Table of Contents                   Page           1.   DEFINITIONS AND CONSTRUCTION  1    1.1  Definitions  1    1.2  Accounting Terms  1    1.3  Code  1    1.4  Construction  1    1.5  Schedules and Exhibits  1            2.   LOAN AND TERMS OF PAYMENT  2    2.1  Revolver Advances  2    2.2  Term Loan  2    2.3  Borrowing Procedures and Settlements  2    2.4  Payments; Reductions of Commitments; Prepayments  6    2.5  Overadvances  10    2.6  Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations  10    2.7  Crediting Payments  12    2.8  Designated Account  12    2.9  Maintenance of Loan Account; Statements of Obligations  12    2.10  Fees  12    2.11  Letters of Credit  12    2.12  LIBOR Option  15    2.13  Capital Requirements  17            3.   CONDITIONS; TERM OF AGREEMENT  18    3.1  Conditions Precedent to the Initial Extension of Credit  18    3.2  Conditions Precedent to all Extensions of Credit  18    3.3  Term  18    3.4  Effect of Termination  18    3.5  Early Termination by Borrower  18    3.6  Conditions Subsequent  19            4.   REPRESENTATIONS AND WARRANTIES  19    4.1  Due Organization and Qualification; Subsidiaries  19    4.2  Due Authorization; No Conflict  19    4.3  Governmental Consents  20    4.4  Binding Obligations; Perfected Liens  20    4.5  Title to Assets; No Encumbrances  20    4.6  Jurisdiction of Organization; Location of Chief Executive Office;Organizational Identification Number; Commercial Tort Claims   20 
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Table of Contents(continued)                   Page              4.7  Litigation  21    4.8  Compliance with Laws  21    4.9  No Material Adverse Change  21    4.10  Fraudulent Transfer  21    4.11  Employee Benefits  21    4.12  Environmental Condition  22    4.13  Intellectual Property  22    4.14  Leases  22    4.15  Deposit Accounts and Securities Accounts  22    4.16  Complete Disclosure  22    4.17  Material Contracts  23    4.18  Patriot Act  23    4.19  Indebtedness  23    4.20  Payment of Taxes  23    4.21  Margin Stock  23    4.22  Governmental Regulation  23    4.23  OFAC  24    4.24  Location of Equipment  24    4.25  Excluded Subsidiaries  24            5.   AFFIRMATIVE COVENANTS  24    5.1  Financial Statements, Reports, Certificates  24    5.2  Collateral Reporting  24    5.3  Existence  24    5.4  Maintenance of Properties  24    5.5  Taxes  25    5.6  Insurance  25    5.7  Inspection  25    5.8  Compliance with Laws  25    5.9  Environmental  26    5.10  Disclosure Updates  26    5.11  Formation of Subsidiaries  26    5.12  Further Assurances  27    5.13  Lender Meetings  27    5.14  Material Contracts  27 
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Table of Contents(continued)                   Page              5.15  Location of Equipment  27    5.16  Assignable Material Contracts  27            6.   NEGATIVE COVENANTS  27    6.1  Indebtedness  28    6.2  Liens  28    6.3  Restrictions on Fundamental Changes  28    6.4  Disposal of Assets  28    6.5  Change Name  28    6.6  Nature of Business  28    6.7  Prepayments and Amendments  29    6.8  [intentionally omitted]  29    6.9  Distributions  29    6.10  Accounting Methods  30    6.11  Investments  30    6.12  Transactions with Affiliates  30    6.13  Use of Proceeds  31            7.   FINANCIAL COVENANTS  31            8.   EVENTS OF DEFAULT  32            9.   RIGHTS AND REMEDIES  34    9.1  Rights and Remedies  34    9.2  Remedies Cumulative  34            10.   WAIVERS; INDEMNIFICATION  34    10.1  Demand; Protest; etc.  34    10.2  The Lender Group’s Liability for Collateral  34    10.3  Indemnification  35            11.   NOTICES  35            12.   CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE  36            13.   ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS  37    13.1  Assignments and Participations  37    13.2  Successors  40            14.   AMENDMENTS; WAIVERS  40    14.1  Amendments and Waivers  40    14.2  Replacement of Holdout Lender  41    14.3  No Waivers; Cumulative Remedies  42 
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Table of Contents(continued)                   Page           15.   AGENT; THE LENDER GROUP  42    15.1  Appointment and Authorization of Agent  42    15.2  Delegation of Duties  43    15.3  Liability of Agent  43    15.4  Reliance by Agent  43    15.5  Notice of Default or Event of Default  43    15.6  Credit Decision  44    15.7  Costs and Expenses; Indemnification  44    15.8  Agent in Individual Capacity  45    15.9  Successor Agent  45    15.10  Lender in Individual Capacity  45    15.11  Collateral Matters  45    15.12  Restrictions on Actions by Lenders; Sharing of Payments  46    15.13  Agency for Perfection  46    15.14  Payments by Agent to the Lenders  47    15.15  Concerning the Collateral and Related Loan Documents  47    15.16  Audits and Examination Reports; Confidentiality; Disclaimers byLenders; Other Reports and Information  47    15.17  Several Obligations; No Liability  48            16.   WITHHOLDING TAXES  48            17.   GENERAL PROVISIONS  50    17.1  Effectiveness  50    17.2  Section Headings  50    17.3  Interpretation  50    17.4  Severability of Provisions  50    17.5  Bank Product Providers  51    17.6  Debtor-Creditor Relationship  51    17.7  Counterparts; Electronic Execution  51    17.8  Revival and Reinstatement of Obligations  51    17.9  Confidentiality  51    17.10  Lender Group Expenses  52    17.11  USA PATRIOT Act  52    17.12  Integration  52 
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**EXHIBITS AND SCHEDULES**   Exhibit A-1 Form of Assignment and AcceptanceExhibit C-1 Form of Compliance CertificateExhibit C-2 Form of Credit Amount CertificateExhibit L-1 Form of LIBOR Notice   Schedule C-1 CommitmentsSchedule 1.1 DefinitionsSchedule 3.1 Conditions PrecedentSchedule 3.6 Conditions SubsequentSchedule 5.1 Financial Statements, Reports, CertificatesSchedule 5.2 Collateral Reporting
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**CREDIT AGREEMENT**     **THIS CREDIT AGREEMENT**(this “Agreement”), is entered into as of December 24, 2008, byand among the lenders identified on the signature pages hereof (such lenders, together with theirrespective successors and permitted assigns, are referred to hereinafter each individually as a“Lender” and collectively as the “Lenders”), **WELLS FARGO FOOTHILL, LLC**, a Delawarelimited liability company, as the arranger and administrative agent for the Lenders (in suchcapacity, together with its successors and assigns in such capacity, “Agent”), and**OMNITURE, INC**., a Delaware corporation (“Borrower”).     The parties agree as follows:**1. DEFINITIONS AND CONSTRUCTION**.     **1.1****Definitions****.**Capitalized terms used in this Agreement shall have the meaningsspecified therefor on Schedule 1.1.     **1.2****Accounting Terms****.**All accounting terms not specifically defined herein shall beconstrued in accordance with GAAP. When used herein, the term “financial statements” shall includethe notes and schedules thereto. Whenever the term “Borrower” is used in respect of a financialcovenant or a related definition, it shall be understood to mean Borrower and its Subsidiaries on aconsolidated basis, unless the context clearly requires otherwise.     **1.3****Code****.**Any terms used in this Agreement that are defined in the Code shall beconstrued and defined as set forth in the Code unless otherwise defined herein; provided,however, that to the extent that the Code is used to define any term herein and such termis defined differently in different Articles of the Code, the definition of such term contained inArticle 9 of the Code shall govern.     **1.4****Construction****.**Unless the context of this Agreement or any other Loan Documentclearly requires otherwise, references to the plural include the singular, references to thesingular include the plural, the terms “includes” and “including” are not limiting, and the term“or” has, except where otherwise indicated, the inclusive meaning represented by the phrase“and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreementor any other Loan Document refer to this Agreement or such other Loan Document, as the case may be,as a whole and not to any particular provision of this Agreement or such other Loan Document, asthe case may be. Section, subsection, clause, schedule, and exhibit references herein are to thisAgreement unless otherwise specified. Any reference in this Agreement or in any other LoanDocument to any agreement, instrument, or document shall include all alterations, amendments,changes, extensions, modifications, renewals, replacements, substitutions, joinders, andsupplements, thereto and thereof, as applicable (subject to any restrictions on such alterations,amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders,and supplements set forth herein). The words “asset” and “property” shall be construed to have thesame meaning and effect and to refer to any and all tangible and intangible assets and properties,including cash, securities, accounts, and contract rights. Any reference herein or in any otherLoan Document to the satisfaction or repayment in full of the Obligations shall mean the repaymentin full in cash (or, in the case of Letters of Credit or Bank Products, providing Letter of CreditCollateralization) of all Obligations other than unasserted contingent indemnification Obligationsand other than any Bank Product Obligations that, at such time, are allowed by the applicable BankProduct Provider to remain outstanding and that are not required by the provisions of thisAgreement to be repaid or cash collateralized. Any reference herein to any Person shall beconstrued to include such Person’s successors and assigns. Any requirement of a writing containedherein or in any other Loan Document shall be satisfied by the transmission of a Record.     **1.5****Schedules and Exhibits****.**All of the schedules and exhibits attached to thisAgreement shall be deemed incorporated herein by reference.
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**2. LOAN AND TERMS OF PAYMENT**.     **2.1****Revolver Advances**.          (a) Subject to the terms and conditions of this Agreement, and during the term of thisAgreement, each Lender with a Revolver Commitment agrees (severally, not jointly or jointly andseverally) to make advances (“Advances”) to Borrower in an amount at any one timeoutstanding not to exceed such Lender’s Pro Rata Share of an amount equal to the lesser of (i) theMaximum Revolver Amount less the sum of (x) the Letter of Credit Usage and (y) the Bank ProductReserve at such time, and (ii) the Credit Amount at such time less the sum of (x) Letter of CreditUsage and (y) the Bank Product Reserve at such time.          (b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to theterms and conditions of this Agreement, reborrowed at any time during the term of this Agreement.The outstanding principal amount of the Advances, together with interest accrued thereon, shall bedue and payable on the Maturity Date or, if earlier, on the date on which they are declared due andpayable pursuant to the terms of this Agreement.          (c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have theright to establish reserves against the Credit Amount or the Maximum Revolver Amount in suchamounts, and with respect to such matters, as Agent in its Permitted Discretion shall deemnecessary or appropriate, including without limitation, the Bank Product Reserve.     **2.2****Term Loan****.**Subject to the terms and conditions of this Agreement, on the ClosingDate each Lender with a Term Loan Commitment agrees (severally, not jointly or jointly andseverally) to make term loans (collectively, the “Term Loan”) to Borrower in an amountequal to such Lender’s Pro Rata Share of the Term Loan Amount. The principal of the Term Loanshall be repaid on the following dates and in the following amounts:     Date Installment Amounton the last day of each June, September, December andMarch commencing on March 31, 2009 $375,000 The outstanding unpaid principal balance and all accrued and unpaid interest on the Term Loan shallbe due and payable on the earlier of (i) the Maturity Date, and (ii) the date of the accelerationof the Term Loan in accordance with the terms hereof. All principal of, interest on, and otheramounts payable in respect of the Term Loan shall constitute Obligations.     **2.3****Borrowing Procedures and Settlements**.          (a) **Procedure for Borrowing.**Each Borrowing shall be made by a written request by anAuthorized Person delivered to Agent. Unless Swing Lender is not obligated to make a Swing Loanpursuant to Section 2.3(b) below, such notice must be received by Agent no later than 10:00a.m. (California time) on the Business Day that is the requested Funding Date specifying (i) theamount of such Borrowing, and (ii) the requested Funding Date, which shall be a Business Day;provided, however, that if Swing Lender is not obligated to make a Swing Loan as toa requested Borrowing, such notice must be received by Agent no later than 10:00 a.m. (Californiatime) on the Business Day prior to the date that is the requested Funding Date. At Agent’selection, in lieu of delivering the above-described written request, any Authorized Person may giveAgent telephonic notice of such request by the required time. In such circumstances, Borroweragrees that any such telephonic notice will be confirmed in writing within 24 hours of the givingof such telephonic notice, but the failure to provide such written confirmation shall not affectthe validity of the request.
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          (b) **Making of Swing Loans.**In the case of a request for an Advance and so long as either (i)the aggregate amount of Swing Loans made since the last Settlement Date, minus the amount ofCollections or payments applied to Swing Loans since the last Settlement Date, plus the amount ofthe requested Advance does not exceed $5,000,000, or (ii) Swing Lender, in its sole discretion,shall agree to make a Swing Loan notwithstanding the foregoing limitation, Swing Lender shall makean Advance in the amount of such Borrowing (any such Advance made solely by Swing Lender pursuantto this Section 2.3(b) being referred to as a “Swing Loan” and such Advances beingreferred to collectively as “Swing Loans”) available to Borrower on the Funding Dateapplicable thereto by transferring immediately available funds to Borrower’s Designated Account.Each Swing Loan shall be deemed to be an Advance hereunder and shall be subject to all the termsand conditions applicable to other Advances, except that all payments on any Swing Loan shall bepayable to Swing Lender solely for its own account. Subject to the provisions of Section2.3(d)(ii), Swing Lender shall not make and shall not be obligated to make any Swing Loan ifSwing Lender has actual knowledge that (i) one or more of the applicable conditions precedent setforth in Section 3 will not be satisfied on the requested Funding Date for the applicableBorrowing, or (ii) the requested Borrowing would exceed the Availability on such Funding Date.Swing Lender shall not otherwise be required to determine whether the applicable conditionsprecedent set forth in Section 3 have been satisfied on the Funding Date applicable theretoprior to making any Swing Loan. The Swing Loans shall be secured by the Agent’s Liens, constituteObligations hereunder, and bear interest at the rate applicable from time to time to Advances thatare Base Rate Loans.          (c) **Making of Loans**.               (i) In the event that Swing Lender is not obligated to make a Swing Loan, then promptly afterreceipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify theLenders, not later than 1:00 p.m. (California time) on the Business Day immediately preceding theFunding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, ofthe requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of therequested Borrowing available to Agent in immediately available funds, to Agent’s Account, notlater than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent’sreceipt of the proceeds of such Advances, Agent shall make the proceeds thereof available toBorrower on the applicable Funding Date by transferring immediately available funds equal to suchproceeds received by Agent to the Designated Account; provided, however, that,subject to the provisions of Section 2.3(d)(ii), Agent shall not request any Lender tomake, and no Lender shall have the obligation to make, any Advance if (1) one or more of theapplicable conditions precedent set forth in Section 3 will not be satisfied on therequested Funding Date for the applicable Borrowing unless such condition has been waived, or (2)the requested Borrowing would exceed the Availability on such Funding Date.               (ii) Unless Agent receives notice from a Lender prior to 9:00 a.m. (California time) on thedate of a Borrowing, that such Lender will not make available as and when required hereunder toAgent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Borrowing,Agent may assume that each Lender has made or will make such amount available to Agent inimmediately available funds on the Funding Date and Agent may (but shall not be so required), inreliance upon such assumption, make available to Borrower on such date a corresponding amount. Ifany Lender shall not have made its full amount available to Agent in immediately available fundsand if Agent in such circumstances has made available to Borrower such amount, that Lender shall onthe Business Day following such Funding Date make such amount available to Agent, together withinterest at the Defaulting Lender Rate for each day during such period. A notice submitted byAgent to any Lender with respect to amounts owing under this subsection shall be conclusive, absentmanifest error. If such amount is so made available, such payment to Agent shall constitute suchLender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount isnot made available to Agent on the Business Day following the Funding Date, Agent will notifyBorrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agentfor Agent’s account, together with interest thereon for each day elapsed since the date of suchBorrowing, at a rate per annum equal to the interest rate applicable at the time to the Advancescomposing such Borrowing. The failure of any Lender to make any Advance on any Funding Date shall not relieve any other Lender ofany obligation hereunder to make an Advance on such Funding Date, but no Lender shall beresponsible for the failure of any other Lender to make the Advance to be made by such other Lenderon any Funding Date.
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               (iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made byBorrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to theDefaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lendermember of the Lender Group ratably in accordance with their Commitments (but only to the extentthat such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, ifso directed by Borrower and if no Default or Event of Default has occurred and is continuing (andto the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same tobe re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject tothe foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the accountof such Defaulting Lender the amount of all such payments received and retained by Agent for theaccount of such Defaulting Lender. Solely for the purposes of voting or consenting to matters withrespect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and suchLender’s Commitment shall be deemed to be zero. This Section shall remain effective with respectto such Lender until (x) the Obligations under this Agreement shall have been declared or shallhave become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shallhave waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its ProRata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender inrespect thereof. The operation of this Section shall not be construed to increase or otherwiseaffect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lenderor any other Lender of its duties and obligations hereunder, or to relieve or excuse theperformance by Borrower of its duties and obligations hereunder to Agent or to the Lenders otherthan such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute amaterial breach by such Defaulting Lender of this Agreement and shall entitle Borrower at itsoption, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitmentof such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. Inconnection with the arrangement of such a substitute Lender, the Defaulting Lender shall have noright to refuse to be replaced hereunder, and agrees to execute and deliver a completed form ofAssignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed tohave executed and delivered such document if it fails to do so) subject only to being repaid itsshare of the outstanding Obligations (other than Bank Product Obligations, but including anassumption of its Pro Rata Share of the Risk Participation Liability) without any premium orpenalty of any kind whatsoever; provided, however, that any such assumption of theCommitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of theLender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out ofor in relation to such failure to fund.          (d) **Protective Advances and Optional Overadvances**.               (i) Agent hereby is authorized by Borrower and the Lenders, from time to time in Agent’s solediscretion, (A) after the occurrence and during the continuance of a Default or an Event ofDefault, or (B) at any time that any of the other applicable conditions precedent set forth inSection 3 are not satisfied, to make Advances to Borrower on behalf of the Lenders thatAgent, in its Permitted Discretion deems necessary or desirable (1) to preserve or protect theCollateral, or any portion thereof, or (2) to enhance the likelihood of repayment of theObligations (other than the Bank Product Obligations) (any of the Advances described in thisSection 2.3(d)(i) shall be referred to as “Protective Advances”).
