Exhibit 10.4


 


EXECUTION COPY


 


 




 





$250,000,000


 


AMENDED AND RESTATED CREDIT AGREEMENT


 


among


 


SYNOPSYS, INC.,


as Borrower,


 


The Several Lenders from Time to Time Parties Hereto,


 


ABN AMRO BANK N.V.,


 


KEYBANK NATIONAL ASSOCIATION,


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Co-Documentation Agents,


 


BANK OF AMERICA, N.A.,


as Syndication Agent,


 


and


 


JPMORGAN CHASE BANK,


as Administrative Agent


 


Dated as of April 28, 2004




 





 


 


J.P. MORGAN SECURITIES, INC. and BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arrangers


 


J.P. MORGAN SECURITIES INC., as Bookrunner


 

















 


TABLE OF CONTENTS


 


	
  SECTION 1.

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Defined Terms

  	
   

  
	
  1.2

  	
  Other Definitional
  Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AMOUNT AND TERMS OF REVOLVING COMMITMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Revolving
  Commitments

  	
   

  
	
  2.2

  	
  Procedure
  for Revolving Loan Borrowing

  	
   

  
	
  2.3

  	
  Facility Fees, etc.

  	
   

  
	
  2.4

  	
  Termination
  or Reduction of Revolving Commitments

  	
   

  
	
  2.5

  	
  Optional
  Prepayments

  	
   

  
	
  2.6

  	
  Conversion
  and Continuation Options

  	
   

  
	
  2.7

  	
  Limitations on Eurodollar
  Tranches

  	
   

  
	
  2.8

  	
  Interest
  Rates and Payment Dates

  	
   

  
	
  2.9

  	
  Computation
  of Interest and Fees

  	
   

  
	
  2.10

  	
  Inability to Determine
  Interest Rate

  	
   

  
	
  2.11

  	
  Pro Rata Treatment and
  Payments

  	
   

  
	
  2.12

  	
  Requirements
  of Law

  	
   

  
	
  2.13

  	
  Taxes

  	
   

  
	
  2.14

  	
  Indemnity

  	
   

  
	
  2.15

  	
  Change of Lending Office

  	
   

  
	
  2.16

  	
  Replacement
  of Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Financial
  Condition

  	
   

  
	
  3.2

  	
  No Change

  	
   

  
	
  3.3

  	
  Existence; Compliance
  with Law

  	
   

  
	
  3.4

  	
  Power;
  Authorization; Enforceable Obligations

  	
   

  
	
  3.5

  	
  No Legal Bar

  	
   

  
	
  3.6

  	
  Litigation

  	
   

  
	
  3.7

  	
  No Default

  	
   

  
	
  3.8

  	
  Ownership of Property;
  Liens

  	
   

  
	
  3.9

  	
  Intellectual
  Property

  	
   

  
	
  3.10

  	
  Taxes

  	
   

  
	
  3.11

  	
  Federal
  Regulations

  	
   

  
	
  3.12

  	
  Labor Matters

  	
   

  
	
  3.13

  	
  ERISA

  	
   

  
	
  3.14

  	
  Investment
  Company Act; Other Regulations

  	
   

  
	
  3.15

  	
  Use of Proceeds

  	
   

  
	
  3.16

  	
  Environmental
  Matters

  	
   

  
	
  3.17

  	
  Accuracy of
  Information, etc

  	
   

  
	
  3.18

  	
  Solvency

  	
   

  



 


i

















 


	
  SECTION 4.

  	
  CONDITIONS
  PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Conditions to Initial
  Extension of Credit

  	
   

  
	
  4.2

  	
  Conditions to
  Each Extension of Credit

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  AFFIRMATIVE
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Financial
  Statements

  	
   

  
	
  5.2

  	
  Certificates; Other
  Information

  	
   

  
	
  5.3

  	
  Payment
  of Obligations

  	
   

  
	
  5.4

  	
  Maintenance of
  Existence; Compliance

  	
   

  
	
  5.5

  	
  Maintenance of
  Property; Insurance

  	
   

  
	
  5.6

  	
  Inspection
  of Property; Books and Records; Discussions

  	
   

  
	
  5.7

  	
  Notices

  	
   

  
	
  5.8

  	
  Environmental
  Laws

  	
   

  
	
  5.9

  	
  New Domestic Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  NEGATIVE
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Financial Condition
  Covenants

  	
   

  
	
  6.2

  	
  Subsidiary
  Indebtedness

  	
   

  
	
  6.3

  	
  Liens

  	
   

  
	
  6.4

  	
  Fundamental
  Changes

  	
   

  
	
  6.5

  	
  Disposition
  of Property

  	
   

  
	
  6.6

  	
  Transactions with
  Affiliates

  	
   

  
	
  6.7

  	
  Changes
  in Fiscal Periods

  	
   

  
	
  6.8

  	
  Clauses
  Restricting Subsidiary Distributions

  	
   

  
	
  6.9

  	
  Lines of
  Business

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  THE
  AGENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Appointment

  	
   

  
	
  8.2

  	
  Delegation
  of Duties

  	
   

  
	
  8.3

  	
  Exculpatory
  Provisions

  	
   

  
	
  8.4

  	
  Reliance by
  Administrative Agent

  	
   

  
	
  8.5

  	
  Notice of
  Default

  	
   

  
	
  8.6

  	
  Non-Reliance on
  Agents and Other Lenders

  	
   

  
	
  8.7

  	
  Indemnification

  	
   

  
	
  8.8

  	
  Agent in Its
  Individual Capacity

  	
   

  
	
  8.9

  	
  Successor Administrative
  Agent

  	
   

  
	
  8.10

  	
  Syndication
  Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Amendments
  and Waivers

  	
   

  
	
  9.2

  	
  Notices

  	
   

  



 


ii

















 


	
  9.3

  	
  No Waiver; Cumulative
  Remedies

  	
   

  
	
  9.4

  	
  Survival of
  Representations and Warranties

  	
   

  
	
  9.5

  	
  Payment of Expenses and
  Taxes

  	
   

  
	
  9.6

  	
  Successors
  and Assigns; Participations and Assignments

  	
   

  
	
  9.7

  	
  Adjustments;
  Set-off

  	
   

  
	
  9.8

  	
  Counterparts

  	
   

  
	
  9.9

  	
  Severability

  	
   

  
	
  9.10

  	
  Integration

  	
   

  
	
  9.11

  	
  GOVERNING
  LAW

  	
   

  
	
  9.12

  	
  Submission To
  Jurisdiction; Waivers

  	
   

  
	
  9.13

  	
  Acknowledgements

  	
   

  
	
  9.14

  	
  Releases of Guarantees
  and Liens

  	
   

  
	
  9.15

  	
  Confidentiality

  	
   

  
	
  9.16

  	
  WAIVERS OF JURY TRIAL

  	
   

  
	
  9.17

  	
  USA Patriot Act

  	
   

  



 


iii

















 


	
  SCHEDULES:

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1A

  	
  Revolving
  Commitments

  	
   

  
	
  6.2(d)

  	
  Existing
  Indebtedness

  	
   

  
	
  6.3(f)

  	
  Existing
  Liens

  	
   

  
	
   

  	
   

  
	
  EXHIBITS:

  	
   

  
	
   

  	
   

  
	
  A

  	
  Form
  of Guarantee Agreement

  	
   

  
	
  B

  	
  Form
  of Closing Certificate

  	
   

  
	
  C

  	
  Form
  of Assignment and Assumption

  	
   

  
	
  D

  	
  Form
  of Exemption Certificate

  	
   

  



 


iv

















 


AMENDED
AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of
April 28, 2004, among SYNOPSYS, INC., a Delaware corporation (the “Borrower”),
the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”), BANK OF AMERICA, N.A.,
as syndication agent (in such capacity, the “Syndication Agent”), and
JPMORGAN CHASE BANK, as administrative agent.


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS,
the Borrower and certain of the Lenders are parties to a Credit Agreement,
dated as of April 8, 2004 (the “Existing Credit Agreement”);


 


WHEREAS,
the parties hereto wish to amend and restate the Existing Credit Agreement;


 


NOW,
THEREFORE, in consideration of the premises and the mutual agreements contained
herein, the parties hereto agree that the Existing Credit Agreement is hereby
amended and restated in its entirety as follows:


 


SECTION 1.                                DEFINITIONS


 


1.1                                 Defined Terms.  As
used in this Agreement, the terms listed in this Section 1.1 shall have
the respective meanings set forth in this Section 1.1.


 


“ABR”:  for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1⁄2 of 1%.  For
purposes hereof:  “Prime Rate”
shall mean the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank as its prime rate in effect at its principal office in
New York City (the Prime Rate not being intended to be the lowest rate of interest
charged by JPMorgan Chase Bank in connection with extensions of credit to
debtors).  Any change in the ABR due to
a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change in
the Prime Rate or the Federal Funds Effective Rate, respectively.


 


“ABR
Loans”:  Revolving Loans the rate of
interest applicable to which is based upon the ABR.


 


“Administrative
Agent”:  JPMorgan Chase Bank,
together with its affiliates, as the arranger of the Revolving Commitments and
as the administrative agent for the Lenders under this Agreement and the other
Loan Documents, together with any of its successors.


 


“Affiliate”:  as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person.  For purposes
of this definition, “control” of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having ordinary
voting power for the election of directors (or persons performing similar
functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.


 


“Agents”:  the collective reference to the Syndication
Agent and the Administrative Agent.


 

















 


“Aggregate
Exposure”:  with respect to any
Lender at any time, an amount equal to the amount of such Lender’s Revolving
Commitment then in effect or, if the Revolving Commitments have been
terminated, the amount of such Lender’s Revolving Extensions of Credit then
outstanding.


 


“Aggregate
Exposure Percentage”:  with respect
to any Lender at any time, the ratio (expressed as a percentage) of such
Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all
Lenders at such time.


 


“Agreement”:  as defined in the preamble hereto.


 


“Applicable
Margin”:  for any day, with respect
to any ABR Loan or Eurodollar Loan, or with respect to the facility fees
payable hereunder, as the case may be, the applicable rate per annum set forth
below under the caption, “ Applicable Margin for Eurodollar Loans”, “
Applicable Margin for ABR Loans” or “Facility Fee Rate”, as the case may be,
based upon the Consolidated Leverage Ratio as of the most recent determination
thereof:


 


	
  Category

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  Applicable
  Margin for

  Eurodollar Loans

  	
   

  	
  Applicable
  Margin for

  ABR Loans

  	
   

  	
  Facility
  Fee Rate

  
	
  1

  	
   

  	
  >1.00x

  	
   

  	
  1.125%

  	
   

  	
  0.125%

  	
   

  	
  0.25%

  
	
  2

  	
   

  	
  >0.50x
  but <1.00x

  	
   

  	
  0.875%

  	
   

  	
  0%

  	
   

  	
  0.25%

  
	
  3

  	
   

  	
  <0.50x

  	
   

  	
  0.80%

  	
   

  	
  0%

  	
   

  	
  0.20%

  



 


For
purposes of the foregoing, changes in the Applicable Margin resulting from
changes in the Consolidated Leverage Ratio shall become effective on the date
that is three Business Days after the date on which financial statements are
delivered to the Lenders pursuant to Section 5.1 and shall remain in
effect until the next change to be effected pursuant to this paragraph; provided
that until the delivery of financial statements for the Borrower and its
Subsidiaries for the fiscal quarter ended October 30, 2004, the Consolidated
Leverage Ratio shall be deemed to be in Category 2 (unless financial statements
of the Borrower and its Subsidiaries have been delivered showing that Category
1 is applicable, in which case the Consolidated Leverage Ratio shall be deemed
to be in Category 1); provided, further, that (x) if a
Responsible Officer of the Borrower delivers a signed certificate (the “Certificate”)
to the Administrative Agent demonstrating in reasonable detail that the
Consolidated Leverage Ratio for the fiscal quarter ended October 30, 2004
was in Category 3, the Applicable Margin set forth in Category 3 shall be
deemed to apply from and after the date of delivery of the Certificate until
the next delivery of financial statements pursuant to Section 5.1 (such time
period, the “Interim Period”) and (y) if the Certificate is delivered
and, when delivered pursuant to Section 5.1, the financial statements for
the Borrower and its Subsidiaries for the fiscal quarter ended October 31,
2004 demonstrate that the Applicable Margin should not have been deemed to be
in Category 3 during the Interim Period, the Borrower shall promptly pay to the
Administrative Agent for the benefit of the Lenders the amount of interest that
would have been paid during the Interim Period had the Certificate not been
delivered.  If any financial statements
referred to above are not delivered within the time periods specified in
Section 5.1, then, until the date that is three Business Days after the
date on which such financial statements are delivered, the Consolidated
Leverage Ratio shall be deemed to be in Category 1.  In addition, at all times while an Event of Default shall have
occurred and be continuing, the Consolidated Leverage Ratio shall be deemed to
be in Category 1.


