative
Agent, together with interest thereon for the Compensation Period at a rate per
annum equal to the rate of interest applicable to the applicable
Borrowing.  Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights which
Administrative Agent or Borrower may have against any Lender as a result of any
default by such Lender hereunder.
 
 A notice
of Administrative Agent to any Lender or Borrower with respect to any amount
owing under this subsection (c) shall be conclusive, absent manifest
error.
 
 (d)         If
any Lender makes available to 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 Borrower by Administrative Agent because the
conditions to the applicable Credit Extension set forth in ARTICLE IV are not
satisfied or waived in accordance with the terms hereof, Administrative Agent
shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.
  34
  (e)         The
obligations of Lenders hereunder to make Committed Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint.  The failure of any Lender to make any Committed Loan or to
fund any such participation 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
Committed Loan or purchase its participation.
 
 (f)          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.
 
 Section2.13         Extension of Maturity
Date.
 
 (a)         Not
earlier than sixty (60) days prior to, nor later than forty-five (45) days prior
to, the Maturity Date then in effect, Borrower may, upon notice to
Administrative Agent (which shall promptly notify the Lenders), request a
one-year extension of the Maturity Date then in effect.  Within thirty
(30) days of delivery of such notice, each Lender shall notify Administrative
Agent whether or not it consents to such extension (which consent may be given
or withheld in such Lender’s sole and absolute discretion).  Any
Lender not responding within the above time period shall be deemed not to have
consented to such extension.  Administrative Agent shall promptly
notify Borrower and the Lenders of the Lenders’ responses.
 
 (b)           The
Maturity Date shall be extended only if Lenders holding at least 66-2/3% of the
Aggregate Commitments (after giving effect to any replacements of Lenders
permitted herein) (the “Consenting Lenders”)
have consented thereto.  If so extended, the Maturity Date, as to the
Consenting Lenders, shall be extended to the same date in the following year,
effective as of the Maturity Date then in effect (such existing Maturity Date
being the “Extension
Effective Date”).  Administrative Agent and Borrower shall
promptly confirm to the Lenders such extension and the Extension Effective
Date.  As a condition precedent to such extension, Borrower shall
deliver to Administrative Agent a certificate of each Loan Party dated as of the
Extension Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such extension
and (ii) in the case of Borrower, certifying that, before and after giving
effect to such extension, (A) the representations and warranties contained in
ARTICLE V and
the other Loan Documents are true and correct on and as of the Extension
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section 2.13, the
representations and warranties contained in subsections (a) and (b) of Section 5.5 shall be
deemed to refer to the most recent statements furnished pursuant to subsections
(a) and (b), respectively, of Section 6.1, and (B)
no Default exists.  Borrower shall prepay any Committed Loans
outstanding on the Extension Effective Date (and pay any additional amounts
required pursuant to Section 3.4) to the
extent necessary to keep outstanding Committed Loans ratable with any revised
and new Pro Rata Shares of all the Lenders effective as of the Extension
Effective Date.
 
 (c)         This
Section shall supersede any provisions in Section 2.14 or Section 10.1 to the
contrary.
  35
 
 Section2.14         Sharing of
Payments.
 
 If, other
than as expressly provided elsewhere herein, any Lender shall obtain on account
of Committed Loans made by it, or the participations in L/C Obligations or in
Swing Line Loans held by it, any payment (whether voluntary, involuntary,
through the exercise of any right of setoff, or otherwise) in excess of its
ratable share (or other share contemplated hereunder) thereof, such Lender shall
immediately (a) notify Administrative Agent of such fact, and (b) purchase from
the other Lenders such participations in the Committed 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 Committed Loans
or such participations, as the case may be, pro rata with each of them; provided, however, that (i) if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section 10.6
(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, together
with an amount equal to such paying Lender’s ratable share (according to the
proportion of (A) the amount of such paying Lender’s required repayment to (B)
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 and (ii) the provisions of
this Section shall not be construed to apply to (A) any payment made by or on
behalf of Borrower pursuant to and in accordance with the express terms of this
Agreement (including the application of funds arising from the existence of a
Defaulting Lender, (B) the application of Cash Collateral provided for in Section 2.16 or (C)
any payment obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Loans or subparticipations in L/C Obligations
or Swing Line Loans to any assignee or participant, other than an assignment to
Borrower or any Subsidiary (as to which the provisions of this Section shall
apply).  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 10.9) with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such
participation.  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 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.
 
 Section2.15         Guaranty.
 
 (a)         Each
Borrower hereby unconditionally and irrevocably, jointly and severally
guarantees to Administrative Agent, Lenders, and each other holder of the
Obligations, as primary obligor and not as surety:
 
 (i)          
 the due and punctual payment in full (and not merely the collectibility)
by each Borrower of the Obligations, including unpaid and accrued interest
thereon, in each case when due and payable, all according to the terms of this
Agreement, the Notes and the other Loan Documents;
 
 (ii)           the
due and punctual payment in full (and not merely the collectibility) by each of
Borrower of all other sums and charges which may at any time be due and payable
in accordance with this Agreement, the Notes or any of the other Loan
Documents;
 
 (iii)          the
due and punctual performance by each Borrower of all of the other terms,
covenants and conditions contained in the Loan Documents; and
 
 (iv)          all
the other Obligations of each Borrower.
  36
  Notwithstanding
any provision to the contrary contained herein or in any other of the Loan
Documents or the other documents relating to the Obligations, the obligations of
each Borrower solely in its capacity as a guarantor (and not in its capacity as
a Borrower hereunder) under this Agreement and the other Loan Documents shall
not exceed an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under applicable Debtor Relief
Laws.
 
 (b)         The
obligations and liabilities of each Borrower as a guarantor under this Section
shall be absolute and unconditional and joint and several, irrespective of the
genuineness, validity, priority, regularity or enforceability of this Agreement,
any of the Notes or any of the Loan Documents or any other circumstance which
might otherwise constitute a legal or equitable discharge of a surety or
guarantor.  Each Borrower solely in its capacity as a
guarantor (and not in its capacity as a Borrower hereunder) expressly
agrees that Administrative Agent and Lenders may, in their sole and absolute
discretion, without notice to or further assent of such Borrower and without in
any way releasing, affecting or in any way impairing the joint and several
obligations and liabilities of such Borrower as a guarantor
hereunder:
 
 (i)       
    waive compliance with, or any defaults under, or grant
any other indulgences under or with respect to any of the Loan
Documents;
 
 (ii)           modify,
amend, change or terminate any provisions of any of the Loan
Documents;
 
 (iii)          grant
extensions or renewals of or with respect to the Commitments, the Notes or any
of the other Loan Documents;
 
 (iv)     
    effect any release, subordination, compromise or
settlement in connection with this Agreement, any of the Notes or any of the
other Loan Documents;
 
 (v)          agree
to the substitution, exchange, release or other disposition of the Collateral or
any part thereof, or any other collateral for the Commitments or to the
subordination of any lien or security interest therein;
 
 (vi)          make
advances for the purpose of performing any term, provision or covenant contained
in this Agreement, any of the Notes or any of the other Loan Documents with
respect to which any Borrower shall then be in default;
 
 (vii)         make
future advances pursuant to this Agreement or any of the other Loan
Documents;
 
 (viii)        assign,
pledge, hypothecate or otherwise transfer the Commitments, the Obligations, the
Notes, any of the other Loan Documents or any interest therein, all as and to
the extent permitted by the provisions of this Agreement;
 
 (ix)          deal
in all respects with Borrower as if this Section were not in
effect;
 
 (x)           effect
any release, compromise or settlement with any of Borrower, whether in their
capacity as a Borrower or as a guarantor under this Section, or any other
guarantor; and
 
 (xi)          provide
debtor-in-possession financing or allow use of cash collateral in proceedings
under the Bankruptcy Code, it being expressly agreed by each Borrower that any
such financing and/or use would be part of the Obligations.
  37
 
 (c)         The
obligations and liabilities of each Borrower, as guarantor under this Section,
shall be primary, direct and immediate, shall not be subject to any
counterclaim, recoupment, set off, reduction or defense based upon any claim
that a Borrower may have against any one or more of the other Borrower,
Administrative Agent, any one or more of Lenders and/or any other guarantor and
shall not be conditional or contingent upon pursuit or enforcement by
Administrative Agent or other Lenders of any remedies it may have against
Borrower with respect to this Agreement, the Notes or any of the other Loan
Documents, whether pursuant to the terms thereof or by operation of
law.  Without limiting the generality of the foregoing, Administrative
Agent and Lenders shall not be required to make any demand upon any of Borrower,
or to sell the Collateral or otherwise pursue, enforce or exhaust its or their
remedies against Borrower or the Collateral either before, concurrently with or
after pursuing or enforcing its rights and remedies hereunder.  Any
one or more successive or concurrent actions or proceedings may be brought
against each Borrower under this Section, either in the same action, if any,
brought against any one or more of Borrower or in separate actions or
proceedings, as often as Administrative Agent may deem expedient or
advisable.  Without limiting the foregoing, it is specifically
understood that any modification, limitation or discharge of any of the
liabilities or obligations of any one or more of Borrower, any other guarantor
or any obligor under any of the Loan Documents, arising out of, or by virtue of,
any bankruptcy, arrangement, reorganization or similar proceeding for relief of
debtors under federal or state law initiated by or against any one or more of
Borrower, in their respective capacities as borrowers and guarantors under this
Section, or under any of the Loan Documents shall not modify, limit, lessen,
reduce, impair, discharge, or otherwise affect the liability of each Borrower
under this Section in any manner whatsoever, and this Section shall remain and
continue in full force and effect.  It is the intent and purpose of
this Section that each Borrower shall and does hereby waive all rights and
benefits which might accrue to any other guarantor by reason of any such
proceeding, and each Borrower agrees that it shall be liable for the full amount
of the obligations and liabilities under this Section, regardless of, and
irrespective to, any modification, limitation or discharge of the liability of
any one or more of Borrower, any other guarantor or any obligor under any of the
Loan Documents, that may result from any such proceedings.
 
 (d)         Each
Borrower, solely as
guarantor under this Section (and not in its capacity as a Borrower
hereunder), hereby unconditionally, jointly and severally, irrevocably and
expressly waives:
 
 (i)  
         presentment and demand for
payment of the Obligations and protest of non-payment;
 
 (ii)           notice
of acceptance of this Section and of presentment, demand and protest
thereof;
 
 (iii)          notice
of any default hereunder or under the Notes or any of the other Loan Documents
and notice of all indulgences;
 
 (iv)          notice
of any increase in the amount of any portion of or all of the indebtedness
guaranteed by this Section;
 
 (v)           demand
for observance, performance or enforcement of any of the terms or provisions of
this Section, the Notes or any of the other Loan Documents;
 
 (vi)          all
errors and omissions in connection with Administrative Agent’s administration of
all indebtedness guaranteed by this Section, except errors and omissions
resulting from acts of bad faith;
  38
 
 (vii)         any
right or claim of right to cause a marshalling of the assets of any one or more
of the other Borrower;
 
 (viii)        any
act or omission of Administrative Agent or Lenders which changes the scope of
the risk as guarantor hereunder; and
 
 (ix)           all
other notices and demands otherwise required by law which Borrower may lawfully
waive.
 
 Within
ten (10) days following any request of Administrative Agent so to do, each
Borrower will furnish Administrative Agent and Lenders and such other persons as
Administrative Agent may direct with a written certificate, duly acknowledged
stating in detail whether or not any credits, offsets or defenses exist with
respect to this Section.
 
 (e)         Additional
Waivers.
 
 (i)        
   Each Borrower solely in its capacity as a guarantor agrees
that such Borrower shall have no right of subrogation, indemnity, reimbursement
or contribution against Borrower or any Guarantor for amounts paid under this
Section 2.15
until such time as the Obligations have been paid in full and the Commitments
have expired or terminated.
 
 (ii)           Each
Borrower solely in its capacity as a guarantor agrees that such Borrower shall
have no right of recourse to security for the Obligations, except through the
exercise of rights of subrogation pursuant to this Section 2.15(e)
and through the exercise of rights of contribution pursuant to Section 2.15(g).
  (f)          Remedies.  Each
Borrower solely in its capacity as a guarantor agrees that, to the fullest
extent permitted by law, as between Borrowers solely in their capacities as
guarantors, on the one hand, and Administrative Agent and the other holders of
the Obligations, on the other hand, the Obligations may be declared to be
forthwith due and payable as specified in Section 8.2 (and
shall be deemed to have become automatically due and payable in the
circumstances specified in Section 8.2) for
purposes of Section 2.15
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 each Borrower solely in its capacity as
a guarantor for purposes of Section 2.15.
 