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               (ii) Any contrary provision of this Agreement notwithstanding, the Lenders hereby authorizeAgent or Swing Lender, as applicable, and either Agent or Swing Lender, as applicable, may, but isnot obligated to, knowingly and intentionally, continue to make Advances (including Swing Loans) toBorrower notwithstanding that an Overadvance exists or thereby would be created, so long as (A)after giving effect to such Advances, the outstanding Revolver Usage does not exceed the CreditAmount by more than $5,000,000, and (B) after giving effect to such Advances, the outstandingRevolver Usage (except for andexcluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses)does not exceed the Maximum Revolver Amount. In the event Agent obtains actual knowledge that theRevolver Usage exceeds the amounts permitted by the immediately foregoing provisions, regardless ofthe amount of, or reason for, such excess, Agent shall notify the Lenders as soon as practicable(and prior to making any (or any additional) intentional Overadvances (except for and excludingamounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agentdetermines that prior notice would result in imminent harm to the Collateral or its value), and theLenders with Revolver Commitments thereupon shall, together with Agent, jointly determine the termsof arrangements that shall be implemented with Borrower intended to reduce, within a reasonabletime, the outstanding principal amount of the Advances to Borrower to an amount permitted by thepreceding sentence. In such circumstances, if any Lender with a Revolver Commitment objects to theproposed terms of reduction or repayment of any Overadvance, the terms of reduction or repaymentthereof shall be implemented according to the determination of the Required Lenders. Each Lenderwith a Revolver Commitment shall be obligated to settle with Agent as provided in Section2.3(e) for the amount of such Lender’s Pro Rata Share of any unintentional Overadvances byAgent reported to such Lender, any intentional Overadvances made as permitted under thisSection 2.3(d)(ii), and any Overadvances resulting from the charging to the Loan Account ofinterest, fees, or Lender Group Expenses.               (iii) Each Protective Advance and each Overadvance shall be deemed to be an Advance hereunder,except that no Protective Advance or Overadvance shall be eligible to be a LIBOR Rate Loan and,prior to Settlement therefor, all payments on the Protective Advances shall be payable to Agentsolely for its own account. The Protective Advances and Overadvances shall be repayable on demand,secured by the Agent’s Liens, constitute Obligations hereunder, and bear interest at the rateapplicable from time to time to Advances that are Base Rate Loans. The provisions of thisSection 2.3(d) are for the exclusive benefit of Agent, Swing Lender, and the Lenders andare not intended to benefit Borrower in any way.          (e) **Settlement.**It is agreed that each Lender’s funded portion of the Advances is intended bythe Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding Advances. Suchagreement notwithstanding, Agent, Swing Lender, and the other Lenders agree (which agreement shallnot be for the benefit of Borrower) that in order to facilitate the administration of thisAgreement and the other Loan Documents, settlement among the Lenders as to the Advances, the SwingLoans, and the Protective Advances shall take place on a periodic basis in accordance with thefollowing provisions:               (i) Agent shall request settlement (“Settlement”) with the Lenders on a weekly basis,or on a more frequent basis if so determined by Agent (1) on behalf of Swing Lender, with respectto the outstanding Swing Loans, (2) for itself, with respect to the outstanding ProtectiveAdvances, and (3) with respect to Borrower’s or its Subsidiaries’ Collections or payments received,as to each by notifying the Lenders by telecopy, telephone, or other similar form of transmission,of such requested Settlement, no later than 2:00 p.m. (California time) on the Business Dayimmediately prior to the date of such requested Settlement (the date of such requested Settlementbeing the “Settlement Date”). Such notice of a Settlement Date shall include a summarystatement of the amount of outstanding Advances, Swing Loans, and Protective Advances for theperiod since the prior Settlement Date. Subject to the terms and conditions contained herein(including Section 2.3(c)(iii)): (y) if a Lender’s balance of the Advances (includingSwing Loans and Protective Advances) exceeds such Lender’s Pro Rata Share of the Advances(including Swing Loans and Protective Advances) as of a Settlement Date, then Agent shall, by nolater than 12:00 p.m. (California time) on the Settlement Date, transfer in immediately availablefunds to a Deposit Account of such Lender (as such Lender may designate), an amount such that eachsuch Lender shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Shareof the Advances (including Swing Loans and Protective Advances), and (z) if a Lender’s balance ofthe Advances (including Swing Loans and Protective Advances) is less than such Lender’s Pro RataShare of the Advances (including Swing Loans and Protective Advances) as of a Settlement Date, suchLender shall no later than 12:00 p.m. (California time) on the Settlement Date transfer inimmediately available funds to the Agent’s Account, an amount such that each such Lender shall,upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share of the Advances(including Swing Loans and Protective Advances). Such amounts made available to Agent under clause(z) of the immediately preceding sentence shall be applied against the amounts of the applicable Swing Loans or Protective Advances and, together withthe portion of such Swing Loans or Protective Advances representing Swing Lender’s Pro Rata Sharethereof, shall constitute Advances of such Lenders. If any such amount is not made available toAgent by any Lender on the Settlement Date applicable thereto to the extent required by the termshereof, Agent shall be entitled to recover for its account such amount on demand from such Lendertogether with interest thereon at the Defaulting Lender Rate.
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               (ii) In determining whether a Lender’s balance of the Advances, Swing Loans, and ProtectiveAdvances is less than, equal to, or greater than such Lender’s Pro Rata Share of the Advances,Swing Loans, and Protective Advances as of a Settlement Date, Agent shall, as part of the relevantSettlement, apply to such balance the portion of payments actually received in good funds by Agentwith respect to principal, interest, fees payable by Borrower and allocable to the Lendershereunder, and proceeds of Collateral.               (iii) Between Settlement Dates, Agent, to the extent Protective Advances or Swing Loans areoutstanding, may pay over to Agent or Swing Lender, as applicable, any Collections or paymentsreceived by Agent, that in accordance with the terms of this Agreement would be applied to thereduction of the Advances, for application to the Protective Advances or Swing Loans. BetweenSettlement Dates, Agent, to the extent no Protective Advances or Swing Loans are outstanding, maypay over to Swing Lender any Collections or payments received by Agent, that in accordance with theterms of this Agreement would be applied to the reduction of the Advances, for application to SwingLender’s Pro Rata Share of the Advances. If, as of any Settlement Date, Collections or payments ofBorrower or its Subsidiaries received since the then immediately preceding Settlement Date havebeen applied to Swing Lender’s Pro Rata Share of the Advances other than to Swing Loans, asprovided for in the previous sentence, Swing Lender shall pay to Agent for the accounts of theLenders, and Agent shall pay to the Lenders, to be applied to the outstanding Advances of suchLenders, an amount such that each Lender shall, upon receipt of such amount, have, as of suchSettlement Date, its Pro Rata Share of the Advances. During the period between Settlement Dates,Swing Lender with respect to Swing Loans, Agent with respect to Protective Advances, and eachLender (subject to the effect of agreements between Agent and individual Lenders) with respect tothe Advances other than Swing Loans and Protective Advances, shall be entitled to interest at theapplicable rate or rates payable under this Agreement on the daily amount of funds employed bySwing Lender, Agent, or the Lenders, as applicable.          (f) **Notation.**Agent, as a non-fiduciary agent for Borrower, shall maintain a register showingthe principal amount of the Advances (and portion of the Term Loan, as applicable), owing to eachLender, including the Swing Loans owing to Swing Lender, and Protective Advances owing to Agent,and the interests therein of each Lender, from time to time and such records shall, absent manifesterror, conclusively be presumed to be correct and accurate.          (g) **Lenders’ Failure to Perform.**All Advances (other than Swing Loans and ProtectiveAdvances) shall be made by the Lenders contemporaneously and in accordance with their Pro RataShares. It is understood that (i) no Lender shall be responsible for any failure by any otherLender to perform its obligation to make any Advance (or other extension of credit) hereunder, norshall any Commitment of any Lender be increased or decreased as a result of any failure by anyother Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform itsobligations hereunder shall excuse any other Lender from its obligations hereunder.     **2.4****Payments; Reductions of Commitments; Prepayments**.          (a) **Payments by Borrower**.               (i) Except as otherwise expressly provided herein, all payments by Borrower shall be made toAgent’s Account for the account of the Lender Group and shall be made in immediately availablefunds, no later than 11:00 a.m. (California time) on the date specified herein. Any paymentreceived by Agent later than 11:00 a.m. (California time) shall be deemed to have been received on thefollowing Business Day and any applicable interest or fee shall continue to accrue until suchfollowing Business Day.
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               (ii) Unless Agent receives notice from Borrower prior to the date on which any payment is dueto the Lenders that Borrower will not make such payment in full as and when required, Agent mayassume that Borrower has made (or will make) such payment in full to Agent on such date inimmediately available funds and Agent may (but shall not be so required), in reliance upon suchassumption, distribute to each Lender on such due date an amount equal to the amount then due suchLender. If and to the extent Borrower does not make such payment in full to Agent on the date whendue, each Lender severally shall repay to Agent on demand such amount distributed to such Lender,together with interest thereon at the Defaulting Lender Rate for each day from the date such amountis distributed to such Lender until the date repaid.          (b) **Apportionment and Application**.               (i) So long as no Application Event has occurred and is continuing and except as otherwiseprovided with respect to Defaulting Lenders, all principal and interest payments shall beapportioned ratably among the Lenders (according to the unpaid principal balance of the Obligationsto which such payments relate held by each Lender) and all payments of fees and expenses (otherthan fees or expenses that are for Agent’s separate account) shall be apportioned ratably among theLenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular feeor expense relates. All payments to be made hereunder by Borrower shall be remitted to Agent andall (subject to Section 2.4(b)(iv)) such payments, and all proceeds of Collateral receivedby Agent, shall be applied, so long as no Application Event has occurred and is continuing, toreduce the balance of the Advances outstanding and, thereafter, to Borrower (to be wired to theDesignated Account) or such other Person entitled thereto under applicable law.               (ii) At any time that an Application Event has occurred and is continuing and except asotherwise provided with respect to Defaulting Lenders, all payments remitted to Agent and allproceeds of Collateral received by Agent shall be applied as follows:                    (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements)or indemnities then due to Agent under the Loan Documents, until paid in full,                    (B) second, to pay any fees or premiums then due to Agent under the Loan Documentsuntil paid in full,                    (C) third, to pay interest due in respect of all Protective Advances until paid infull,                    (D) fourth, to pay the principal of all Protective Advances until paid in full,                    (E) fifth, ratably to pay any Lender Group Expenses (including cost or expensereimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paidin full,                    (F) sixth, ratably to pay any fees or premiums then due to any of the Lenders underthe Loan Documents until paid in full,                    (G) seventh, ratably to pay interest due in respect of the Advances (other thanProtective Advances), the Swing Loans, and the Term Loan until paid in full,
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                    (H) eighth, ratably (i) to pay the principal of all Swing Loans until paid in full,(ii) to pay the principal of all Advances until paid in full, (iii) to Agent, to be held by Agent,for the benefit of Issuing Lender and those Lenders having a share of the Risk ParticipationLiability, as cash collateral in an amount up to 105% of the Letter of Credit Usage, (iv) to Agent,to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amountup to the amount of the Bank Product Reserve established prior to the occurrence of, and not incontemplation of, the subject Event of Default, and (v) to pay the outstanding principal balance ofthe Term Loan (in the inverse order of the maturity of the installments due thereunder) until theTerm Loan is paid in full,                    (I) ninth, to pay any other Obligations, and                    (J) tenth, to Borrower (to be wired to the Designated Account) or such other Personentitled thereto under applicable law.               (iii) Agent promptly shall distribute to each Lender, pursuant to the applicable wireinstructions received from each Lender in writing, such funds as it may be entitled to receive,subject to a Settlement delay as provided in Section 2.3(e).               (iv) In each instance, so long as no Application Event has occurred and is continuing,Section 2.4(b)(i) shall not apply to any payment made by Borrower to Agent and specified byBorrower to be for the payment of specific Obligations then due and payable (or prepayable) underany provision of this Agreement or any other Loan Document.               (v) For purposes of Section 2.4(b)(ii), “paid in full” means payment in cash of allamounts owing under the Loan Documents, including loan fees, service fees, professional fees,interest (and specifically including interest accrued after the commencement of any InsolvencyProceeding), default interest, interest on interest, and expense reimbursements, whether or not anyof the foregoing would be or is allowed or disallowed in whole or in part in any InsolvencyProceeding.               (vi) In the event of a direct conflict between the priority provisions of this Section2.4 and any other provision contained in any other Loan Document, it is the intention of theparties hereto that such provisions be read together and construed, to the fullest extent possible,to be in concert with each other. In the event of any actual, irreconcilable conflict that cannotbe resolved as aforesaid, the terms and provisions of this Section 2.4 shall control andgovern.          (c) **Reduction of Commitments**.               (i) **Revolver Commitments**. The Revolver Commitments shall terminate on the Maturity Date.Borrower may reduce the Revolver Commitments to an amount not less than the greater of (x) the sumof (A) the Revolver Usage as of such date, plus (B) the principal amount of all Advances not yetmade as to which a request has been given by Borrower under Section 2.3(a), plus (C) theamount of all Letters of Credit not yet issued as to which a request has been given by Borrowerpursuant to Section 2.11(a), and (y) $10,000,000. Each such reduction made pursuant tothis Section 2.4(c) shall be in an amount which is an integral multiple of $5,000,000,shall be made by providing not less than 5 Business Days prior written notice to Agent and shall beirrevocable. Once reduced, the Revolver Commitments may not be increased. Each such reduction ofthe Revolver Commitments shall reduce the Revolver Commitments of each Lender proportionately inaccordance with its Pro Rata Share thereof.               (ii) **Term Loan Commitments**. The Term Loan Commitments shall terminate upon the making of theTerm Loan.
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          (d) **Optional Prepayments**.               (i) **Advances**. Borrower may prepay the principal of any Advance at any time in whole or inpart.               (ii) **Term Loan**. Borrower may, upon at least 10 Business Days prior written notice to Agent,prepay the principal of the Term Loan, in whole or in part. Each prepayment made pursuant to thisSection 2.4(d)(ii) shall (A) be made in an amount which is an integral multiple of$1,500,000 and (B) be accompanied by the payment of accrued interest to the date of such payment onthe amount prepaid. Each such prepayment shall be applied against the remaining installments ofprincipal due on the Term Loan in the inverse order of maturity (for the avoidance of doubt, anyamount that is due and payable on the Maturity Date shall constitute an installment).          (e) **Mandatory Prepayments**.               (i) **Credit Amount**. If, at any time, (A) the sum of the outstanding principal balance of theTerm Loan on such date *plus*the Revolver Usage on such date exceeds (B) the Credit Amount (suchexcess being referred to as the “Credit Amount Excess”), then Borrower shall immediatelyprepay the Obligations in accordance with Section 2.4(f)(i) in an aggregate amount equal tothe Credit Amount Excess.               (ii) **Dispositions**. Within 5 Business Days of the date of receipt by Borrower or any LoanParty of the Net Cash Proceeds of any voluntary or involuntary sale or disposition by Borrower orany Loan Party of assets (including casualty losses or condemnations but excluding sales ordispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (i), (l), or(m) of the definition of Permitted Dispositions), Borrower shall prepay the outstanding principalamount of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to 100%of such Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received bysuch Person in connection with such sales or dispositions; provided that, so long as (A) noDefault or Event of Default shall have occurred and is continuing, (B) Borrower shall have givenAgent prior written notice of Borrower’s or the applicable Loan Party’s intention to apply suchmonies to the costs of replacement of the properties or assets that are the subject of such sale ordisposition or the cost of purchase or construction of other assets useful in the business ofBorrower or the applicable Loan Party, (C) the monies are held in a Deposit Account in which Agenthas a perfected first-priority security interest, and (D) Borrower or the applicable Loan Partycompletes such replacement, purchase, or construction within 180 days (or 270 days if a bindingcontract for such replacement, purchase, or construction has been entered into by Borrower or theapplicable Loan Party within 180 days) after the initial receipt of such monies, Borrower or theapplicable Loan Party shall have the option to apply such monies to the costs of replacement of theassets that are the subject of such sale or disposition unless and to the extent that suchapplicable period shall have expired without such replacement, purchase or construction being madeor completed, in which case, any amounts remaining in the cash collateral account shall be paid toAgent and applied in accordance with Section 2.4(f)(ii). Nothing contained in thisSection 2.4(e)(ii) shall permit Borrower or any of its Subsidiaries to sell or otherwisedispose of any assets other than in accordance with Section 6.4.               (iii) **Extraordinary Receipts**. Within 5 Business Days of the date of receipt by Borrower orany Loan Party of any Extraordinary Receipts, Borrower shall prepay the outstanding principalamount of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to 50%of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting suchExtraordinary Receipts.               (iv) **Indebtedness**. Within 1 Business Day of the date of incurrence by Borrower or any of itsSubsidiaries of any Indebtedness (other than Permitted Indebtedness), Borrower shall prepay theoutstanding principal amount of the Obligations in accordance with Section 2.4(f)(ii) in anamount equal to 100% of the Net Cash Proceeds received by such Person in connection with suchincurrence. Theprovisions of this Section 2.4(e)(iv) shall not be deemed to be implied consent to anysuch incurrence otherwise prohibited by the terms and conditions of this Agreement.
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               (v) **Equity**. Within 1 Business Day of the date of the issuance by Borrower or any of itsSubsidiaries of any shares of its or their Stock (other than (A) in the event that Borrower or anyof its Subsidiaries forms any Subsidiary in accordance with the terms hereof, the issuance by suchSubsidiary of Stock to Borrower or such Subsidiary, as applicable, (B) the issuance of Stock ofBorrower to directors, officers, consultants, and employees of Borrower pursuant to stock optionplans (or other employee incentive plans or other compensation arrangements) approved by the Boardof Directors, and (C) the issuance of Stock of Borrower in order to finance the purchaseconsideration (or a portion thereof) in connection with a Permitted Acquisition), Borrower shallprepay the outstanding principal amount of the Obligations in accordance with Section2.4(f)(ii) in an amount equal to 50% of the Net Cash Proceeds received by such Person inconnection with such issuance. The provisions of this Section 2.4(e)(v) shall not bedeemed to be implied consent to any such issuance otherwise prohibited by the terms and conditionsof this Agreement.          (f) **Application of Payments**.               (i) Each prepayment pursuant to Section 2.4(e)(i) shall, (A) so long as no ApplicationEvent shall have occurred and be continuing, be applied, *first*, to the outstanding principal amountof the Advances until paid in full, *second*, to the outstanding principal amount of the Term Loanuntil paid in full, and *third*, to cash collateralize the Letters of Credit in an amount equal to105% of the then extant Letter of Credit Usage, and (B) if an Application Event shall have occurredand be continuing, be applied in the manner set forth in Section 2.4(b)(ii). Each suchprepayment of the Term Loan shall be applied against the remaining installments of principal of theTerm Loan on a pro rata basis (for the avoidance of doubt, any amount that is due and payable onthe Maturity Date shall constitute an installment).               (ii) Each prepayment pursuant to Section 2.4(e)(ii), 2.4(e)(iii),2.4(e)(iv), or 2.4(e)(v) above shall (A) so long as no Application Event shall haveoccurred and be continuing, be applied to the outstanding principal amount of the Term Loan untilpaid in full, with any remaining amounts to be paid to Borrower, and (B) if an Application Eventshall have occurred and be continuing, be applied in the manner set forth in Section2.4(b)(ii). Each such prepayment of the Term Loan shall be applied against the remaininginstallments of principal of the Term Loan on a pro rata basis (for the avoidance of doubt, anyamount that is due and payable on the Maturity Date shall constitute an installment).Notwithstanding anything to the contrary in foregoing provisions of this Section2.4(f)(ii), any prepayments made pursuant to Section 2.4(e)(ii), 2.4(e)(iii),or 2.4(e)(v) above, shall be applied first to the outstanding principal amount of the TermLoan that is made up of Base Rate Loans and then to the outstanding principal amount of the TermLoan that is made up of LIBOR Rate Loans; provided, however, that any suchprepayments that would be applied to LIBOR Rate Loans under clause (A) of this Section2.4(f)(ii) may, at the option of Borrower, be held by Agent to cash collateralize theObligations and applied by Agent to prepayment of such LIBOR Rate Loans at the end of theirInterest Periods.     **2.5****Overadvances****.**If, at any time or for any reason, the amount of Obligations owedby Borrower to the Lender Group pursuant to Section 2.1 or Section 2.11 is greaterthan any of the limitations set forth in Section 2.1 or Section 2.11, as applicable(an “Overadvance”), Borrower shall immediately pay to Agent, in cash, the amount of suchexcess, which amount shall be used by Agent to reduce the Obligations in accordance with thepriorities set forth in Section 2.4(b). Borrower promises to pay the Obligations(including principal, interest, fees, costs, and expenses) in Dollars in full on the Maturity Dateor, if earlier, on the date on which the Obligations are declared due and payable pursuant to theterms of this Agreement.     **2.6****Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations**.          (a) **Interest Rates.**Except as provided in Section 2.6(c), all Obligations (except forundrawn Letters of Credit and except for Bank Product Obligations) that have been charged to theLoan Account pursuant to the terms hereof shall bear interest on the Daily Balance thereof asfollows:
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               (i) if the relevant Obligation is a LIBOR Rate Loan, at a per annum rate equal to the LIBORRate plus the LIBOR Rate Margin, and               (ii) otherwise, at a per annum rate equal to the Base Rate plus the Base Rate Margin.          (b) **Letter of Credit Fee.**Borrower shall pay Agent (for the ratable benefit of the Lenderswith a Revolver Commitment, subject to any agreements between Agent and individual Lenders), aLetter of Credit fee (in addition to the charges, commissions, fees, and costs set forth inSection 2.11(e)) which shall accrue at a per annum rate equal to the LIBOR Rate Margintimes the Daily Balance of the undrawn amount of all outstanding Letters of Credit.          (c) **Default Rate.**Upon the occurrence and during the continuation of an Event of Default andat the election of the Required Lenders,               (i) all Obligations (except for undrawn Letters of Credit and except for Bank ProductObligations) that have been charged to the Loan Account pursuant to the terms hereof shall bearinterest on the Daily Balance thereof at a per annum rate equal to 2 percentage points above theper annum rate otherwise applicable hereunder, and               (ii) the Letter of Credit fee provided for in Section 2.6(b) shall be increased to 2percentage points above the per annum rate otherwise applicable hereunder.          (d) **Payment.**Except as provided to the contrary in Section 2.10 or Section2.12(a), interest, Letter of Credit fees, and all other fees payable hereunder shall be due andpayable, in arrears, on the first day of each month at any time that Obligations or Commitments areoutstanding. Borrower hereby authorizes Agent, from time to time without prior notice to Borrower,to charge all interest and fees (when due and payable), all Lender Group Expenses (as and whenincurred), all charges, commissions, fees, and costs provided for in Section 2.11(e) (asand when accrued or incurred), all fees and costs provided for in Section 2.10 (as and whenaccrued or incurred), and all other payments as and when due and payable under any Loan Document(including any amounts due and payable to the Bank Product Providers in respect of Bank Products)to the Loan Account, which amounts thereafter shall constitute Advances hereunder and shall accrueinterest at the rate then applicable to Advances that are Base Rate Loans. Any interest not paidwhen due shall be compounded by being charged to the Loan Account and shall thereafter constituteAdvances hereunder and shall accrue interest at the rate then applicable to Advances that are BaseRate Loans.          (e) **Computation.**All interest and fees chargeable under the Loan Documents shall be computedon the basis of a 360 day year, in each case, for the actual number of days elapsed in the periodduring which the interest or fees accrue. In the event the Base Rate is changed from time to timehereafter, the rates of interest hereunder based upon the Base Rate automatically and immediatelyshall be increased or decreased by an amount equal to such change in the Base Rate.          (f) **Intent to Limit Charges to Maximum Lawful Rate.**In no event shall the interest rate orrates payable under this Agreement, plus any other amounts paid in connection herewith, exceed thehighest rate permissible under any law that a court of competent jurisdiction shall, in a finaldetermination, deem applicable. Borrower and the Lender Group, in executing and delivering thisAgreement, intend legally to agree upon the rate or rates of interest and manner of payment statedwithin it; provided, however, that,anything contained herein to the contrary notwithstanding, if said rate or rates of interestor manner of payment exceeds the maximum allowable under applicable law, then, *ipso facto*, as ofthe date of this Agreement, Borrower is and shall be liable only for the payment of such maximum asallowed by law, and payment received from Borrower in excess of such legal maximum, wheneverreceived, shall be applied to reduce the principal balance of the Obligations to the extent of suchexcess.