 


“Assignee”:  as defined in Section 9.6(b).


 


2

















 


“Assignment
and Assumption”:  an Assignment and
Assumption entered into by a Lender and an Assignee (with the consent of any
party whose consent is required by Section 9.6), and accepted by the
Administrative Agent,, substantially in the form of Exhibit C.


 


“Available
Revolving Commitment”:  as to any
Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s
Revolving Commitment then in effect over (b) such Lender’s Revolving
Extensions of Credit then outstanding.


 


“Benefited
Lender”:  as defined in
Section 9.7(a).


 


“Board”:  the Board of Governors of the Federal
Reserve System of the United States (or any successor).


 


“Borrower”:  as defined in the preamble hereto.


 


“Borrowing
Date”:  any Business Day specified
by the Borrower as a date on which the Borrower requests the Lenders to make
Revolving Loans hereunder.


 


“Business”:  as defined in Section 3.16(b).


 


“Business
Day”:  a day other than a Saturday,
Sunday or other day on which commercial banks in New York City are authorized
or required by law to close, provided, that with respect to notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, such day is also a day for trading by and between banks in
Dollar deposits in the interbank eurodollar market.


 


“Capital
Lease Obligations”:  as to any
Person, the obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.


 


 “Capital Stock”:  any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to purchase any of
the foregoing.


 


“Cash
Equivalents”:  (a) cash equivalents
and short-term investments characterized as such on the Borrower’s consolidated
balance sheet; and (b) other investments made by the Borrower in accordance
with such written investment policies as are approved by the Borrower’s board
of directors, copies of which shall be provided to the Administrative Agent.


 


“Change
in Control”:  (a) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the SEC thereunder as in effect on the date hereof), of Capital Stock
representing more than 25% of the aggregate ordinary voting power represented
by the issued and outstanding Equity Interests of the Borrower; (b) occupation
of a majority of the seats (other than vacant seats) on the board of directors
of the Borrower by Persons who were neither (i) nominated by the board of
directors of the Borrower nor (ii) appointed by directors so nominated; or (c)
a “change in control” (or any other defined term having a similar purpose) as
defined in the documents governing any other Indebtedness of the Borrower or
its Subsidiaries the outstanding principal amount of which exceeds in the
aggregate $15,000,000.


 


3

















 


“Closing
Date”:  the date on which the
conditions precedent set forth in Section 4.1 shall have been satisfied,
which date is April 28, 2004.


 


“Code”:  the Internal Revenue Code of 1986, as
amended from time to time.


 


“Commonly
Controlled Entity”:  an entity,
whether or not incorporated, that is under common control with the Borrower
within the meaning of Section 4001 of ERISA or is part of a group that
includes the Borrower and that is treated as a single employer under
Section 414 of the Code.


 


“Confidential
Information Memorandum”:  the
Confidential Information Memorandum dated March 2004 and furnished to
certain Lenders.


 


“Consolidated
EBITDA”:  for any period, the
consolidated net income (or loss) of the Borrower and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, plus,
without duplication and to the extent reflected as a charge in the statement of
such consolidated net income for such period, the sum of (a) income tax
expense, (b) interest expense, amortization or writeoff of debt discount and
debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness (including the Revolving Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles and organization
costs, (e) non-cash amortization of deferred stock compensation, (f) non-cash
expenses related to stock-based compensation, (g) non-cash in-process research
and development expense and (h) any extraordinary or non-recurring non-cash
expenses or losses (including, whether or not otherwise includable as a
separate item in the statement of such consolidated net income for such period,
non-cash losses on sales of assets outside of the ordinary course of business),
minus, (x) to the extent included in the statement of such consolidated
net income for such period, the sum of (i) interest income, (ii) any
extraordinary, unusual or non-recurring income or gains (including, whether or
not otherwise includable as a separate item in the statement of such
consolidated net income for such period, gains on the sales of assets outside
of the ordinary course of business), (iii) income tax credits (to the extent
not netted from income tax expense) and (iv) any other non-cash income and (y)
any cash payments made during such period in respect of items described in
clause (e) above subsequent to the fiscal quarter in which the relevant
non-cash expenses or losses were reflected as a charge in the statement of
consolidated net income, all as determined on a consolidated basis; provided,
to the extent the Borrower makes any acquisition of an entity or line of
business that would be a “significant subsidiary” as defined in Rule 1-02 of
Regulation S-X promulgated by the SEC (a “Material Acquisition”) or
Disposition of such an entity or line of business (a “Material Disposition”),
“Consolidated EBITDA” shall be calculated after giving pro forma effect
to include or exclude, as appropriate, any amounts attributable to the acquired
or disposed of entity or line of business as if the relevant transaction had
been consummated at the beginning of the period of four full fiscal quarters
immediately prior to such acquisition or disposal.


 


“Consolidated
Leverage Ratio”:  as at the last day
of any period of four consecutive fiscal quarters of the Borrower, the ratio of
(a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for such
period.


 


“Consolidated
Total Debt”:  at any date, the
aggregate principal amount of all Indebtedness of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in accordance with
GAAP.


 


“Contractual
Obligation”:  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.


 


4

















 


“Default”:  any of the events specified in
Section 7, whether or not any requirement for the giving of notice, the
lapse of time, or both, has been satisfied.


 


“Disposition”:  with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof.  The terms “Dispose” and
“Disposed of” shall have correlative meanings.


 


“Dollars”
and “$”:  dollars in lawful
currency of the United States.


 


“Domestic
Subsidiary”:  any Subsidiary of the
Borrower organized under the laws of any jurisdiction within the United States.


 


“Environmental
Laws”:  any and all foreign,
Federal, state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect, in each case as
is applicable to the Borrower, any Subsidiary or any of their respective real
property.


 


“ERISA”:  the Employee Retirement Income Security Act
of 1974, as amended from time to time.


 


“Eurocurrency
Reserve Requirements”:  for any day
as applied to a Eurodollar Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including basic, supplemental, marginal and emergency
reserves) under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.


 


“Eurodollar
Base Rate”:  with respect to each
day during each Interest Period pertaining to a Eurodollar Loan, the rate per
annum determined on the basis of the rate for deposits in Dollars for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period.  In the event that such rate does not appear
on Page 3750 of the Telerate screen (or otherwise on such screen), the “Eurodollar
Base Rate” shall be determined by reference to such other comparable
publicly available service for displaying eurodollar rates as may be selected
by the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where
its eurodollar and foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the number
of days comprised therein.


 


“Eurodollar
Loans”:  Revolving Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.


 


“Eurodollar
Rate”:  with respect to each day
during each Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula (rounded
upward, if necessary, to the nearest 1/100th of 1%):


 




	
  Eurodollar Base Rate

  
	
  1.00 - Eurocurrency Reserve Requirements

  






 


5

















 


“Eurodollar
Tranche”:  the collective reference
to Eurodollar Loans the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date (whether or not
such Revolving Loans shall originally have been made on the same day).


 


“Event
of Default”:  any of the events
specified in Section 7, provided that any requirement for the
giving of notice, the lapse of time, or both, has been satisfied.


 


“Federal
Funds Effective Rate”:  for any day,
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for the day of such transactions received by
JPMorgan Chase Bank from three federal funds brokers of recognized standing
selected by it.


 


“Funding
Office”:  the office of the
Administrative Agent specified in Section 9.2 or such other office as may
be specified from time to time by the Administrative Agent as its funding
office by written notice to the Borrower and the Lenders.


 


“GAAP”:  generally accepted accounting principles in
the United States as in effect from time to time, except that for purposes of
Section 6.1, GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in the preparation of
the most recent audited financial statements referred to in Section 3.1.  In the event that any “Accounting Change”
(as defined below) shall occur and such change results in a change in the
method of calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
reflect equitably such Accounting Changes with the result that the criteria for
evaluating the Borrower’s financial condition shall be the same after such
Accounting Changes as if such Accounting Changes had not been made.  Until such time as such an amendment shall
have been executed and delivered by the Borrower, the Administrative Agent and
the Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting
Changes had not occurred.  “Accounting
Changes” refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC.


 


“Governmental
Authority”:  any nation or
government, any state or other political subdivision thereof, any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government, any securities
exchange and any self-regulatory organization (including the National
Association of Insurance Commissioners).


 


“Group
Members”:  the collective reference
to the Borrower and its Subsidiaries.


 


“Guarantee
Agreement”:  the Guarantee Agreement
to be executed and delivered by each Subsidiary Guarantor, substantially in the
form of Exhibit A.


 


“Guarantee
Obligation”:  as to any Person (the
“guaranteeing person”), any obligation, including a reimbursement,
counterindemnity or similar obligation, of the guaranteeing person that
guarantees or in effect guarantees, or which is given to induce the creation of
a separate obligation by another Person (including any bank under any letter of
credit) that guarantees or in effect guarantees, any


 


6

















 


Indebtedness
or other obligations (the “primary obligations”) of any other third
Person (the “primary obligor”) in any manner, whether directly or
indirectly, including any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business.  The amount
of any Guarantee Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made and
(b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.


 


“Indebtedness”:  of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables incurred in the ordinary course of
such Person’s business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all Capital Lease
Obligations of such Person, (f) all obligations of such Person, contingent or
otherwise, as an account party or applicant under or in respect of acceptances,
letters of credit, surety bonds or similar arrangements, (g) the liquidation
value of all redeemable preferred Capital Stock of such Person, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including accounts and contract rights) owned
by such Person, whether or not such Person has assumed or become liable for the
payment of such obligation (provided that, if such Indebtedness of others
is non-recourse to the credit of such Person, then the amount of Indebtedness
ascribed to such Person shall not exceed the fair market value of the property
securing such Indebtedness of others), and (j) for the purposes of
Section 7.1(e) only, all obligations of such Person in respect of Swap
Agreements.  The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person’s ownership interest in or
other relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.


 


“Insolvency”:  with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.


 


“Insolvent”:  pertaining to a condition of Insolvency.


 


“Intellectual
Property”:  the collective reference
to all rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to sue at law or in equity for any


 


7

















 


infringement
or other impairment thereof, including the right to receive all proceeds and
damages therefrom.


 


“Interest
Payment Date”:  (a) as to any ABR
Loan, the last day of each March, June, September and December to
occur while such Revolving Loan is outstanding and the final maturity date of
such Revolving Loan, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each day
that is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as to any Revolving
Loan (other than any Revolving Loan that is an ABR Loan), the date of any
repayment or prepayment made in respect thereof.


 


“Interest
Period”:  as to any Eurodollar Loan,
(a) initially, the period commencing on the borrowing or conversion date, as the
case may be, with respect to such Eurodollar Loan and ending one, two, three or
six or (if available to all Lenders) twelve months thereafter (or, until the
Syndication Date, 7 days thereafter), as selected by the Borrower in its notice
of borrowing or notice of conversion, as the case may be, given with respect
thereto; and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending one,
two, three or six or (if available to all Lenders) twelve months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
later than 12:00 Noon, New York City time, on the date that is three Business
Days prior to the last day of the then current Interest Period with respect
thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:


 


(i)            if any Interest
Period would otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the immediately
preceding Business Day;


 


(ii)           the Borrower may
not select an Interest Period that would extend beyond the Revolving
Termination Date; and


 


(iii)          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 a calendar
month.  .


 


“Investments”:  as defined in Section 6.6.


 


“Joint
Lead Arrangers”:  J.P. Morgan
Securities Inc. and Banc of America Securities LLC, each in its capacity as a
Joint Lead Arranger under this Agreement.


 


“Lenders”:  as defined in the preamble hereto.


 


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


 


“Loan
Documents”:  this Agreement, the
Guarantee Agreement, the Notes and any amendment, waiver, supplement or other
modification to any of the foregoing.


 


“Loan
Parties”:  each Group Member that is
a party to a Loan Document.


 


8

















 


“Margin
Stock”:  as defined in Regulation U.


 


“Material
Adverse Effect”:  a material adverse
effect on (a) the business, property, operations or financial condition of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.


 


“Multiemployer
Plan”:  a Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“Non-Excluded
Taxes”:  as defined in
Section 2.13(a).


 


“Non-U.S.
Lender”:  as defined in
Section 2.13(d).