 (g)         Rights of
Contribution.  The Borrowers agree among themselves that, in
connection with payments made hereunder, each Borrower shall have contribution
rights against the other Borrowers as permitted under applicable
law.  Such contribution rights shall be subordinate and subject in
right of payment to the obligations of Borrowers under the Loan Documents and no
Borrower shall exercise such rights of contribution until the Obligations have
been paid in full and the Commitments have terminated.
 
 Section2.16         Cash Collateral.
 
 (a)         Certain Credit Support
Events.  Upon the request of Administrative Agent or L/C Issuer
(i) if 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 Maturity Date, any L/C Obligation for any reason remains outstanding,
Borrower shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations.  At any time that there
shall exist a Defaulting Lender, immediately upon the request of Administrative
Agent, L/C Issuer or Swing Line Lender, Borrower shall deliver to Administrative
Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure
(after giving effect to Section 2.17(a)(iv)
and any Cash Collateral provided by the Defaulting Lender).
  39
 
 (b)         Grant of Security
Interest.  All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America.  Borrower,
and to the extent provided by any Lender, such Lender, hereby grants to (and
subjects to the control of) Administrative Agent, for the benefit of
Administrative Agent, L/C Issuer and the Lenders (including Swing Line Lender),
and agrees to maintain, a first priority security interest in all such cash,
deposit accounts and all balances therein, and all other property so provided as
collateral pursuant hereto, and in all proceeds of the foregoing, all as
security for the obligations to which such Cash Collateral may be applied
pursuant to Section
2.16(c).  If at any time Administrative Agent determines that
Cash Collateral is subject to any right or claim of any Person other than
Administrative Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations
secured thereby, Borrower or the relevant Defaulting Lender will, promptly upon
demand by Administrative Agent, pay or provide to Administrative Agent
additional Cash Collateral in an amount sufficient to eliminate such
deficiency.
 
 (c)         Application.  Notwithstanding
anything to the contrary contained in this Agreement, Cash Collateral provided
under any of this Section 2.16 or any
other provision of this Agreement in respect of Letters of Credit or Swing Line
Loans shall be held and applied to the satisfaction of the specific L/C
Obligations, Swing Line Loans, obligations to fund participations therein
(including, as to Cash Collateral provided by a Defaulting Lender, any interest
accrued on such obligation) and other obligations for which the Cash Collateral
was so provided, prior to any other application of such property as may be
provided for herein.
 
 (d)         Release.  Cash
Collateral (or the appropriate portion thereof) provided to reduce Fronting
Exposure or other obligations shall be released promptly following (i) the
elimination of the applicable Fronting Exposure or other obligations giving rise
thereto (including by the termination of Defaulting Lender status of the
applicable Lender (or, as appropriate, its assignee following compliance with
Section 10.7(b))
or (ii) Administrative Agent’s good faith determination that there exists excess
Cash Collateral; provided, however,
(x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be
released during the continuance of a Default (and following application as
provided in this Section 2.16 may be
otherwise applied in accordance with Section 8.3), and (y)
the Person providing Cash Collateral and L/C Issuer or Swing Line Lender, as
applicable, may agree that Cash Collateral shall not be released but instead
held to support future anticipated Fronting Exposure or other
obligations.
 
 Section2.17         Defaulting
Lenders.
 
 (a)         Adjustments.  Notwithstanding
anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as that Lender is no longer a
Defaulting Lender, to the extent permitted by applicable Law:
 
 (i)           Waivers and
Amendments.  That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in Section
10.1.
  40
  (ii)           Reallocation of
Payments.  Any payment of principal, interest, fees or other
amounts received by Administrative Agent for the account of that Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or
otherwise, and including any amounts made available to Administrative Agent by
that Defaulting Lender pursuant to Section 10.9), shall
be applied at such time or times as may be determined by Administrative Agent as
follows:  first, to the payment of any
amounts owing by that Defaulting Lender to Administrative Agent hereunder; second, to the payment on a
pro rata basis of any amounts owing by that Defaulting Lender to L/C Issuer or
Swing Line Lender hereunder; third, if so determined by
Administrative Agent or requested by L/C Issuer or Swing Line Lender, to be held
as Cash Collateral for future funding obligations of that Defaulting Lender of
any participation in any Swing Line Loan or Letter of Credit; fourth, as Borrower may
request (so long as no Default exists), to the funding of any Loan in respect of
which that Defaulting Lender has failed to fund its portion thereof as required
by this Agreement, as determined by Administrative Agent; fifth, if so determined by
Administrative Agent and Borrower, to be held in a non-interest bearing deposit
account and released in order to satisfy obligations of that Defaulting
Lender to fund Loans under this Agreement; sixth, to the payment of any
amounts owing to the Lenders, L/C Issuer or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, L/C Issuer
or Swing Line Lender against that Defaulting Lender as a result of that
Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no
Default exists, to the payment of any amounts owing to Borrower as a result of
any judgment of a court of competent jurisdiction obtained by Borrower against
that Defaulting Lender as a result of that Defaulting Lender’s breach of its
obligations under this Agreement; and eighth, to that Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x)
such payment is a payment of the principal amount of any Loans or L/C Borrowings
in respect of which that Defaulting Lender has not fully funded its appropriate
share and (y) such Loans or L/C Borrowings were made at a time when the
conditions set forth in Section 4.2 were
satisfied or waived, such payment shall be applied solely to pay the Loans of,
and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior
to being applied to the payment of any Loans of, or L/C Borrowings owed to, that
Defaulting Lender.  Any payments, prepayments or other amounts paid or
payable to a Defaulting Lender that are applied (or held) to pay amounts owed by
a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii)
shall be deemed paid to and redirected by that Defaulting Lender, and each
Lender irrevocably consents hereto.
 
 (iii)          Certain Fees.That Defaulting Lender
(A) shallnot be
entitled to receive any Commitment Fee for any period during which that Lender
is a Defaulting Lender (and Borrower shall not be required to pay any such fee
that otherwise would have been required to have been paid to that Defaulting
Lender) and (B) shall be limited in its right to receive Letter of Credit Fees
as provided in Section
2.3(h).
 
 (iv)          Reallocation of Pro Rata
Shares to Reduce Fronting Exposure.  During any period in which
there is a Defaulting Lender, for purposes of computing the amount of the
obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.3 and
2.4, the “Pro
Rata Share” of each non-Defaulting Lender shall be computed without giving
effect to the Commitment of that Defaulting Lender; provided, that, (A)
each such reallocation shall be given effect only if, at the date the applicable
Lender becomes a Defaulting Lender, no Default exists; and (B) the aggregate
obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit and Swing Line Loans shall not exceed the
positive difference, if any, of (1) the Commitment of that non-Defaulting Lender
minus (2) the
aggregate Outstanding Amount of the Revolving Loans of that Lender.
  41
  (b)         Defaulting Lender
Cure.  If Borrower, Administrative Agent, Swing Line Lender and
L/C Issuer agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, Administrative Agent will
so notify the parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which may include
arrangements with respect to any Cash Collateral), that Lender will, to the
extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as Administrative Agent may determine to be
necessary to cause the Loans and funded and unfunded participations in Letters
of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in
accordance with their Pro Rata Shares (without giving effect to Section 2.17(a)(iv)),
whereupon that Lender will cease to be a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of Borrower while that Lender was a Defaulting Lender; and
provided, further, that except
to the extent otherwise expressly agreed by the affected parties, no change
hereunder from Defaulting Lender to Lender will constitute a waiver or release
of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.
 
 ARTICLE
III
 TAXES,
YIELD PROTECTION AND ILLEGALITY
 
 Section3.1           Taxes.
 
 (a)         Payments Free of Taxes –
Obligation to Withhold: Payments on Account of Taxes.
 
 (i)           Any
and all payments by or on account of any obligation of Borrower hereunder or
under any other Loan Document shall to the extent permitted by applicable Laws
be made free and clear of and without reduction or withholding for any Taxes.
If, however, applicable Laws require Borrower or Administrative Agent to
withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance
with such Laws as determined by Borrower or Administrative Agent, as the case
may be, upon the basis of the information and documentation to be delivered
pursuant to subsection (e) below.
 
 (ii)           If
Borrower or Administrative Agent shall be required by the Code to withhold or
deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) Administrative Agent shall
withhold or make such deductions as are determined by Administrative Agent to be
required based upon the information and documentation it has received pursuant
to subsection (e) below, (B) Administrative Agent shall timely pay the full
amount withheld or deducted to the relevant Governmental Authority in accordance
with the Code, and (C) to the extent that the withholding or deduction is made
on account of Indemnified Taxes or Other Taxes, the sum payable by Borrower
shall be increased as necessary so that after any required withholding or the
making of all required deductions (including deductions applicable to additional
sums payable under this Section) Administrative Agent, any Lender or L/C Issuer,
as the case may be, receives an amount equal to the sum it would have received
had no such withholding or deduction been made.
 
 (b)         Payment of Other Taxes by
Borrower.  Without limiting the provisions of subsection (a)
above, Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Laws.
  42
 
 (c)         Tax
Indemnification.
 
 (i)           Without
limiting the provisions of subsection (a) or (b) above, Borrower shall, and does
hereby indemnify Administrative Agent, each Lender and L/C Issuer, and shall
make payment in respect thereof within ten 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) withheld or deducted by Borrower or Administrative Agent or paid
by Administrative Agent, such Lender or L/C Issuer, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental
Authority.  Borrower shall also, and does hereby, indemnify
Administrative Agent, and shall make payment in respect thereof within ten days
after demand therefor, for any amount which a Lender or L/C Issuer for any
reason fails to pay indefeasibly to Administrative Agent as required by clause
(ii) of this subsection.  A certificate as to the amount of any such
payment or liability delivered to Borrower by a Lender or L/C Issuer (with a
copy to Administrative Agent), or by Administrative Agent on its own behalf or
on behalf of a Lender or L/C Issuer, shall be conclusive absent manifest
error.
 
 (ii)           Without
limiting the provisions of subsection (a) or (b) above, each Lender and L/C
Issuer shall, and does hereby, indemnify Borrower and Administrative Agent, and
shall make payment in respect thereof within ten days after demand therefor,
against any and all  Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and
disbursements of any counsel for Borrower or Administrative Agent) incurred by
or asserted against Borrower or Administrative Agent by any Governmental
Authority as a result of the failure by such Lender or L/C Issuer, as the case
may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency
of, any documentation required to be delivered by such Lender or L/C Issuer, as
the case may be, to Borrower or Administrative Agent pursuant to subsection
(e).  Each Lender and L/C Issuer hereby authorizes Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender
or L/C Issuer, as the case may be, under this Agreement or any other Loan
Document against any amount due to Administrative Agent under this clause
(ii).  The agreements in this clause (ii) shall survive the
resignation and/or replacement of Administrative Agent, any assignment of rights
by, or the replacement of, a Lender or L/C Issuer, the termination of the
Commitments and the repayment, satisfaction or discharge of all other
Obligations.
 
 (d)         Evidence of
Payments.  Upon request by Borrower or Administrative Agent, as
the case may be, after any payment of Taxes by any Loan Party or by
Administrative Agent to a Governmental Authority, as provided in this Section 3.1, Borrower
shall deliver to Administrative Agent or Administrative Agent shall deliver to
Borrower, as the case may be, the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of any
return required by Law to report such payment or other evidence of such payment
reasonably satisfactory to Borrower or Administrative Agent, as the case may
be.
 
 (e)          Status of Lenders: Tax
Documentation.
 