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     **2.7****Crediting Payments****.**The receipt of any payment item by Agent shall not beconsidered a payment on account unless such payment item is a wire transfer of immediatelyavailable federal funds made to the Agent’s Account or unless and until such payment item ishonored when presented for payment. Should any payment item not be honored when presented forpayment, then Borrower shall be deemed not to have made such payment and interest shall becalculated accordingly. Anything to the contrary contained herein notwithstanding, any paymentitem shall be deemed received by Agent only if it is received into the Agent’s Account on aBusiness Day on or before 11:00 a.m. (California time). If any payment item is received into theAgent’s Account on a non-Business Day or after 11:00 a.m. (California time) on a Business Day, itshall be deemed to have been received by Agent as of the opening of business on the immediatelyfollowing Business Day.     **2.8****Designated Account****.**Agent is authorized to make the Advances and the Term Loan,and Issuing Lender is authorized to issue the Letters of Credit, under this Agreement based upontelephonic or other instructions received from anyone purporting to be an Authorized Person or,without instructions, if pursuant to Section 2.6(d). Borrower agrees to establish andmaintain the Designated Account with the Designated Account Bank for the purpose of receiving theproceeds of the Advances requested by Borrower and made by Agent or the Lenders hereunder. Unlessotherwise agreed by Agent and Borrower, any Advance, Protective Advance, or Swing Loan requested byBorrower and made by Agent or the Lenders hereunder shall be made to the Designated Account.     **2.9****Maintenance of Loan Account; Statements of Obligations****.**Agent shall maintain anaccount on its books in the name of Borrower (the “Loan Account”) on which Borrower will becharged with the Term Loan, all Advances (including Protective Advances and Swing Loans) made byAgent, Swing Lender, or the Lenders to Borrower or for Borrower’s account, the Letters of Creditissued by Issuing Lender for Borrower’s account, and with all other payment Obligations hereunderor under the other Loan Documents (except for Bank Product Obligations), including, accruedinterest, fees and expenses, and Lender Group Expenses. In accordance with Section 2.7,the Loan Account will be credited with all payments received by Agent from Borrower or forBorrower’s account. Agent shall render statements regarding the Loan Account to Borrower,including principal, interest, fees, and including an itemization of all charges and expensesconstituting Lender Group Expenses owing, and such statements, absent manifest error, shall beconclusively presumed to be correct and accurate and constitute an account stated between Borrowerand the Lender Group unless, within 30 days after receipt thereof by Borrower, Borrower shalldeliver to Agent written objection thereto describing the error or errors contained in any suchstatements.     **2.10****Fees****.**Borrower shall pay to Agent,          (a) for the account of Agent, as and when due and payable under the terms of the Fee Letter,the fees set forth in the Fee Letter.          (b) for the ratable account of those Lenders with Revolver Commitments, on the first day ofeach month from and after the Closing Date up to the first day of the month prior to the PayoffDate and on the Payoff Date, an unused line fee in an amount equal to 0.375% per annum times theresult of (i) the Maximum Revolver Amount, less (ii) the average Daily Balance of the RevolverUsage during the immediately preceding month (or portion thereof).     **2.11****Letters of Credit**.
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          (a) Subject to the terms and conditions of this Agreement, the Issuing Lender agrees to issueletters of credit for the account of Borrower (each, an “L/C”) or to purchaseparticipations or execute indemnities, guarantees, or reimbursement obligations (each suchundertaking, an “L/C Undertaking”) with respect to letters of credit issued by anUnderlying Issuer (as of the Closing Date, the prospective Underlying Issuer is to be Wells Fargo)for the account of Borrower. Each request for the issuance of a Letter of Credit, or theamendment, renewal, or extension of any outstanding Letter of Credit, shall be made in writing byan Authorized Person and delivered to the Issuing Lender and Agent via hand delivery,telefacsimile, or other electronic method of transmission reasonably in advance of the requesteddate of issuance, amendment, renewal, or extension. Each such request shall be in form andsubstance reasonably satisfactory to the Issuing Lender in its Permitted Discretion and shallspecify (i) the amount of such Letter of Credit, (ii) the date of issuance, amendment, renewal, orextension of such Letter of Credit, (iii) the expiration date of such Letter of Credit, (iv) thename and address of the beneficiary thereof (or the beneficiary of the Underlying Letter of Credit,as applicable), and (v) such other information (including, in the case of an amendment, renewal, orextension, identification of the outstanding Letter of Credit to be so amended, renewed, orextended) as shall be necessary to prepare, amend, renew, or extend such Letter of Credit. Ifrequested by the Issuing Lender, Borrower also shall be an applicant under the application withrespect to any Underlying Letter of Credit that is to be the subject of an L/C Undertaking. TheIssuing Lender shall have no obligation to issue a Letter of Credit if any of the following wouldresult after giving effect to the issuance of such requested Letter of Credit:               (i) the Letter of Credit Usage would exceed the Credit Amount *less*the sum of (A) the BankProduct Reserve, and (B) the outstanding amount of Advances, or               (ii) the Letter of Credit Usage would exceed $7,500,000, or               (iii) the Letter of Credit Usage would exceed the Maximum Revolver Amount *less*the sum of (A)the Bank Product Reserve, and (B) the outstanding amount of Advances.     Borrower and the Lender Group acknowledge and agree that certain Underlying Letters of Creditmay be issued to support letters of credit that already are outstanding as of the Closing Date,including the SVB Letter of Credit. Borrower and the Lender Group acknowledge and agree that theExisting WFB Letter of Credit shall for all purposes under this Agreement and the other LoanDocuments be deemed to be an Underlying Letter of Credit for which Issuing Lender has issued an L/CUndertaking. Each Letter of Credit (and corresponding Underlying Letter of Credit) shall be inform and substance acceptable to the Issuing Lender (in the exercise of its Permitted Discretion),including the requirement that the amounts payable thereunder must be payable in Dollars. IfIssuing Lender is obligated to advance funds under a Letter of Credit, Borrower shall reimbursesuch L/C Disbursement to Issuing Lender by paying to Agent an amount equal to such L/C Disbursementnot later than 11:00 a.m., California time, on the date that such L/C Disbursement is made, ifBorrower shall have received written or telephonic notice of such L/C Disbursement prior to 10:00a.m., California time, on such date, or, if such notice has not been received by Borrower prior tosuch time on such date, then not later than 11:00 a.m., California time, on the Business Day thatBorrower receives such notice, if such notice is received prior to 10:00 a.m., California time, onthe date of receipt, and, in the absence of such reimbursement, the L/C Disbursement immediatelyand automatically shall be deemed to be an Advance hereunder and, initially, shall bear interest atthe rate then applicable to Advances that are Base Rate Loans. To the extent an L/C Disbursementis deemed to be an Advance hereunder, Borrower’s obligation to reimburse such L/C Disbursementshall be discharged and replaced by the resulting Advance. Promptly following receipt by Agent ofany payment from Borrower pursuant to this paragraph, Agent shall distribute such payment to theIssuing Lender or, to the extent that Lenders have made payments pursuant to Section2.11(b) to reimburse the Issuing Lender, then to such Lenders and the Issuing Lender as theirinterests may appear.
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          (b) Promptly following receipt of a notice of L/C Disbursement pursuant to Section2.11(a), each Lender with a Revolver Commitment agrees to fund its Pro Rata Share of anyAdvance deemed made pursuant to the foregoing subsection on the same terms and conditions as ifBorrower had requested such Advance and Agent shall promptly pay to Issuing Lender the amounts soreceived by it from the Lenders. By the issuance of a Letter of Credit (or an amendment to aLetter of Credit increasing the amount thereof) and without any further action on the part of theIssuing Lender or the Lenders with Revolver Commitments, the Issuing Lender shall be deemed to havegranted to each Lender with a Revolver Commitment, and each Lender with a Revolver Commitment shallbe deemed to have purchased, a participation in each Letter of Credit, in an amount equal to itsPro Rata Share of the Risk ParticipationLiability of such Letter of Credit, and each such Lenderagrees to pay to Agent, for the account of the Issuing Lender, such Lender’s Pro Rata Share of anypayments made by the Issuing Lender under such Letter of Credit. In consideration and infurtherance of the foregoing, each Lender with a Revolver Commitment hereby absolutely andunconditionally agrees to pay to Agent, for the account of the Issuing Lender, such Lender’s ProRata Share of each L/C Disbursement made by the Issuing Lender and not reimbursed by Borrower onthe date due as provided in Section 2.11(a), or of any reimbursement payment required to berefunded to Borrower for any reason. Each Lender with a Revolver Commitment acknowledges andagrees that its obligation to deliver to Agent, for the account of the Issuing Lender, an amountequal to its respective Pro Rata Share of each L/C Disbursement made by the Issuing Lender pursuantto this Section 2.11(b) shall be absolute and unconditional and such remittance shall bemade notwithstanding the occurrence or continuation of an Event of Default or Default or thefailure to satisfy any condition set forth in Section 3. If any such Lender fails to makeavailable to Agent the amount of such Lender’s Pro Rata Share of each L/C Disbursement made by theIssuing Lender in respect of such Letter of Credit as provided in this Section, such Lender shallbe deemed to be a Defaulting Lender and Agent (for the account of the Issuing Lender) shall beentitled to recover such amount on demand from such Lender together with interest thereon at theDefaulting Lender Rate until paid in full.          (c) Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group harmless fromany loss, cost, expense, or liability, and reasonable attorneys fees incurred by the Lender Grouparising out of or in connection with any Letter of Credit; provided, however, that Borrower shallnot be obligated hereunder to indemnify for any loss, cost, expense, or liability to the extentthat it is caused by the gross negligence or willful misconduct of the Issuing Lender or any othermember of the Lender Group. Borrower agrees to be bound by the Underlying Issuer’s regulations andinterpretations of any Underlying Letter of Credit or by Issuing Lender’s interpretations of anyL/C issued by Issuing Lender to or for Borrower’s account, even though this interpretation may bedifferent from Borrower’s own, and Borrower understands and agrees that the Lender Group shall notbe liable for any error, negligence, or mistake, whether of omission or commission, in followingBorrower’s instructions or those contained in the Letter of Credit or any modifications,amendments, or supplements thereto. Borrower understands that the L/C Undertakings may requireIssuing Lender to indemnify the Underlying Issuer for certain costs or liabilities arising out ofclaims by Borrower against such Underlying Issuer. Borrower hereby agrees to indemnify, save,defend, and hold the Lender Group harmless with respect to any loss, cost, expense (includingreasonable attorneys fees), or liability incurred by the Lender Group under any L/C Undertaking asa result of the Lender Group’s indemnification of any Underlying Issuer; provided,however, that Borrower shall not be obligated hereunder to indemnify for any loss, cost,expense, or liability to the extent that it is caused by the gross negligence or willful misconductof the Issuing Lender or any other member of the Lender Group. Borrower hereby acknowledges andagrees that neither the Lender Group nor the Issuing Lender shall be responsible for delays,errors, or omissions resulting from the malfunction of equipment in connection with any Letter ofCredit.          (d) Borrower hereby authorizes and directs any Underlying Issuer to deliver to the IssuingLender all instruments, documents, and other writings and property received by such UnderlyingIssuer pursuant to such Underlying Letter of Credit and to accept and rely upon the IssuingLender’s instructions with respect to all matters arising in connection with such Underlying Letterof Credit and the related application.          (e) Any and all issuance charges, commissions, fees, and costs incurred by the Issuing Lenderrelating to Underlying Letters of Credit shall be Lender Group Expenses for purposes of thisAgreement and shall be reimbursable immediately by Borrower to Agent for the account of theIssuing Lender; it being acknowledged and agreed by Borrower that, as of the Closing Date, theissuance charge imposed by the prospective Underlying Issuer is .825% per annum times the undrawnamount of each Underlying Letter of Credit, that such issuance charge may be changed from time totime, and that the Underlying Issuer also imposes a schedule of charges for amendments, extensions,drawings, and renewals.
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          (f) If by reason of (i) any change after the Closing Date in any applicable law, treaty, rule,or regulation or any change in the interpretation or application thereof by any GovernmentalAuthority, or (ii) compliance by the Underlying Issuer or the Lender Group with any direction,request, or requirement (irrespective of whether having the force of law) of any GovernmentalAuthority or monetary authority including, Regulation D of the Federal Reserve Board as from timeto time in effect (and any successor thereto):               (i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respectof any Letter of Credit issued hereunder, or               (ii) there shall be imposed on the Underlying Issuer or the Lender Group any other conditionregarding any Underlying Letter of Credit or any Letter of Credit issued pursuant hereto,and the result of the foregoing is to increase, directly or indirectly, the cost to the LenderGroup of issuing, making, guaranteeing, or maintaining any Letter of Credit or to reduce the amountreceivable in respect thereof by the Lender Group, then, and in any such case, Agent may, at anytime within a reasonable period after the additional cost is incurred or the amount received isreduced, notify Borrower, and Borrower shall pay within 30 days after demand therefor, such amountsas Agent may specify to be necessary to compensate the Lender Group for such additional cost orreduced receipt, together with interest on such amount from the date of such demand until paymentin full thereof at the rate then applicable to Base Rate Loans hereunder; provided thatBorrower shall not be required to compensate a Lender pursuant to this Section for any such amountsincurred more than 180 days prior to the date that such Lender first demands payment from Borrowerof such amounts; providedfurther that if an event or circumstance giving rise tosuch amounts is retroactive, then the 180-day period referred to above shall be extended to includethe period of retroactive effect thereof. The determination by Agent of any amount due pursuant tothis Section, as set forth in a certificate setting forth the calculation thereof in reasonabledetail, shall, in the absence of manifest or demonstrable error, be final and conclusive andbinding on all of the parties hereto.     **2.12****LIBOR Option**.          (a) **Interest and Interest Payment Dates.**In lieu of having interest charged at the rate basedupon the Base Rate, Borrower shall have the option (the “LIBOR Option”) to have interest onall or a portion of the Advances or the Term Loan be charged (whether at the time when made (unlessotherwise provided herein), upon conversion from a Base Rate Loan to a LIBOR Rate Loan, or uponcontinuation of a LIBOR Rate Loan as a LIBOR Rate Loan) at a rate of interest based upon the LIBORRate. Interest on LIBOR Rate Loans shall be payable on the earliest of (i) the last day of theInterest Period applicable thereto; (ii) the date on which all or any portion of the Obligationsare accelerated pursuant to the terms hereof, or (iii) the date on which this Agreement isterminated pursuant to the terms hereof. On the last day of each applicable Interest Period,unless Borrower properly has exercised the LIBOR Option with respect thereto, the interest rateapplicable to such LIBOR Rate Loan automatically shall convert to the rate of interest thenapplicable to Base Rate Loans of the same type hereunder. At any time that an Event of Default hasoccurred and is continuing, Borrower no longer shall have the option to request that Advances orthe Term Loan bear interest at a rate based upon the LIBOR Rate.          (b) **LIBOR Election**.               (i) Borrower may, at any time and from time to time, so long as no Event of Default hasoccurred and is continuing, elect to exercise the LIBOR Option by notifying Agent prior to 11:00a.m. (California time) at least 3 Business Days prior to the commencement of the proposed InterestPeriod (the “LIBOR Deadline”). Notice of Borrower’s election of the LIBOR Option for apermitted portion of the Advances or the Term Loan and an Interest Period pursuant to this Sectionshall be made by delivery to Agent of a LIBOR Notice received by Agent before the LIBOR Deadline,or by telephonic notice received by Agent before the LIBOR Deadline (to be confirmed by delivery toAgent of a LIBOR Notice received by Agent prior to 5:00 p.m. (California time) on the same day).Promptly upon its receipt of each such LIBOR Notice, Agent shall provide a copy thereof to each ofthe affected Lenders.