 


“Notes”:  the collective reference to any promissory
note evidencing Revolving Loans.


 


“Obligations”:  the unpaid principal of and interest on
(including interest accruing after the maturity of the Revolving Loans and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Revolving Loans and all other obligations
and liabilities of the Borrower to the Administrative Agent or to any Lender,
whether direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document or any other document
made, delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including all reasonable fees, charges and disbursements of
outside counsel to the Administrative Agent or to any Lender that are required
to be paid by the Borrower pursuant hereto) or otherwise.


 


“Other
Taxes”:  any and 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 from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.


 


“Participant”:  as defined in Section 9.6(c).


 


“PBGC”:  the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any successor).


 


“Person”:  an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.


 


“Plan”:  at a particular time, any employee benefit
plan that is covered by ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.


 


“Properties”:  as defined in Section 3.16(a).


 


“Register”:  as defined in Section 9.6(b).


 


9

















 


“Regulation
U”:  Regulation U of the Board as in
effect from time to time.


 


“Reorganization”:  with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.


 


“Reportable
Event”:  any of the events set forth
in Section 4043(c) of ERISA, other than those events as to which the
thirty day notice period is waived under subsections .27, .28, .29, .30, .31,
..32, .34 or .35 of PBGC Reg. § 4043.


 


“Required
Lenders”:  at any time, the holders
of more than 50% of the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.


 


“Requirement
of Law”:  as to any Person, the
Certificate of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.


 


“Responsible
Officer”:  the chief executive
officer, president, chief financial officer, senior vice president or vice
president of the Borrower, but in any event, with respect to financial matters,
the chief financial officer, treasurer or controller of the Borrower.


 


“Restricted
Payments”:  collectively, the
declaration or payment of any dividend (other than dividends payable solely in
common stock of the Person making such dividend) on, or the making of any
payment on account of, or the setting apart of assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of any Group Member, whether now or hereafter
outstanding, or the making of any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of any
Group Member.


 


“Revolving
Commitment”:  as to any Lender, the
obligation of such Lender to make Revolving Loans in an aggregate principal
amount not to exceed the amount set forth under the heading “Revolving
Commitment” opposite such Lender’s name on Schedule 1.1A or in the
Assignment and Assumption pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof.  The original amount of the Total Revolving
Commitments is $250,000,000.


 


“Revolving
Commitment Period”:  the period from
and including the Closing Date to the Revolving Termination Date.


 


“Revolving
Extensions of Credit”:  as to any
Lender at any time, an amount equal to the aggregate principal amount of all
Revolving Loans held by such Lender then outstanding.


 


“Revolving
Loans”:  as defined in
Section 2.1(a).


 


“Revolving
Percentage”:  as to any Lender at
any time, the percentage which such Lender’s Revolving Commitment then
constitutes of the Total Revolving Commitments or, at any time after the
Revolving Commitments shall have expired or terminated, the percentage which
the aggregate principal amount of such Lender’s Revolving Loans then outstanding
constitutes of the aggregate principal amount of the Revolving Loans then
outstanding.


 


“Revolving
Termination Date”:  April 28,
2007.


 


10

















 


“SEC”:  the Securities and Exchange Commission, any
successor thereto and any analogous United States federal Governmental
Authority.


 


“Significant
Subsidiary”: at any time, a Domestic Subsidiary of the Borrower that would
be a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X
promulgated by the SEC; provided that at no time may Domestic
Subsidiaries of the Borrower that are not Significant Subsidiaries hold, in the
aggregate, more than 20% of (a) the total assets of the Borrower and its
Subsidiaries consolidated as of the end of the most recently completed fiscal
year or the Borrower or (b) the income of the Borrower and its Subsidiaries
consolidated for the most recently completed fiscal year of the Borrower from
continuing operations before income taxes, extraordinary items and the
cumulative effect of a change in accounting principles.


 


“Single
Employer Plan”:  any Plan that is
covered by Title IV of ERISA, but that is not a Multiemployer Plan.


 


“Solvent”:  when used with respect to any Person, means
that, as of any date of determination, (a) the amount of the “present fair
saleable value” of the assets of such Person will, as of such date, exceed the
amount of all “liabilities of such Person, contingent or otherwise”, as of such
date, as such quoted terms are determined in accordance with applicable federal
and state laws governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of such date,
be greater than the amount that will be required to pay the liability of such
Person on its debts as such debts become absolute and matured considering all
financing alternatives and potential asset sales reasonably available to such
Person, (c) such Person will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business, and (d) such Person will
be able to pay its debts as they mature. 
For purposes of this definition, (i) “debt” means liability on a
“claim”, and (ii) “claim” means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured or (y) right to an equitable remedy for breach of performance if such
breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured. For purposes of this
definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


“Subsidiary”:  as to any Person, a corporation,
partnership, limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references
to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.


 


“Subsidiary
Guarantor”:  each Significant
Subsidiary.


 


“Swap
Agreement”:  any agreement with
respect to any swap, forward, future or derivative transaction or option or
similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments


 


11

















 


only
on account of services provided by current or former directors, officers,
employees or consultants of the Borrower or any of its Subsidiaries shall be a
“Swap Agreement”.


 


“Syndication
Agent”:  as defined in the preamble
hereto.


 


“Syndication
Date”: the date of completion of the primary syndication of the Revolving
Commitments, as specified by the Joint Lead Arrangers in a written notice to
the Borrower.


 


“Total
Revolving Commitments”:  at any
time, the aggregate amount of the Revolving Commitments then in effect.


 


“Total
Revolving Extensions of Credit”:  at
any time, the aggregate amount of the Revolving Extensions of Credit of the
Lenders outstanding at such time.


 


“Transferee”:  any Assignee or Participant.


 


“Type”:  as to any Revolving Loan, its nature as an
ABR Loan or a Eurodollar Loan.


 


“United
States”:  the United States of
America.


 


1.2                                 Other
Definitional Provisions.  (a)
Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto.


 


(b)  As used herein and in the other Loan
Documents, and any certificate or other document made or delivered pursuant
hereto or thereto, (i) accounting terms relating to any Group Member not
defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP, (ii) the words “include”, “includes” and “including” shall
be deemed to be followed by the phrase “without limitation”, (iii) the word
“incur” shall be construed to mean incur, create, issue, assume, become liable
in respect of or suffer to exist (and the words “incurred” and “incurrence”
shall have correlative meanings), (iv) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, Capital Stock,
securities, revenues, accounts, leasehold interests and contract rights, and
(v) references to agreements or other Contractual Obligations shall, unless
otherwise specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time
to time.


 


(c)  The words “hereof”, “herein” and “hereunder”
and words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.


 


(d)  The meanings given to terms defined herein
shall be equally applicable to both the singular and plural forms of such
terms.


 


SECTION 2.                                AMOUNT AND TERMS OF REVOLVING COMMITMENTS


 


2.1                                 Revolving
Commitments.  (a)
Subject to the terms and conditions hereof, each Lender severally agrees to
make revolving credit loans (“Revolving Loans”) to the Borrower from
time to time during the Revolving Commitment Period in an aggregate principal
amount at any one time outstanding that does not exceed the amount of such
Lender’s Revolving Commitment.  During
the


 


12

















 


Revolving
Commitment Period the Borrower may use the Revolving Commitments by borrowing,
prepaying the Revolving Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof.  The Revolving Loans may from time to time be Eurodollar Loans or
ABR Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with Sections 2.2 and 2.6.


 


(b)  The Borrower shall repay all outstanding
Revolving Loans on the Revolving Termination Date.


 


2.2                                 Procedure
for Revolving Loan
Borrowing.   The Borrower may borrow under the Revolving
Commitments during the Revolving Commitment Period on any Business Day, provided
that the Borrower shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 12:00 Noon, New
York City time, (a) three Business Days prior to the requested Borrowing Date,
in the case of Eurodollar Loans, or (b) one Business Day prior to the requested
Borrowing Date, in the case of ABR Loans), specifying (i) the amount and Type
of Revolving Loans to be borrowed, (ii) the requested Borrowing Date and (iii)
in the case of Eurodollar Loans, the respective amounts of each such Type of
Revolving Loan and the respective lengths of the initial Interest Period
therefor;  provided that
prior to the Syndication Date, the Borrower may only select 7-day Interest
Periods.  Each borrowing under the
Revolving Commitments shall be in an amount equal to (x) in the case of ABR
Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate
Available Revolving Commitments are less than $1,000,000, such lesser amount)
and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof.  Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender thereof. 
Each Lender will make the amount of its pro  rata share of
each borrowing available to the Administrative Agent for the account of the
Borrower at the Funding Office prior to 1:00 P.M., New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent.  Such borrowing
will then be made available to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.


 


2.3                                 Facility Fees, etc.  (a)  The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee, which shall accrue at the Applicable
Margin on the daily amount of the Revolving Commitment of such Lender (whether
used or unused) during the period from and including the Closing Date to but
excluding the date on which such Revolving Commitment terminates; provided
that, if such Lender continues to have any Revolving Loans after its Revolving
Commitment terminates, then such facility fee shall continue to accrue on the
daily amount of such Lender’s Revolving Loans from and including the date on
which its Revolving Commitment terminates to but excluding the date on which
such Lender ceases to have any Revolving Loans.  Facility fees accrued through and including the last day of
March, June, September and December of each year shall be payable on
the third Business Day following such last day, commencing on the first such
date to occur after the date hereof; provided that all such fees shall
be payable on the date on which the Revolving Commitments terminate and any
such fees accruing after the date on which the Revolving Commitments terminate
shall be payable on demand.  All
facility fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).


 


(b)  The Borrower agrees to pay to the Administrative
Agent the fees in the amounts and on the dates as set forth in any fee
agreements with the Administrative Agent and to perform any other obligations
contained therein.


 


13

















 


2.4                                 Termination
or Reduction of
Revolving Commitments.  The Borrower shall have the right, upon not
less than three Business Days’ notice to the Administrative Agent, to terminate
the Revolving Commitments or, from time to time, to reduce the amount of the
Revolving Commitments; provided that no such termination or reduction of
Revolving Commitments shall be permitted if, after giving effect thereto, the
Total Revolving Extensions of Credit would exceed the Total Revolving
Commitments.  Any such reduction shall
be in an amount equal to $1,000,000, or a whole multiple of $500,000 in excess
thereof, and shall reduce permanently the Revolving Commitments then in effect.


 


2.5                                 Optional Prepayments.  The Borrower may at any time and from time
to time prepay the Revolving Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent no later
than 12:00 Noon, New York City time, three Business Days prior thereto, in the
case of Eurodollar Loans, and no later than 12:00 Noon, New York City time, one
Business Day prior thereto, in the case of ABR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to
Section 2.14.  Upon receipt of any
such notice the Administrative Agent shall promptly notify each Lender
thereof.  If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of ABR Loans) accrued
interest to such date on the amount prepaid. 
Partial prepayments of Revolving Loans shall be in an aggregate
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof.


 


2.6                                 Conversion and Continuation Options.  (a)  
The Borrower may elect from time to time to convert Eurodollar Loans to
ABR Loans by giving the Administrative Agent prior irrevocable notice of such
election no later than 12:00 Noon, New York City time, on the Business Day
preceding the proposed conversion date, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto.  The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the Administrative Agent prior irrevocable notice of such election no
later than 12:00 Noon, New York City time, on the third Business Day preceding
the proposed conversion date (which notice shall specify the length of the
initial Interest Period therefor), provided that no ABR Loan may be
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Administrative Agent or the Required Lenders have determined
in its or their sole discretion not to permit such conversions.  Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof.


 


(b)  Any Eurodollar Loan may be continued as such
upon the expiration of the then current Interest Period with respect thereto by
the Borrower giving irrevocable notice to the Administrative Agent, in
accordance with the applicable provisions of the term “Interest Period” set
forth in Section 1.1, of the length of the next Interest Period to be
applicable to such Revolving Loans, provided that no Eurodollar Loan may
be continued as such when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Required Lenders have determined in its
or their sole discretion not to permit such continuations, and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Revolving Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest
Period.  Upon receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof.


 


2.7                                 Limitations on Eurodollar Tranches.  Notwithstanding anything to the contrary in
this Agreement, all borrowings, conversions and continuations of Eurodollar
Loans and all selections of Interest Periods shall be in such amounts and be
made pursuant to such elections so that, (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar


 


14

















 


Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000
in excess thereof and (b) no more than ten Eurodollar Tranches shall be
outstanding at any one time.


 


2.8                                 Interest Rates and Payment Dates.  (a)  
Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.