 (i)           Each
Lender shall deliver to Borrower and to Administrative Agent, at the time or
times prescribed by applicable Laws or when reasonably requested by Borrower or
Administrative Agent, such properly completed and executed documentation
prescribed by applicable Laws or by the taxing authorities of any jurisdiction
and such other reasonably requested information as will permit Borrower or
Administrative Agent, as the case may be, to determine (A) whether or not
payments made hereunder or under any other Loan Document are subject to Taxes,
(B) if applicable, the required rate of withholding or deduction, and (C) such
Lender’s entitlement to any available exemption from, or reduction of,
applicable Taxes in respect of all payments to be made to such Lender by
Borrower pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in the applicable
jurisdiction.
  43
 
 (ii)         Without
limiting the generality of the foregoing, if Borrower is a resident for tax
purposes in the United States
 
 (A)           any
Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to Borrower and Administrative Agent
executed originals of Internal Revenue Service Form W-9 or such other
documentation or information prescribed by applicable Laws or reasonably
requested by Borrower or Administrative Agent as will enable the Borrower or
Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements;
and
 
 (B)           each
Foreign Lender that is entitled under the Code or any applicable treaty to an
exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to Borrower and
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
Borrower or Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:
 
 (I)           executed
originals 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)          executed
originals of Internal Revenue Service Form W-8ECI,
 
 (III)         executed
originals of Internal Revenue Service Form W-8IMY and all required supporting
documentation,
 
 (IV)         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 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)
executed originals of  Internal Revenue Service Form W-8BEN,
or
 
 (V)          executed
originals of any other form prescribed by applicable Laws as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
together with such supplementary documentation as may be prescribed by
applicable Laws to permit Borrower or Administrative Agent to determine the
withholding or deduction required to be made.
 
 (iii)         Each
Lender shall promptly (A) notify Borrower and Administrative Agent of any change
in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be materially disadvantageous to
it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws of any jurisdiction that Borrower or
Administrative Agent make any withholding or deduction for taxes from amounts
payable to such Lender.
  44
 
 Section3.2           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 Loans whose interest is determined by
reference to the Eurodollar Rate, or to determine or charge interest rates based
upon the Eurodollar Rate or any Governmental Authority has imposed material
restrictions in the authority of such Lender to purchase or sell, or take
deposits of, Dollars in the London interbank market, then, on notice thereof by
such Lender to Borrower through Administrative Agent, any obligation of such
Lender to make or continue Eurodollar Rate Committed Loans or to convert Base
Rate Committed Loans to Eurodollar Rate Committed Loans shall be suspended and
(ii) if such notice asserts the illegality of such Lender making or maintaining
Base Rate Loans the interest rate on which is determined by reference to the
Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate
Loans of such Lender shall, if necessary to avoid such illegality, be determined
by Administrative Agent without reference to the Eurodollar Rate component of
the Base Rate, in each case until such Lender notifies Administrative Agent and
Borrower that the circumstances giving rise to such determination no longer
exist.  Upon receipt of such notice, (x) Borrower shall, upon demand
from such Lender (with a copy to Administrative Agent), prepay or, if
applicable, convert all Eurodollar Rate Committed Loans of such Lender to Base
Rate Loans, either on the last day of the Interest Period, if such Lender may
lawfully continue to maintain such Eurodollar Rate Committed Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Committed Loans and (y) if such notice asserts the illegality of
such Lender determining or charging interest rates based upon the Eurodollar
Rate, Administrative Agent shall during the period of such suspension compute
the Base Rate applicable to such Lender without reference to the Eurodollar Rate
component thereof until Administrative Agent is advised in writing by such
Lender that it is no longer illegal for such Lender to determine or charge
interest rates based upon the Eurodollar Rate.  Upon any such
prepayment or conversion, Borrower shall also pay accrued interest on the amount
so prepaid or converted and all amounts due under Section 3.5 in
accordance with the terms thereof due to such prepayment or
conversion.  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.
 
 Section3.3           Inability to Determine
Rates.
 
 If
Administrative Agent determines in connection with any request for a Eurodollar
Rate Committed Loan or a conversion to or continuation thereof for any reason
that (a) Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the applicable amount and Interest Period of such
Eurodollar Rate Committed Loan, (b) adequate and reasonable means do not exist
for determining the Eurodollar Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Committed Loan or in connection with any
existing or proposed Base Rate Loan, or (c) the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Committed
Loan does not adequately and fairly reflect the cost to Lenders of funding such
Eurodollar Rate Committed Loan, Administrative Agent will promptly so notify
Borrower and all Lenders.  Thereafter, (x) the obligation of Lenders
to make or maintain Eurodollar Rate Committed Loans shall be suspended and (y)
in the event of a determination described in the preceding sentence with respect
to the Eurodollar Rate component of the Base Rate, the utilization of the
Eurodollar Rate component in determining the Base Rate shall be suspended, in
each case until Administrative Agent revokes such notice.  Upon
receipt of such notice, Borrower may revoke any pending request for a Borrowing
of, conversion to or continuation of Eurodollar Rate Committed Loans or, failing
that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified
therein.
  45
 
 Section3.4           Increased Cost and Reduced Return;
Capital Adequacy; Reserves on Eurodollar Rate Committed
Loans.
 
 (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 Loans the interest on which is determined by
reference to the Eurodollar Rate 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) Taxes or Other Taxes (as to which Section 3.1 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 of either thereof under the Laws of which such Lender is organized
or has its Lending Office, and (iii) reserve requirements utilized, as to
Eurodollar Rate Committed 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
Administrative Agent), Borrower shall pay to such Lender such additional amounts
as will compensate such Lender for such increased cost or reduction, provided
that Borrower shall not be required to compensate a Lender pursuant to this
Section 3.4(a)
for any increased costs or reductions incurred more than 180 days prior to the
date such Lender notifies Borrower of such change in Law or interpretation of
Law and of such Lender’s intention to claim compensation therefor.
 
 (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 Administrative Agent), Borrower shall pay to such
Lender such additional amounts as will compensate such Lender for such
reduction.
 
 Section3.5           Funding Losses.
 
 Upon
demand of any Lender (with a copy to Administrative Agent) from time to time,
Borrower shall promptly compensate such Lender for and hold such Lender harmless
from any 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); or
 
 (b)         any
failure by 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 Borrower;
 
 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.  Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.
  46
  For
purposes of calculating amounts payable by Borrower to Lenders under this Section 3.5, each
Lender shall be deemed to have funded each Eurodollar Rate Committed Loan made
by it at the Eurodollar Base Rate or London Interbank Offered 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 Committed Loan was
in fact so funded.
 
 Section3.6           Matters Applicable to all Requests
for Compensation.
 
 A
certificate of Administrative Agent or any Lender claiming compensation under
this ARTICLE
III and setting forth the calculation of the additional amount or amounts
to be paid to it hereunder shall be conclusive in the absence of manifest
error.  In determining such amount, Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
 
 Section3.7           Survival.
 
 All of
Borrower’s obligations under this ARTICLE III shall
survive termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.
 
 ARTICLE
IV
 CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS
 
 Section4.1           [Reserved].
 
 Section4.2 Conditions to all Credit Extensions
and Conversions and Continuations.
 
 The
obligation of each Lender to honor any Request for Credit Extension (other than
a Committed Loan Notice requesting only a conversion of Committed Loans to the
other Type or a continuation of Eurodollar Rate Committed Loans) is subject to
the following conditions precedent:
 
 (a)          The
representations and warranties of Borrower and each other Loan Party contained
in ARTICLE V or
any other Loan Document, or which are contained in any document furnished at any
time under or in connection herewith, shall be true and correct on and as of the
date of such Credit Extension, conversion or continuation, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date, and except
that for purposes of this Section 4.2, the
representations and warranties contained in subsections (a) and (b) of Section 5.5 shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a)
and (b), respectively, of Section
6.1.
 
 (b)          No
Default shall exist, or would result from such proposed Credit Extension,
conversion or continuation.
 
 (c)          Administrative
Agent and, if applicable, L/C Issuer or Swing Line Lender shall have received a
Request for Credit Extension in accordance with the requirements
hereof.
 
 (d)          Administrative
Agent shall have received, in form and substance satisfactory to it, such other
assurances, certificates, documents or consents related to the foregoing as
Administrative Agent or the Required Lenders reasonably may
require.
 
 (e)          Borrower
shall have delivered to Administrative Agent the items required by Section
6.16(a).
  47
 
 Each
Request for Credit Extension (other than a Committed Loan Notice requesting only
a conversion of Committed Loans to the other Type or a continuation of
Eurodollar Rate Committed Loans) submitted by Borrower shall be deemed to be a
representation and warranty that the conditions specified in (a) and (b) have
been satisfied on and as of the date of the applicable Credit
Extension.
 
 ARTICLE
V
 REPRESENTATIONS
AND WARRANTIES
 
 Borrower
represents and warrants to Administrative Agent and Lenders that:
 
 Section5.1           Existence, Qualification and Power;
Compliance with Laws.
 
 Each Loan
Party (a) is 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 licenses, except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
 
 Section5.2           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 and will 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.
 
 Section5.3           Governmental
Authorization.
 
 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.
 
 Section5.4           Binding Effect.
 
 This
Agreement has been, and each other Loan Document, when delivered hereunder, will
have been, duly executed and delivered by each Loan Party that is party
thereto.  This Agreement constitutes, and each other Loan Document
when so delivered will constitute, a legal, valid and binding obligation of such
Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms.
 
 Section5.5           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 the financial condition of 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 Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and
Indebtedness.
  48
  (b)           The
unaudited consolidated financial statements of Borrower and its Subsidiaries
dated March 31, 2005, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for the fiscal quarter ended on
that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and ; (ii) fairly present the financial condition of 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 normal year-end audit adjustments.
 
 (c)           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.
 
 Section5.6           Litigation.
 
 Except as
specifically disclosed in Schedule 5.6 hereto,
there are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against 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) either individually or in the aggregate, if determined adversely,
could reasonably be expected to have a Material Adverse Effect.
 
 Section5.7           No Default.
 
 Neither
Borrower nor any Subsidiary is in default under or with respect to any
Contractual Obligation that could either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  No Default
has occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan
Document.
 
 Section5.8           Ownership of Property;
Liens.
 
 Each of
Borrower and each Subsidiary 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 Borrower and its Subsidiaries is
subject to no Liens, other than Liens permitted by Section
7.1.
 
 Section5.9           Environmental
Compliance.
 
 To the
best of Borrower’s knowledge, except as specifically disclosed in Schedule 5.9 hereto,
there is no violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof Borrower has reasonably
concluded that such Environmental Laws and claims could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
 
  49
  Section5.10         Insurance.
 
 The
properties of Borrower and its Subsidiaries are insured with financially sound
and reputable insurance companies not Affiliates of Borrower, in such amounts,
after giving effect to any self-insurance compatible with the following
standards, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where Borrower or the applicable Subsidiary operates.
 
 Section5.11         Taxes.
 
 Borrower
and its Subsidiaries have filed all Federal, state and other material tax
returns and reports required to be filed, and have paid all Federal, 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.  There is no proposed tax assessment
against Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.
 
 Section5.12         ERISA Compliance.
 
 (a)          Each
Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws.  Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of Borrower, nothing has occurred which would prevent, or cause the
loss of, such qualification.  Borrower and each ERISA Affiliate have
made all required contributions to each Plan subject to Section 412 of the Code,
and no application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect to any
Plan.
 
 (b)         There
are no pending or, to the best knowledge of Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan
that could reasonably be expected to have a Material Adverse
Effect.  There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted 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) neither Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and
not delinquent under Section 4007 of ERISA); (iv) neither Borrower 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) neither Borrower nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.
 
 Section5.13         Subsidiaries.
 
 As of the
Closing Date, Borrower has no Subsidiaries other than those specifically
disclosed in Part
(a) of Schedule
5.13 and has no equity investments in any other corporation or entity
other than those specifically disclosed in Part (b) of Schedule
5.13.
  50
 
 Section5.14         Disclosure.
 
 Borrower
has disclosed to Administrative Agent and Lenders all agreements, instruments
and corporate or other restrictions to which it or any of its Subsidiaries is
subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect.  No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any Loan
Party in connection with any Loan Document to Administrative Agent or any Lender
in connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
 
 Section5.15         Compliance with
Laws.
 
 Borrower
and each Subsidiary is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, 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, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
 
 Section
5.16 Margin
Regulations; Investment Company Act.
 
 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.
 
 Section5.17         Collateral
Matters.
 
 As of the
date hereof, (a) the chief executive office of Borrower is 7031 Columbia Gateway
Drive, Columbia, Maryland 21046 and (b) the exact legal name and state of
organization of Borrower is as set forth in the introductory paragraph of this
Agreement.
 