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               (ii) Each LIBOR Notice shall be irrevocable and binding on Borrower. In connection with eachLIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless againstany loss, cost, or expense actually incurred by Agent or any Lender as a result of (A) the paymentof any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicablethereto (including as a result of an Event of Default), (B) the conversion of any LIBOR Rate Loanother than on the last day of the Interest Period applicable thereto, or (C) the failure to borrow,convert, continue or prepay any LIBOR Rate Loan on the date specified in any LIBOR Notice deliveredpursuant hereto (such losses, costs, or expenses, “Funding Losses”). A certificate ofAgent or a Lender delivered to Borrower setting forth in reasonable detail any amount or amountsthat Agent or such Lender is entitled to receive pursuant to this Section 2.12 shall beconclusive absent manifest error. Borrower shall pay such amount to Agent or the Lender, asapplicable, within 30 days of the date of its receipt of such certificate.               (iii) Borrower shall have not more than 5 LIBOR Rate Loans in effect at any given time.Borrower only may exercise the LIBOR Option for LIBOR Rate Loans of at least $1,000,000.          (c) **Conversion.**Borrower may convert LIBOR Rate Loans to Base Rate Loans at any time;provided, however, that in the event that LIBOR Rate Loans are converted or prepaidon any date that is not the last day of the Interest Period applicable thereto, including as aresult of any automatic prepayment through the required application by Agent of proceeds ofBorrower’s and its Subsidiaries’ Collections in accordance with Section 2.4(b) or for anyother reason, including early termination of the term of this Agreement or acceleration of all orany portion of the Obligations pursuant to the terms hereof, Borrower shall indemnify, defend, andhold Agent and the Lenders and their Participants harmless against any and all Funding Losses inaccordance with Section 2.12(b)(ii) above.          (d) **Special Provisions Applicable to LIBOR Rate**.               (i) The LIBOR Rate may be adjusted by Agent with respect to any Lender on a prospective basisto take into account any additional or increased costs to such Lender of maintaining or obtainingany eurodollar deposits or increased costs, in each case, due to changes in applicable lawoccurring subsequent to the commencement of the then applicable Interest Period, including changesin tax laws (except (1) changes of general applicability in corporate income tax laws and (2)changes in tax laws with respect to any taxes required to be withheld or deducted by Borrower(which is addressed in clauses (b) through (g) of Section 16)) and changes in the reserverequirements imposed by the Board of Governors of the Federal Reserve System (or any successor),excluding the Reserve Percentage, which additional or increased costs would increase the cost offunding or maintaining loans bearing interest at the LIBOR Rate. In any such event, the affectedLender shall give Borrower and Agent notice of such a determination and adjustment and Agentpromptly shall transmit the notice to each other Lender and, upon its receipt of the notice fromthe affected Lender, Borrower may, by notice to such affected Lender (y) require such Lender tofurnish to Borrower a statement setting forth the basis for adjusting such LIBOR Rate and themethod for determining the amount of such adjustment, or (z) repay the LIBOR Rate Loans withrespect to which such adjustment is made (together with any amounts due under Section2.12(b)(ii)).               (ii) In the event that any change in market conditions or any law, regulation, treaty, ordirective, or any change therein or in the interpretation or application thereof, shall at any timeafter the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical forsuch Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or todetermine or charge interest rates at the LIBOR Rate, such Lender shall give notice of such changedcircumstances to Agent and Borrower and Agent promptly shall transmit the notice to each otherLender and (y) in the case of any LIBOR Rate Loans of such Lender that are outstanding, the datespecified in such Lender’s notice shall be deemed to be the last day of the Interest Period of suchLIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such Lender thereafter shall accrueinterest at the rate then applicable to Base Rate Loans, and (z) Borrower shall not be entitled toelect the LIBOR Option until such Lender determines that it would no longer be unlawful orimpractical to do so.
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          (e) **No Requirement of Matched Funding.**Anything to the contrary contained hereinnotwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actuallyto acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interestaccrues at the LIBOR Rate.     **2.13****Capital Requirements**.          (a) If, after the date hereof, any Lender determines that (i) the adoption of or change in anylaw, rule, regulation or guideline regarding capital requirements for banks or bank holdingcompanies, or any change in the interpretation or application thereof by any Governmental Authoritycharged with the administration thereof, or (ii) compliance by such Lender or its parent bankholding company with any guideline, request or directive of any such entity regarding capitaladequacy (whether or not having the force of law), has the effect of reducing the return on suchLender’s or such holding company’s capital as a consequence of such Lender’s Commitments hereunderto a level below that which such Lender or such holding company could have achieved but for suchadoption, change, or compliance (taking into consideration such Lender’s or such holding company’sthen existing policies with respect to capital adequacy and assuming the full utilization of suchentity’s capital) by any amount deemed by such Lender to be material, then such Lender may notifyBorrower and Agent thereof. Following receipt of such notice, Borrower agrees to pay such Lenderon demand the amount of such reduction of return of capital as and when such reduction isdetermined, payable within 30 days after presentation by such Lender of a statement in the amountand setting forth in reasonable detail such Lender’s calculation thereof and the assumptions uponwhich such calculation was based (which statement shall be deemed true and correct absent manifesterror). In determining such amount, such Lender may use any reasonable averaging and attributionmethods. Failure or delay on the part of any Lender to demand compensation pursuant to thisSection shall not constitute a waiver of such Lender’s right to demand such compensation;provided that Borrower shall not be required to compensate a Lender pursuant to thisSection for any reductions in return incurred more than 180 days prior to the date that such Lendernotifies Borrower of such law, rule, regulation or guideline giving rise to such reductions and ofsuch Lender’s intention to claim compensation therefor; providedfurther that ifsuch claim arises by reason of the adoption of or change in any law, rule, regulation or guidelinethat is retroactive, then the 180-day period referred to above shall be extended to include theperiod of retroactive effect thereof.          (b) If any Lender requests additional or increased costs referred to in Section2.12(d)(i) or amounts under Section 2.13(a) (any such Lender, an “AffectedLender”), then such Affected Lender shall use reasonable efforts to promptly designate adifferent one of its lending offices or to assign its rights and obligations hereunder to anotherof its offices or branches, if (i) in the reasonable judgment of such Affected Lender, suchdesignation or assignment would eliminate or reduce amounts payable pursuant to Section2.12(d)(i) or Section 2.13(a), as applicable, and (ii) in the reasonable judgment ofsuch Affected Lender, such designation or assignment would not subject it to any materialunreimbursed cost or expense and would not otherwise be materially disadvantageous to it. Borroweragrees to pay all reasonable out-of-pocket costs and expenses incurred by such Affected Lender inconnection with any such designation or assignment. If, after such reasonable efforts, suchAffected Lender does not so designate a different one of its lending offices orassign its rights to another of its offices or branches so as to eliminate Borrower’sobligation to pay any future amounts to such Affected Lender pursuant to Section 2.12(d)(i)or Section 2.13(a), as applicable, then Borrower (without prejudice to any amounts then dueto such Affected Lender under Section 2.12(d)(i) or Section 2.13(a), as applicable)may, unless prior to the effective date of any such assignment the Affected Lender withdraws itsrequest for such additional amounts under Section 2.12(d)(i) or Section 2.13(a), asapplicable, designate another Lender reasonably acceptable to Agent to purchase the Obligationsowed to such Affected Lender and such Affected Lender’s Commitments hereunder (a “ReplacementLender”), such Affected Lender shall assign to the Replacement Lender its Obligations andCommitments, pursuant to an Assignment and Acceptance Agreement, and upon such purchase by theReplacement Lender, such Replacement Lender shall be deemed to be a “Lender” for purposes of thisAgreement and such Affected Lender shall cease to be a “Lender” for purposes of this Agreement.
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**3. CONDITIONS; TERM OF AGREEMENT**.     **3.1****Conditions Precedent to the Initial Extension of Credit****.**The obligation of eachLender to make its initial extension of credit provided for hereunder, is subject to thefulfillment, to the satisfaction of Agent and each Lender of each of the conditions precedent setforth on Schedule 3.1 (the making of such initial extension of credit by a Lender beingconclusively deemed to be its satisfaction or waiver of the conditions precedent ).     **3.2****Conditions Precedent to all Extensions of Credit****.**The obligation of the LenderGroup (or any member thereof) to make any Advances hereunder (or to extend any other credithereunder) at any time shall be subject to the following conditions precedent:          (a) the representations and warranties of Borrower or its Subsidiaries contained in thisAgreement or in the other Loan Documents shall be true and correct in all material respects (exceptthat such materiality qualifier shall not be applicable to any representations and warranties thatalready are qualified or modified by materiality in the text thereof) on and as of the date of suchextension of credit, as though made on and as of such date (except to the extent that suchrepresentations and warranties relate solely to an earlier date); and          (b) no Default or Event of Default shall have occurred and be continuing on the date of suchextension of credit, nor shall either result from the making thereof.     **3.3****Term****.**This Agreement shall continue in full force and effect for a term ending onDecember 24, 2012 (the “Maturity Date”). The foregoing notwithstanding, the Lender Group,upon the election of the Required Lenders, shall have the right to terminate its obligations underthis Agreement immediately and without notice upon the occurrence and during the continuation of anEvent of Default.     **3.4****Effect of Termination****.**On the date of termination of this Agreement, allObligations (including contingent reimbursement obligations of Borrower with respect to outstandingLetters of Credit and including all Bank Product Obligations) immediately shall become due andpayable without notice or demand (including the requirement that Borrower provide (a) Letter ofCredit Collateralization, and (b) Bank Product Collateralization). No termination of thisAgreement, however, shall relieve or discharge Borrower or its Subsidiaries of their duties,Obligations, or covenants hereunder or under any other Loan Document and the Agent’s Liens in theCollateral shall remain in effect until all Obligations have been paid in full and the LenderGroup’s obligations to provide additional credit hereunder have been terminated. When thisAgreement has been terminated and all of the Obligations have been paid in full and the LenderGroup’s obligations to provide additional credit under the Loan Documents have been terminatedirrevocably, Agent will, at Borrower’s sole expense, execute and deliver any terminationstatements, lien releases, mortgage releases, re-assignments of trademarks, discharges of securityinterests, and other similar discharge or release documents (and, if applicable, in recordableform) as are reasonably necessary to release, as of record, the Agent’s Liens and all notices ofsecurity interests and liens previously filed by Agent with respect to the Obligations.     **3.5****Early Termination by Borrower****.**Borrower has the option, at any time upon 5Business Days prior written notice to Agent, to terminate this Agreement and terminate theCommitments hereunder by paying to Agent the Obligations (including (a) providing Letter of CreditCollateralization with respect to the then existing Letter of Credit Usage, and (b) providing BankProduct Collateralization with respect to the then existing Bank Products), in full. If Borrowerhas sent a notice of termination pursuant to the provisions of this Section, then the Commitmentsshall terminate and Borrower shall be obligated to make the foregoing payments of the Obligationson the date set forth as the date of termination of this Agreement in such notice, provided,however, that notwithstanding the foregoing, Borrower may rescind such a termination notice twiceduring the term of this Agreement by written notice received by Agent prior to 9:00 a.m.(California time) on the date set forth as the date of termination in such notice of termination.
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     **3.6****Conditions Subsequent.** The obligation of the Lender Group (or any member thereof)to continue to make Advances (or otherwise extend credit hereunder) is subject to the fulfillment,on or before the date applicable thereto, of each of the conditions subsequent set forth onSchedule 3.6 (the failure by the Borrower to so perform or cause to be performedconstituting an Event of Default).**4. REPRESENTATIONS AND WARRANTIES**.     In order to induce the Lender Group to enter into this Agreement, Borrower makes the followingrepresentations and warranties to the Lender Group which shall be true, correct, and complete, inall material respects, as of the date hereof, and shall be true, correct, and complete, in allmaterial respects, as of the Closing Date and at and as of the date of the making of each Advance(or other extension of credit) made thereafter, as though made on and as of the date of suchAdvance (or other extension of credit) (except to the extent that such representations andwarranties relate solely to an earlier date) and such representations and warranties shall survivethe execution and delivery of this Agreement:     **4.1****Due Organization and Qualification; Subsidiaries**.          (a) Each Loan Party (i) is duly organized and existing and in good standing under the laws ofthe jurisdiction of its organization, (ii) qualified to do business in any state where the failureto be so qualified reasonably could be expected to result in a Material Adverse Change, and (iii)has all requisite power and authority to own and operate its properties, to carry on its businessas now conducted and as proposed to be conducted, to enter into the Loan Documents to which it is aparty and to carry out the transactions contemplated thereby.          (b) Borrower’s most recent public filings made with the SEC set forth a complete and accuratedescription of the authorized capital Stock of Borrower, by class, and a description of the numberof shares of each such class that were issued and outstanding as of the date of such filings.          (c) Set forth on Schedule 4.1(c) to the Disclosure Letter (as such Schedule may beupdated from time to time to reflect changes permitted to be made under Section 5.11), is acomplete and accurate list of the Loan Parties’ direct and indirect Subsidiaries (other thanExcluded Subsidiaries), showing: (i) the number of shares of each class of common and preferredStock authorized for each of such Subsidiaries (other than Excluded Subsidiaries), and (ii) thenumber and the percentage of the outstanding shares of each such class owned directly or indirectlyby Borrower. All of the outstanding capital Stock of each such Subsidiary (other than ExcludedSubsidiaries) has been validly issued and is fully paid and non-assessable.          (d) Except as set forth on Schedule 4.1(c) to the Disclosure Letter, there are nosubscriptions, options, warrants, or calls relating to any shares of Borrower’s Subsidiaries’(other than Excluded Subsidiaries) capital Stock, including any right of conversion or exchangeunder any outstanding security or other instrument. Neither Borrower nor any of its Subsidiaries(other than Excluded Subsidiaries) is subject to any obligation (contingent or otherwise) torepurchase or otherwise acquire or retire any shares ofBorrower’s Subsidiaries’ capital Stock or any security convertible into or exchangeable forany such capital Stock.     **4.2****Due Authorization; No Conflict**.          (a) As to each Loan Party, the execution, delivery, and performance by such Loan Party of theLoan Documents to which it is a party have been duly authorized by all necessary action on the partof such Loan Party.
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          (b) As to each Loan Party, the execution, delivery, and performance by such Loan Party of theLoan Documents to which it is a party do not and will not (i) violate any material provision offederal, state, or local law or regulation applicable to any Loan Party or its Subsidiaries, theGoverning Documents of any Loan Party or its Subsidiaries, or any order, judgment, or decree of anycourt or other Governmental Authority binding on any Loan Party or its Subsidiaries, (ii) conflictwith, result in a breach of, or constitute (with due notice or lapse of time or both) a defaultunder any Material Contract of any Loan Party or its Subsidiaries except to the extent that anysuch conflict, breach or default could not individually or in the aggregate reasonably be expectedto have a Material Adverse Change, (iii) result in or require the creation or imposition of anyLien of any nature whatsoever upon any assets of any Loan Party, other than Permitted Liens, or(iv) require any approval of the holder of any Loan Party’s Stock or any approval or consent of anyPerson under any Material Contract of any Loan Party, other than consents or approvals that havebeen obtained and that are still in force and effect and except, in the case of Material Contracts,for consents or approvals, the failure to obtain could not individually or in the aggregatereasonably be expected to cause a Material Adverse Change.     **4.3****Governmental Consents****.**The execution, delivery, and performance by each LoanParty of the Loan Documents to which such Loan Party is a party and the consummation of thetransactions contemplated by the Loan Documents do not and will not require any registration with,consent, or approval of, or notice to, or other action with or by, any Governmental Authority,other than consents or approvals that have been obtained and that are still in force and effect andexcept for filings and recordings with respect to the Collateral to be made, or otherwise deliveredto the Agent for filing or recordation, as of the Closing Date.     **4.4****Binding Obligations; Perfected Liens**.          (a) Each Loan Document has been duly executed and delivered by each Loan Party that is a partythereto and is the legally valid and binding obligation of such Loan Party, enforceable againstsuch Loan Party in accordance with its respective terms, except as enforcement may be limited byequitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar lawsrelating to or limiting creditors’ rights generally.          (b) The Agent’s Liens are validly created, perfected (other than (i) in respect of motorvehicles and (ii) any Deposit Accounts and Securities Accounts not subject to a Control Agreementas permitted by Section 6.11, and subject only to the filing of financing statements andthe recordation of the Mortgages), and first priority Liens, subject only to Permitted Liens.     **4.5****Title to Assets; No Encumbrances****.**Each of the Loan Parties and its Subsidiarieshas (i) good, sufficient and legal title to (in the case of fee interests in Real Property), (ii)valid leasehold interests in (in the case of leasehold interests in real or personal property), and(iii) good and marketable title to (in the case of all other personal property), all of theirrespective assets reflected in their most recent financial statements delivered pursuant toSection 5.1, in each case except for assets disposed of since the date of such financialstatements to the extent permitted hereby. All of such assets are free and clear of Liens exceptfor Permitted Liens.     **4.6****Jurisdiction of Organization; Location of Chief Executive Office; OrganizationalIdentification Number; Commercial Tort Claims**.          (a) The name of (within the meaning of Section 9-503 of the Code) and jurisdiction oforganization of each Loan Party and each of its Subsidiaries is set forth on Schedule4.6(a) to the Disclosure Letter (as such Schedule may be updated from time to time to reflectchanges permitted to be made under Section 6.5).          (b) The chief executive office of each Loan Party is located at the address indicated onSchedule 4.6(b) to the Disclosure Letter (as such Schedule may be updated from time to timeto reflect changes permitted to be made under Section 5.15).
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          (c) Each Loan Party’s tax identification numbers and organizational identification numbers, ifany, are identified on Schedule 4.6(c) to the Disclosure Letter (as such Schedule may beupdated from time to time to reflect changes permitted to be made under Section 6.5).          (d) As of the Closing Date, no Loan Party holds any commercial tort claims, except as setforth on Schedule 4.6(d) to the Disclosure Letter.     **4.7****Litigation**.          (a) There are no actions, suits, or proceedings pending or, to the actual knowledge of seniormanagement of Borrower following reasonable inquiry, threatened in writing against a Loan Party orany of its Subsidiaries that either individually or in the aggregate could reasonably be expectedto result in a Material Adverse Change.          (b) Schedule 4.7(b) to the Disclosure Letter sets forth a complete and accuratedescription, with respect to each of the material actions, suits, or proceedings that, as of theClosing Date, is pending or, to the actual knowledge of senior management of Borrower followingreasonable inquiry, is threatened in writing against a Loan Party or any of its Subsidiaries.     **4.8****Compliance with Laws****.**No Loan Party nor any of its Subsidiaries (a) is inviolation of any applicable laws, rules, regulations, executive orders, or codes (includingEnvironmental Laws) that, individually or in the aggregate, could reasonably be expected to have aMaterial Adverse Change, or (b) is subject to or in default with respect to any final judgments,writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal orother governmental department, commission, board, bureau, agency or instrumentality, domestic orforeign, that, individually or in the aggregate, could reasonably be expected to have a MaterialAdverse Change.     **4.9****No Material Adverse Change****.**All financial statements relating to the Loan Partiesand their Subsidiaries that have been delivered by Borrower to Agent have been prepared inaccordance with GAAP (except, in the case of unaudited financial statements, for the lack offootnotes and being subject to year-end audit adjustments) and present fairly in all materialrespects, the Loan Parties’ and their Subsidiaries’ consolidated financial condition as of the datethereof and consolidated results of operations for the period then ended. Since September 30,2008, no event, circumstance, or change has occurred that has or could reasonably be expected toresult in a Material Adverse Change with respect to the Loan Parties and their Subsidiaries, takenas a whole.     **4.10****Fraudulent Transfer**.          (a) The Loan Parties, taken as a whole, are Solvent.          (b) No transfer of property (including in connection with each Permitted Stock Repurchase) isbeing made by any Loan Party and no obligation is being incurred by any Loan Party in connectionwith the transactions contemplated by this Agreement or the other Loan Documents with the intent tohinder, delay, or defraud either present or future creditors of such Loan Party.     **4.11****Employee Benefits****.**No Loan Party, none of their Subsidiaries, nor any of theirERISA Affiliates maintains or contributes to any Benefit Plan.