 


(b)  Each ABR Loan shall bear interest at a rate
per annum equal to the ABR plus the Applicable Margin.


 


(c)  (i) If all or a portion of the principal
amount of any Revolving Loan shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section plus
2%, and (ii) if all or a portion of any interest payable on any Revolving Loan
or any facility fee or other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum equal to the rate then
applicable to ABR Loans plus 2%, in each case, with respect to clauses
(i) and (ii) above, from the date of such non-payment until such amount is paid
in full (as well after as before judgment).


 


(d)  Interest shall be payable in arrears on each
Interest Payment Date, provided that interest accruing pursuant to
paragraph (c) of this Section shall be payable from time to time on
demand.


 


2.9                                 Computation of Interest and Fees.  (a)  
Interest and fees payable pursuant hereto shall be calculated on the
basis of a 360-day year for the actual days elapsed, except that, with respect
to ABR Loans the rate of interest on which is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed.  The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate.  Any change in the
interest rate on a Revolving Loan resulting from a change in the ABR or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective.  The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.


 


(b)  Each determination of an interest rate by
the Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error.  The Administrative
Agent shall, at the request of the Borrower, deliver to the Borrower a
statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.8(a).


 


2.10                           Inability to Determine Interest
Rate.  If prior to the first day of
any Interest Period:


 


(a)  the Administrative Agent shall have determined in it
reasonable judgment (which determination shall be conclusive and binding upon
the Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or


 


(b)  the Administrative Agent shall have received notice from
the Required Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately


 


15

















 


and
fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Revolving Loans during such
Interest Period,


 


the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter.  If such notice is given (x) any Eurodollar
Loans requested to be made on the first day of such Interest Period shall be
made as ABR Loans, (y) any Revolving Loans that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans shall be converted, on the
last day of the then-current Interest Period, to ABR Loans.  Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert Revolving Loans to
Eurodollar Loans.  The Administrative
Agent shall withdraw such notice upon its determination that the event or
events which gave rise to such notice no longer exist.


 


2.11                           Pro Rata Treatment and Payments.  (a)  
Each borrowing by the Borrower from the Lenders hereunder, each payment
by the Borrower on account of any facility fee and any reduction of the
Revolving Commitments of the Lenders shall be made pro  rata
according to the respective Revolving Percentages of the Lenders.


 


(b)  Each payment (including each prepayment) by
the Borrower on account of principal of and interest on the Revolving Loans
shall be made pro  rata according to the respective outstanding
principal amounts of the Revolving Loans then held by the Lenders.


 


(c)  All payments (including prepayments) to be
made by the Borrower hereunder, whether on account of principal, interest, fees
or otherwise, shall be made without setoff or counterclaim and shall be made
prior to 1:00 P.M., New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding Office, in
Dollars and in immediately available funds. 
The Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received.  If any payment hereunder (other than payments on the Eurodollar
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day.  If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event
such payment shall be made on the immediately preceding Business Day.  In the case of any extension of any payment
of principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.


 


(d)  Unless the Administrative Agent shall have
been notified in writing by any Lender prior to a borrowing that such Lender
will not make the amount that would constitute its share of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower a corresponding amount. 
If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon, at a rate
equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, for the period until such Lender makes such
amount immediately available to the Administrative Agent.  A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error.  If such Lender’s share of such borrowing is not made available to
the Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans, on
demand, from the Borrower.  Nothing


 


16

















 


in this paragraph shall be deemed to relieve any Lender from its
obligation to fulfill its Revolving Commitments hereunder or to prejudice any
rights that the Borrower may have against any Lender as a result of any default
by such Lender hereunder.


 


(e)  Unless the Administrative Agent shall have
been notified in writing by the Borrower prior to the date of any payment due
to be made by the Borrower hereunder that the Borrower will not make such
payment to the Administrative Agent, the Administrative Agent may assume that
the Borrower is making such payment, and the Administrative Agent may, but
shall not be required to, in reliance upon such assumption, make available to
the Lenders their respective pro  rata shares of a corresponding
amount.  If such payment is not made to
the Administrative Agent by the Borrower within three Business Days after such
due date, the Administrative Agent shall be entitled to recover, on demand,
from each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate.  Nothing herein shall be deemed to limit the
rights of the Administrative Agent or any Lender against the Borrower.


 


2.12                           Requirements of Law.  (a)  
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:


 


(i)  shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 2.13 and changes
in the rate of tax on the overall net income of such Lender);


 


(ii)  shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds by,
any office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate; or


 


(iii)  shall impose on such Lender any other
condition;


 


and the result of any of the
foregoing is to increase the cost to such Lender, by an amount that such Lender
reasonably deems to be material, of making, converting into, continuing or
maintaining Eurodollar Loans, or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, the Borrower shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such increased cost or reduced amount receivable.  If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled, which notice shall include, if available,
details reasonably sufficient to establish the basis for such additional
amounts payable and shall be submitted to the Borrower within 120 days after
such Lender becomes aware of such fact.


 


(b)  If any Lender shall have reasonably
determined that the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by such Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such Lender’s or
such corporation’s capital as a consequence of its obligations hereunder to a
level below that which such


 


17

















 


Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor (such request shall include, if available, details reasonably
sufficient to establish the basis for such additional amounts payable and shall
be submitted to the Borrower within 120 days after it becomes aware of such
fact), the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender or such corporation for such reduction.


 


(c)  A certificate as to any additional amounts
payable pursuant to this Section submitted by any Lender to the Borrower
(with a copy to the Administrative Agent) shall be conclusive in the absence of
manifest error.  Notwithstanding
anything to the contrary in this Section, the Borrower shall not be required to
compensate a Lender pursuant to this Section for any amounts incurred more
than nine months prior to the date that such Lender notifies the Borrower of
such Lender’s intention to claim compensation therefor; provided that,
if the circumstances giving rise to such claim have a retroactive effect, then
such nine-month period shall be extended to include the period of such
retroactive effect.  The obligations of
the Borrower pursuant to this Section shall survive the termination of
this Agreement and the payment of the Revolving Loans and all other amounts
payable hereunder.


 


2.13                           Taxes.  (a) All
payments made by the Borrower under this Agreement shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the jurisdiction
of the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document). 
If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings (“Non-Excluded Taxes”) or Other Taxes are
required to be withheld from any amounts payable to the Administrative Agent or
any Lender hereunder, the amounts so payable to the Administrative Agent or
such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and
Other Taxes) interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement, provided, however,
that the Borrower shall not be required to increase any such amounts payable to
any Lender with respect to any Non-Excluded Taxes (i) that are attributable to
such Lender’s failure to comply with the requirements of paragraph (d) or (e)
of this Section or (ii) that are United States withholding taxes imposed
on amounts payable to such Lender at the time such Lender becomes a party to
this Agreement, except to the extent that such Lender’s assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.


 


(b)  In addition, the Borrower shall pay any
Other Taxes to the relevant Governmental Authority in accordance with
applicable law to the extent the Borrower has not already reimbursed a Lender
for such amounts pursuant to Section 2.12 or Section 2.13(a).


 


(c)  Whenever any Non-Excluded Taxes or Other
Taxes are payable by the Borrower, as promptly as possible thereafter the
Borrower shall send to the Administrative Agent for its own account or for the
account of the relevant Lender, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment
thereof.  If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the


 


18

















 


Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure.


 


(d)  Each Lender (or Transferee) that is not a
“U.S. Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S.
Lender”) shall deliver to the Borrower and the Administrative Agent (or, in
the case of a Participant, to the Lender from which the related participation
shall have been purchased) two copies of either U.S. Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c)
of the Code with respect to payments of “portfolio interest”, a statement
substantially in the form of Exhibit D and a Form W-8BEN, or any subsequent
versions thereof or successors thereto, properly completed and duly executed by
such Non-U.S. Lender claiming complete exemption from, or a reduced rate of,
U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents. 
Such forms shall be delivered by each Non-U.S. Lender on or before the
date it becomes a party to this Agreement (or, in the case of any Participant,
on or before the date such Participant purchases the related
participation).  In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.  Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).  Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.


 


(e)  A Lender that is entitled to an exemption
from or reduction of non-U.S. withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate, provided
that such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender’s judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.


 


(f)  If the Administrative Agent or any Lender
determines, in its sole discretion, that it has received a refund of any
Non-Excluded Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.13, it shall pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.13 with respect to the
Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund); provided, that the Borrower, upon the request
of the Administrative Agent or such Lender, agrees to repay the amount paid
over to the Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent or such Lender
in the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This paragraph shall not be construed to
require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.


 


(g)  The agreements in this Section shall
survive the termination of this Agreement and the payment of the Revolving
Loans and all other amounts payable hereunder.


 


19

















 


2.14                           Indemnity.  The Borrower agrees to indemnify each Lender
for, and to hold each Lender harmless from, any loss or expense that such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrower has given a notice requesting the same in accordance with
the provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given
a notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day that is not the last day of
an Interest Period with respect thereto. 
Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest that would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of
such prepayment or of such failure to borrow, convert or continue to the last
day of such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Revolving
Loans provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by
such Lender) that would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market.  A
certificate as to any amounts payable pursuant to this Section submitted
to the Borrower by any Lender shall be conclusive in the absence of manifest
error.  This covenant shall survive the
termination of this Agreement and the payment of the Revolving Loans and all
other amounts payable hereunder.


 


2.15                           Change
of Lending Office.  Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.12 or 2.13(a) with respect to such Lender, it will,
if requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Revolving Loans affected by such event with the object of avoiding the
consequences of such event; provided, that such designation is made on
terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided,
further, that nothing in this Section shall affect or postpone any
of the obligations of the Borrower or the rights of any Lender pursuant to
Section 2.12 or 2.13(a).


 


2.16                           Replacement of Lenders.  The Borrower shall be permitted to replace
any Lender that (a) requests reimbursement for amounts owing pursuant to
Section 2.12 or 2.13(a) or (b) defaults in its obligation to make
Revolving Loans hereunder, with a replacement financial institution; provided
that (i) such replacement does not conflict with any Requirement of Law, (ii)
no Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) if applicable, prior to any such replacement, such Lender
shall not have taken actions under Section 2.15 sufficient eliminate the
continued need for payment of amounts owing pursuant to Section 2.12 or
2.13(a), (iv) the replacement financial institution shall purchase, at par, all
Revolving Loans and other amounts owing to such replaced Lender on or prior to
the date of replacement, (v) the Borrower shall be liable to such replaced
Lender under Section 2.14 if any Eurodollar Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (vi) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 9.6 (provided that the Borrower shall be
obligated to pay the registration and processing fee referred to therein),
(viii) until such time as such replacement shall be consummated, the Borrower
shall pay all additional amounts (if any) required pursuant to
Section 2.12 or 2.13(a), as the case may be, and (ix) any such replacement
shall not be deemed to be a waiver of any rights that the Borrower, the
Administrative Agent or any other Lender shall have against the replaced
Lender.


 


2.17                           Release
of Subsidiary Guarantor.  In the
event that all of the Capital Stock held by the Borrower or its Subsidiaries in
any Subsidiary Guarantor is sold or otherwise Disposed of or


 


20

















 


dissolved or liquidated in compliance with the requirements of this
Agreement (or such sale, other Disposition, dissolution or liquidation has been
approved by the Required Lenders), such Subsidiary Guarantor shall, without
further action, automatically be released from its Guaranteed Obligations under
the Guarantee Agreement and such Guaranteed Obligations, as to such Subsidiary
Guarantor, shall terminate and have no further force or effect (it being
understood and agreed that the sale of Capital Stock in one or more Persons
that own, directly or indirectly, all of such Capital Stock in any Subsidiary
Guarantor shall be deemed to be a sale of such Capital Stock in such Subsidiary
Guarantor for the purposes of this Section 2.17).


 


SECTION 3.                                REPRESENTATIONS AND WARRANTIES


 


To
induce the Administrative Agent and the Lenders to enter into this Agreement
and to make the Revolving Loans, the Borrower hereby represents and warrants to
the Administrative Agent and each Lender that:


 


3.1                                 Financial Condition.  The audited consolidated balance sheets of
the Borrower and its Subsidiaries as at October 31, 2003, October 31,
2002 and October 31, 2001, and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates, reported on
by and accompanied by an unqualified report from KPMG LLP, present fairly in
all material respects the consolidated financial condition of the Borrower and
its Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended.  The unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as at January 31, 2004,
and the related unaudited consolidated statements of income and cash flows for
the three-month period ended on such date, present fairly in all material
respects the consolidated financial condition of the Borrower and its
Subsidiaries as at such date, and the consolidated results of its operations
and its consolidated cash flows for the three-month period then ended (subject
to normal year-end audit adjustments). 
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as disclosed therein).  No Group Member has any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including any interest rate
or foreign currency swap or exchange transaction or other obligation in respect
of derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph.  During
the period from October 31, 2003 to and including the date hereof there
has been no Disposition by any Group Member of any part of its business or
property which is material to the Borrower and its Subsidiaries, taken as a
whole.