 Section5.18         Rights in Collateral; Priority of
Liens.
 
 Borrower
and each other Loan Party own the property granted by it as Collateral under the
Collateral Documents, free and clear of any and all Liens in favor of third
parties other than Liens permitted by Section
7.1.  Upon the proper filing of UCC financing statements, and
the taking of the other actions required by the Required Lenders, the Liens
granted pursuant to the Collateral Documents will constitute valid and
enforceable first, prior and perfected Liens on the Collateral in favor of
Administrative Agent, for the ratable benefit of Administrative Agent and
Lenders.
 
 ARTICLE
VI
 AFFIRMATIVE
COVENANTS
 
 So long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, Borrower shall, and shall (except in the case of the covenants set
forth in Section
6.1, Section
6.2, Section
6.3 and Section
6.11) cause each Borrower and each Subsidiary to:
  51
 
 Section6.1           Financial
Statements.
 
 Deliver
to Administrative Agent the following, in form and detail satisfactory to
Administrative Agent and the Required Lenders:
 
 (a)         as
soon as available, but in any event within ninety (90) days after the end of
each fiscal year of Borrower:
 
 (i)      
     a consolidated balance sheet of MICROS and its
Domestic Subsidiaries only as at the end of such fiscal year, the related
consolidated statement of income for such fiscal year and a calculation of
EBITDA for MICROS and its Domestic Subsidiaries only on a consolidated basis for
such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and certified by a
Responsible Officer of MICROS as fairly presenting the financial condition and
results of operations of MICROS and its Domestic Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes;
 
 (ii)           a
consolidated balance sheet of the Foreign Subsidiaries only as at the end of
such fiscal year, the related consolidated statement of income for such fiscal
year and a calculation of EBITDA for the Foreign Subsidiaries only on a
consolidated basis for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and certified by a Responsible Officer of MICROS as fairly presenting the
financial condition and results of operations of the Foreign Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes;
 
 (iii)          a
consolidated balance sheet of the MICROS and its Subsidiaries as at the end of
such fiscal year, the related consolidated statements of income or operations,
shareholders’ equity 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 certified by a Responsible Officer of MICROS as fairly
presenting the financial condition, results of operations, shareholders equity
and cash flows of MICROS and its Subsidiaries in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes;
and
 
 (iv)          a
consolidated balance sheet of MICROS and its Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, prepared in
accordance with GAAP, audited and accompanied by a report and opinion of an
independent certified public accountant 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.
 
 The
financial statements described in clauses (i), (ii) and (iii) above may be
prepared by MICROS.
 
 (b)         as
soon as available, but in any event within forty five (45) days after the end of
each of the first three fiscal quarters of each fiscal year of
Borrower:
  52
  (i)           a
consolidated balance sheet of MICROS and its Domestic Subsidiaries only as at
the end of such fiscal quarter, the related consolidated statement of income for
such fiscal quarter and for the portion of the fiscal year then ended and a
calculation of EBITDA for MICROS and its Domestic Subsidiaries only on a
consolidated basis for the period of four fiscal quarters 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 MICROS as fairly presenting the financial condition and results of
operations of MICROS and its Domestic Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of
footnotes;
 
 (ii)           a
consolidated balance sheet of the Foreign Subsidiaries only as at the end of
such fiscal quarter, the related consolidated statement of income for such
fiscal quarter and for the portion of the fiscal year then ended and a
calculation of EBITDA for the Foreign Subsidiaries only on a consolidated basis
for the period of four fiscal quarters 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 MICROS as
fairly presenting the financial condition and results of operations of the
Foreign Subsidiaries in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes; and
 
 (iii)          a
consolidated balance sheet of MICROS and its Subsidiaries as at the end of such
fiscal quarter, the related consolidated statement of income, shareholders’
equity and cash flows for such fiscal quarter and for the portion of the 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 MICROS as fairly presenting the financial
condition, results of operations, shareholders equity and cash flows of MICROS
and its Subsidiaries in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes.
 
 The
financial statements described in clauses (i), (ii) and (iii) above may be
prepared by MICROS.
 
 Section6.2           Certificates; Other
Information.
 
 Deliver
to Administrative Agent a sufficient number of copies for delivery to each
Lender of the following, in form and detail satisfactory to Administrative Agent
in its reasonable discretion and the Required Lenders:
 
 (a)         concurrently
with the delivery of the financial statements referred to in Section 6.1(a), a
certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary no
knowledge was obtained of any Default or, if any such Default shall exist,
stating the nature and status of such event;
 
 (b)         concurrently
with the delivery of the financial statements referred to in Section 6.1(a) and
Section 6.1(b),
a duly completed Compliance Certificate signed by a Responsible Officer of
Borrower;
 
 (c)         promptly
after any request by Administrative Agent or any Lender, copies of any audit
reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of Borrower in the
ordinary course and by independent accountants in connection with the accounts
or books of Borrower or any Subsidiary, or any audit of any of
them;
  53
  (d)           as
soon as available, but in no event later than sixty (60) days after the end of
each fiscal year of Borrower, annual projections for the following two (2)
fiscal years from (i) Borrower on a consolidated basis and (ii) from Guarantor
on a consolidated basis;
 
 (e)           [Reserved];
 
 (f)       
    promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or communication
sent to the stockholders of Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which Borrower may file
or be required to file with the Securities and Exchange Commission under Section
13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required
to be delivered to Administrative Agent pursuant hereto;
 
 (g)           [Reserved];
 
 (h)           promptly
upon request, such additional financial information as Agent may request from
time to time or more frequent delivery of financial information which is
delivered periodically pursuant to this Section 6.2 (such as, but not limited
to, schedules of account receivable agings and inventory reports);
 
 (i)
           as soon as
available, but in no event later than ninety (90) days after the end of each
fiscal year of Borrower, a schedule of account receivable agings.
 
 Borrower
hereby acknowledges that (a) Administrative Agent will make available to Lenders
and L/C Issuer materials and/or information provided by or on behalf of Borrower
hereunder (collectively, “Borrower Materials”)
by posting Borrower Materials on IntraLinks or another similar electronic system
(the “Platform”) and (b)
certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not
wish to receive material non-public information with respect to Borrower or its
securities) (each, a “Public
Lender”).  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,” Borrower shall be deemed to have authorized
Administrative Agent, L/C Issuer and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
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, they shall be treated as set forth in Section 10.8); (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated “Public Investor;” and (z)
Administrative Agent shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Investor”.
 
 Section6.3        Notices.
 
 Not later
than two (2) days after obtaining knowledge, notify Administrative Agent and
each Lender:
 
 (a)           of
the occurrence of any Default;
 
 (b)           of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of Borrower or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between Borrower or
any Subsidiary and any Governmental Authority; or (iii) the commencement of, or
any material development in, any litigation or proceeding affecting Borrower or
any Subsidiary, including pursuant to any applicable Environmental
Laws;
  54
 
 (c)           the
occurrence of any ERISA Event; and
 
 (d)           of
any material change in accounting policies or financial reporting practices by
Borrower or any Subsidiary.
 
 Each
notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of Borrower setting forth details of the occurrence referred
to therein and stating what action Borrower has taken and proposes to take with
respect thereto.  Each notice pursuant to Section 6.3(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
 
 Section6.4        Payment of
Obligations.
 
 Pay and
discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all 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
adequate reserves in accordance with GAAP are being maintained by Borrower or
such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property; 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.
 
 Section6.5        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 7.4 or Section 7.5 except to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect, (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 failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
 
 Section6.6        Maintenance of
Properties.
 
 (a)           Maintain,
preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear
and tear excepted; (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; and (c) use the standard of care
typical in the industry in the operation and maintenance of its
facilities.
 
 Section6.7        Maintenance of
Insurance.
 
 Maintain
with financially sound and reputable insurance companies not Affiliates of
Borrower, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts (after giving effect to
any self-insurance compatible with the following standards) as are customarily
carried under similar circumstances by such other Persons and providing for not
less than 30 days’ prior notice to Administrative Agent of termination, lapse or
cancellation of such insurance.
  55
 
 Section6.8        Compliance with
Laws.
 
 Comply in
all material respects 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 conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
 
 Section6.9        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 Borrower or such
Subsidiary, as the case may be; and (b) maintain such books of record and
account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over Borrower or such
Subsidiary, as the case may be.  Borrower shall maintain at all times
books and records pertaining to the Collateral in such detail, form and scope as
Administrative Agent or any Lender shall reasonably require.
 
 Section6.10      Inspection
Rights.
 
 Permit
representatives and independent contractors of Administrative Agent and each
Lender 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, all at the expense of Borrower and at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to Borrower; provided, however, if no
Default exists Administrative Agent or Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to Borrower, but at the expense of
Administrative Agent or Lender if Borrower has paid for similar inspections one
(1) time during the current fiscal year and provided further,
however, that when a Default exists Administrative Agent or any Lender
(or any of their respective representatives or independent contractors) may do
any of the foregoing at the expense of Borrower at any time or from time to time
during normal business hours and without advance notice.
 
 Section6.11      Use of Proceeds.
 
 Use the
proceeds of the Credit Extensions for Letters of Credit, acquisitions permitted
under this Agreement, to refinance existing indebtedness and for working capital
and capital expenditures, not in contravention of any Law or of any Loan
Document.
 
 Section6.12      Financial
Covenants.
 
 At all
times maintain the following financial covenants:
 
 (a)           Total Leverage
Ratio.  Maintain on a consolidated basis a Total Leverage Ratio
not exceeding 2.0 to 1.0.  This ratio will be calculated at the end of
each reporting period for which this Agreement requires Borrower to deliver
financial statements, using the results of the twelve-month period ending with
that reporting period.
  56
 
 (b)           Fixed Charge Coverage
Ratio.  Maintain on a consolidated basis a Fixed Charge
Coverage Ratio of MICROS and all Subsidiaries of at least 1.25 to 1.0. This
ratio will be calculated at the end of each reporting period for which this
Agreement requires Borrower to deliver financial statements, using the results
of the twelve-month period ending with that reporting period.  The
current portion of long-term liabilities will be measured as of the last day of
the calculation period.
 
 Section6.13      Additional
Borrowers.
 
 Within
thirty days (or such longer period as may be agreed by the Administrative Agent)
after any Person becomes a Material Domestic Entity, cause such Person to (a)
become an Additional Borrower by executing and delivering to Administrative
Agent an Additional Borrower Joinder Supplement or such other document as
Administrative Agent shall deem appropriate for such purpose, (b) deliver to
Administrative Agent documents of the types referred to in clauses (iii) and
(iv) of Section
4.1(a) and, upon the request of the Administrative Agent, a favorable
opinion of counsel to such Person, all in form, content and scope reasonably
satisfactory to Administrative Agent, and (c) deliver to Administrative Agent
such documents, agreements and instruments as the Administrative Agent shall
reasonably request to cause such Person to grant to Administrative Agent and
Lenders valid and perfected first priority security interests in the
Collateral.
 
 Section6.14      Collateral
Records.
 
 Execute
and deliver promptly, and to cause each other Loan Party to execute and deliver
promptly, to Administrative Agent, from time to time, solely for Administrative
Agent’s convenience in maintaining a record of the Collateral, such written
statements and schedules as Administrative Agent may reasonably require
designating, identifying or describing the Collateral.  The failure by
Borrower or any other Loan Party, however, to promptly give Administrative Agent
such statements or schedules shall not affect, diminish, modify or otherwise
limit the Liens on the Collateral granted pursuant to the Collateral
Documents.
 
 Section6.15      Security
Interests.
 
 Defend
the Collateral against all claims and demands of all Persons at any time
claiming the same or any interest therein.
 
 Comply
with the requirements of all state and federal laws in order to grant to
Administrative Agent and Lenders valid and perfected first priority security
interests in the Collateral, with perfection, in the case of any investment
property, being effected by giving Administrative Agent control of such
investment property in addition to perfection by the filing of a UCC financing
statement with respect to such investment property.  Administrative
Agent is hereby authorized by Borrower to file any UCC financing statements
covering the Collateral whether or not Borrower’s signatures appear
thereon.
 