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     **4.12****Environmental Condition****.**Except as set forth on Schedule 4.12 to theDisclosure Letter, (a) to Borrower’s knowledge, no Loan Party’s or its Subsidiaries’ properties orassets has ever been used by a Loan Party, its Subsidiaries, or by previous owners or operators inthe disposal of, or to produce, store, handle, treat, release, or transport, any HazardousMaterials, where such disposal, production, storage, handling, treatment, release or transport wasin violation, in any material respect, of any applicable Environmental Law,(b) to Borrower’sknowledge, no Loan Party’s or its Subsidiaries’ properties or assets has ever been designated oridentified in any manner pursuant to any environmental protection statute as a Hazardous Materialsdisposal site, (c) no Loan Party nor any of its Subsidiaries has received notice that a Lienarising under any Environmental Law has attached to any revenues or to any Real Property owned oroperated by a Loan Party or its Subsidiaries, and (d) no Loan Party nor any of its Subsidiaries norany of their respective facilities or operations is subject to any outstanding written order,consent decree, or settlement agreement with any Person relating to any Environmental Law orEnvironmental Liability that, individually or in the aggregate, could reasonably be expected toresult in a Material Adverse Change.     **4.13****Intellectual Property****.**Each Loan Party owns, or holds licenses in, alltrademarks, trade names, copyrights, patents, and licenses that are necessary to the conduct of itsbusiness as currently conducted, and attached hereto as Schedule 4.13 to the DisclosureLetter (as updated from time to time) is a true, correct, and complete listing of all materialtrademarks and trademark applications, trade names, copyrights and copyright applications, patentsand patent applications, and licenses as to which Borrower or one of its Subsidiaries is the owneror is an exclusive licensee (but excluding any (i) off-the-shelf software license agreement, (ii)open source codes, (iii) end-user agreements with such Loan Party’s customers, partners,distributors, resellers and end users of such customers, partners, distributers, and resellers);provided, however, that Borrower may amend Schedule 4.13 to the DisclosureLetter to add additional intellectual property.     **4.14****Leases****.**Each Loan Party and its Subsidiaries enjoy peaceful and undisturbedpossession under all leases material to their business and to which they are parties or under whichthey are operating, and, subject to Permitted Protests, all of such material leases are valid andsubsisting and no material default by the applicable Loan Party or its Subsidiaries exists underany of them.     **4.15****Deposit Accounts and Securities Accounts****.**Set forth on Schedule 4.15 tothe Disclosure Letter (as updated pursuant to the provisions of the Security Agreement from time totime) is a listing of all of the Loan Parties’ and (and upon the request of Agent) theirSubsidiaries’ Deposit Accounts and Securities Accounts, including, with respect to each bank orsecurities intermediary (a) the name and address of such Person, and (b) the account numbers of theDeposit Accounts or Securities Accounts maintained with such Person.     **4.16****Complete Disclosure****.**All factual information (taken as a whole) furnished by oron behalf of a Loan Party or its Subsidiaries in writing to Agent or any Lender (including allinformation contained in the Schedules hereto, in the Disclosure Letter or in the other LoanDocuments) for purposes of or in connection with this Agreement, the other Loan Documents, or anytransaction contemplated herein or therein is, and all other such factual information (taken as awhole) hereafter furnished by or on behalf of a Loan Party or its Subsidiaries in writing to Agentor any Lender will be, true and accurate, in all material respects, on the date as of which suchinformation is dated or certified and not incomplete by omitting to state any fact necessary tomake such information (taken as a whole) not misleading in any material respect at suchtime in light of the circumstances under which such information was provided. On the ClosingDate, the Closing Date Projections represent, and as of the date on which any other Projections aredelivered to Agent, such additional Projections represent Borrower’s good faith estimate of theLoan Parties’ and their Subsidiaries future performance for the periods covered thereby based uponassumptions believed by Borrower to be reasonable at the time of the delivery thereof to Agent (itbeing understood that such projections and forecasts are subject to uncertainties andcontingencies, many of which are beyond the control of the Loan Parties and their Subsidiaries andno assurances can be given that such projections or forecasts will be realized).
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     **4.17****Material Contracts**. Set forth on Schedule 4.17 to the Disclosure Letter(as updated from time to time) is a reasonably detailed description of the Material Contracts ofeach Loan Party and its Subsidiaries; provided, however, that Borrower may amendsuch Schedule 4.17 to add additional Material Contracts so long as such amendment occurs bywritten notice to Agent upon the sooner to occur of (i) at the time that Borrower provides itsquarterly financial statements pursuant to Section 5.1, or (ii) at the time that Borrowerrequests Advances or L/Cs. Except for matters which, either individually or in the aggregate,could not reasonably be expected to result in a Material Adverse Change, each Material Contract(other than those that have expired at the end of their normal terms) (a) is in full force andeffect and is binding upon and enforceable against the applicable Loan Party or its Subsidiary and,to the best of Borrower’s knowledge, each other Person that is a party thereto in accordance withits terms, except as enforcement may be limited by equitable principles or by bankruptcy,insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rightsgenerally, (b) has not been otherwise amended or modified (other than amendments or modificationspermitted by Section 6.7(b)), and (c) is not in default due to the action or inaction ofthe applicable Loan Party or its Subsidiary.     **4.18****Patriot Act****.**To the extent applicable, each Loan Party is in compliance, in allmaterial respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreignassets control regulations of the Untied States Treasury Department (31 CFR, Subtitle B, Chapter V,as amended) and any other enabling legislation or executive order relating thereto, and (b) Unitingand Strengthening America by Providing Appropriate Tools Required to Intercept and ObstructTerrorism (USA Patriot Act of 2001) (the “Patriot Act”). No part of the proceeds of theloans made hereunder will be used, directly or indirectly, for any payments to any governmentalofficial or employee, political party, official of a political party, candidate for politicaloffice, or anyone else acting in an official capacity, in order to obtain, retain or directbusiness or obtain any improper advantage, in violation of the United States Foreign CorruptPractices Act of 1977, as amended.     **4.19****Indebtedness****.**Set forth on Schedule 4.19 to the Disclosure Letter is atrue and complete list of all Indebtedness of each Loan Party and each of its Subsidiariesoutstanding immediately prior to the Closing Date that is to remain outstanding after the ClosingDate and such Schedule accurately sets forth the aggregate principal amount of such Indebtedness asof the Closing Date.     **4.20****Payment of Taxes****.**Except as otherwise permitted under Section 5.5, alltax returns and reports of each Loan Party and its Subsidiaries required to be filed by any of themhave been timely filed, and all taxes shown on such tax returns to be due and payable and allassessments, fees and other governmental charges upon a Loan Party and its Subsidiaries and upontheir respective assets, income, businesses and franchises that are due and payable have been paidwhen due and payable. Each Loan Party and each of its Subsidiaries have made adequate provision inaccordance with GAAP for all taxes not yet due and payable. Borrower knows of no proposed taxassessment against a Loan Party or any of its Subsidiaries that is not being actively contested bysuch Loan Party or such Subsidiary diligently, in good faith, and by appropriate proceedings;provided such reserves or other appropriate provisions, if any, as shall be required inconformity with GAAP shall have been made or provided therefor. No Loan Party nor any of itsSubsidiaries has ever been a party to any understanding or arrangement constituting a “tax shelter”within the meaning of Section 6662(d)(2)(C)(iii) of the IRC or within the meaning of Section6111(c) or Section 6111(d) of the IRC as in effect immediately prior to the enactment of theAmerican Jobs Creation Act of 2004, or has ever “participated” in a “reportable transaction” withinthe meaning of Treasury Regulation Section 1.6011-4,except as would not be reasonably expected to, individually or in the aggregate, result in aMaterial Adverse Change.     **4.21****Margin Stock****.**No Loan Party nor any of its Subsidiaries is engaged principally,or as one of its important activities, in the business of extending credit for the purpose ofpurchasing or carrying any Margin Stock. No part of the proceeds of the loans made to Borrowerwill be used for any purpose that violates, or is inconsistent with, the provisions of RegulationT, U or X of the Board of Governors of the Federal Reserve System as in effect from time to time.     **4.22****Governmental Regulation****.**No Loan Party nor any of its Subsidiaries is subject toregulation under the Federal Power Act or the Investment Company Act of 1940 or under any otherfederal or state statute or regulation which may limit its ability to incur Indebtedness or whichmay otherwise render all or any portion of the Obligations unenforceable. No Loan Party nor any ofits Subsidiaries is a “registered investment company” or a company “controlled” by a “registeredinvestment company” or a “principal underwriter” of a “registered investment company” as such termsare defined in the Investment Company Act of 1940.
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     **4.23****OFAC****.**No Loan Party nor any of its Subsidiaries is in violation of any of thecountry or list based economic and trade sanctions administered and enforced by OFAC. No LoanParty nor any of its Subsidiaries (a) is a Sanctioned Person or a Sanctioned Entity, (b) has a morethan 10% of its assets located in Sanctioned Entities, or (c) derives more than 10% of its revenuesfrom investments in, or transactions with Sanctioned Persons or Sanctioned Entities. The proceedsof any Advance or of the Term Loan will not be used to fund any operations in, finance anyinvestments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity.     **4.24****Location of Equipment****.**The Equipment (other than (i) vehicles or Equipment outfor repair, and (ii) other Equipment having value of not more than $1,000,000 in the aggregate) ofthe Loan Parties is located only at, or in-transit between, the locations identified onSchedule 4.24 to the Disclosure Letter (as such Schedule may be updated pursuant toSection 5.15).     **4.25****Excluded Subsidiaries****.**None of the Excluded Subsidiaries owns or is owed anySubscription Revenues, or owns any material assets (other than the Stock of its directSubsidiaries), or contributes (in the aggregate with all other Excluded Subsidiaries) a materialportion of Borrower’s consolidated net earnings or EBITDA .**5. AFFIRMATIVE COVENANTS**.     Borrower covenants and agrees that, until termination of all of the Commitments and payment infull of the Obligations, the Loan Parties shall and shall cause each of their Subsidiaries tocomply with each of the following:     **5.1****Financial Statements, Reports, Certificates****.**Deliver to Agent, with copies toeach Lender, each of the financial statements, reports, and other items set forth on Schedule5.1 at the times specified therein. In addition, Borrower agrees that no Subsidiary of a LoanParty will have a fiscal year different from that of Borrower. In addition, Borrower agrees tomaintain a system of accounting that enables Borrower to produce financial statements in accordancewith GAAP. Each Loan Party shall also maintain its billing systems/practices as approved by Agentprior to the Closing Date and shall only make material modifications thereto with notice to Agent.     **5.2****Collateral Reporting****.**Provide Agent (and if so requested by Agent, with copiesfor each Lender) with each of the reports set forth on Schedule 5.2 at the times specifiedtherein.     **5.3****Existence****.**Except as otherwise permitted under Section 6.3, each LoanParty to, and cause each of its Subsidiaries to, at all times preserve and keep in full force andeffect its existence (including being in good standing in its jurisdiction of organization) and allrights and franchises, licenses and permits material to its business.     **5.4****Maintenance of Properties****.**Maintain and preserve all of its assets that arenecessary or useful in the proper conduct of its business in good working order and condition,ordinary wear, tear, and casualty excepted and Permitted Dispositions excepted (and except wherethe failure to do so could not reasonably be expected to result in a Material Adverse Change), andcomply with the material provisions of all material leases to which it is a party as lessee, so asto prevent the loss or forfeiture thereof, unless such provisions are the subject of a PermittedProtest.
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     **5.5****Taxes****.**Cause all assessments and taxes imposed, levied, or assessed against anyLoan Party or its Subsidiaries, or any of their respective assets or in respect of any of itsincome, businesses, or franchises to be paid in full, before delinquency or before the expirationof any extension period, except to the extent that the validity of such assessment or tax shall bethe subject of a Permitted Protest and so long as, in the case of an assessment or tax that has ormay become a Lien against any of the Collateral, such contest proceedings conclusively operate tostay the sale of any portion of the Collateral to satisfy such assessment or tax. Borrower will andwill cause each of its Subsidiaries to make timely payment or deposit of all tax payments andwithholding taxes required of it and them by applicable laws, including those laws concerningF.I.C.A., F.U.T.A., state disability, and local, state, and federal income taxes, and will, uponrequest, furnish Agent with proof reasonably satisfactory to Agent indicating that Borrower and itsSubsidiaries have made such payments or deposits. Notwithstanding anything this Section 5.5to the contrary, the Loan Parties may have an aggregate amount of unpaid or delinquent taxes,assessments, or other governmental fees or charges outstanding in an aggregate amount not to exceed$500,000 at any one time.     **5.6****Insurance****.**At Borrower’s expense, maintain insurance respecting each of the LoanParties’ and their Subsidiaries’ assets wherever located, covering loss or damage by fire, theft,explosion, and all other hazards and risks as ordinarily are insured against by other Personsengaged in the same or similar businesses. Borrower also shall maintain (with respect to each ofthe Loan Parties and their Subsidiaries) business interruption, public liability, and productliability insurance, as well as insurance against larceny, embezzlement, and criminalmisappropriation. All such policies of insurance shall be with responsible and reputable insurancecompanies and in such amounts as is carried generally in accordance with sound business practice bycompanies in similar businesses similarly situated and located and in any event in amount, adequacyand scope reasonably satisfactory to Agent. All property insurance policies covering the Collateralare to be made payable to Agent for the benefit of Agent and the Lenders, as their interests mayappear, in case of loss, pursuant to a standard loss payable endorsement with a standard noncontributory “lender” or “secured party” clause and are to contain such other provisions as Agentmay reasonably require to fully protect the Lenders’ interest in the Collateral and to any paymentsto be made under such policies. All certificates of insurance are to be delivered to Agent, withthe loss payable and additional insured endorsement in favor of Agent and shall provide for notless than 30 days (10 days in the case of non-payment) prior written notice to Agent of theexercise of any right of cancellation. If Borrower fails to maintain such insurance, Agent mayarrange for such insurance, but at Borrower’s expense and without any responsibility on Agent’spart for obtaining the insurance, the solvency of the insurance companies, the adequacy of thecoverage, or the collection of claims. Borrower shall give Agent prompt notice of any lossexceeding $250,000 covered by its casualty or business interruption insurance. Upon the occurrenceand during the continuance of an Event of Default, Agent shall have the sole right to file claimsunder any insurance policies, to receive, receipt and give acquittance for any payments that may bepayable thereunder, and to execute any and all endorsements, receipts, releases, assignments,reassignments or other documents that may be necessary to effect the collection, compromise orsettlement of any claims under any such insurance policies. If no Event of Default exists,Borrower or the applicable Loan Party shall have the sole right to file claims under any insurancepolicies, to receive, receipt and give acquittance for any payments that may be payable thereunder,and to execute any and all endorsements, receipts, releases, assignments, reassignments or otherdocuments that maybe necessary to effect the collection, compromise or settlement of any claims under any suchinsurance policies.     **5.7****Inspection****.**Permit Agent and each of its duly authorized representatives oragents to visit any of its properties and inspect any of its assets or books and records, toexamine and make copies of its books and records, and to discuss its affairs, finances, andaccounts with, and to be advised as to the same by, its officers and employees at such reasonabletimes and intervals as Agent may designate and, so long as no Default or Event of Default exists,with reasonable prior notice to Borrower.     **5.8****Compliance with Laws****.**Comply with the requirements of all applicable laws, rules,regulations, and orders of any Governmental Authority, other than laws, rules, regulations, andorders the non-compliance with which, individually or in the aggregate, could not reasonably beexpected to result in a Material Adverse Change.
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     **5.9****Environmental**.          (a) Keep any property either owned or operated by Borrower or its Subsidiaries free of anyEnvironmental Liens or post bonds or other financial assurances sufficient to satisfy theobligations or liability evidenced by such Environmental Liens,          (b) comply, in all material respects, with Environmental Laws and provide to Agentdocumentation of such compliance which Agent reasonably requests,          (c) promptly notify Agent of any release of a Hazardous Material in any reportable quantityfrom or onto property owned or operated by Borrower or its Subsidiaries and take any RemedialActions required to abate said release or otherwise to come into compliance with applicableEnvironmental Law, and          (d) promptly, but in any event within 5 Business Days of its receipt thereof, provide Agentwith written notice of any of the following: (i) notice that an Environmental Lien has been filedagainst any of the real or personal property of Borrower or its Subsidiaries, (ii) commencement ofany Environmental Action or notice that an Environmental Action will be filed against Borrower orits Subsidiaries, and (iii) notice of a violation, citation, or other administrative order whichcould reasonably be expected to result in a Material Adverse Change.     **5.10****Disclosure Updates****.**Promptly and in no event later than 5 Business Days afterobtaining knowledge thereof, notify Agent if any written information, exhibit, or report furnishedto the Lender Group contained, at the time it was furnished, any untrue statement of a materialfact or omitted to state any material fact necessary to make the statements contained therein notmisleading in light of the circumstances in which made. The foregoing to the contrarynotwithstanding, any notification pursuant to the foregoing provision will not cure or remedy theeffect of the prior untrue statement of a material fact or omission of any material fact nor shallany such notification have the effect of amending or modifying this Agreement or any of theSchedules hereto.     **5.11****Formation of Subsidiaries****.**At the time that any Loan Party forms any direct orindirect Subsidiary or acquires any direct or indirect Subsidiary after the Closing Date, such LoanParty shall (a) within 10 days of such formation or acquisition cause any such new Subsidiary toprovide to Agent a joinder to the Guaranty and the Security Agreement, together with such othersecurity documents (including mortgages with respect to any Real Property owned in fee of such newSubsidiary with a fair market value of at least $250,000), as well as appropriate financingstatements (and with respect to all property subject to a mortgage, fixture filings), all in formand substance reasonably satisfactory to Agent (including being sufficient to grant Agent a firstpriority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquiredSubsidiary); provided that the Guaranty, the Security Agreement, and such other securitydocuments shall not be required to be provided to Agent with respect to any Subsidiary of Borrowerthat is a CFC, (b) within 30 days of such formation or acquisition (or such later date as permittedby Agent in its sole discretion) provide to Agent a pledge agreement and appropriate certificatesand powers or financing statements, hypothecating all of the direct or beneficial ownershipinterest in such new Subsidiary reasonably satisfactory to Agent; provided that only 65% ofthe total outstanding voting Stock of any first tier Subsidiary of Borrower that is a CFC and noneof the total outstanding voting Stock of any other Subsidiary of such CFC shall be required to bepledged, and (c) within 30 days of such formation or acquisition (or such later date as permittedby Agent in its sole discretion) provide to Agent all other documentation, including one or moreopinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate withrespect to the execution and delivery of the applicable documentation referred to above (includingpolicies of title insurance or other documentation with respect to all Real Property owned in feeand subject to a mortgage). Any document, agreement, or instrument executed or issued pursuant tothis Section 5.11 shall be a Loan Document.