 


3.2                                 No Change. 
Since November 1, 2003, there has been no development or event that
has had or could reasonably be expected to have a Material Adverse Effect.


 


3.3                                 Existence; Compliance with Law.  Each Group Member (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect and (d) is duly qualified as a foreign corporation or
other organization and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification, except to the extent that the failure to
be so qualified or in good standing could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


3.4                                 Power; Authorization; Enforceable
Obligations.  Each Loan Party
has the power and authority, and the legal right, to make, deliver and perform
the Loan Documents to which it is a party


 


21

















 


and, in the case of the Borrower, to obtain extensions of credit
hereunder.  Each Loan Party has taken
all necessary organizational action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of
the Borrower, to authorize the extensions of credit on the terms and conditions
of this Agreement.  No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
extensions of credit hereunder or with the execution, delivery, performance,
validity or enforceability of this Agreement or any of the Loan Documents.  Each Loan Document has been duly executed
and delivered on behalf of each Loan Party party thereto.  This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law) and public policy limiting exculpation, indemnification or
contribution.


 


3.5                                 No Legal Bar. 
The execution, delivery and performance of this Agreement and the other
Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or any Contractual Obligation of any
Group Member (except where such violation of any Contractual Obligation could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect) and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation.


 


3.6                                 Litigation. 
No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against any Group Member (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b)
that, after giving effect to any applicable insurance, could reasonably be
expected to have a Material Adverse Effect.


 


3.7                                 No Default. 
No Group Member is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to
have a Material Adverse Effect.  No
Default or Event of Default has occurred and is continuing.


 


3.8                                 Ownership of Property; Liens.  Each Group Member has title in fee simple
to, or a valid leasehold interest in, all its real property, and good title to,
or a valid leasehold interest in, all its other property, except where failure
to have such title or valid leasehold interest could not reasonably be expected
to have a Material Adverse Effect, and none of such property is subject to any
Lien except as permitted by Section 6.3.


 


3.9                                 Intellectual Property.  Each Group Member owns, or is licensed to
use, all Intellectual Property necessary for the conduct of its business as
currently conducted.  No material claim
has been asserted and is pending by any Person challenging or questioning the
use of any Intellectual Property or the validity or effectiveness of any
Intellectual Property, nor does the Borrower know of any valid basis for any
such claim.  To the best of the
Borrower’s knowledge, the use of Intellectual Property by each Group Member
does not infringe on the rights of any Person in any material respect.


 


3.10                           Taxes.  Each Group
Member has filed or caused to be filed all Federal, state and other tax returns
that are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity
of which are currently being contested in good faith by appropriate proceedings
and with


 


22

















 


respect to which reserves in conformity with GAAP have been provided on
the books of the relevant Group Member or where the failure to file such tax
returns or pay such taxes, fees or other charges could not reasonably be
expected to have a Material Adverse Effect); no tax Lien has been filed, and,
to the knowledge of the Borrower, no claim is being asserted, with respect to
any such tax, fee or other charge.


 


3.11                           Federal Regulations.  No part of the proceeds of any Revolving
Loans, and no other extensions of credit hereunder, will be used in a manner
which violates Regulation U as now and from time to time hereafter in effect or
for any purpose that violates the provisions of the Regulations of the
Board.  If requested by any Lender or
the Administrative Agent, the Borrower will furnish to the Administrative Agent
and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in
Regulation U.  None of the Borrower or
any of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying Margin Stock


 


3.12                           Labor Matters. 
Except as, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect:  (a) there are
no strikes or other labor disputes against any Group Member pending or, to the
knowledge of the Borrower, threatened; (b) hours worked by and payment made to
employees of each Group Member have not been in violation of the Fair Labor Standards
Act or any other applicable Requirement of Law dealing with such matters; and
(c) all payments due from any Group Member on account of employee health and
welfare insurance have been paid or accrued as a liability on the books of the
relevant Group Member.


 


3.13                           ERISA.  Neither a
Reportable Event nor an “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code.  No termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period.  The present value of
all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount.  Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal
from any Multiemployer Plan that has resulted or could reasonably be expected
to result in a material liability under ERISA, and neither the Borrower nor any
Commonly Controlled Entity would become subject to any material liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made.  No such Multiemployer Plan is in Reorganization
or Insolvent.


 


3.14                           Investment Company Act; Other
Regulations.  No Loan Party is
an “investment company”, or a company “controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as amended.  No Loan Party is subject to regulation under
any Requirement of Law (other than Regulation X of the Board) that limits its
ability to incur Indebtedness.


 


3.15                           Use of Proceeds. 
The proceeds of the Revolving Loans shall be used for general corporate
purposes, including acquisitions.


 


3.16                           Environmental Matters.  The Borrower and each Subsidiary has
complied with all applicable Environmental Laws, except to the extent that the
failure to so comply could not reasonably be expected to have a Material
Adverse Effect.  The Borrower’s and the
Subsidiaries’ facilities do not contain any hazardous wastes, hazardous
substances, hazardous materials, toxic substances or toxic pollutants regulated
under any Environmental Law, in violation of any such law, or any rules or


 


23

















 


regulations promulgated pursuant thereto, except for violations that
could not reasonably be expected to have a Material Adverse Effect. The
Borrower is aware of no events, conditions or circumstances involving
environmental pollution or contamination or public or employee health or
safety, in each case applicable to it or its Subsidiaries, that could
reasonably be expected to have a Material Adverse Effect.


 


3.17                           Accuracy of Information, etc.  No statement or information contained in
this Agreement, any other Loan Document, the Confidential Information
Memorandum or any other document, certificate or statement furnished by or on
behalf of any Loan Party to the Administrative Agent or the Lenders, or any of
them, for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, when taken as a whole, contained as of
the date such statement, information, document or certificate was so furnished
(or, in the case of the Confidential Information Memorandum, as of the date of
this Agreement), any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements contained herein or therein not
misleading.  The projections and pro
forma financial information contained in the materials referenced above
are based upon good faith estimates and assumptions believed by management of
the Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not
to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set
forth therein by a material amount. 
There is no fact known to any Loan Party that could reasonably be
expected to have a Material Adverse Effect that has not been expressly
disclosed herein, in the other Loan Documents, in the Confidential Information
Memorandum or in any other documents, certificates and statements furnished to
the Administrative Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents.


 


3.18                           Solvency. 
Each Loan Party is, and after giving effect to the incurrence of all
Indebtedness and obligations being incurred in connection herewith will be and
will continue to be, Solvent.


 


SECTION 4.                                CONDITIONS PRECEDENT


 


4.1                                 Conditions to Initial Extension of
Credit.  The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, prior to or concurrently with the making of such
extension of credit, of the following conditions precedent:


 


(a)  Credit Agreement;
Guarantee Agreement.  The
Administrative Agent shall have received (i) this Agreement, executed and
delivered by the Administrative Agent, the Borrower and each Person listed on
Schedule 1.1A and (ii) the Guarantee Agreement, executed and delivered by
each Subsidiary Guarantor, if any.


 


(b)  Financial Statements.  The Lenders shall have received the
financial statements referred to in Section 3.1, and such financial
statements shall not, in the reasonable judgment of the Lenders, reflect any
material adverse change in the consolidated financial condition of the Borrower
and its Subsidiaries, as reflected in the financial statements or projections
contained in the Confidential Information Memorandum.


 


(c)  Projections.  The Lenders shall have received projections
of the Borrower and its Subsidiaries through the fiscal year ending
October 31, 2007, presented on an annual basis, and such projections shall
not, in the reasonable judgment of the Lenders, reflect any material adverse
change in the consolidated financial condition of the Borrower and its
Subsidiaries, as reflected in the projections contained in the Confidential
Information Memorandum.


 


24

















 


(d)  Approvals.  All governmental and third party approvals
reasonably necessary in connection with the continuing operations of the Group
Members and the transactions contemplated hereby shall have been obtained and
be in full force and effect.


 


(e)  Fees.  The Lenders, the Administrative Agent and
the Joint Lead Arrangers shall have received all fees required to be paid, and
all expenses for which invoices have been presented (including the reasonable
fees and expenses of outside legal counsel), no later than one Business Day
before the Closing Date.


 


(f)  Closing Certificate;
Certified Certificate of Incorporation; Good Standing Certificates.  The Administrative Agent shall have received
(i) a certificate of each Loan Party, dated on or before the Closing Date,
substantially in the form of Exhibit B, with appropriate insertions and
attachments, including the certificate of incorporation of each Loan Party that
is a corporation certified by the relevant authority of the jurisdiction of
organization of such Loan Party, and (ii) a long form good standing certificate
for each Loan Party from its jurisdiction of organization.


 


(g)  Legal Opinions.  The Administrative Agent shall have received
the executed legal opinion of Cooley Godward LLP, counsel to the Borrower and
its Subsidiaries.  Such legal opinion
shall cover such other matters incident to the transactions contemplated by
this Agreement as the Administrative Agent may reasonably require.


 


For
the avoidance of doubt, the parties agree that the conditions set forth in
paragraphs (b), (c), (f) and (g) were satisfied in connection with the
effectiveness of the Existing Credit Agreement.


 


4.2                                 Conditions to Each Extension of
Credit.  The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:


 


(a)  Representations and
Warranties.  Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct on and as of such date as if made on and as of such
date.


 


(b)  No Default.  No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.


 


Each
borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such extension of credit that the
conditions contained in this Section 4.2 have been satisfied.


 


SECTION 5.                                AFFIRMATIVE COVENANTS


 


The
Borrower hereby agrees that, so long as the Revolving Commitments remain in
effect or any Revolving Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries
to:


 


5.1                                 Financial Statements.  Furnish to the Administrative Agent and each
Lender:


 


(a)  as soon as available, but
in any event within 90 days after the end of each fiscal year of the Borrower,
a copy of the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related audited
consolidated


 


25

















 


statements
of income and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a
“going concern” or like qualification or exception, by KPMG LLP or other
independent certified public accountants of nationally recognized standing; and


 


(b)  as soon as available, but
in any event not later than 45 days after the end of each of the first three
quarterly periods of each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at the end of such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments).


 


All
such financial statements shall be complete and correct in all material
respects and shall be prepared in accordance with GAAP applied (except as
approved by such accountants or officer, as the case may be, and disclosed in
reasonable detail therein) consistently throughout the periods reflected
therein and with prior periods.  Any
financial statement required to be furnished pursuant to Section 5.1 shall
be deemed to have been furnished on the date on which the Lenders receive
notice that the Borrower has posted such financial statement on the Intralinks
website on the Internet at www.intralinks.com; provided that the
Borrower shall give notice of any such posting to the Administrative Agent (who
shall then give notice of any such posting to the Lenders).  Notwithstanding the foregoing, the Borrower
shall deliver paper copies of any financial statement referred to in
Section 5.1 to the Administrative Agent if the Administrative Agent
requests the Borrower to furnish such paper copies until written notice to
cease delivering such paper copies is given by the Administrative Agent.


 


5.2                                 Certificates; Other Information.  Furnish to the Administrative Agent and each
Lender (or, in the case of clause (d), to the relevant Lender):


 


(a)  concurrently with the
delivery of the financial statements referred to in Section 5.1(a), a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default under
Section 6.1, except as specified in such certificate;


 


(b)  concurrently with the
delivery of any financial statements pursuant to Section 5.1, a
certificate of a Responsible Officer of the Borrower (i) certifying as to
whether a Default or Event of Default has occurred and, if a Default or Event
of Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.1 and (iii)
stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in
Section 3.1 and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate;


 


(c)  within 10 days after the
same are sent, copies of all financial statements and reports that the Borrower
sends to the holders of any class of its debt securities or public equity
securities and, within 10 days after the same are filed, copies of all
financial statements and reports that the Borrower may make to, or file with,
the SEC, except, in each case, to the extent such financial statements or
reports have already been provided pursuant to Section 5.1; and


 


(d)  reasonably promptly, such
additional financial and other information as any Lender may from time to time
reasonably request.