 Do
whatever Administrative Agent may reasonably request, from time to time, to
effect the purposes of this Agreement and the other Loan Documents, including
filing notices of liens, UCC financing statements, and amendments, renewals and
continuations thereof; cooperating with Administrative Agent’s representatives;
keeping stock records; obtaining waivers from landlords and mortgagees and from
warehousemen and their landlords and mortgages; and, paying claims which might,
if unpaid, become a Lien on the Collateral.
 
 Section6.16      Post-Closing
Covenant.
 
 (a)           By
August 15, 2010 deliver to the Administrative Agent:
  57
 
 (i)           a
certificate of an officer of each Borrower (other than MICROS) attaching and
certifying (A) the Organization Documents of such Borrower, (B) an incumbency
certificate of the Responsible Officers of such Borrower and (C) resolutions of
the board of directors or equivalent governing body of such Borrower approving
this Amendment and each document, agreement and instrument required in
connection with this Amendment, in each case in form and substance reasonably
acceptable to the Administrative Agent; and
 
 (ii)          a
certificate of an officer of MICROS attaching and certifying resolutions of the
board of directors or equivalent governing body of MICROS approving this
Amendment and each document, agreement and instrument required in connection
with this Amendment in form and substance reasonably acceptable to the
Administrative Agent.
 
 (b)          By
August 31, 2010 deliver to the Administrative Agent:
 
 (i)           original
stock certificates evidencing all equity interests issued by Fry, Inc. together
with undated stock powers executed in blank in form reasonably acceptable to the
Administrative Agent;
 
 (ii)          legal
opinion from the General Counsel of MICROS in form and substance reasonably
acceptable to the Administrative Agent relating to the Second Amendment to this
Agreement and the documents, agreements and instruments executed by Borrower in
connection therewith;
 
 (iii)         termination
of each of the two UCC-1 financing statements identifying Heller Financial,
Inc., as secured party, and  JTECH Communications, as
debtor;
 
 (iv)         restatement
of the LLC Agreement for TIG Global LLC on terms and conditions reasonably
acceptable to the Administrative Agent (which restatement shall, among other
things, eliminate (A) the board of advisors and the special voting rights
allocated to the board of advisors and (B) the restrictions on transfer of the
equity interests;
 
 (v)          amendment
to the certificate of incorporation of DV Technology Holdings Corporation to
delete Article XI; and
 
 (vi)         amendment
to the certificate of incorporation of Fry, Inc. to delete Article
VI.
 
 ARTICLE
VII
 NEGATIVE
COVENANTS
 
 So long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, Borrower shall not, nor shall it permit any Subsidiary to,
directly or indirectly:
 
 Section7.1        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;
  58
 
 (b)           Liens
for taxes 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;
 
 (c)           carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of
more than 30 days 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)           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;
 
 (e)           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;
 
 (f)           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;
 
 (g)           Liens
securing judgments for the payment of money not constituting an Event of Default
under Section
8.1(h) or securing appeal or other surety bonds relating to such
judgments;
 
 (h)           liens
securing Indebtedness permitted under Section 7.3(e); provided that (i)
such Liens do not at any time encumber any property other than the property
financed by such Indebtedness and (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
 
 (i)           Liens
securing the Foreign Credit Facility, provided that (i)
such Liens do not at any time encumber any property other than the Collateral
and (ii) such Liens are subject to the Intercreditor Agreement.
 
 Section7.2        Investments.
 
 Make any
Investments, except:
 
 (a)           Investments
held by Borrower or such Subsidiary in the form of cash equivalents or
short-term marketable debt securities;
 
 (b)           advances
to officers, directors and employees of Borrower and Subsidiaries in an
aggregate amount not to exceed One Million Dollars ($1,000,000) at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
 
 (c)           Investments
of Borrower in any wholly-owned Subsidiary; and Investments of any wholly-owned
Subsidiary in Borrower or in another wholly-owned Subsidiary;
 
 (d)           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;
  59
 
 (e)           Permitted
Acquisitions;
 
 (f)           other
Investments not to exceed $3,000,000 in the aggregate at any time;
and
 
 (g)           Guarantees
permitted by Section
7.3.
 
 Section7.3        Indebtedness.
 
 Create,
incur, assume or suffer to exist any Indebtedness, except:
 
 (a)           Indebtedness
under the Loan Documents;
 
 (b)           Indebtedness
outstanding on the date hereof and approved by Administrative Agent and the
Required Lenders and listed on Schedule 7.3
hereto;
 
 (c)           Indebtedness
under the Foreign Credit Facility;
 
 (d)           obligations
(contingent or otherwise) 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 speculation or taking a “market view;” (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; (iii) such Swap Contract has been approved by Administrative
Agent; and (iv) the foreign exchange exposure under such Swap Contract does not
exceed $20,000,000 as determined by Administrative Agent in its sole
discretion;
 
 (e)           Indebtedness
in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed assets within the limitations set forth in Section 7.1(h); provided, however,
that:  the aggregate amount of all such Indebtedness at any one time
outstanding shall not exceed Thirty Million Dollars ($30,000,000);
 
 (f)           CommerzBank
Debt; and
 
 (g)           Indebtedness
of Foreign Subsidiaries provided that the
aggregate outstanding principal amount of all such Indebtedness shall not at any
time exceed $10 million.
 
 Section7.4        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, except that, so long as no Default exists or would result
therefrom:
 
 (a)           any
Subsidiary may merge with (i) a Borrower, provided that (A) if
MICROS is a party thereto then MICROS shall be the continuing or surviving
Person and (B) if MICROS is not a party thereto, then another Borrower shall be
the continuing or surviving Person, or (ii) any one or more other Subsidiaries,
provided that
when any wholly-owned Subsidiary is merging with another Subsidiary, the
wholly-owned Subsidiary shall be the continuing or surviving Person, and, provided further that
if a Guarantor is merging with another Subsidiary, the Guarantor shall be the
continuing or surviving Person;
  60
 
 (b)           any
Subsidiary may dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to a Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a wholly-owned Subsidiary, then the
transferee must also be a wholly-owned Subsidiary, and, provided further that if the
transferor of such assets is a Borrower or a Guarantor, the transferee thereof
must either be a Borrower or a Guarantor; and
 
 (c)           a
Borrower or a Subsidiary may acquire another Person, provided that such
acquisition is a Permitted Acquisition.
 
 Section7.5        Dispositions.
 
 Make any
Disposition or enter into any agreement to make any Disposition,
except:
 
 (a)           Dispositions
of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;
 
 (b)           Dispositions
of inventory in the ordinary course of business;
 
 (c)           Dispositions
of equipment or real property to the extent that (i) such property is exchanged
for credit against the purchase price of similar replacement property, or (ii)
the proceeds of such Disposition are reasonably promptly applied to the purchase
price of such replacement property;
 
 (d)           Dispositions
of property to Borrower or to a wholly-owned Subsidiary, provided that if the
transferor of such property is a Borrower or a Guarantor, the transferee thereof
must either be Borrower or a Guarantor;
 
 (e)           Dispositions
permitted by Section
7.4; and
 
 (f)       
    Other Dispositions in an aggregate amount not to exceed
Three Million Dollars ($3,000,000) in any fiscal year.
 
 provided, however, that any
Disposition pursuant to clauses (a) through (e) shall be for fair market
value.
 
 Section7.6        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 to Borrower and to wholly-owned
Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned
Subsidiary, to Borrower and any Subsidiary and to each other owner of capital
stock or other equity interests of such Subsidiary on a pro rata basis based on
their relative ownership interests);
 
 (b)           Borrower
and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common equity
interests of such Person;
  61
 
 (c)           Borrower
and each Subsidiary may declare and make dividend payments or other
distributions payable solely to Subsidiaries that are not wholly owned
Subsidiaries in an amount not to exceed Two Million Dollars ($2,000,000) in the
aggregate in any fiscal year; provided that there does not exist a Default or an
Event of Default and the making of any such payment would not cause a Default or
an Event of Default; and
 
 (d)           Borrower
and each Subsidiary may purchase, redeem or otherwise acquire up to an aggregate
of one million (1,000,000) shares of its common stock or other common equity
interests or warrants or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its common
stock or other common equity interests during the period from the Closing Date
through the Maturity Date; provided no Default
or Event of Default exists hereunder or would result from such purchase,
redemption or acquisition.
 
 (e)           Borrower
and its Subsidiaries may make Restricted Payments in cash provided that (i) the
aggregate amount of such Restricted Payments shall not exceed $150 million in
any period of four consecutive fiscal quarters of Borrower and (ii) after giving
effect to such Restricted Payment (and the incurrence of any Indebtedness in
connection therewith) on a Pro Forma Basis (A) no Default or Event of Default
shall exist, (B) the Total Leverage Ratio shall not exceed 1.5:1.0 as of the end
of the most recent fiscal quarter for which Borrower has delivered financial
statements pursuant to Section 6.1(a) or
(b) and (C)
Liquidity exceeds $150 million.
 
 Section7.7        Change in Nature of
Business.
 
 Engage in
any material line of business substantially different from those lines of
business conducted by Borrower and its Subsidiaries on the date hereof, or which
are similar or complimentary to such lines of business.
 
 Section7.8        Transactions with
Affiliates.
 
 Enter
into any transaction of any kind with any Affiliate of Borrower, whether or not
in the ordinary course of business other than on fair and reasonable terms
substantially as favorable to Borrower or such Subsidiary as would be obtainable
by Borrower or such Subsidiary at the time in a comparable arm’s length
transaction with a Person other than an Affiliate, provided that the
foregoing restriction shall not apply to (a) transactions between or among
Borrower and (b) transactions expressly permitted by the terms of this
Agreement.
 
 Section7.9        Margin
Regulations.
 
 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 Board of Governors of the Federal
Reserve System of the United States) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund indebtedness
originally incurred for such purpose.
 
 Section7.10      Change of
Control.
 
 Except in
connection with any merger, dissolution, liquidation or consolidation permitted
by Section 7.4,
permit or suffer to occur any Change of Control with respect to any Loan Party
or any Foreign Borrower.
  62
 
 Section7.11      CommerzBank Debt.
 
 Permit
the CommerzBank Debt to be extended without the prior written approval of the
terms of such extension by Administrative Agent and Lenders, which approval will
not be unreasonably withheld if such extension is on terms substantially similar
to the terms currently in effect.
 
 Section7.12      Change in Legal Name or State of
Formation.
 
 Without
providing ten (10) days prior written notice to the Administrative Agent, change
its name, state of formation or form of organization.
 
 ARTICLE
VIII
 EVENTS
OF DEFAULT AND REMEDIES
 
 Section8.1        Events of
Default.
 
 Any of
the following shall constitute an Event of Default:
 
 (a)          Non-Payment.  Borrower
or any other Loan Party fails to pay (i) when required to be paid herein, any
amount of principal or 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 or other fee due hereunder, or (iii) within five
(5) days after the same becomes due, any other amount payable hereunder or under
any other Loan Document; or
 
 (b)          Specific
Covenants.  Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.5, Section 6.10, Section 6.12 or ARTICLE VII;
or
 
 (c)          Other
Defaults.
 
 (i)           Borrower
fails to perform or observe any term, covenant or agreement contained in any of
Section 6.1 or
Section 6.2,
and such failure continues for fifteen (15) days; or
 
 (ii)          Any
Loan Party fails to perform or observe any other covenant or agreement (not
specified in subsection (a) or (b) above) contained in any Loan Document on its
part to be performed or observed and such failure continues for thirty (30) days
or any default or event of default occurs under any other Loan Document;
or
 
 (d)          Representations and
Warranties.  Any representation, warranty, certification or
statement of fact that reasonably could have a Material Adverse Effect if
incorrect or misleading is made or deemed made by or on behalf of Borrower or
any other Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith and is incorrect or misleading
when made or deemed made; or
 
 (e)          Cross-Default.  (i)
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 or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) 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 Guarantee 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 the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) 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 such Guarantee 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
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 Borrower or any Subsidiary is an Affected Party (as so defined) and,
in either event, the Swap Termination Value owed by Borrower or such Subsidiary
as a result thereof is greater than the Threshold Amount; or
  63
 
 (f)        
   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 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted without
the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or
 
 (g)           Inability to Pay Debts;
Attachment.  (i) 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 30 days
after its issue or levy; or
 
 (h)           Judgments.  There
is entered against Borrower or any Subsidiary (i) a final judgment or order 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 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
 
 (i)
           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 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) 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
 
 (j) 
          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
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 any Lien with
respect to any material portion of the Collateral intended to be secured thereby
ceases to be, or, subject to Section 7.1, is not,
valid, perfected and prior to all other Liens or is terminated, revoked or
declared void; or
  64
 
 (k)           Material Adverse
Effect.  There occurs any event or circumstance that has a
Material Adverse Effect.
 