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     **5.12****Further Assurances****.**At any time upon the reasonable request of Agent, execute ordeliver to Agent any and all financing statements, fixture filings, security agreements, pledges,collateral assignments, endorsements of certificates of title, mortgages, deeds of trust, opinionsof counsel, and all other documents (collectively, the “Additional Documents”) that Agentmay reasonably request in form and substance reasonably satisfactory to Agent, to create, perfect,and continue perfected or to better perfect the Agent’s Liens in all of the assets of Borrower andthe Loan Parties (whether now owned or hereafter arising or acquired, tangible or intangible, realor personal), to create and perfect Liens in favor of Agent in any Real Property acquired byBorrower or the Loan Parties after the Closing Date with a fair market value in excess of $250,000,and in order to fully consummate all of the transactions contemplated hereby and under the otherLoan Documents); provided that the foregoing shall not apply to any Subsidiary of Borrowerthat is a CFC. To the maximum extent permitted by applicable law, Borrower authorizes Agent toexecute any such Additional Documents in the applicable Loan Party’s ‘s name, as applicable, andauthorizes Agent to file such executed Additional Documents in any appropriate filing office. Infurtherance and not in limitation of the foregoing, each Loan Party shall take such actions asAgent may reasonably request from time to time to ensure that the Obligations are guarantied by theGuarantors and are secured by substantially all of the assets of Borrower and the Loan Parties andall of the outstanding Capital Stock of Borrower’s Subsidiaries (subject to limitations containedin the Loan Documents with respect to CFCs).     **5.13****Lender Meetings**. Within 120 days after the close of each fiscal year ofBorrower, at the request of Agent or of the Required Lenders and upon reasonable prior notice, holda meeting (at a mutually agreeable location and time or, at the option of Agent, by conferencecall) with all Lenders who choose to attend such meeting at which meeting shall be reviewed thefinancial results of the previous fiscal year and the financial condition of Borrower and itsSubsidiaries and the projections presented for the current fiscal year of Borrower.     **5.14****Material Contracts****.**Contemporaneously with the delivery of each ComplianceCertificate pursuant hereto, provide Agent with notice of (a) each Material Contract entered intosince the delivery of the previous Compliance Certificate, and (b) each material amendment ormodification of any Material Contract entered into since the delivery of the previous ComplianceCertificate. Such notice may be in the form of a link to the filed Material Contract or amendment,as applicable, in Borrower’s filings with the SEC, or, if such Material Contract or amendment hasnot been filed, a copy of the same .     **5.15****Location of Equipment****.**Keep each Loan Party’s Equipment (other than (i) vehiclesand Equipment out for repair and (ii) other Equipment having a value of not more than $1,000,000 inthe aggregate) only at the locations identified on Schedule 4.24 to the Disclosure Letterand their chief executive offices only at the locations identified on Schedule 4.6(b) tothe Disclosure Letter, provided, however, that Borrower may amend Schedule4.24 to the Disclosure Letter or Schedule 4.6(b) to the Disclosure Letter so long assuch amendment occurs by written notice to Agent not less than 10 days prior to the date on whichsuch Equipment is moved to such new location or such chief executive office is relocated and solong as such new location is within the continental United States, and so long as, at the time ofsuch written notification, Borrower provides Agent a Collateral Access Agreement with respectthereto.     **5.16****Assignable Material Contracts****.**Use commercially reasonable efforts to ensurethat any Material Contract entered into after the Closing Date by Borrower or one of itsSubsidiaries that generates or, by its terms, will generate revenue, permits the assignment of suchagreement (and all rights of Borrower or such Subsidiary, as applicable, thereunder) to Borrower’sor such Subsidiary’s lenders or an agent for any lenders (and any transferees of such lenders orsuch agent, as applicable).**6. NEGATIVE COVENANTS**.     Borrower covenants and agrees that, until termination of all of the Commitments and payment infull of the Obligations, the Loan Parties will not and will not permit any of their Subsidiaries todo any of the following:
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     **6.1****Indebtedness****.**Create, incur, assume, suffer to exist, guarantee, or otherwisebecome or remain, directly or indirectly, liable with respect to any Indebtedness, except forPermitted Indebtedness.     **6.2****Liens****.**Create, incur, assume, or suffer to exist, directly or indirectly, anyLien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired,or any income or profits therefrom, except for Permitted Liens.     **6.3****Restrictions on Fundamental Changes**.          (a) Other than in order to consummate a Permitted Acquisition, enter into (provided thatBorrower or any of its Subsidiaries may enter into any merger, consolidation, reorganization, orrecapitalization, or reclassification of its Stock, if Borrower or such Subsidiary has disclosed tothe other Persons party to the transaction any required consent of Agent and the Lenders hereunder)or consummate any merger, consolidation, reorganization, or recapitalization, or reclassify itsStock, except for (i) any merger between Loan Parties, provided that Borrower must be the survivingentity of any such merger to which it is a party, (ii) any merger between Loan Parties andSubsidiaries of Borrower that are not Loan Parties so long as such Loan Party is the survivingentity of any such merger, and (iii) any merger between Subsidiaries of Borrower that are not LoanParties;          (b) Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), exceptfor (i) the liquidation or dissolution of Excluded Subsidiaries and other non-operatingSubsidiaries of Borrower with nominal assets and nominal liabilities, (ii) the liquidation ordissolution of a Loan Party (other than Borrower) or any of its wholly-owned Subsidiaries so longas all of the assets (including any interest in any Stock) of such liquidating or dissolving LoanParty or Subsidiary are transferred to a Loan Party that is not liquidating or dissolving, (iii)the liquidation or dissolution of a Subsidiary of Borrower that is not a Loan Party (other than anysuch Subsidiary the Stock of which (or any portion thereof) is subject to a Lien in favor of Agent)so long as all of the assets of such liquidating or dissolving Subsidiary are transferred to aSubsidiary of Borrower that is not liquidating or dissolving; or (iv) the liquidation ordissolution of a Subsidiary of Borrower that is not a Loan Party, but the Stock of which (or anyportion thereof) is subject to a Lien in favor of Agent) so long as all of the assets of suchliquidating or dissolving Subsidiary are transferred to a Loan Party or a Subsidiary the Stock ofwhich (or any portion thereof) is subject to a Lien in favor of Agent, that is not liquidating ordissolving; or          (c) Suspend or go out of a substantial portion of its or their business, except as permittedpursuant to clauses (a) or (b) above or in connection with the transactions permitted pursuant toSection 6.4.     **6.4****Disposal of Assets****.**Other than Permitted Dispositions, Permitted Investments, ortransactions expressly permitted by Sections 6.3, 6.9, 6.11, and6.12, convey, sell, lease, license, assign, transfer, or otherwise dispose of (or enterinto an agreement to convey, sell, lease, license, assign, transfer, or otherwise dispose of(provided that Borrower or any of its Subsidiaries may enter into such an agreement in order toconsummate an Acquisition that is not a Permitted Acquisition, if Borrower or such Subsidiary hasdisclosed to the other Persons party to the transaction any required consent of Agent and theLenders hereunder)) any of Borrower’s or its Subsidiaries’ assets.     **6.5****Change Name****.**Change the name, organizational identification number, state oforganization or organizational identity of (a) any Loan Party or (b) any Subsidiary of Borrowerthat is not a Loan Party if all or any portion of the Stock of such Subsidiary has been pledged toAgent; provided, however, that Loan Parties and any of the Subsidiaries describedin clause (b) above may change their names upon at least 10 days prior written notice to Agent ofsuch change.     **6.6****Nature of Business****.**Make any change in the nature of its or their business asdescribed in Schedule 6.6 to the Disclosure Letter or acquire any properties or assets thatare not reasonablyrelated to theconduct of such business activities; provided that Borrower and itsSubsidiaries may engage in any business that is reasonably related or ancillary to its or theirbusiness.
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     **6.7****Prepayments and Amendments**.          (a) Except in connection with Refinancing Indebtedness permitted by Section 6.1,               (i) optionally prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness ofBorrower or its Subsidiaries, other than (A) the Obligations in accordance with this Agreement, (B)Permitted Intercompany Advances, and (C) other Indebtedness in an aggregate principal amount not toexceed $1,000,000, so long as no Event of Default shall exist or arise as a result thereof andBorrower shall have Availability plus Qualified Cash in an amount equal to or greater than$25,000,000 immediately after giving effect to the consummation of the proposed prepayment,redemption, defeasance, purchase or other acquisition of Indebtedness,               (ii) make any payment on account of Indebtedness that has been contractually subordinated inright of payment if such payment is not permitted at such time under the subordination terms andconditions, providedthat in connection with a Permitted Acquisition, payments onaccount of Indebtedness consisting of Earn-outs that have been contractually subordinated in rightof payment to the Obligations may be made so long as (A) no Default or Event of Default hasoccurred and is continuing or would result therefrom; (B) Borrower and its Subsidiaries have ExcessAvailability plus Qualified Cash of at least $25,000,000, both immediately before and immediatelyafter giving effect to any such payment; and (C) the payment is required to be made by theacquisition agreement relative to the Permitted Acquisition; providedfurtherthat if at any time any such payment is not permitted to be paid as a result of the failureto satisfy the condition set forth in clauses (A) or (B) of this Section 6.7(a)(ii), then(1) such amount together with interest at a market rate applicable to Indebtedness consisting ofEarn-outs shall continue to accrue, and (2) any such amount, together with accrued interest, may bepaid so long as each of the conditions set forth in clauses (A), (B) and (C) of this Section6.7(a)(ii) is satisfied at the time of the making of such payment, or          (b) Directly or indirectly, amend, modify, or change any of the terms or provisions of               (i) any agreement, instrument, document, indenture, or other writing evidencing or concerningIndebtedness permitted under Section 6.1 if the terms and conditions thereof couldreasonably be expected to be materially adverse to Agent, any Lender, Borrower, or any ofBorrower’s Subsidiaries,               (ii) any Material Contract except to the extent that such amendment, modification, alteration,increase, or change could not, individually or in the aggregate, reasonably be expected to bematerially adverse to the interests of the Lenders, or               (iii) the Governing Documents of any Loan Party or any of its Subsidiaries if the effectthereof, either individually or in the aggregate, could reasonably be expected to be materiallyadverse to the interests of the Lenders; providedthat the adoption andimplementation of a stockholders rights plan shall not be deemed to be materially adverse to theinterests of the Lenders. Nothing in this Section 6.7(b)(iii) shall permit Borrower or anyof its Subsidiaries to make any distributions under such a stockholders rights plan other than aspermitted by Section 6.9(c).     **6.8****[intentionally omitted]**     **6.9****Distributions****.**Make any distribution or declare or pay any dividends (in cash orother property, other than common Stock) on, or purchase, acquire, redeem, or retire any ofBorrower’s Stock, of any class, whether now or hereafter outstanding; provided,however, that,          (a) Borrower may consummate the Permitted Stock Repurchases,
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          (b) Borrower may purchase fractional shares of its Stock arising out of stock dividends splitsor combinations, business combinations otherwise permitted hereunder, or conversion of convertiblesecurities, in an amount not to exceed $50,000 in any calendar year,          (c) Borrower may distribute rights pursuant to a stockholder rights plan or purchase, acquire,redeem or retire such rights distributed in connection with such stockholder rights plan (whetherby exchange of common Stock or purchase for value), provided that if such rights are purchased forcash, then the cash amount paid shall not exceed $500,000 per calendar year, except that such cashamount may exceed $500,000 per calendar year if (i) no Event of Default has occurred and iscontinuing or would result therefrom, and (ii) Borrower has Excess Availability plus Qualified Cashof $25,000,000 or greater immediately after giving effect to such purchase, acquisition, redemptionor retirement,          (d) Borrower may repurchase Stock in connection with or pursuant to any of its stock optionplans (or other employee incentive plans or compensation arrangements), provided that if such Stockis purchased with cash, then the cash amount shall not exceed $500,000 in any calendar year, exceptthat such cash amount may exceed $500,000 per calendar year if (i) no Event of Default has occurredand is continuing or would result therefrom, and (ii) Borrower has Excess Availability plusQualified Cash of $25,000,000 or greater immediately after giving effect to such repurchase,          (e) Borrower may repurchase Stock in connection with or pursuant to any of its stock optionplans (or other employee incentive plans or compensation arrangements) or convertible securities byway of cashless exercise or in connection with the satisfaction of withholding tax obligations,          (f) Borrower may purchase, acquire, redeem or retire any stock options in connection with anystock option exchange provided that such exchange is on a cashless basis.     **6.10****Accounting Methods****.**Modify or change its fiscal year or its method of accounting(other than as may be required to conform to GAAP).     **6.11****Investments****.**Except for Permitted Investments, directly or indirectly, make oracquire any Investment or incur any liabilities (including contingent obligations) for or inconnection with any Investment; provided, however, that other than (a) an aggregateamount of not more than $100,000 at any one time, in the case of Borrower and its Subsidiaries thatare not CFCs, (b) the cash collateral in the account of Existing Lender referred to in clause (a)of Schedule 3.6, but only for the time period provided in such clause (a), (c) amountsdeposited into Deposit Accounts specially and exclusively used for payroll, payroll taxes and otheremployee wage and benefit payments to or for Borrower’s or its Subsidiaries’ employees, and (d) anaggregate amount of not more than 20% of the total amount of all of the cash and Cash Equivalentsof Borrower and its Subsidiaries (calculated at current exchange rates) at any one time, in thecase of Subsidiaries of Borrower that are CFCs, Borrower and its Subsidiaries shall not havePermitted Investments consisting of cash, Cash Equivalents, or amounts credited to Deposit Accountsor Securities Accounts unless Borrower or its Subsidiary, as applicable, and the applicablesecurities intermediary or bank have entered into Control Agreements with Agent governing suchPermitted Investments in order to perfect (and further establish) the Agent’s Liens in suchPermitted Investments. Subject to the foregoing proviso, Borrower shall not and shall not permitany Loan Party to establish or maintain any Deposit Account or Securities Account unless Agentshall have received a Control Agreement in respect of such Deposit Account or Securities Account..     **6.12****Transactions with Affiliates****.**Directly or indirectly enter into or permit toexist any transaction with any Affiliate of Borrower or any of its Subsidiaries except for:          (a) transactions (other than the payment of management, consulting, monitoring, or advisoryfees) between Borrower or its Subsidiaries, on the one hand, and any Affiliate of Borrower or itsSubsidiaries, on the other hand, so long as such transactions (i) are upon fair and reasonableterms, (ii) are fully disclosed to Agent prior to the consummation thereof, if they involve one ormore payments by Borrower or its Subsidiaries in excess of $500,000 for any single transaction or series of relatedtransactions, and (iii) are no less favorable, taken as a whole, to Borrower or its Subsidiaries,as applicable, than would be obtained in an arm’s length transaction with a non-Affiliate,
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     (b) so long as it has been approved by Borrower’s Board of Directors in accordance withapplicable law, any indemnity provided for the benefit of directors of Borrower,     (c) so long as it has been approved by Borrower’s Board of Directors, the payment ofreasonable fees, compensation, or employee benefit arrangements to employees, consultants,officers, and outside directors of Borrower in the ordinary course of business and consistent withindustry practice,     (d) transactions permitted by Section 6.3, Section 6.4, orSection 6.9, or any Permitted Investment or PermittedIntercompany Advance, and     (e) intercompany transactions among the Borrower or any Subsidiary on the one hand and anySubsidiary on the other hand, in the ordinary course of Borrower’s business pursuant to one or moreMarketing and Sales Services Agreements, the terms of which (including the calculation of anyservice fees and the extent of any other payments to such Subsidiaries) are consistent with theMarketing and Sales Services Agreements in effect on the Closing Date, and which transactions arenot otherwise prohibited by this Agreement or any other Loan Document.     **6.13****Use of Proceeds**. Use the proceeds of the Advances and the Term Loan for anypurpose other than (a) on the Closing Date, (i) to repay, in full, the outstanding principal,accrued interest, and accrued fees and expenses owing to Existing Lender, and (iii) to paytransactional fees, costs, and expenses incurred in connection with this Agreement, the other LoanDocuments, and the transactions contemplated hereby and thereby, and (b) thereafter, consistentwith the terms and conditions hereof, for its lawful and permittedpurposes.**7. FINANCIAL COVENANTS.**     Borrower covenants and agrees that, until termination of all of the Commitments and payment infull of the Obligations, Borrower will comply with each of the following financial covenants:          (a) **Minimum EBITDA.**Achieve EBITDA, measured on a quarter-end basis, of at least the requiredamount set forth in the following table for the applicable period set forth opposite thereto:   Applicable Amount Applicable Period$13,494,000 For the 1 quarter period ending December 31, 2008$26,152,000 For the 2 quarter period ending March 31, 2009$43,155,000 For the 3 quarter period ending June 30, 2009$63,924,000 For the 4 quarter period ending September 30, 2009$73,511,000 For the 4 quarter period ending December 31, 2009$77,380,000 For the 4 quarter period ending March 31, 2010$82,577,000 For the 4 quarter period ending June 30, 2010$88,926,000 For the 4 quarter period ending September 30, 2010$95,980,000 For the 4 quarter period ending December 31, 2010$103,012,000 For the 4 quarter period ending March 31, 2011$112,457,000 For the 4 quarter period ending June 30, 2011$123,994,000 For the 4 quarter period ending September 30, 2011$136,814,000 For the 4 quarter period ending December 31, 2011$137,000,000 For the 4 quarter periods ending on the last day of each March,  June, September, and December thereafter          (b) **Capital Expenditures.**Make Capital Expenditures (excluding the amount, if any, of CapitalExpenditures made with Net Cash Proceeds reinvested pursuant to the proviso in Section2.4(e)(ii)) in any fiscal year in an amount less than or equal to, but not greater than, theamount set forth in the following table for the applicable period:             Fiscal Year 2009 Fiscal Year 2010 Fiscal Year 2011 Fiscal Year 2012$58,458,000 $65,820,000  $77,668,000  $86,883,000 
 

 
**8.EVENTS OF DEFAULT.**     Any one or more of the following events shall constitute an event of default (each, an“Event of Default”) under this Agreement:     **8.1**If Borrower fails to pay when due and payable, or when declared due and payable, (a) allor any portion of the Obligations consisting of interest, fees, or charges due the Lender Group,reimbursement of Lender Group Expenses, or other amounts (other than any portion thereofconstituting principal) constituting Obligations (including any portion thereof that accrues afterthe commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in wholeor in part as a claim in any such Insolvency Proceeding), and such failure continues for a periodof 3 Business Days, or (b) all or any portion of the principalof the Obligations;     **8.2**If any Loan Party or any of its Subsidiaries:     (a) fails to perform or observe any covenant or other agreement contained in any of (i)Sections 3.6, 5.1, 5.2, 5.3, 5.6, 5.7,5.10, 5.11, 5.13, or 5.14 of this Agreement, (ii) Sections6.1 through 6.16 of this Agreement, (iii) Section 7 of this Agreement, or (iv)Section 6 of the Security Agreement;     (b) fails to perform or observe any covenant or other agreementcontained in any of Sections 5.4, 5.5, 5.8,5.12,  and 5.15 of this Agreement and such failure continues for a period of 10Business Days after the earlier of (i) the date on which such failure shall first become known toany officer of Borrower or (ii) the date on which written notice thereof is given to Borrower byAgent; or     (c) fails to perform or observe any covenant or other agreement contained in this Agreement,or in any of the other Loan Documents, in each case, other than any such covenant or agreement thatis the subject of another provision of this Section 8 (in which event such other provisionof this Section 8 shall govern), and such failure continues for a period of 30 days after theearlier of (i) the date on which such failure shall first become known to any officer of Borroweror (ii) the date on which written notice thereof is given to Borrower by Agent;
 

 
     **8.3**If one or more judgments, orders, or awards for the payment of money involving anaggregate amount of $1,000,000, or more (except to the extent fully covered by insurance pursuantto which the insurer has accepted liability therefor in writing) is entered or filed against a LoanParty or any of its Subsidiaries, or with respect to any of their respective assets, and either (a)there is a period of 30 consecutive days at any time after the entry of any such judgment, order,or award during which a stay of enforcement thereof is not in effect, or (b) enforcementproceedings are commenced upon such judgment, order, or award;     **8.4**If an Insolvency Proceeding is commenced by a Loan Party or any of its Subsidiaries otherthan Excluded Subsidiaries;     **8.5**If an Insolvency Proceeding is commenced against a Loan Party or any of its Subsidiariesother than Excluded Subsidiaries, and any of the following events occur: (a) such Loan Party orsuch Subsidiary consents to the institution of such Insolvency Proceeding against it, (b) thepetition commencing the Insolvency Proceeding is not timely controverted, (c) the petitioncommencing the Insolvency Proceeding is not dismissed within 60 calendar days of the date of thefiling thereof, (d) an interim trustee is appointed to take possession of all or any substantialportion of the properties or assets of, or to operate all or any substantial portion of thebusiness of, such Loan Party or its Subsidiary, or (e) an order for relief shall have been issuedor entered therein;     **8.6**If a Loan Party or any of its Subsidiaries other than Excluded Subsidiaries is enjoined,restrained, or in any way prevented by court order from continuing to conduct all or any materialpart of its business affairs;     **8.7**If there is a default in one or more agreements to which a Loan Party or any of itsSubsidiaries is a party with one or more third Persons relative to a Loan Party’s or any of itsSubsidiaries’ Indebtedness involving an aggregate amount of $1,000,000 or more, and such default(i) occurs at the final maturity of the obligations thereunder, or (ii) results in a right by suchthird Person, irrespective of whether exercised, to accelerate the maturity of such Loan Party’s orits Subsidiary’s obligations thereunder;     **8.8**If any warranty, representation, statement, or Record made herein or in any other LoanDocument or delivered in writing to Agent or any Lender in connection with this Agreement or anyother Loan Document proves to be untrue in any material respect (except that such materialityqualifier shall not be applicable to any representations and warranties that already are qualifiedor modified by materiality in the text thereof) as of the date of issuance or making or deemedmaking thereof;     **8.9**If the obligation of any Guarantor under the Guaranty is limited or terminated byoperation of law or by such Guarantor;     **8.10**If the Security Agreement or any other Loan Document that purports to create a Lien,shall, for any reason, fail or cease to create a valid and perfected and, except to the extentpermitted by the terms hereof or thereof, first priority Lien on the Collateral covered thereby,except as a result of a disposition of the applicable Collateral in a transaction permitted underthis Agreement;     **8.11**Any provision of any Loan Document shall at any time for any reason be declared to benull and void, or the validity or enforceability thereof shall be contested by a Loan Party or itsSubsidiaries, or a proceeding shall be commenced by a Loan Party or its Subsidiaries, or by anyGovernmental Authority having jurisdiction over a Loan Party or its Subsidiaries, seeking toestablish the invalidity or unenforceability thereof, or a Loan Party or its Subsidiaries shalldeny that such Loan Party or its Subsidiaries has any liability or obligation purported to becreated under any Loan Document; or     **8.12**If there shall be caused, or Borrower shall permit or suffer directly or indirectly anyChange of Control.