 


26

















 


Any
information required to be furnished pursuant to Section 5.2 shall be
deemed to have been furnished on the date on which the Lenders receive notice
that the Borrower has posted such financial statement on the Intralinks website
on the Internet at www.intralinks.com; provided that the Borrower shall
give notice of any such posting to the Administrative Agent (who shall then
give notice of any such posting to the Lenders).  Notwithstanding the foregoing, the Borrower shall deliver paper
copies of any information referred to in Section 5.2 to the Administrative
Agent if the Administrative Agent requests the Borrower to furnish such paper
copies until written notice to cease delivering such paper copies is given by
the Administrative Agent.


 


5.3                                 Payment of Obligations.  Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the relevant Group Member or where such obligations do not, in the aggregate,
exceed $15,000,000


 


5.4                                 Maintenance of Existence; Compliance.  (a)(i) Preserve, renew and keep in full
force and effect its organizational existence and (ii) take all reasonable
action to maintain all rights, privileges and franchises necessary in the
normal conduct of its business, except, in each case, as otherwise permitted by
Section 6.4 and except, in the case of clause (ii) above, to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


5.5                                 Maintenance of Property; Insurance.  (a) Keep all property necessary in its
business in good working order and condition, ordinary wear and tear excepted
and (b) maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least
such risks (but including in any event public liability, product liability and
business interruption) as are usually insured against in the same general area by
companies engaged in the same business.


 


5.6                                 Inspection of Property; Books and
Records; Discussions.  (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all financial
transactions in relation to its business and (b) permit representatives of any
Lender to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time during
normal business hours and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Group Members with officers and employees of the Group Members and with their
independent certified public accountants.


 


5.7                                 Notices. 
Promptly give notice to the Administrative Agent and each Lender of:


 


(a)  the occurrence of any
Default or Event of Default;


 


(b)  any (i) default or event of
default under any Contractual Obligation of any Group Member or (ii) litigation,
investigation or proceeding that may exist at any time between any Group Member
and any Governmental Authority, that in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected to have
a Material Adverse Effect;


 


(c)  any litigation or
proceeding affecting any Group Member (i) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (ii)
that, after


 


27

















 


giving
effect to any applicable insurance, could reasonably be expected to have a
Material Adverse Effect;


 


(d)  the following events, as
soon as possible and in any event within 30 days after the Borrower knows
thereof:  (i) the occurrence of any
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Borrower or any Commonly Controlled Entity
or any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and


 


(e)  any development or event
that has had or could reasonably be expected to have a Material Adverse Effect.


 


Each
notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the relevant Group Member proposes to take with respect
thereto.


 


5.8                                 Environmental Laws.  Comply in all material respects with, and use reasonable efforts
to ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply in all
material respects with and maintain, and use reasonable efforts to ensure that
all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws.


 


5.9                                 New Significant Subsidiaries.  With respect to any new Significant
Subsidiary created or acquired after the Closing Date by any Group Member
(which, for the purposes of this Section 5.9, shall include any existing
Subsidiary that becomes a Significant Subsidiary), promptly cause such new
Significant Subsidiary (a) to become a party to the Guarantee Agreement and (b)
to deliver to the Administrative Agent a certificate of such Subsidiary,
substantially in the form of Exhibit B, with appropriate insertions and
attachments.


 


SECTION 6.                                NEGATIVE COVENANTS


 


The
Borrower hereby agrees that, so long as the Revolving Commitments remain in
effect or any Revolving Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, the Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly:


 


6.1                                 Financial Condition Covenants.


 


(a)  Consolidated Leverage Ratio.  Permit the Consolidated Leverage Ratio as at
the last day of any period of four consecutive fiscal quarters of the Borrower
to exceed 1.50 to 1.00.


 


(b)  Minimum Cash.  Permit the aggregate amount of all cash and
Cash Equivalents held by the Borrower and its Subsidiaries at any time and
available for general corporate purposes at such time to be less than
$300,000,000.


 


6.2                                 Subsidiary Indebtedness.  Permit any Subsidiary of the Borrower to
create, issue, incur, assume, become liable in respect of or suffer to exist
any Indebtedness, except:


 


28

















 


(a)  Indebtedness of any Loan
Party pursuant to any Loan Document;


 


(b)  Indebtedness of any
Subsidiary to the Borrower or any other Subsidiary;


 


(c)  Guarantee Obligations
incurred in the ordinary course of business by any Subsidiary of the Borrower
of obligations of any Subsidiary Guarantor;


 


(d)  Indebtedness outstanding on
the date hereof and listed on Schedule 6.2(d) and any refinancings,
refundings, renewals or extensions thereof (without increasing, or shortening
the maturity of, the principal amount thereof);


 


(e)  Indebtedness (including,
without limitation, Capital Lease Obligations) secured by Liens permitted by
Section 6.3(g) in an aggregate principal amount not to exceed $50,000,000
at any one time outstanding;


 


(f)  Indebtedness of any Person
that becomes a Subsidiary after the date hereof; provided that (i) such
Indebtedness exists at the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Subsidiary and (ii) after giving pro forma effect to the incurrence of such
Indebtedness, no Default or Event of Default shall have occurred and be
continuing; and


 


(g)  additional Indebtedness of
the Borrower’s Subsidiaries in an aggregate principal amount (for all such
Subsidiaries) not to exceed $75,000,000 at any one time outstanding.


 


6.3                                 Liens.  Create,
incur, assume or suffer to exist any Lien upon any of its property, whether now
owned or hereafter acquired, except:


 


(a)  Liens for taxes not yet due
or that are being contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;


 


(b)  carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s or other like Liens arising in the
ordinary course of business that are not overdue for a period of more than 30
days or that are being contested in good faith by appropriate proceedings;


 


(c)  pledges or deposits in
connection with workers’ compensation, unemployment insurance and other social
security legislation;


 


(d)  deposits to secure the
performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;


 


(e)  easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business that, in the aggregate, are not substantial in amount and that 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
Borrower or any of its Subsidiaries;


 


(f)  Liens in existence on the
date hereof listed on Schedule 6.3(f), securing Indebtedness permitted by
Section 6.2(d), provided that no such Lien is spread to cover any
additional property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;


 


29

















 


(g)                                 Liens securing (i) Indebtedness of any
Subsidiary of the Borrower incurred pursuant to Section 6.2(e) to finance
the acquisition of fixed or capital assets and (ii) Indebtedness of the
Borrower incurred to finance the acquisition of fixed or capital assets, provided
that (x) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (y) such Liens do not at any time
encumber any property other than the property financed by such Indebtedness and
(z) the amount of Indebtedness secured thereby is not increased;


 


(h)                                 any interest or title of a lessor under any
lease entered into by the Borrower or any other Subsidiary in the ordinary
course of its business and covering only the assets so leased;


 


(i)                                     any Lien existing on any property or asset
prior to the acquisition thereof by the Borrower or any Subsidiary or existing
on any property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary , as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Borrower or
any Subsidiary and (iii) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;


 


(j)                                     Liens encumbering property or assets under
construction (and proceeds or products thereof) arising from progress or
partial payments by a customer of the Borrower or its Subsidiaries relating to
such property or assets;


 


(k)                                  banker’s Liens and similar Liens in respect
of deposit accounts, and Liens in the ordinary course of business in favor of
securities intermediaries in respect of securities accounts securing fees and
costs owing to such securities intermediaries;


 


(l)                                     Liens on insurance proceeds in favor of
insurance companies with respect to the financing of premiums;


 


(m)                               precautionary filings in respect of true
leases;


 


(n)                                 Liens not otherwise permitted by this
Section so long as neither (i) the aggregate outstanding principal amount
of the obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject thereto
exceeds (as to the Borrower and all Subsidiaries) $25,000,000 at any one time;
and


 


(o)                                 until the later of (i) the completion of the
Borrower’s acquisition of Monolithic System Technology, Inc. and (ii)
October 30, 2004, any Lien on Margin Stock, if and to the extent the value
of all Margin Stock beneficially owned by the Borrower and its Subsidiaries
exceeds 25% of the value of the total assets subject to this Section 6.3.


 


6.4                                 Fundamental Changes.  Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:


 


(a)  any Subsidiary of the
Borrower may be merged or consolidated with or into the Borrower (provided
that the Borrower shall be the continuing or surviving corporation) or with or
into any directly or indirectly wholly-owned Subsidiary (provided that
the continuing or surviving corporation shall be a Subsidiary); and


 


30

















 


(b)  any Subsidiary of the
Borrower may Dispose of any or all of its assets (i) to the Borrower or any
Subsidiary (upon voluntary liquidation or otherwise) or (ii) pursuant to a
Disposition permitted by Section 6.5;


 


(c)  the Borrower or a
wholly-owned Subsidiary of the Borrower may merge with another corporation, provided
(i) the Borrower or such wholly-owned Subsidiary (subject to clause (ii)), as
the case may be, shall be the continuing or surviving corporation of such
merger, or (ii) in the case of a wholly-owned Subsidiary of the Borrower which
is merged into another corporation which is the continuing or surviving
corporation of such merger, the Borrower shall cause such continuing or
surviving corporation to be a wholly-owned Subsidiary of the Borrower; provided
in the case of (i) and (ii) above, immediately before and after giving effect
to such merger no Default or Event of Default shall have occurred and be
continuing; and


 


(d)  provided no Default or
Event of Default shall have occurred and be continuing, any Subsidiary may be
dissolved, wound-up or liquidated if the Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the Borrower, is not
materially disadvantageous to the Lenders and could not reasonably be expected
to have a Material Adverse Effect.


 


6.5                                 Disposition of Property.  Dispose of any of its property, whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary’s Capital Stock to any Person, except:


 


(a)  the Disposition of obsolete
or worn out property in the ordinary course of business;


 


(b)  the sale of inventory in
the ordinary course of business;


 


(c)  Dispositions permitted by
clause (i) of Section 6.4(b);


 


(d)  the sale or issuance of any
Subsidiary’s Capital Stock to the Borrower or any Subsidiary;


 


(e)  the sale of accounts
receivable pursuant to an accounts receivable securitization;


 


(f)  any wholly-owned Subsidiary
(the “Disposing Entity”) may Dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to (i) the Borrower or (ii) any other
wholly-owned Subsidiary of the Borrower; provided, in the case of clause
(ii), that if the Disposing Entity was a Subsidiary Guarantor prior to such
Disposition, the other wholly-owned Subsidiary must be a Subsidiary Guarantor
after giving effect to such Disposition;


 


(g)  the sale or other
Disposition of securities held for investment purposes in the ordinary course
of business;


 


(h)  Dispositions pursuant to
true leases;


 


(i)  the Disposition of
approximately 34 acres of undeveloped land owned by the Borrower and located in
San Jose, California;


 


(j)  the Disposition of other
property in one or a series of related transactions having an aggregate fair
market value not in excess of 10% of the tangible net assets of the Borrower
and its Subsidiaries at any time; provided that neither the Borrower nor
any of its Subsidiaries shall make


 


31

















 


a
Material Disposition unless (i) immediately before and immediately after giving
pro forma effect to such Material Disposition, no Default or Event of Default
shall have occurred and be continuing and (2) immediately after giving effect
to such Material Disposition, the Borrower and its Subsidiaries shall be in pro
forma compliance with the covenants set forth in 6.1, such compliance to be
determined on the basis of the financial information most recently delivered to
the Administrative Agent and the Lenders pursuant to Section 5.1(a) or (b)
as though such Material Disposition had been consummated as of the first day of
the fiscal period covered thereby and evidenced by a certificate from a
Responsible Officer of the Borrower demonstrating such compliance calculation
in reasonable detail; and


 


(k)                                  until the later of (i) the completion of the
Borrower’s acquisition of Monolithic System Technology, Inc. and (ii)
October 30, 2004, Dispositions of Margin Stock, if and to the extent the
value of all Margin Stock beneficially owned by the Borrower and its
Subsidiaries exceeds 25% of the value of the total assets subject to this
Section 6.5.


 


6.6                                 Transactions with Affiliates.  Enter into any material transaction,
including any purchase, sale, lease or exchange of property, the rendering of
any service or the payment of any management, advisory or similar fees, with
any Affiliate (other than the Borrower or any Subsidiary Guarantor) unless such
transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of business of the relevant Group Member, and (c) upon fair and
reasonable terms no less favorable to the relevant Group Member than it would
obtain in a comparable arm’s length transaction with a Person that is not an
Affiliate; except for:


 


(a)  transactions (i) approved
by a majority of the disinterested members of the board of directors of the
Borrower or (ii) for which the Borrower or any Subsidiary shall deliver to the
Administrative Agent a written opinion of a nationally recognized investment
banking, accounting, valuation or appraisal firm stating that the transaction
is fair to the Borrower or such Subsidiary from a financial point of view; and


 


(b)  the payment of reasonable
fees and compensation to officers and directors of the Borrower or any of its
Subsidiaries and reasonable indemnification arrangements entered into by the
Borrower or any of its Subsidiaries, including any issuance of securities, or
other payments, awards or grants in cash, securities or otherwise pursuant to,
or the funding of, employment arrangements, employee stock options and employee
stock ownership plans approved by the board of directors of the Borrower.