 Section8.2        Remedies Upon Event of
Default.
 
 If any
Event of Default occurs and is continuing, 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 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 Borrower;
 
 (c)           require
that 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 Lenders all rights and remedies available to it and
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 Borrower under the Bankruptcy Code of the United States, the obligation of
each Lender to make Loans and any obligation of 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 Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of Administrative Agent or any
Lender.
 
 Section8.3        Application of
Funds.
 
 After the
exercise of remedies provided for in Section 8.2 (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 8.2), any
amounts received on account of the Obligations shall, subject to Sections 2.16 and
2.17, be
applied by 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 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, interest and Letter of Credit fees) payable to 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;
  65
 
 Third, to payment of
that portion of the Obligations constituting (a) accrued and unpaid Letter of
Credit fees, (b) accrued and unpaid interest on the Loans and L/C Borrowings and
(c) fees, premiums and scheduled periodic payments, and any interest accrued
thereon, due under any Swap Contract between Borrower or any Subsidiary and any
Lender or an Affiliate of a Lender to the extent such Swap Contract is permitted
by Section
7.3(d), ratably among Lenders in proportion to the respective amounts
described in this clause Third payable to
them;
 
 Fourth, to (a)
payment of that portion of the Obligations constituting (a) unpaid principal of
the Loans and L/C Borrowings, (b) payment of breakage, termination or other
payments due in respect of a Swap Contract between Borrower or any Subsidiary
and a Lender or an Affiliate of a Lender Lender to the extent such Swap Contract
is permitted by Section 7.3(d), (c)
payment of amounts due under any Treasury Management Agreement between Borrower
or any Subsidiary and a Lender or an Affiliate of a Lender and (d) Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit to the extent not otherwise Cash Collateralized by
the Borrower pursuant to Section 2.16, ratably
among the Lenders (and, in the case of such Swap Contracts and Treasury
Management Agreements, Affiliates of Lenders) and L/C Issuer 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 have been indefeasibly paid in full, to
Borrower or as otherwise required by Law.
 
 Subject
to Section
2.3(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth 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.
 
 ARTICLE
IX
 ADMINISTRATIVE
AGENT
 
 Section9.1        Appointment and Authorization of
Administrative Agent.
 
 (a)           Each
Lender hereby irrevocably appoints, designates and authorizes Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental
thereto.  Notwithstanding any provision to the contrary contained
elsewhere herein or in any other Loan Document, Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
nor shall Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against
Administrative Agent.  Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the other Loan
Documents with reference to Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law.  Instead, such term is used merely as
a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting
parties.  All benefits and immunities provided to Administrative Agent
in this ARTICLE
IX shall apply to Administrative Agent as issuer of Letters of Credit and
provider of Swing Line Loans with respect to any acts taken or omissions
suffered by Administrative Agent in connection with Letters of Credit issued by
it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit and any Swing Line Loans
made by Administrative Agent, and as additionally provided herein with respect
to Administrative Agent as issuer of letters of Credit and provider of Swing
Line Loans.
  66
 
 (b)           L/C
Issuer shall act on behalf of Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and L/C Issuer shall have
all of the benefits and immunities (i) provided to Administrative Agent in this
ARTICLE IX with
respect to any acts taken or omissions suffered by L/C Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such Letters of
Credit as fully as if the term “Administrative Agent” as used in this ARTICLE IX and in the
definition of “Agent-Related Person” included L/C Issuer with respect to such
acts or omissions, and (ii) as additionally provided herein with respect to L/C
Issuer.
 
 Section9.2        Delegation of
Duties.
 
 Administrative
Agent may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel and other consultants or experts concerning all
matters pertaining to such duties.  Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful
misconduct.
 
 Section9.3        Liability of Administrative
Agent.
 
 No
Agent-Related Person shall (a) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct in connection with its duties expressly set
forth herein), or (b) be responsible in any manner to any Lender or participant
for any recital, statement, representation or warranty made by any Loan Party or
any officer thereof, contained herein or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by Administrative Agent under or in connection with, this Agreement
or any other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of any Loan Party or any other party to any Loan Document to
perform its obligations hereunder or thereunder.  No Agent-Related
Person shall be under any obligation to any Lender or participant to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of any Loan Party or any Affiliate
thereof.
 
 Section9.4        Reliance by Administrative
Agent.
 
 (a)           Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, electronic mail message, statement or other document or conversation
believed by it in its reasonable discretion to be genuine and correct and to
have been signed, sent or made by the proper Responsible Officer or Responsible
Officers, and upon advice and statements of legal counsel (including counsel to
any Loan Party), independent accountants and other experts selected by
Administrative Agent.  Administrative Agent shall be fully justified
in failing or refusing to take any action under any Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by all Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such
action.  Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Lenders (or
such greater number of Lenders as may be expressly required by any instance),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all Lenders.
  67
 
 (b)           For
purposes of determining compliance with the conditions specified in Section 4.1, each
Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless Administrative Agent shall have received notice
from such Lender prior to the proposed Closing Date specifying its objection
thereto.
 
 Section9.5        Notice of
Default.
 
 Administrative
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to Administrative Agent for the account of Lenders,
unless Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default and stating that
such notice is a “notice of default.” Administrative Agent will notify Lenders
of its receipt of any such notice.  Administrative Agent shall take
such action with respect to such Default as may be directed by the Required
Lenders in accordance with ARTICLE VIII; provided, however, that unless
and until Administrative Agent has received any such direction, Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable or
in the best interest of Lenders.
 
 Section9.6        Credit Decision; Disclosure of
Information by Administrative Agent.
 
 Each
Lender acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by Administrative Agent hereafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of any Loan Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession.  Each Lender represents to
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to Borrower and the other Loan Parties
hereunder.  Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Borrower and the other Loan Parties.  Except for
notices, reports and other documents expressly required to be furnished to
Lenders by Administrative Agent herein, Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
  68
 
 Section9.7        Indemnification of Administrative
Agent.
 
 Whether
or not the transactions contemplated hereby are consummated, Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed by
or on behalf of any Loan Party and without limiting the obligation of any Loan
Party to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however, that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
non-appealable judgment by a court of competent jurisdiction to have been caused
primarily by such Agent-Related Person’s own gross negligence or willful
misconduct; it being agreed by all Lenders that no action taken in accordance
with the directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this
Section.  Without limitation of the foregoing, each Lender shall
reimburse Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs and costs and expenses in
connection with the use of IntraLinks, Inc.  or other similar
information transmission systems in connection with this Agreement) incurred by
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that
Administrative Agent is not reimbursed for such expenses by or on behalf of
Borrower.  The undertaking in this Section shall survive termination
of the Aggregate Commitments, the payment of all other Obligations and the
resignation of Administrative Agent.
 
 Section9.8        Administrative Agent in its
Individual Capacity.
 
 Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Loan Parties and their respective Affiliates as though
Bank of America were not Administrative Agent or L/C Issuer hereunder and
without notice to or consent of Lenders.  Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that Administrative Agent shall be under no
obligation to provide such information to them.  With respect to its
Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not Administrative Agent or L/C Issuer, and the terms “Lender” and
“Lenders” include Bank of America in its individual capacity.
 
 Section9.9        Successor Administrative
Agent.
 
 Administrative
Agent may resign as Administrative Agent upon 30 days’ written notice to Lenders
and Borrower; provided that any
such resignation by Bank of America shall also constitute its resignation as L/C
Issuer and Swing Line Lender.  If Administrative Agent resigns under
this Agreement, the Required Lenders shall appoint from among Lenders a
successor administrative agent for Lenders, which successor administrative agent
shall be consented to by Borrower at all times other than during the existence
of a Default (which consent of Borrower shall not be unreasonably withheld or
delayed).  If no successor administrative agent is appointed prior to
the effective date of the resignation of Administrative Agent, Administrative
Agent may appoint, after consulting with Lenders and Borrower, a successor
administrative agent from among Lenders.  Upon the acceptance of its
appointment as successor administrative agent hereunder, the Person acting as
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent (including those in its capacity as
L/C Issuer and Swing Line Lender) and the respective terms “Administrative
Agent”, “L/C Issuer” and “Swing Line Lender” shall mean such successor
administrative agent, Letter of Credit issuer and swing line lender and the
retiring Administrative Agent’s appointment, powers and duties as Administrative
Agent shall be terminated and the retiring L/C Issuer’s and Swing Line Lender’s
rights, powers and duties as such shall be terminated, without any other or
further act or deed on the part of such retiring Administrative Agent L/C Issuer
or Swing Line Lender or any other Lender, other than the obligation of the
successor L/C Issuer to issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or to make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of
Credit.  After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this ARTICLE IX and Section 10.4 and
Section 10.5
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.  If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is thirty (30) days following a retiring Administrative
Agent’s notice of resignation, the retiring Administrative Agent’s resignation
shall nevertheless thereupon become effective and Lenders shall perform all of
the duties of Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for
above.
  69
 
 Section9.10      Administrative Agent May File Proofs
of Claim.
 
 In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, 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 Administrative Agent shall have made any demand on 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
arising under the Loan Documents that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of
Lenders and Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of Lenders and Administrative
Agent and their respective agents and counsel and all other amounts due Lenders
and Administrative Agent under Section 2.3, Section 2.3(i), Section 2.3(j), Section 2.9 and Section 10.4) 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 to make such payments to Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Administrative Agent and
its agents and counsel, and any other amounts due Administrative Agent under
Section 2.9 and
Section
10.4.
 
 Nothing
contained herein shall be deemed to authorize Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize Administrative Agent to vote in
respect of the claim of any Lender in any such proceeding.
 
 Section9.11      Guaranty Matters.
 
 Each
Lender hereby irrevocably authorizes Administrative Agent, at its option and in
its discretion, 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 Administrative Agent at any time, each
Lender will confirm in writing Administrative Agent’s authority to release any
Guarantor from its obligations under the Guaranty pursuant to this Section
9.11.
  70
 
 Section9.12      Collateral
Matters.
 
 (a)          Each
Lender hereby irrevocably authorizes and directs Administrative Agent to enter
into the Collateral Documents for the benefit of such Lender.  Each
Lender hereby agrees, and each holder of any Note by the acceptance thereof will
be deemed to agree, that, except as otherwise set forth in Section 10.1, any
action taken by the Required Lenders, in accordance with the provisions of this
Agreement or the Collateral Documents, and the exercise by the Required Lenders
of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all of
Lenders.  Administrative Agent is hereby authorized on behalf of all
of Lenders, without the necessity of any notice to or further consent from any
Lender from time to time prior to, an Event of Default, to take any action with
respect to any Collateral or Collateral Documents which may be necessary to
perfect and maintain perfected the Liens upon the Collateral granted pursuant to
the Collateral Documents.
 
 (b)          Each
Lender hereby irrevocably authorizes Administrative Agent, at its option and in
its discretion,
 
 (i)           to
release any Lien on any property granted to or held by Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and
payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of Credit, (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, (iii) subject to Section 10.1, if
approved, authorized or ratified in writing by the Required Lenders, or (iv) in
connection with any foreclosure sale or other disposition of Collateral after
the occurrence of an Event of Default;
 
 (ii)          to
subordinate any Lien on any property granted to or held by Administrative Agent
under any Loan Document to the holder of any Lien on such property that is
permitted by this Agreement or any other Loan Document; and
 
 (iii)         to
execute, deliver and perform its obligations under the Intercreditor
Agreement.
 
 Upon
request by Administrative Agent at any time, each Lender will confirm in writing
Administrative Agent’s authority to release or subordinate its interest in
particular types or items of Collateral pursuant to this Section
9.12.
 