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**9. RIGHTS AND REMEDIES**.     **9.1****Rights and Remedies****.**Upon the occurrence and during the continuation of an Eventof Default, Agent may, and, at the instruction of the Required Lenders, shall, in each case bywritten notice to Borrower and in addition to any other rights or remedies provided for hereunderor under any other Loan Document or by applicable law, do any one or more of the following onbehalf of the Lender Group:          (a) declare the Obligations, whether evidenced by this Agreement, by any of the other LoanDocuments, or otherwise, immediately due and payable, whereupon the same shall become and beimmediately due and payable, without presentment, demand, protest, or further notice or otherrequirements of any kind, all of which are hereby expressly waived by Borrower; and          (b) declare the Revolver Commitments terminated, whereupon the Revolver Commitments shallimmediately be terminated together with any obligation of any Lender hereunder to make Advances andthe obligation of the Issuing Lender to issue Letters of Credit.The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Defaultdescribed in Section 8.4 or Section 8.5, in addition to the remedies set forthabove, without any notice to Borrower or any other Person or any act by the Lender Group, theCommitments shall automatically terminate and the Obligations then outstanding, together with allaccrued and unpaid interest thereon and all fees and all other amounts due under this Agreement andthe other Loan Documents, shall automatically and immediately become due and payable, withoutpresentment, demand, protest, or notice of any kind, all of which are expressly waived by Borrower.     **9.2****Remedies Cumulative****.**The rights and remedies of the Lender Group under thisAgreement, the other Loan Documents, and all other agreements shall be cumulative. The LenderGroup shall have all other rights and remedies not inconsistent herewith as provided under theCode, by law, or in equity. No exercise by the Lender Group of one right or remedy shall be deemedan election, and no waiver by the Lender Group of any Event of Default shall be deemed a continuingwaiver. No delay by the Lender Group shall constitute a waiver, election, or acquiescence by it.**10. WAIVERS; INDEMNIFICATION**.     **10.1****Demand; Protest; etc****.**Borrower waives demand, protest, notice of protest, noticeof default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release,compromise, settlement, extension, or renewal of documents, instruments, chattel paper, andguarantees at any time held by the Lender Group on which Borrower may in any way be liable.     **10.2****The Lender Group’s Liability for Collateral****.**Borrower hereby agrees that: (a)so long as Agent complies with its obligations, if any, under the Code, the Lender Group shall notin any way or manner be liable or responsible for: (i) the safekeeping of the Collateral, (ii) anyloss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) anydiminution in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee,forwarding agency, or other Person, and (b) all risk of loss, damage, or destruction of theCollateral shall be borne by Borrower.
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     **10.3****Indemnification****.**Borrower shall pay, indemnify, defend, and hold theAgent-Related Persons, the Lender-Related Persons, and each Participant (each, an “IndemnifiedPerson”) harmless (to the fullest extent permitted by law) from and against any and all claims,demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, anddamages, and all reasonable fees and disbursements of attorneys, experts, or consultants and allother costs and expenses actually incurred in connection therewith or in connection with theenforcement of this indemnification (as and when they are incurred and irrespective of whether suitis brought), at any time asserted against, imposed upon, or incurred by any of them (a) inconnection with or as a result of or related to the execution and delivery (provided that Borrowershall not beliable for costs and expenses (including attorneys fees) of any Lender (other than WFF)incurred in advising, structuring, drafting, reviewing, administering or syndicating the LoanDocuments), enforcement, performance, or administration (including any restructuring or workoutwith respect hereto) of this Agreement, any of the other Loan Documents, or the transactionscontemplated hereby or thereby or the monitoring of Borrower’s and its Subsidiaries’ compliancewith the terms of the Loan Documents (other than disputes solely between the Lenders), (b) withrespect to any investigation, litigation, or proceeding related to this Agreement, any other LoanDocument, or the use of the proceeds of the credit provided hereunder (irrespective of whether anyIndemnified Person is a party thereto), or any act, omission, event, or circumstance in any mannerrelated thereto, and (c) in connection with or arising out of any presence or release of HazardousMaterials at, on, under, to or from any assets or properties owned, leased or operated by Borroweror any of its Subsidiaries or any Environmental Actions, Environmental Liabilities and Costs orRemedial Actions related in any way to any such assets or properties of Borrower or any of itsSubsidiaries (each and all of the foregoing, the “Indemnified Liabilities”). The foregoingto the contrary notwithstanding, Borrower shall have no obligation to any Indemnified Person underthis Section 10.3 with respect to any Indemnified Liability that a court of competentjurisdiction finally determines to have resulted from the gross negligence or willful misconduct ofsuch Indemnified Person or its officers, directors, employees, attorneys, or agents. Thisprovision shall survive the termination of this Agreement and the repayment of the Obligations. Ifany Indemnified Person makes any payment to any other Indemnified Person with respect to anIndemnified Liability as to which Borrower was required to indemnify the Indemnified Personreceiving such payment, the Indemnified Person making such payment is entitled to be indemnifiedand reimbursed by Borrower with respect thereto. **WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALLAPPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PARTARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANYOTHER PERSON.****11. NOTICES**.     Unless otherwise provided in this Agreement, all notices or demands relating to this Agreementor any other Loan Document shall be in writing and (except for financial statements and otherinformational documents which may be sent by first-class mail, postage prepaid) shall be personallydelivered or sent by registered or certified mail (postage prepaid, return receipt requested),overnight courier, electronic mail (at such email addresses as a party may designate in accordanceherewith), or telefacsimile. In the case of notices or demands to Borrower or Agent, as the casemay be, they shall be sent to the respective address set forth below:   If to Borrower: **OMNITURE, INC.**  550 E. Timpanogos Circle  Orem, Utah 84097  Attn: Chief Financial Officer and Chief Legal Officer  Fax No. (801) 722-7005   with copies to: **WILSON SONSINI GOODRICH & ROSATI, PC**  650 Page Mill Road  Palo Alto, California 94304  Attn: John Mao, Esq.  Fax No.: (650) 493-6811
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   If to Agent: **WELLS FARGO FOOTHILL, LLC**  2450 Colorado Avenue, Suite 3000 West  Santa Monica, California 90404  Attn: Technology Finance Manager  Fax No.: (310) 453-7413   with copies to: **BUCHALTER NEMER**  1000 Wilshire Boulevard, 15th Floor  Los Angeles, California 90017  Attn: Robert J. Davidson, Esq.  Fax No.: (213) 891-0700     Any party hereto may change the address at which they are to receive notices hereunder, bynotice in writing in the foregoing manner given to the other party. All notices or demands sent inaccordance with this Section 10, shall be deemed received on the earlier of the date ofactual receipt or 3 Business Days after the deposit thereof in the mail; provided, that (a)notices sent by overnight courier service shall be deemed to have been given when received, (b)notices by facsimile shall be deemed to have been given when sent (except that, if not given duringnormal business hours for the recipient, shall be deemed to have been given at the opening onbusiness on the next Business Day for the recipient) and (c) notices by electronic mail shall bedeemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such asby the “return receipt requested” function, as available, return email or other writtenacknowledgment).**12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE**.          (a) **THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TOTHE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION,INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO ANDTHERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETOSHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OFCALIFORNIA.**          (b) **THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THISAGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THEEXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OFCALIFORNIA; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHERPROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TOBRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. BORROWER AND EACHMEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAYHAVE TO ASSERT THE DOCTRINE OF****FORUM****NON****CONVENIENS OR TO OBJECT TO VENUETO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS****SECTION 12(b)****.**          (c) **BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO AJURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTSOR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OFDUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. BORROWER AND EACH MEMBER OF THE LENDERGROUP REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILYWAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OFLITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.**
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          (d) **THE PARTIES TO THIS AGREEMENT PREFER THAT ANY DISPUTE BETWEEN OR AMONG THEM BE RESOLVED INLITIGATION SUBJECT TO A JURY TRIAL WAIVER AS SET FORTH IN****SECTION 12(c)****. IF, HOWEVER,UNDER THE THEN APPLICABLE LAW OF THE JURISDICTION IN WHICH A PARTY SEEKS TO COMMENCE ANY SUCHLITIGATION, A PRE-DISPUTE JURY TRIAL WAIVER OF THE TYPE PROVIDED FOR IN****SECTION 12(c) ISUNENFORCEABLE IN LITIGATION TO RESOLVE ANY DISPUTE, CLAIM, CAUSE OF ACTION OR CONTROVERSY UNDERTHIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EACH, A “****CLAIM****”), THEN, UPON THE WRITTEN REQUESTOF SUCH PARTY, SUCH CLAIM, INCLUDING ANY AND ALL QUESTIONS OF LAW OR FACT RELATING THERETO, SHALLBE DETERMINED EXCLUSIVELY BY A JUDICIAL REFERENCE PROCEEDING. EXCEPT AS OTHERWISE PROVIDED IN****SECTION 12(b)****, VENUE FOR ANY SUCH REFERENCE PROCEEDING SHALL BE IN THE STATE OR FEDERALCOURT IN THE COUNTY OR DISTRICT WHERE VENUE IS APPROPRIATE UNDER APPLICABLE LAW (THE"****COURT****”). THE PARTIES SHALL SELECT A SINGLE NEUTRAL REFEREE, WHO SHALL BE A RETIRED STATEOR FEDERAL JUDGE. IF THE PARTIES CANNOT AGREE UPON A REFEREE, THE COURT SHALL APPOINT THE REFEREE.THE REFEREE SHALL REPORT A STATEMENT OF DECISION TO THE COURT. NOTHING IN THIS PARAGRAPH SHALLLIMIT THE RIGHT OF ANY PARTY AT ANY TIME TO EXERCISE SELF-HELP REMEDIES, FORECLOSE AGAINSTCOLLATERAL OR OBTAIN PROVISIONAL REMEDIES (INCLUDING, WITHOUT LIMITATION, CLAIM AND DELIVERY,INJUNCTIVE RELIEF, ATTACHMENT OR THE APPOINTMENT OF A RECEIVER). THE PARTIES SHALL BEAR THE FEESAND EXPENSES OF THE REFEREE EQUALLY UNLESS THE REFEREE ORDERS OTHERWISE. THE REFEREE ALSO SHALLDETERMINE ALL ISSUES RELATING TO THE APPLICABILITY, INTERPRETATION, AND ENFORCEABILITY OF THIS****SECTION 12(d)****. THE PARTIES ACKNOWLEDGE THAT ANY CLAIM DETERMINED BY REFERENCE PURSUANT TOTHIS****SECTION 12(d) SHALL NOT BE ADJUDICATED BY A JURY.****13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS**.     **13.1****Assignments and Participations**.          (a) With the prior written consent of Borrower, which consent of Borrower shall not beunreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Defaulthas occurred and is continuing, and (2) in connection with an assignment to a Person that is aLender or an Affiliate (other than individuals) of a Lender and with the prior written consent ofAgent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shallnot be required in connection with an assignment to a Person that is a Lender or an Affiliate(other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees(each an “Assignee”; provided that no Loan Party or Affiliate of a Loan Party shall bepermitted to become an Assignee) all or any portion of the Obligations, the Commitments and theother rights and obligations of such Lender hereunder and under the other Loan Documents, in aminimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall notapply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of anyLender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fundof such new Lender to the extent that the aggregate amount to be assigned to all such new Lendersis at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely anddirectly with such Lender in connection with the interest so assigned to an Assignee until (i)written notice of such assignment, together with payment instructions, addresses, and relatedinformation with respect to the Assignee, have been given to Borrower and Agent by such Lender andthe Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignmentand Acceptance and Agent has notified the assigning Lender of its receipt thereof inaccordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigningLender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of$3,500.
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          (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower)that it has received an executed Assignment and Acceptance and, if applicable, payment of therequired processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extentthat rights and obligations hereunder have been assigned to it pursuant to such Assignment andAcceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii)the assigning Lender shall, to the extent that rights and obligations hereunder and under the otherLoan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish itsrights (except with respect to Section 10.3) and be released from any future obligationsunder this Agreement (and in the case of an Assignment and Acceptance covering all or the remainingportion of an assigning Lender’s rights and obligations under this Agreement and the other LoanDocuments, such Lender shall cease to be a party hereto and thereto), and such assignment shalleffect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, thatnothing contained herein shall release any assigning Lender from obligations that survive thetermination of this Agreement, including such assigning Lender’s obligations under Section 15and Section 17.9(a) of this Agreement.          (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunderand the Assignee thereunder confirm to and agree with each other and the other parties hereto asfollows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makesno representation or warranty and assumes no responsibility with respect to any statements,warranties or representations made in or in connection with this Agreement or the execution,legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or anyother Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representationor warranty and assumes no responsibility with respect to the financial condition of Borrower orthe performance or observance by Borrower of any of its obligations under this Agreement or anyother Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received acopy of this Agreement, together with such other documents and information as it has deemedappropriate to make its own credit analysis and decision to enter into such Assignment andAcceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigningLender or any other Lender, and based on such documents and information as it shall deemappropriate at the time, continue to make its own credit decisions in taking or not taking actionunder this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and toexercise such powers under this Agreement and the other Loan Documents as are delegated to Agent,by the terms hereof and thereof, together with such powers as are reasonably incidental thereto,and (vi) such Assignee agrees that it will perform all of the obligations which by the terms ofthis Agreement are required to be performed by it as a Lender.          (d) Immediately upon Agent’s receipt of the required processing fee, if applicable, anddelivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreementshall be deemed to be amended to the extent, but only to the extent, necessary to reflect theaddition of the Assignee and the resulting adjustment of the Commitments arising therefrom. TheCommitment allocated to each Assignee shall reduce such Commitments of the assigning Lender *protanto*.