 


6.7                                 Changes in Fiscal Periods.  Without first giving prior written notice thereof
to the Administrative Agent and the Lenders, permit the fiscal year of the
Borrower to end on a day other than the Saturday closest to October 31 or
change the Borrower’s method of determining fiscal quarters; provided
that no more than one such notice shall be given during the term of this
Agreement.


 


6.8                                 Clauses Restricting Subsidiary
Distributions.  Enter into or
suffer to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary of the Borrower to (a) make Restricted
Payments in respect of any Capital Stock of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b)
make loans or advances to, or other Investments in, the Borrower or any other Subsidiary
of the Borrower or (c) transfer any of its assets to the Borrower or any other
Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents or under any law or regulation of any Governmental Authority, (ii)
any restrictions with respect to a Subsidiary imposed pursuant to an agreement
that has been entered into in connection with the Disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary, (iii) any


 


32

















 


restrictions in existence at the time the Borrower acquired or acquires
such Subsidiary, (iv) restrictions and conditions existing on the date hereof,
(v) customary provisions in leases or other agreements restricting the
assignment thereof, and (vi) any restrictions in agreements constituting
secured Indebtedness, provided the restrictions only apply to the assets
constituting security for such Indebtedness.


 


6.9                                 Lines of Business.  Enter into any business, either directly or through any
Subsidiary, except for those businesses in which the Borrower and its
Subsidiaries are engaged on the date of this Agreement or that are reasonably
related thereto.


 


6.10                           Material
Acquisitions.  Make a Material
Acquisition unless (i) immediately before and immediately after giving pro
forma effect to such Material Acquisition, no Default or Event of Default shall
have occurred and be continuing and (2) immediately after giving effect to such
Material Acquisition, the Borrower and its Subsidiaries shall be in pro forma
compliance with the covenants set forth in 6.1, such compliance to be
determined on the basis of the financial information most recently delivered to
the Administrative Agent and the Lenders pursuant to Section 5.1(a) or (b)
as though such Material Acquisition had been consummated as of the first day of
the fiscal period covered thereby and evidenced by a certificate from a
Responsible Officer of the Borrower demonstrating such compliance calculation
in reasonable detail; provided however, notwithstanding any of the
foregoing requirements in this Section 6.10, the Borrower’s acquisition of
Monolithic System Technology, Inc. shall be deemed to be made in compliance
with the provisions of this Section 6.10.


 


SECTION 7.                                EVENTS OF DEFAULT


 


7.1                                 Events of Default.  If
any of the following events shall occur and be continuing:


 


(a)  the Borrower shall fail to
pay any principal of any Revolving Loan when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Revolving Loan,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance
with the terms hereof; or


 


(b)  any representation or
warranty made or deemed made by any Loan Party herein or in any other Loan
Document or that is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this Agreement
or any such other Loan Document shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made, unless the facts or
circumstances to which such representation or warranty relates shall have been
subsequently corrected so as to make such representation or warranty no longer
inaccurate in any material respect; or


 


(c)  any Loan Party shall
default in the observance or performance of any agreement contained in clause
(i) or (ii) of Section 5.4(a) (with respect to the Borrower only),
Section 5.7(a) or Section 6 of this Agreement; or


 


(d)  any Loan Party shall
default in the observance or performance of any other agreement contained in
this Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section), and such default shall continue unremedied
for a period of 30 days after notice to the Borrower from the Administrative
Agent or the Required Lenders; or


 


(e)  any Group Member shall (i)
default in making any payment of any principal of any Indebtedness (including
any Guarantee Obligation, but excluding the Revolving Loans) on the


 


33

















 


scheduled
or original due date with respect thereto; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness constituting
a Guarantee Obligation) to become payable; provided, that a default,
event or condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not at any time constitute an Event of Default unless, at such time, one
or more defaults, events or conditions of the type described in clauses (i),
(ii) and (iii) of this paragraph (e) shall have occurred and be continuing with
respect to Indebtedness the outstanding principal amount of which exceeds in
the aggregate $15,000,000; or


 


(f)  (i) any Group Member shall commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets, or any Group
Member shall make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against any Group Member any case, proceeding or
other action of a nature referred to in clause (i) above that (A) results in
the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against any Group Member any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets that results
in the entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; (iv) any Group Member shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due; or


 


(g)  (i) any Person shall engage in any “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined
in Section 302 of ERISA), whether or not waived, shall exist with respect
to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the
assets of any Group Member or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) any Group Member or any Commonly Controlled
Entity shall, or in the reasonable opinion of the Required Lenders is likely
to, incur any liability in connection with a withdrawal from, or the Insolvency
or Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such
events or conditions, if any, could, in the sole judgment of the Required
Lenders, reasonably be expected to have a Material Adverse Effect; or


 


34

















 


(h)  one or more judgments or
decrees shall be entered against any Group Member involving in the aggregate a
liability (not paid by the Borrower or its Subsidiaries or paid or fully
covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $15,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 45 days from the entry thereof; or


 


(i)  the Guarantee Agreement or
the guarantee contained in Section 2 thereof shall cease, for any reason,
to be in full force and effect, or any Loan Party or any Affiliate of any Loan
Party shall so assert; or


 


(j)  a Change in Control shall
occur;


 


then,
and in any such event, (A) if such event is an Event of Default specified in
clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Revolving Commitments shall immediately terminate and the
Revolving Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents shall immediately become due
and payable, and (B) if such event is any other Event of Default, either or
both of the following actions may be taken: 
(i) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Revolving Commitments to be
terminated forthwith, whereupon the Revolving Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Revolving
Loans (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable.  Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower.


 


7.2                                 Annulment of Defaults.  An
Event of Default shall not be deemed to be in existence for any purpose of this
Agreement if the Administrative Agent, with the consent of or at the direction
of the Required Lenders, subject to Section 9.1, shall have waived such
Event of Default in writing or stated in writing that the same has been cured
to its reasonable satisfaction, but no such waiver shall extend to or affect
any subsequent Event of Default or impair any rights of the Administrative
Agent or the Lenders upon the occurrence thereof.


 


SECTION 8.                                THE AGENTS


 


8.1                                 Appointment. 
Each Lender hereby irrevocably designates and appoints the Administrative
Agent as the agent of such Lender under this Agreement and the other Loan
Documents, and each such Lender irrevocably authorizes the Administrative
Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto.   Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary relationship
with any Lender, 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 the Administrative Agent.


 


8.2                                 Delegation of Duties.  The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.  The Administrative


 


35

















 


Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys in-fact selected by it with reasonable care.


 


8.3                                 Exculpatory Provisions.  Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such Person’s own bad faith, gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or any other Loan Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Agents under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. 
The Agents shall not be under any obligation to any Lender 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.


 


8.4                                 Reliance by Administrative Agent.  The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. 
The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent.  The Administrative Agent shall
be fully justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders (or, if so specified by this Agreement, all
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such
action.  The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders), and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Revolving Loans.


 


8.5                                 Notice of Default.  The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default”.  In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the Lenders.  The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.


 


8.6                                 Non-Reliance on Agents and Other Lenders.  Each Lender expressly acknowledges that
neither the Agents nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates have made any representations or
warranties to it and that no act by any


 


36

















 


Agent hereafter taken, including any review of the affairs of a Loan
Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender.  Each Lender represents to the Agents that it
has, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates and made its own decision to make its Revolving Loans
hereunder and enter into this Agreement. 
Each Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates.  Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party that may come into the possession of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.


 


8.7                                 Indemnification.  The Lenders agree to indemnify each Agent in its capacity as such
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Aggregate Exposure Percentages in effect on the date on which indemnification
is sought under this Section (or, if indemnification is sought after the
date upon which the Revolving Commitments shall have terminated and the
Revolving Loans shall have been paid in full, ratably in accordance with such
Aggregate Exposure Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Revolving Loans) be imposed on, incurred by or asserted against such Agent in
any way relating to or arising out of, the Revolving Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are
found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent’s bad faith, gross negligence or
willful misconduct.  The agreements in
this Section shall survive the payment of the Revolving Loans and all
other amounts payable hereunder.


 


8.8                                 Agent in Its Individual Capacity.  Each Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of business with any
Loan Party as though such Agent were not an Agent.  With respect to its Revolving Loans made or renewed by it, each
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.


 


8.9                                 Successor Administrative Agent.  The Administrative Agent may resign as
Administrative Agent upon 10 days’ notice to the Lenders and the Borrower.  If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for
the Lenders, which successor agent shall (unless an Event of Default under Section 7(a)
or Section 7(f) with respect to the Borrower shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the


 


37

















 


rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Revolving Loans.  If no successor agent has accepted
appointment as Administrative Agent by the date that is 10 days following a
retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.  After any retiring Administrative Agent’s resignation as
Administrative Agent, the provisions of this Section 8 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 and the other Loan Documents.


 


8.10                           Syndication Agent.  The Syndication Agent shall not have any duties or
responsibilities hereunder in its capacity as such.


 


SECTION 9.                                MISCELLANEOUS


 


9.1                                 Amendments and Waivers.  Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this
Section 9.1.  The Required Lenders
and each Loan Party party to the relevant Loan Document may, or, with the
written consent of the Required Lenders, the Administrative Agent and each Loan
Party party to the relevant Loan Document may, from time to time, (a) enter
into written amendments, supplements or modifications hereto and to the other
Loan Documents for the purpose of adding any provisions to this Agreement or
the other Loan Documents or changing in any manner the rights of the Lenders or
of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement
or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) forgive the principal amount or
extend the final scheduled date of maturity of any Revolving Loan, reduce the
stated rate of any interest or fee payable hereunder (except (x) in connection
with the waiver of applicability of any post-default increase in interest rates
(which waiver shall be effective with the consent of the Required Lenders) and
(y) that any amendment or modification of defined terms used in the financial
covenants in this Agreement shall not constitute a reduction in the rate of
interest or fees for purposes of this clause (i)) or extend the scheduled date
of any payment thereof, or increase the amount or extend the expiration date of
any Lender’s Revolving Commitment, in each case without the written consent of
each Lender directly affected thereby; 
(ii) eliminate or reduce the voting rights of any Lender under this
Section 9.1 without the written consent of such Lender; (iii) reduce any
percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations under
this Agreement and the other Loan Documents, or release all or substantially
all of the Subsidiary Guarantors from their obligations under the Guarantee
Agreement, in each case without the written consent of all Lenders; or (iv)
amend, modify or waive any provision of Section 8 without the written
consent of the Administrative Agent. 
Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Administrative Agent and all future holders of the
Revolving Loans.  In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.


 


38

















 


9.2                                 Notices. 
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered, or three Business Days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice, when received, addressed
as follows in the case of the Borrower and the Administrative Agent, and as set
forth in an administrative questionnaire delivered to the Administrative Agent
in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:


 


	
  Borrower:

  	
   

  	
  700
  East Middlefield Road  Mountain View,
  California 94043

  
	
   

  	
   

  	
  Attention:  Treasurer

  
	
   

  	
   

  	
  Telecopy:  (650) 584-4240

  
	
   

  	
   

  	
  Telephone:  (650) 962-5000

  
	
   

  	
   

  	
  With
  a copy to:  VP and General Counsel

  
	
   

  	
   

  	
   

  
	
  Administrative
  Agent:

  	
   

  	
  Loan
  and Agency Services,

  
	
   

  	
   

  	
  1111
  Fannin St., 10th Floor

  
	
   

  	
   

  	
  Houston,
  Texas 77002

  
	
   

  	
   

  	
  Attention:  Peggy L. Sanders

  
	
   

  	
   

  	
  Telecopy:  (713) 750-2938

  
	
   

  	
   

  	
  Telephone:  (713) 750-7940

  
	
   

  	
   

  	
   

  



 


provided that any notice, request or demand to or
upon the Administrative Agent or the Lenders shall not be effective until
received.


 


Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender.  The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.


 


9.3                                 No Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents 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.


 


9.4                                 Survival of Representations and
Warranties.  All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of
the Revolving Loans and other extensions of credit hereunder.