 (c)           Subject
to (b) above, Administrative Agent shall (and is hereby irrevocably authorized
by each Lender, to) execute such documents as may be necessary to evidence the
release or subordination of the Liens granted to Administrative Agent for the
benefit of Administrative Agent and Lenders herein or pursuant hereto upon the
applicable Collateral; provided that (i) Administrative Agent shall not be
required to execute any such document on terms which, in Administrative Agent’s
opinion, would expose Administrative Agent to or create any liability or entail
any consequence other than the release or subordination of such Liens without
recourse or warranty and (ii) such release or subordination shall not in any
manner discharge, affect or impair the Obligations or any Liens upon (or
obligations of Borrower or any other Loan Party in respect of) all interests
retained by Borrower or any other Loan Party, including the proceeds of the
sale, all of which shall continue to constitute part of the
Collateral.  In the event of any sale or transfer of Collateral, or
any foreclosure with respect to any of the Collateral, Administrative Agent
shall be authorized to deduct all expenses reasonably incurred by Administrative
Agent from the proceeds of any such sale, transfer or
foreclosure.
  71
 
 (d)           Administrative
Agent shall have no obligation whatsoever to any Lender or any other Person to
assure that the Collateral exists or is owned by Borrower or any other Loan
Party or is cared for, protected or insured or that the Liens granted to
Administrative Agent herein or in any of the Collateral Documents or pursuant
hereto or thereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise or to continue exercising at all or in any manner or under any duty
of care, disclosure or fidelity any of the rights, authorities and powers
granted or available to Administrative Agent in this Section 9.12 or in
any of the Collateral Documents, it being understood and agreed that in respect
of the Collateral, or any act, omission or event related thereto, Administrative
Agent may act in any manner it may deem appropriate, in its sole discretion,
given Administrative Agent’s own interest in the Collateral as one of Lenders
and that Administrative Agent shall have no duty or liability whatsoever to
Lenders.
 
 (e)           Each
Lender hereby appoints each other Lender as agent for the purpose of perfecting
Lenders’ security interest in assets which, in accordance with Article 9 of the
UCC can be perfected only by possession.  Should any Lender (other
than Administrative Agent) obtain possession of any such Collateral, such Lender
shall notify Administrative Agent thereof, and, promptly upon Administrative
Agent’s request shall deliver such Collateral to Administrative Agent or in
accordance with Administrative Agent’s instructions.
 
 Section9.13      No Fiduciary
Responsibility.
 
 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), Borrower acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by Administrative Agent and Arranger are
arm’s-length commercial transactions between Borrower and its Affiliates, on the
one hand, and Administrative Agent and Arranger, on the other hand, (B) Borrower
has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate, and (C) 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; (ii) (A) Administrative
Agent and Arranger 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 Borrower or its
Affiliates, or any other Person and (B) neither Administrative Agent nor
Arranger has any obligation to 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 (iii) Administrative Agent and
Arranger and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of Borrower and its
Affiliates, and neither Administrative Agent nor Arranger has any obligation to
disclose any of such interests to Borrower and its Affiliates.  To the
fullest extent permitted by Law, Borrower hereby waives and releases any claims
that it may have against Administrative Agent and Arranger with respect to any
breach or alleged breach of agency or fiduciary duty in connection with any
aspect of any transaction contemplated hereby.
 
 ARTICLE
X
 MISCELLANEOUS
 
 Section10.1      Amendments, Etc.
 
 No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders
and Borrower or the applicable Loan Party, as the case may be, and acknowledged
by 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:
  72
 
 (a)           waive
any condition set forth in Section 4.1 without
the written consent of each Lender; provided, however, in the sole discretion of
Administrative Agent, only a waiver by Administrative Agent shall be required
with respect to immaterial matters or items specified in Section 4.1(a), Section 4.1(a)(iii)
or Section
4.1(a)(iv) with respect to which Borrower has given assurances
satisfactory to Administrative Agent that such items shall be delivered promptly
following the Closing Date;
 
 (b)           extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section
8.2) without the written consent of such Lender;
 
 (c)           postpone
any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;
 
 (d)           reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (ii) of the second proviso to this Section 10.1) 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 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;
 
 (e)           change
Section 2.14 or
Section 8.3 or
in a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;
 
 (f) 
          release any
Guarantor from the Guaranty or release the Liens on any material portion of the
Collateral except in accordance with the terms of any Loan Document without the
written consent of each Lender;
 
 (g)           change
the method of calculation utilized in connection with the computation of fees or
interest; or
 
 (h)           modify
this Section or the definition of “Required Lenders”.
 
 And,
provided further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by L/C Issuer
in addition to Lenders required above, affect the rights or duties of L/C Issuer
under this Agreement or any other Loan Document, (A) as Administrative Agent,
(B) as provider of Swing Line Loans, or (C) as Letter of Credit issuer or under
any Letter of Credit Application relating to any Letter of Credit issued or to
be issued by it (including, without limitation, any reduction in any fee,
charge, expense, cost or other amount payable to Administrative Agent for its
own account under this Agreement in any such capacity); (ii) no amendment,
waiver or consent shall, unless in writing and signed by Swing Line Lender in
addition to the Lenders required above, affect the rights or duties of Swing
Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by Administrative Agent in addition to the Lenders
required above, affect the rights or duties of Administrative Agent under this
Agreement or any other Loan Documents; (iv) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the
respective parties thereto; (v) 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 of the United States supersedes the unanimous consent provisions
set forth herein and (vi) the Required Lenders shall determine whether or
not to allow Borrower 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 to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (any amendment, waiver or consent which by its terms
requires the consent of all Lenders or each affected Lender may be effected with
the consent of the applicable Lenders other than Defaulting Lenders), except
that (A) the Commitment of such Lender may not be increased or extended without
the consent of such Lender and (B) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms
affects any Defaulting Lender more adversely than other affected Lenders shall
require the consent of such Defaulting Lender.
  73
 
 Section10.2      Notices and Other Communications;
Facsimile Copies.
 
 (a)           General.  Unless
otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including by facsimile
transmission).  All such written notices shall be mailed, faxed or
delivered, to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, specified for such Person on Schedule 10.2 or to
such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other
parties.  All such notices and other communications shall be deemed to
be given or made upon the earlier to occur of (i) actual receipt by the relevant
party hereto and (ii) (A) if delivered by hand or by courier, upon delivery; (B)
if delivered by mail, four (4) Business Days after deposit in the mails, postage
prepaid; (C) if delivered by facsimile, when sent and the sender has received
electronic confirmation of error free receipt; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices
and other communications to Administrative Agent, L/C Issuer and Swing Line
Lender pursuant to ARTICLE II shall not
be effective until actually received by such Person.  In no event
shall a voicemail message be effective as a notice, communication or
confirmation hereunder.
 
 (b)           Effectiveness of Facsimile
Documents and Signatures.  Loan Documents may be transmitted
and/or signed by facsimile.  The effectiveness of any such documents
and signatures shall, subject to applicable Law, have the same force and effect
as manually-signed originals and shall be binding on all Loan Parties,
Administrative Agent and Lenders.  Administrative Agent may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
 
 (c)           Electronic
Communications.  Notices and other communications to the
Lenders and 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 Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to
Article II if
such Lender or L/C Issuer, as applicable, has notified Administrative Agent that
it is incapable of receiving notices under such Article by electronic
communication.  Administrative Agent or 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 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.
  74
 
 (d)           The
Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT RELATED PERSONS 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 RELATED PERSON IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM.  In no event shall any Agent Related Person
have any liability to Borrower, any Lender, 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 Borrower’s or Administrative Agent’s
transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Related
Person; provided, however, that in no
event shall any Agent Related Person have any liability to Borrower, any Lender,
L/C Issuer or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).
 
 (e)           Reliance by Administrative
Agent and Lenders.  Administrative Agent and Lenders shall be
entitled to rely and act upon any notices (including telephonic Committed Loan
Notices and Swing Line Loan Notices) purportedly given by or on behalf of
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.  Borrower shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of Borrower.  All telephonic notices
to and other communications with Administrative Agent may be recorded by
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
 
 Section10.3      No Waiver; Cumulative
Remedies.
 
 No
failure by any Lender or 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 rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
  75
 
 Section10.4      Attorney Costs, Expenses and
Taxes.
 
 Borrower
agrees (a) to pay or reimburse Administrative Agent for all reasonable third
party costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all reasonable
Attorney Costs and third party costs and expenses in connection with the use of
IntraLinks, Inc.  or other similar information transmission systems in
connection with this Agreement, and (b) to pay or reimburse Administrative Agent
and each Lender for all reasonable third party costs and expenses incurred in
connection with the enforcement, attempted enforcement after the occurrence of
an Event of Default, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such reasonable costs and
expenses incurred during any “workout” or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law), including all Attorney Costs.  The foregoing third
party costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by Administrative Agent and the cost of
independent public accountants and other outside experts retained by
Administrative Agent or any Lender, but shall not include allocated costs of
internal legal counsel or other employees for Administrative Agent or any Lender
or fees and expenses of such internal legal counsel or other
employees.  The agreements in this Section shall survive the
termination of the Aggregate Commitments and repayment of all other
Obligations.
 
 Section10.5      Indemnification by
Borrower.
 
 Whether
or not the transactions contemplated hereby are consummated, Borrower shall
indemnify and hold harmless each Agent-Related Person, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the “Indemnitees”) from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time be imposed on, incurred by or asserted against any such Indemnitee in any
way relating to or arising out of or in connection with (a) the execution,
delivery, enforcement, performance or administration of any Loan Document or any
other agreement, letter or instrument delivered in connection with the
transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (b) the obligations of each Borrower expressed under any
Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby being or becoming void,
voidable, unenforceable or ineffective as against any Borrower for any reason
whatsoever, whether or not known to Administrative Agent or any Lender, the
amount of such loss being the amount which Administrative Agent or the relevant
Lender would otherwise have been entitled to recover from each Borrower, (c) any
Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by Administrative Agent 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), (d)
any actual or alleged presence or release of Hazardous Materials on or from any
property currently or formerly owned or operated by Borrower, any Subsidiary or
any other Loan Party, or any Environmental Liability related in any way to
Borrower, any Subsidiary or any other Loan Party, or (e) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether
Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”); provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, obligations,
losses, damages, penalties, claims, demand, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction by
final and non-appealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee.  No Indemnitee shall be liable
for any damages arising from the use by others of any information or other
materials obtained through IntraLinks or other similar information transmission
systems in connection with this Agreement, nor shall any Indemnitee have any
liability for any indirect or consequential damages relating to this Agreement
or any other Loan Document or arising out of its activities in connection
herewith or therewith (whether before or after the Closing Date).  The
agreements in this Section shall survive the resignation of Administrative
Agent, the replacement of any Lender, the termination of the Aggregate
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.  All amounts due under this Section 10.5 shall be
payable within ten (10) Business Days after demand.
  76
 
 Section10.6      Payments Set
Aside.
 
 To the
extent that any payment by or on behalf of Borrower is made to Administrative
Agent or any Lender, or 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
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
Administrative Agent upon demand its applicable share of any amount so recovered
from or repaid by 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.
 
 Section10.7      Successors and
Assigns.
 
 (a)           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 Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection(d) of this Section, or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void).  Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
  77
 
 (b)           Any
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided
that (i) except in the case of an assignment of the entire remaining amount of
the assigning Lender’s Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) subject to each such assignment, determined as of the date the
Assignment and Assumption Agreement with respect to such assignment is delivered
to Administrative Agent, shall not be less than $5,000,000 unless each of
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); (ii) 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 apply to rights in respect of
outstanding Swing Line Loans, (iii) any assignment of a Commitment must be
approved by Administrative Agent, L/C Issuer and Swing Line Lender unless the
Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee), and (iv) the
parties to each assignment shall execute and deliver to Administrative Agent an
Assignment and Assumption Agreement, together with a processing and recordation
fee of $3,500.  Upon request, Administrative Agent shall inform any
Lender of an assignment to any Eligible Assignee.  Subject to
acceptance and recording thereof by Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each
Assignment and Assumption Agreement, the Eligible Assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Assumption Agreement, 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 Agreement, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption Agreement 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 3.1, Section 3.4, Section 3.5, Section 10.4, Section 10.5 and with
respect to facts and circumstances occurring prior to the date of such
assignment).  Upon request, 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.  In connection with any
assignment of rights and obligations of any Defaulting Lender hereunder, no such
assignment shall be effective unless and until, in addition to the other
conditions thereto set forth herein, the parties to the assignment shall make
such additional payments to Administrative Agent in an aggregate amount
sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or
other compensating actions, including funding, with the consent of Borrower and
Administrative Agent, the applicable pro rata share of Loans previously
requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay and
satisfy in full all payment liabilities then owed by such Defaulting Lender to
Administrative Agent or any Lender hereunder (and interest accrued thereon) and
(y) acquire (and fund as appropriate) its full pro rata share of all Loans and
participations in Letters of Credit and Swing Line Loans in accordance with its
Pro Rata Share.  Notwithstanding the foregoing, in the event that any
assignment of rights and obligations of any Defaulting Lender hereunder shall
become effective under applicable Law without compliance with the provisions of
this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance
occurs.
 
 (c)           Administrative
Agent, acting solely for this purpose as an agent of Borrower (such agency being
solely for these purposes), shall maintain at Administrative Agent’s Office a
copy of each Assignment and Assumption Agreement delivered to it and a register
for the recordation of the names and addresses of 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, and Borrower, Administrative Agent
and 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 Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
  78
 
 (d)           Any
Lender may, without the consent of, or notice to, Borrower or Administrative
Agent, sell participations to any Person (other than a natural person or
Borrower or any of Borrower’s Affiliates or Subsidiaries or a Defaulting Lender
or a Person who would constitute a Defaulting Lender after giving effect to the
assignment (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) Borrower, Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this
Agreement.  Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first provision to Section 10.1 that
directly affects such Participant.  Subject to subsection (e) of this
Section, Borrower agrees that each Participant shall be entitled to the benefits
of Section 3.1,
Section 3.4 and
Section 3.5 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section.  To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 10.9 as
though it were a Lender, provided such
Participant agrees to be subject to Section 2.14 as
though it were a Lender.
 
 (e)           A
Participant shall not be entitled to receive any greater payment under Section 3.1 or Section 3.4 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 Borrower’s prior written consent.
 
 (f) 
          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 a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
 
 (g)           If
the consent of Borrower to an assignment to an Eligible Assignee is required
hereunder (including a consent to an assignment which does not meet the minimum
assignment threshold specified in clause (i) of the proviso to the first
sentence of Section
10.7(b)), Borrower shall be deemed to have given its consent five (5)
Business Days after the date notice thereof has been delivered to Borrower by
the assigning Lender (through Administrative Agent) unless such consent is
expressly refused by Borrower prior to such fifth Business Day.
 
 (h)           As
used herein, “Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender; and (c) any
other Person (other than a natural Person or a Defaulting Lender or a Person who
would constitute a Defaulting Lender after giving effect to the assignment)
approved by (i) Administrative Agent, L/C Issuer and Swing Line Lender and (ii)
unless an Event of Default has occurred and is continuing, Borrower (such
approval referred to in (i) and (ii) not to be unreasonably withheld or
delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include Borrower or
any of Borrower’s Affiliates or Subsidiaries.
  79
 
 (i)
           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 Borrower and Lenders, resign in its
capacity as L/C Issuer and/or (ii) upon 30 days’ notice to Borrower, resign in
its capacity as provider of Swing Line Loans (“Swing Line
Lender”).  In the event of any such resignation as L/C Issuer or Swing
Line Lender, Borrower shall be entitled to appoint from among Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no
failure by Borrower to appoint any such successor shall affect 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 and obligations of Administrative Agent as 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 Lenders to make Base Rate Committed Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section
2.3(c)).  If Bank of America resigns as Swing Line Lender, it
shall retain all the rights of Administrative Agent as 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 Lenders to make Base Rate Committed Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section
2.4(c).  Borrower, Lenders and Bank of America agree that they
shall amend this Agreement as necessary to reflect that Bank of America remains
Administrative Agent for purposes of administering this Agreement, but has
resigned in its capacity as L/C Issuer and/or Swing Line Lender and another
Lender(s) shall provides such service, including the obligation of the successor
to Bank of America as L/C Issuer to issue letters of credit in substitution for
the Letters of Credit, if any, outstanding at the time of such succession or to
make other arrangements satisfactory to Bank of America to effectively assume
the obligations of Bank of America with respect to such Letters of
Credit.
 
 Section10.8      Confidentiality.
 
 Each of
Administrative Agent and Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (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; (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) in
connection with the exercise of any remedies hereunder or any other Loan
Document or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or under any other
Loan Document; (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any Eligible Assignee of or
Participant in, or any prospective Eligible Assignee of or Participant in, any
of its rights or obligations under this Agreement or (ii) any direct or indirect
contractual counterparty or prospective counterparty (or such contractual
counterparty’s or prospective counterparty’s professional advisor) to any credit
derivative transaction relating to obligations of a Loan Party; (g) with the
consent of Borrower; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to Administrative Agent or any Lender on a nonconfidential basis from
a source other than Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization.  In addition,
Administrative Agent and Lenders may disclose the existence of this Agreement
and information about this Agreement to market data collectors, similar service
providers to the lending industry, and service providers to Administrative Agent
and Lenders in connection with the administration and management of this
Agreement, the other Loan Documents, the Commitments, and the Credit
Extensions.  For the purposes of this Section, “Information” means all
information received from any Loan Party relating to any Loan Party or its
business, other than any such information that is available to Administrative
Agent or any Lender on a nonconfidential basis prior to disclosure by any Loan
Party; provided
that, in the case of information received from any Loan Party after the date
hereof, such information is clearly identified in writing at the time of
delivery as confidential.  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
Administrative Agent, Lenders and L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning 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.
  80
 
 Section10.9      Set-off.
 
 In
addition to any rights and remedies of Lenders provided by law, upon the
occurrence and during the continuance of any Event of Default, each Lender is
authorized at any time and from time to time, without prior notice to Borrower
or any other Loan Party, any such notice being waived by 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 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; provided, that in the event that any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts so
set off shall be paid over immediately to Administrative Agent for further
application in accordance with the provisions of Section 2.17 and,
pending such payment, shall be segregated by such Defaulting Lender from its
other funds and deemed held in trust for the benefit of Administrative Agent and
Lenders, and (y) the Defaulting Lender shall provide promptly to Administrative
Agent a statement describing in reasonable detail the Obligations owing to such
Defaulting Lender as to which it exercised such right of
setoff..  Each Lender agrees promptly to notify Borrower and
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.
 
 Section10.10    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 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 Borrower.  In determining whether the interest contracted for,
charged, or received by 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.
 
 Section10.11    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.
 
 Section10.12    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 Administrative Agent or
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.
  81
 
 Section10.13    Survival of Representations and
Warranties.
 
 All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and
thereof.  Such representations and warranties have been or will be
relied upon by Administrative Agent and each Lender, regardless of any
investigation made by Administrative Agent or any Lender or on their behalf and
notwithstanding that 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
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
 
 Section10.14    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.  Without
limiting the foregoing provisions of this Section 10.14, if and
to the extent that the enforceability of any provisions in this Agreement
relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as
determined in good faith by Administrative Agent, L/C Issuer or Swing Line
Lender, as applicable, then such provisions shall be deemed to be in effect only
to the extent not so limited.
 
 Section10.15    Governing Law; Submission to
Jurisdiction.
 
 (a)           THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF MARYLAND APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE; PROVIDED THAT
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 MARYLAND SITTING IN
MONTGOMERY COUNTY OR OF THE UNITED STATES FOR THE DISTRICT OF SUCH STATE, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER, ADMINISTRATIVE AGENT AND
EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  BORROWER, ADMINISTRATIVE
AGENT AND EACH LENDER 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.  BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
  82
 
 Section10.16    Waiver of Right to Trial by
Jury.
 
 EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
 
 Section10.17    USA Patriot Act
Notice.  Each Lender that is subject to the Act (as hereinafter
defined) and Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies 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 Borrower, which information includes the name and address of
Borrower and other information that will allow such Lender or Administrative
Agent, as applicable, to identify Borrower in accordance with the
Act.
 
 Section10.18     Time of the
Essence.
 
 Time is
of the essence of the Loan Documents.
 
 Section10.19     Right To
Terminate.
 
 Borrower
shall have the right to terminate this Agreement at any time without penalty
concurrent with or after the termination of the Aggregate Commitments pursuant
to Section 2.6,
payment of all Obligations outstanding hereunder as of the date of termination
and Cash Collateralization of all L/C Obligations outstanding hereunder as of
the date of termination.  Upon such termination, Administrative Agent
will provide a release of all Collateral to Borrower, which Borrower may record,
as necessary, at its own expense.  For purposes of this Section,
“penalty” does not include any fees or costs specifically provided for in this
Agreement, including any amounts due under Section
3.5.
 
 Section10.20     Intercreditor
Agreement.
 
 Each
Lender agrees that such Lender shall be bound by all of the terms of the
Intercreditor Agreement.
  83




Schedule
2
 
 SUBSIDIARIES
 
 Name of
      SubsidiaryHospitality Technologies,S.A.MICROS-Fidelio Australia Pty
      Ltd.MICROS-Fidelio Austria
      GmbHMICROS-FidelioBrazil, Ltda.MICROS-Fidelio (Canada) Ltd.MICROS Fidelio Chile,
      S.A.MICROS-Fidelio Information Systems
      (Shanghai) Co. Ltd.CommercialWare,
      Inc.JTECH Communications,
      Inc.TIG Global
    LLCMICROS FidelioDenmarkApSMICROS FidelioFinlandOyFidelio Cruise,
      Inc.MICROS-Fidelio France,
      S.A.S.MICROS-Fidelio
      GmbHFidelio Cruise
      GmbHMICROS-Fidelio Hong Kong,
      Ltd.Fidelio India Private
      Ltd.PT. MICROS-FidelioIndonesiaMICROS-Fidelio (Ireland), Ltd.MICROS Fidelio Group Holdings
      Ltd.MICROS Fidelio Israel
      Ltd.MICROS-Fidelio Italia
      S.r.l.MICROS-Fidelio Japan
      Ltd.MICROS-Fidelio Korea Company
      Ltd.MICROS-Fidelio Mexico S.A. de
      C.V.Fry, Inc.MICROS-Fidelio Worldwide,
      Inc.MICROS Fidelio Norway
      A/SDatavantage
      CorporationMICROS-Fidelio Poland
      Sp.Z.o.o.MICROS-Fidelio Software Portugal,
      ULDAMICROS Fidelio Caribbean,
      Inc.MICROS-Fidelio Singapore Pte
      Ltd.MICROS-Fidelio España
      S.L.MICROS-Fidelio Sweden
      A.B.Check-In Data
      A.G.MICROS-Fidelio Thailand Co.
      Ltd.MICROS-Fidelio U.K.
      Ltd.Micros Retail &
      Manufacturing                                              
   MicrosCanadaLLCMICROS-FidelioLuxembourgDatavantage Technology Holdings
      CorpTIG Global (UK) Ltd.E-One Group
    LLCMICROS-Fidelio Holdings
      Ltd.MICROS-Fidelio International
      Ltd.MICROS-FidelioLuxembourgSARLMICROS-Fidelio (Cyprus) Ltd.MICROS-Fidelio Investment Holdings
      Ireland Ltd.MICROS-FidelioNevadaLLCMicros Special Distribution
      LLCGrand Cayman
      Ltd.Foreign Sales
      CorporationMICROS-Fidelio Micronesia,
      Inc.Advanced Retail Systems,S.A.de CVMICROS-Fidelio Servicios S.A. de
      CVRedsky IT
    Inc.MICROS-FidelioPeru,S.A.Fidelio Software U.K.
      Ltd.MICROS Afrique
      LimitedMICROS Afrique
      SARLMICROS-Fidelio MiddleEast SAEMICROS-FidelioTunisiaMicros Systems Holding
      GmbHMICROS-FidelioCroatiaMICROS-FidelioHungaryKFTGastrosystems
      S.R.O.MICROS-Fidelio Datensysteme
      GmbHGlobal Solutions Holdings
      AGRoomWeb AGMICROS-Fidelio Services et
      MaintenanceMICROS-FidelioMauritiusLteeHospitality Management Services
      (Lebanon)MICROS-Fidelio Macau
      Ltd.MICROS-Fidelio Software
      (Philippines) Inc.MICROS-Fidelio New Zealand
      Ltd.HotelBK,
    A.B.Redsky IT Hale
      Ltd.MarkBarr UK
      Ltd.Redsky IT Hounslow
      Ltd.Innsite International UK
      Ltd.Greenbarr UK
      Ltd.Champs Innsite UK
      Ltd.Cara Consulting UK
      Ltd.CPBS UK
Ltd.Redsky Birmingham LtdUK