 


9.5                                 Payment of Expenses and Taxes.  The Borrower agrees (a) to pay or reimburse
the Administrative Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith


 


39

















 


or therewith, and the consummation of the transactions contemplated
hereby and thereby, including the reasonable fees and disbursements of outside
counsel to the Administrative Agent and filing and recording fees and expenses,
with statements with respect to the foregoing to be submitted to the Borrower
at least one Business Day prior to the Closing Date (in the case of amounts to
be paid on the Closing Date) and from time to time thereafter on a quarterly
basis or such other periodic basis as the Administrative Agent shall deem
appropriate, (b) to pay or reimburse each Lender and the Administrative Agent
for all its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including the fees and disbursements of outside
counsel to each Lender and of outside counsel to the Administrative Agent, (c)
to pay, indemnify, and hold each Lender and the Administrative Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and
hold each Lender and the Administrative Agent and their respective officers,
directors, employees, affiliates, agents and controlling persons (each, an “Indemnitee”)
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement and  performance of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Revolving Loans or the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of any Group Member or any of the Properties and
the reasonable fees and expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party under any Loan
Document, excluding litigation commenced by the Borrower against any of the
Administrative Agent or the Lenders which (i) seeks enforcement of any of the
Borrower’s rights hereunder and (ii) is determined adversely to any of the
Administrative Agent or the Lenders in final and nonappealable decision of a
court of competent jurisdiction (all the foregoing in this clause (d),
collectively, the “Indemnified Liabilities”), provided, that the
Borrower shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the bad faith, gross negligence or willful misconduct of such
Indemnitee.  Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives
and agrees to cause its Subsidiaries to waive, all rights for contribution or
any other rights of recovery with respect to all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind
or nature, under or related to Environmental Laws, that any of them might have
by statute or otherwise against any Indemnitee.  All amounts due under this Section 9.5 shall be payable not
later than 10 days after written demand therefor.  Statements payable by the Borrower pursuant to this
Section 9.5 shall be submitted to Treasurer (Telephone No. (650) 962-5000)
(Telecopy No. (650) 584-4240), at the address of the Borrower set forth in
Section 9.2, or to such other Person or address as may be hereafter
designated by the Borrower in a written notice to the Administrative
Agent.  The agreements in this
Section 9.5 shall survive repayment of the Revolving Loans and all other
amounts payable hereunder.


 


9.6                                 Successors and Assigns; Participations
and Assignments.  (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 (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.


 


40

















 


(b)(i)  Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may in accordance with applicable law
assign to one or more assignees (each, an “Assignee”) all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Revolving Commitments and the Revolving Loans at the time owing to it)
with the prior written consent of:


 


(A) the Borrower (such consent not to be unreasonably withheld), provided
that no consent of the Borrower shall be required for an assignment to a
Lender, an affiliate of a Lender or, if an Event of Default has occurred and is
continuing, any other Person; and


 


(B) the Administrative Agent (such consent not to be unreasonably
withheld).


 


(ii) Assignments shall be subject to the following additional
conditions:


 


(A) except in the case of an assignment to a Lender or an affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Revolving Commitments or Revolving Loans, the amount of the Revolving
Commitments or Revolving Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, provided that (1) no such consent of the
Borrower shall be required if an Event of Default under Section 8(a) or
(f) has occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its affiliates, if any;


 


(B) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500; and


 


(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire.


 


(iii)
Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
below, from and after the effective date specified in each Assignment and
Assumption the Assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.12, 2.13, 2.14 and 9.5).  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.6 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 paragraph (c) of this Section.


 


(iv)  The Administrative Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its offices a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving
Commitments of, and principal amount of the Revolving Loans owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary.


 


41

















 


(v)  Upon its receipt of a duly completed
Assignment and Assumption executed by an assigning Lender and an Assignee, the
Assignee’s completed administrative questionnaire (unless the Assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Assumption and record the information
contained therein in the Register.  No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.


 


(c)(i)  Any Lender may, in accordance with
applicable law, without the consent of the Borrower or the Administrative
Agent, sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Revolving Commitments and the
Revolving Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the 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 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
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver that (1) requires the consent of
each Lender directly affected thereby pursuant to the proviso to the second
sentence of Section 9.1 and (2) directly affects such Participant.  Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.12, 2.13 and 2.14 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.  To the extent permitted
by law, each Participant also shall be entitled to the benefits of
Section 9.7(b) as though it were a Lender, provided such Participant shall
be subject to Section 9.7(a) as though it were a Lender.


 


(ii)  A Participant shall not be entitled to
receive any greater payment under Section 2.12 or 2.13 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent which
specifically acknowledges the Participant’s entitlement to any such greater
payment (and the provisions of this Section 9.6(c) shall not in any manner
be deemed to constitute such prior written consent).  Any Participant that is a Non-U.S. Lender shall not be entitled
to the benefits of Section 2.13 unless such Participant complies with
Section 2.13(d).


 


(d)  Any Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no
such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or Assignee for
such Lender as a party hereto.


 


(e)  The Borrower, upon receipt of written notice
from the relevant Lender, agrees to issue Notes to any Lender requiring Notes
to facilitate transactions of the type described in paragraph (d) above.


 


9.7                                 Adjustments; Set-off.  (a) 
Except to the extent that this Agreement expressly provides for payments
to be allocated to a particular Lender, if any Lender (a “Benefited Lender”)
shall, at any time after the Revolving Loans and other amounts payable
hereunder shall immediately become due and payable pursuant to Section 7
receive any payment of all or part of the Obligations owing to it, or


 


42

















 


receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7(f), or otherwise), in a greater proportion than
any such payment to or collateral received by any other Lender, if any, in
respect of the Obligations owing to such other Lender, such Benefited Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.


 


(b)  In addition to any rights and remedies of
the Lenders provided by law, each Lender shall have the right, without prior
notice to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, upon any amount becoming due and
payable by the Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the Borrower.  Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application
made by such Lender, provided that the failure to give such notice shall
not affect the validity of such setoff and application.


 


9.8                                 Counterparts. 
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.  Delivery of an executed signature page of
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.  A
set of the copies of this Agreement signed by all the parties shall be lodged
with the Borrower and the Administrative Agent.


 


9.9                                 Severability. 
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


9.10                           Integration. 
This Agreement and the other Loan Documents represent the entire
agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to the subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.


 


9.11                           GOVERNING LAW.  THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.


 


9.12                           Submission To Jurisdiction; Waivers.  The Borrower hereby irrevocably and unconditionally:


 


43

















 


(a)  submits for itself and its
property in any legal action or proceeding relating to this Agreement and the
other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United States for the
Southern District of New York, and appellate courts from any thereof;


 


(b)  consents that any such action
or proceeding may be brought in such courts and waives any objection that it
may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;


 


(c)  agrees that service of
process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Borrower, as the case may be at its address set
forth in Section 9.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto;


 


(d)  agrees that nothing herein
shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any other jurisdiction; and


 


(e)  waives, to the maximum
extent not prohibited by law, any right it may have to claim or recover in any
legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.


 


9.13                           Acknowledgements.  The Borrower hereby acknowledges that:


 


(a)  it has been advised by
counsel in the negotiation, execution and delivery of this Agreement and the
other Loan Documents;


 


(b)  neither the Administrative
Agent nor any Lender has any fiduciary relationship with or duty to the
Borrower arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between Administrative Agent and
Lenders, on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and


 


(c)  no joint venture is created
hereby or by the other Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among the Borrower and
the Lenders.


 


9.14                           Releases of Guarantees and Liens.  (a) 
Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the Administrative Agent is hereby irrevocably authorized
by each Lender (without requirement of notice to or consent of any Lender
except as expressly required by Section 9.1) to take any action requested
by the Borrower having the effect of releasing any guarantee obligations (i) to
the extent necessary to permit consummation of any transaction not prohibited
by any Loan Document or that has been consented to in accordance with
Section 9.1 or (ii) under the circumstances described in paragraph (b)
below.


 


(b)  At such time as the Revolving Loans and the other
obligations under the Loan Documents (other than obligations under or in
respect of Swap Agreements) shall have been paid in full and the Revolving
Commitments have been terminated, the Guarantee Agreement and all obligations
(other than those expressly stated to survive such termination) of the
Administrative Agent and each Loan


 


44

















 


Party under the Guarantee Agreement shall terminate, all without
delivery of any instrument or performance of any act by any Person.


 


9.15                           Confidentiality.  Each of the Administrative Agent and each Lender agrees to keep
confidential all non-public information provided to it by any Loan Party, the
Administrative Agent or any Lender pursuant to or in connection with this Agreement
that is designated by the provider thereof as confidential; provided
that nothing herein shall prevent the Administrative Agent or any Lender from
disclosing any such information (a) to the Administrative Agent, any other
Lender or any affiliate thereof, (b) subject to an agreement to comply with the
provisions of this Section, to any actual or prospective Transferee or any
direct or indirect counterparty to any Swap Agreement (or any professional
advisor to such counterparty), (c) to its employees, directors, agents,
attorneys, accountants and other professional advisors or those of any of its
affiliates, (d) upon the request or demand of any Governmental Authority, (e)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (f) if requested or
required to do so in connection with any litigation or similar proceeding, (g)
that has been publicly disclosed under circumstances not otherwise in violation
of this Section 9.15, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender’s investment
portfolio in connection with ratings issued with respect to such Lender, or (i)
in connection with the exercise of any remedy hereunder or under any other Loan
Document.


 


9.16                           WAIVERS OF JURY
TRIAL.  THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


9.17                           USA Patriot Act. 
Each Lender hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with the Act.


 


45

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.


 


	
   

  	
  SYNOPSYS,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Steven K. Shevick

  
	
   

  	
  Name:

  	
  Steven
  K. Shevick

  
	
   

  	
  Title:

  	
  Senior
  V.P. & CFO

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, as Administrative Agent

  and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  David Gibbs

  
	
   

  	
  Name:

  	
  David
  Gibbs

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A., as Syndication Agent and

  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Sugeet Manchanda

  
	
   

  	
  Name:

  	
  Sugeet
  Manchanda

  
	
   

  	
  Title:

  	
  Principal

  



 


46

















 


	
   

  	
  ABN
  AMRO BANK N.V.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Maria Vickroy-Peralta

  
	
   

  	
  Name:

  	
  Maria
  Vickroy-Peralta

  
	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  William W. Davidson

  
	
   

  	
  Name:

  	
  William
  W. Davidson

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


47

















 


	
   

  	
  BANK
  LEUMI USA

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Boaz Blumovitz

  
	
   

  	
  Name:

  	
  Boaz
  Blumovitz

  
	
   

  	
  Title:

  	
  FVP

  
				



 


48

















 


	
   

  	
  THE
  BANK OF NOVA SCOTIA

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Christopher Johnson

  
	
   

  	
  Name:

  	
  Christopher
  Johnson

  
	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Dan Cameron

  
	
   

  	
  Name:

  	
  Dan
  Cameron

  
	
   

  	
  Title:

  	
  Director

  



 


49

















 


	
   

  	
  BNP
  PARIBAS

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Rafael C. Lumanian

  
	
   

  	
  Name:

  	
  Rafael
  C. Lumanian

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Sandra F. Bertram

  
	
   

  	
  Name:

  	
  Sandra
  F. Bertram

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


50

















 


	
   

  	
  COMERICA
  BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Robert Shutt

  
	
   

  	
  Name:

  	
  Robert
  Shutt

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
				



 


51

















 


	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Robert W. Boswell

  
	
   

  	
  Name:

  	
  Robert
  W. Boswell

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


52

















 


	
   

  	
  MIZUHO
  CORPORATE BANK, LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Bertram H. Tang

  
	
   

  	
  Name:

  	
  Bertram
  H. Tang

  
	
   

  	
  Title:

  	
  Senior
  Vice President & Team Leader

  
				



 


53

















 


	
   

  	
  SILICON
  VALLEY BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Maria Fischer Leaf

  
	
   

  	
  Name:

  	
  Maria
  Fischer Leaf

  
	
   

  	
  Title:

  	
  SVP

  
				



 


54

















 


	
   

  	
  UNION
  BANK OF CALIFORNIA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Sarabelle Hitchner

  
	
   

  	
  Name:

  	
  Sarabelle
  Hitchner

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


55

















 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Douglas A. Rich

  
	
   

  	
  Name:

  	
  Douglas
  A. Rich

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


56

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Matthew T. Burke

  
	
   

  	
  Name:

  	
  Matthew
  T. Burke

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


57