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          (e) Any Lender may at any time sell to one or more commercial banks, financial institutions,or other Persons (a “Participant”) participating interests in all or any portion of itsObligations, its Commitment, and the other rights and interests of that Lender (the“Originating Lender”) hereunder and under the other Loan Documents; provided, however, that(i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the otherLoan Documents and the Participant receiving the participating interest in the Obligations, theCommitments, and the other rights and interests of the Originating Lender hereunder shall notconstitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’sobligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remainsolely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lendersshall continue to deal solely and directly with the Originating Lender in connection with theOriginating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv)no Lender shall transfer orgrant any participating interest under which the Participant has the right to approve anyamendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document,except to the extent such amendment to, or consent or waiver with respect to this Agreement or ofany other Loan Document would (A) extend the final maturity date of the Obligations hereunder inwhich such Participant is participating, (B) reduce the interest rate applicable to the Obligationshereunder in which such Participant is participating, (C) release all or substantially all of theCollateral or guaranties (except to the extent expressly provided herein or in any of the LoanDocuments) supporting the Obligations hereunder in which such Participant is participating, (D)postpone the payment of, or reduce the amount of, the interest or fees payable to such Participantthrough such Lender, or (E) change the amount or due dates of scheduled principal repayments orprepayments or premiums, and (v) all amounts payable by Borrower hereunder shall be determined asif such Lender had not sold such participation, except that, if amounts outstanding under thisAgreement are due and unpaid, or shall have been declared or shall have become due and payable uponthe occurrence of an Event of Default, each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the sameextent as if the amount of its participating interest were owing directly to it as a Lender underthis Agreement. The rights of any Participant only shall be derivative through the OriginatingLender with whom such Participant participates and no Participant shall have any rights under thisAgreement or the other Loan Documents or any direct rights as to the other Lenders, Agent,Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respectof the Obligations. No Participant shall have the right to participate directly in the making ofdecisions by the Lenders among themselves.          (f) In connection with any such assignment or participation or proposed assignment orparticipation or any grant of a security interest in, or pledge of, its rights under and interestin this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose alldocuments and information which it now or hereafter may have relating to Borrower and itsSubsidiaries and their respective businesses.          (g) Any other provision in this Agreement notwithstanding, any Lender may at any time create asecurity interest in, or pledge, all or any portion of its rights under and interest in thisAgreement in favor of any Federal Reserve Bank in accordance with Regulation A of the FederalReserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforcesuch pledge or security interest in any manner permitted under applicable law.          (h) Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to bemaintained, a register (the “Register”) on which it enters the name and address of eachLender as the registered owner of the Term Loan (and the principal amount thereof and statedinterest thereon) held by such Lender (each, a “Registered Loan”). Other than inconnection with an assignment by a Lender of all or any portion of its portion of the Term Loan toan Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and theregistered note, if any, evidencing the same) may be assigned or sold in whole or in part only byregistration of such assignment or sale on the Register (and each registered note shall expresslyso provide) and (ii) any assignment or sale of all or part of such Registered Loan (and theregistered note, if any, evidencing the same) may be effected only by registration of suchassignment or sale on the Register, together with the surrender of the registered note, if any,evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or saleduly executed by) the holder of such registered note, whereupon, at the request of the designatedassignee(s) or transferee(s), one or more new registered notes in the same aggregate principalamount shall be issued to the designated assignee(s) or transferee(s). Prior to the registrationof assignment or sale of any Registered Loan (and the registered note, if any evidencing the same),Borrower shall treat the Person in whose name such Registered Loan (and the registered note, ifany, evidencing the same) is registered as the owner thereof for the purpose of receiving allpayments thereon and for all other purposes, notwithstanding notice to the contrary. In the caseof any assignment by a Lender of all or any portion of the Term Loan to an Affiliate of such Lenderor a Related Fund of such Lender, and which assignment is not recorded in the Register, theassigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
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          (i) In the event that a Lender sells participations in the Registered Loan, such Lender, as anon-fiduciary agent on behalf of Borrower, shall maintain a register on which it enters the name ofall participants in the Registered Loans held by it (the “Participant Register”). A RegisteredLoan (and the Registered Note, if any, evidencing the same) may be participated in whole or in partonly by registration of such participation on the Participant Register (and each registered noteshall expressly so provide). Any participation of such Registered Loan (and the registered note,if any, evidencing the same) may be effected only by the registration of such participation on theParticipant Register.          (j) Agent shall make a copy of the Register (and each Lender shall make a copy of itsParticipant Register in the extent it has one) available for review by Borrower from time to timeas Borrower may reasonably request.     **13.2****Successors****.**This Agreement shall bind and inure to the benefit of the respectivesuccessors and assigns of each of the parties; provided, however, that Borrower maynot assign this Agreement or any rights or duties hereunder without the Lenders’ prior writtenconsent and any prohibited assignment shall be absolutely void *ab initio*. No consent to assignmentby the Lenders shall release Borrower from its Obligations. A Lender may assign this Agreement andthe other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section13.1 and, except as expressly required pursuant to Section 13.1, no consent or approvalby Borrower is required in connection with any such assignment.**14. AMENDMENTS; WAIVERS**.     **14.1****Amendments and Waivers**.          (a) No amendment, waiver or other modification of any provision of this Agreement or any otherLoan Document (other than Bank Product Agreements or the Fee Letter), and no consent with respectto any departure by Borrower therefrom, shall be effective unless the same shall be in writing andsigned by the Required Lenders (or by Agent at the written request of the Required Lenders) andBorrower and then any such waiver or consent shall be effective, but only in the specific instanceand for the specific purpose for which given; provided, however, that no such waiver, amendment, orconsent shall, unless in writing and signed by all of the Lenders directly affected thereby andBorrower, do any of the following:               (i) increase the amount of or extend the expiration date of any Commitment of any Lender,               (ii) postpone or delay any date fixed by this Agreement or any other Loan Document for anypayment of principal, interest, fees, or other amounts due hereunder or under any other LoanDocument,               (iii) reduce the principal of, or the rate of interest on, any loan or other extension ofcredit hereunder, or reduce any fees or other amounts payable hereunder or under any other LoanDocument (except (y) in connection with the waiver of applicability of Section 2.6(c)(which waiver shall be effective with the written consent of the Required Lenders), and (z) thatany amendment or modification of defined terms used in the financial covenants in this Agreementshall not constitute a reduction in the rate of interest or a reduction of fees for purposes ofthis clause (iii)),               (iv) amend or modify this Section or any provision of this Agreement providing for consent orother action by all Lenders,               (v) other than as permitted by Section 15.11, release Agent’s Lien in and to any ofthe Collateral,               (vi) change the definition of “Required Lenders” or “Pro Rata Share”,
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               (vii) contractually subordinate any of the Agent’s Liens,               (viii) other than in connection with a merger, liquidation, dissolution or sale of such Personexpressly permitted by the terms hereof or the other Loan Documents, release Borrower or anyGuarantor from any obligation for the payment of money or consent to the assignment or transfer bythe Borrower or any Guarantor of any of its rights or duties under this Agreement or the other LoanDocuments,               (ix) amend any of the provisions of Section 2.4(b)(i) or (ii) or Section2.4(e) or (f),               (x) amend Section 13.1(a) to permit a Loan Party or an Affiliate of a Loan Party to bepermitted to become an Assignee, or               (xi) change the definition of Credit Amount or any of the defined terms (including thedefinition of EBITDA) that are used in such definition to the extent that any such change resultsin more credit being made available to Borrower based upon the Credit Amount, but not otherwise, orthe definitions of Maximum Revolver Amount or Term Loan Amount, or change Section 2.1(c).          (b) No amendment, waiver, modification, or consent shall amend, modify, or waive (i) thedefinition of, or any of the terms or provisions of, the Fee Letter, without the written consent ofAgent and Borrower (and shall not require the written consent of any of the Lenders), and (ii) anyprovision of Section 15 pertaining to Agent, or any other rights or duties of Agent underthis Agreement or the other Loan Documents, without the written consent of Agent, Borrower, and theRequired Lenders,          (c) No amendment, waiver, modification, or consent shall amend, modify, or waive any provisionof this Agreement or the other Loan Documents pertaining to Issuing Lender, or any other rights orduties of Issuing Lender under this Agreement or the other Loan Documents, without the writtenconsent of Issuing Lender, Agent, Borrower, and the Required Lenders,          (d) No amendment, waiver, modification, or consent shall amend, modify, or waive any provisionof this Agreement or the other Loan Documents pertaining to Swing Lender, or any other rights orduties of Swing Lender under this Agreement or the other Loan Documents, without the writtenconsent of Swing Lender, Agent, Borrower, and the Required Lenders,          (e) Anything in this Section 14.1 to the contrary notwithstanding, any amendment,modification, waiver, consent, termination, or release of, or with respect to, any provision ofthis Agreement or any other Loan Document that relates only to the relationship of the Lender Groupamong themselves, and that does not affect the rights or obligations of Borrower, shall not requireconsent by or the agreement of Borrower.     **14.2****Replacement of Holdout Lender**.          (a) If any action to be taken by the Lender Group or Agent hereunder requires the unanimousconsent, authorization, or agreement of all Lenders and if such action has received the consent,authorization, or agreement of the Required Lenders but not all of the Lenders, then Agent, upon atleast 5 Business Days prior irrevocable notice, may permanently replace any Lender (a “HoldoutLender”) that failed to give its consent, authorization, or agreement with one or moreReplacement Lenders, and the Holdout Lender shall have no right to refuse to be replaced hereunder.Such notice to replace the Holdout Lender shall specify an effective date for such replacement,which date shall not be later than 15 Business Days after the date such notice is given.
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          (b) Prior to the effective date of such replacement, the Holdout Lender and each ReplacementLender shall execute and deliver an Assignment and Acceptance, subject only to the Holdout Lenderbeing repaid its share of the outstanding Obligations (including an assumption of its Pro RataShare of the Risk Participation Liability) without any premium or penalty of any kind whatsoever.If the Holdout Lender shall refuse or fail to execute and deliver any such Assignment andAcceptance prior to the effective date of such replacement, the Holdout Lender shall be deemed tohave executed and delivered such Assignment and Acceptance. The replacement of any Holdout Lendershall be made in accordance with the terms of Section 13.1. Until such time as theReplacement Lenders shall have acquired all of the Obligations, the Commitments, and the otherrights and obligations of the Holdout Lender hereunder and under the other Loan Documents, theHoldout Lender shall remain obligated to make the Holdout Lender’s Pro Rata Share of Advances andto purchase a participation in each Letter of Credit, in an amount equal to its Pro Rata Share ofthe Risk Participation Liability of such Letter of Credit.     **14.3****No Waivers; Cumulative Remedies****.**No failure by Agent or any Lender to exerciseany right, remedy, or option under this Agreement or any other Loan Document, or delay by Agent orany Lender in exercising the same, will operate as a waiver thereof. No waiver by Agent or anyLender will be effective unless it is in writing, and then only to the extent specifically stated.No waiver by Agent or any Lender on any occasion shall affect or diminish Agent’s and each Lender’srights thereafter to require strict performance by Borrower of any provision of this Agreement.Agent’s and each Lender’s rights under this Agreement and the other Loan Documents will becumulative and not exclusive of any other right or remedy that Agent or any Lender may have.**15. AGENT; THE LENDER GROUP**.     **15.1****Appointment and Authorization of Agent****.**Each Lender hereby designates andappoints WFF as its representative under this Agreement and the other Loan Documents and eachLender hereby irrevocably authorizes Agent to execute and deliver each of the other Loan Documentson its behalf and to take such other action on its behalf under the provisions of this Agreementand each other Loan Document and to exercise such powers and perform such duties as are expresslydelegated to Agent by the terms of this Agreement or any other Loan Document, together with suchpowers as are reasonably incidental thereto. Agent agrees to act as such on the express conditionscontained in this Section 15. The provisions of this Section 15 are solely for thebenefit of Agent and the Lenders, and Borrower and its Subsidiaries shall have no rights as a thirdparty beneficiary of any of the provisions contained herein. Any provision to the contrarycontained elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent shallnot have any duties or responsibilities, except those expressly set forth herein, nor shall Agenthave or be deemed to have any fiduciary relationship with any Lender, and no implied covenants,functions, responsibilities, duties, obligations or liabilities shall be read into this Agreementor any other Loan Document or otherwise exist against Agent; it being expressly understood andagreed that the use of the word “Agent” is for convenience only, that WFF is merely therepresentative of the Lenders, and only has the contractual duties set forth herein. Except asexpressly otherwise provided in this Agreement, Agent shall have and may use its sole discretionwith respect to exercising or refraining from exercising any discretionary rights or taking orrefraining from taking any actions that Agent expressly is entitled to take or assert under orpursuant to this Agreement and the other Loan Documents. Without limiting the generality of theforegoing, or of any other provision of the Loan Documents that provides rights or powers to Agent,Lenders agree that Agent shall have the right to exercise the following powers as long as thisAgreement remains in effect: (a) maintain, in accordance with its customary business practices,ledgers and records reflecting the status of the Obligations, the Collateral, the Collections ofBorrower and its Subsidiaries, and related matters, (b) execute or file any and all financing orsimilar statements or notices, amendments, renewals, supplements, documents, instruments, proofs ofclaim, notices and other written agreements with respect to the Loan Documents, (c) make Advances,for itself or on behalf of Lenders, as provided in the Loan Documents, (d) exclusively receive,apply, and distribute the Collections of Borrower and its Subsidiaries as provided in the LoanDocuments, (e) open and maintain such bank accounts and cash management arrangements as Agent deemsnecessary and appropriate in accordance with the Loan Documents for the foregoing purposes withrespect to the Collateral and the Collections ofBorrower and its Subsidiaries, (f) perform, exercise, and enforce any and all other rights andremedies of the Lender Group with respect to Borrower or its Subsidiaries, the Obligations, theCollateral, the Collections of Borrower and its Subsidiaries, or otherwise related to any of sameas provided in the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent maydeem necessary or appropriate for the performance and fulfillment of its functions and powerspursuant to the Loan Documents.
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     **15.2****Delegation of Duties****.**Agent may execute any of its duties under this Agreementor any other Loan Document by or through agents, employees or attorneys in fact and shall beentitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not beresponsible for the negligence or misconduct of any agent or attorney in fact that it selects aslong as such selection was made without gross negligence or willful misconduct.     **15.3****Liability of Agent****.**None of the Agent-Related Persons shall (a) be liable forany action taken or omitted to be taken by any of them under or in connection with this Agreementor any other Loan Document or the transactions contemplated hereby (except for its own grossnegligence or willful misconduct), or (b) be responsible in any manner to any of the Lenders forany recital, statement, representation or warranty made by Borrower or any of its Subsidiaries orAffiliates, or any officer or director thereof, contained in this Agreement or in any other LoanDocument, or in any certificate, report, statement or other document referred to or provided forin, or received by Agent under or in connection with, this Agreement or any other Loan Document, orthe validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or anyother Loan Document, or for any failure of Borrower or its Subsidiaries or any other party to anyLoan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall beunder any obligation to any Lender to ascertain or to inquire as to the observance or performanceof any of the agreements contained in, or conditions of, this Agreement or any other Loan Document,or to inspect the books and records or properties of Borrower or its Subsidiaries.     **15.4****Reliance by Agent****.**Agent shall be entitled to rely, and shall be fully protectedin relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter,telegram, telefacsimile or other electronic method of transmission, telex or telephone message,statement or other document or conversation believed by it to be genuine and correct and to havebeen signed, sent, or made by the proper Person or Persons, and upon advice and statements of legalcounsel (including counsel to Borrower or counsel to any Lender), independent accountants and otherexperts selected by Agent. Agent shall be fully justified in failing or refusing to take anyaction under this Agreement or any other Loan Document unless Agent shall first receive such adviceor concurrence of the Lenders as it deems appropriate and until such instructions are received,Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shallfirst be indemnified to its reasonable satisfaction by the Lenders against any and all liabilityand expense that may be incurred by it by reason of taking or continuing to take any such action.Agent shall in all cases be fully protected in acting, or in refraining from acting, under thisAgreement or any other Loan Document in accordance with a request or consent of the requisiteLenders and such request and any action taken or failure to act pursuant thereto shall be bindingupon all of the Lenders.     **15.5****Notice of Default or Event of Default****.**Agent shall not be deemed to haveknowledge or notice of the occurrence of any Default or Event of Default, except with respect todefaults in the payment of principal, interest, fees, and expenses required to be paid to Agent forthe account of the Lenders and, except with respect to Events of Default of which Agent has actualknowledge, unless Agent shall have received written notice from a Lender or Borrower referring tothis Agreement, describing such Default or Event of Default, and stating that such notice is a“notice of default.” Agent promptly will notify the Lenders of its receipt of any such notice orof any Event of Default of which Agent has actual knowledge. If any Lender obtains actualknowledge of any Event of Default, such Lender promptly shall notify the other Lenders and Agent ofsuch Event of Default. Each Lender shall be solely responsible for giving any notices to itsParticipants, if any. Subject to Section 15.4, Agent shall take such action with respectto such Default or Event of Default as may be requested by the Required Lenders in accordance withSection 8; provided, however, that unless and until Agent has received anysuch request, Agent may (but shall not be obligated to) take suchaction, or refrain from taking such action, with respect to such Default or Event of Defaultas it shall deem advisable.
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     **15.6****Credit Decision****.**Each Lender acknowledges that none of the Agent-Related Personshas made any representation or warranty to it, and that no act by Agent hereinafter taken,including any review of the affairs of Borrower and its Subsidiaries or Affiliates, shall be deemedto constitute any representation or warranty by any Agent-Related Person to any Lender. EachLender represents to Agent that it has, independently and without reliance upon any Agent-RelatedPerson and based on such documents and information as it has deemed appropriate, made its ownappraisal of and investigation into the business, prospects, operations, property, financial andother condition and creditworthiness of Borrower or any other Person party to a Loan Document, andall applicable bank regulatory laws relating to the transactions contemplated hereby, and made itsown decision to enter into this Agreement and to extend credit to Borrower. Each Lender alsorepresents that it will, independently and without reliance upon any Agent-Related Person and basedon such documents and information as it shall deem appropriate at the time, continue to make itsown credit analysis, appraisals and decisions in taking or not taking action under this Agreementand the other Loan Documents, and to make such investigations as it deems necessary to informitself as to the business, prospects, operations, property, financial and other condition andcreditworthiness of Borrower or any other Person party to a Loan Document. Except for notices,reports, and other documents expressly herein required to be furnished to the Lenders by Agent,Agent shall not have any duty or responsibility to provide any Lender with any credit or otherinformation concerning the business, prospects, operations, property, financial and other conditionor creditworthiness of Borrower or any other Person party to a Loan Document that may come into thepossession of any of the Agent-Related Persons.     **15.7****Costs and Expenses; Indemnification****.**Agent may incur and pay Lender GroupExpenses to the extent Agent reasonably deems necessary or appropriate for the performance andfulfillment of its functions, powers, and obligations pursuant to the Loan Documents, includingcourt costs, attorneys fees and expenses, fees and expenses of financial accountants, advisors,consultants, and appraisers, costs of collection by outside collection agencies, auctioneer feesand expenses, and costs of security guards or insurance premiums paid to maintain the Collateral,whether or not Borrower is obligated to reimburse Agent or Lenders for such expenses pursuant tothis Agreement or otherwise. Agent is authorized and directed to deduct and retain sufficientamounts from the Collections of Borrower and its Subsidiaries received by Agent to reimburse Agentfor such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders. Inthe event Agent is not reimbursed for such costs and expenses by Borrower or its Subsidiaries, eachLender hereby agrees that it is and shall be obligated to pay to Agent such Lender’s Pro Rata Sharethereof. Whether or not the transactions contemplated hereby are consummated, the Lenders shallindemnify upon demand the Agent-Related Persons (to the extent not reimbursed by or on behalf ofBorrower and without limiting the obligation of Borrower to do so), according to their Pro RataShares, from and against any and all Indemnified Liabilities; provided, however,that no Lender shall be liable for the payment to any Agent-Related Person of any portion of suchIndemnified Liabilities resulting solely from such Person’s gross negligence or willful misconductnor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make anAdvance or other extension of credit hereunder. Without limitation of the foregoing, each Lendershall reimburse Agent upon demand for such Lender’s Pro Rata Share of any costs or out of pocketexpenses (including attorneys, accountants, advisors, and consultants fees and expenses) incurredby Agent in connection with the preparation, execution, delivery, administration, modification,amendment, or enforcement (whether through negotiations, legal proceedings or otherwise) of, orlegal advice in respect of rights or responsibilities under, this Agreement, any other LoanDocument, or any document contemplated by or referred to herein, to the extent that Agent is notreimbursed for such expenses by or on behalf of Borrower. The undertaking in this Section shallsurvive the payment of all Obligations hereunder and the resignation or replacement of Agent.
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     **15.8****Agent in Individual Capacity****.**WFF and its Affiliates may make loans to, issueletters of credit for the account of, accept deposits from, acquire equity interests in, andgenerally engage in any kind of banking, trust, financial advisory, underwriting, or other businesswith Borrower and its Subsidiaries andAffiliates and any other Person party to any Loan Documents as though WFF were not Agenthereunder, and, in each case, without notice to or consent of the other members of the LenderGroup. The other members of the Lender Group acknowledge that, pursuant to such activities, WFF orits Affiliates may receive information regarding Borrower or its Affiliates or any other Personparty to any Loan Documents that is subject to confidentiality obligations in favor of Borrower orsuch other Person and that prohibit the disclosure of such information to the Lenders, and theLenders acknowledge that, in such circumstances (and in the absence of a waiver of suchconfidentiality obligations, which waiver Agent will use its reasonable best efforts to obtain),Agent shall not be under any obligation to provide such information to them. The terms “Lender”and “Lenders” include WFF in its individual capacity.     **15.9****Successor Agent****.**Agent may resign as Agent upon 30 days prior written notice tothe Lenders (unless such notice is waived by the Required Lenders) and Borrower (unless such noticeis waived by Borrower). If Agent resigns under this Agreement, the Required Lenders shall beentitled, with (so long as no Event of Default has occurred and is continuing) the consent ofBorrower (such consent not to be unreasonably withheld, delayed, or conditioned), appoint asuccessor Agent for the Lenders. If, at the time that Agent’s resignation is effective, it isacting as the Issuing Lender or the Swing Lender, such resignation shall also operate to effectuateits resignation as the Issuing Lender or the Swing Lender, as applicable, and it shallautomatically be relieved of any further obligation to issue Letters of Credit or make Swing Loans.If no successor Agent is appointed prior to the effective date of the resignation of Agent, Agentmay appoint, after consulting with the Lenders and Borrower, a successor Agent. If Agent hasmaterially breached or failed to perform any material provision of this Agreement or of applicablelaw, the Required Lenders may agree in writing to remove and replace Agent with a successor Agentfrom among the Lenders. In any such event, upon the acceptance of its appointment as successorAgent hereunder, such successor Agent shall succeed to all the rights, powers, and duties of theretiring Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’sappointment, powers, and duties as Agent shall be terminated. After any retiring Agent’sresignation hereunder as Agent, the provisions of this Section 15 shall inure to itsbenefit as to any actions taken or omitted to be taken by it while it was Agent under thisAgreement. If no successor Agent has accepted appointment as Agent by the date which is 30 daysfollowing a retiring Agent’s notice of resignation, the retiring Agent’s resignation shallnevertheless thereupon become effective and the Lenders shall perform all of the duties of Agenthereunder until such time, if any, as the Lenders appoint a successor Agent as provided for above.     **15.10****Lender in Individual Capacity****.**Any Lender and its respective Affiliates maymake loans to, issue letters of credit for the account of, accept deposits from, acquire equityinterests in and generally engage in any kind of banking, trust, financial advisory, underwriting,or other business with Borrower and its Subsidiaries and Affiliates and any other Person party toany Loan Documents as though such Lender were not a Lender hereunder without notice to or consentof the other members of the Lender Group. The other members of the Lender Group acknowledge that,pursuant to such activities, such Lender and its respective Affiliates may receive informationregarding Borrower or its Affiliates or any other Person party to any Loan Documents that issubject to confidentiality obligations in favor of Borrower or such other Person and that prohibitthe disclosure of such information to the Lenders, and the Lenders acknowledge that, in suchcircumstances (and in the absence of a waiver of such confidentiality obligations, which waiversuch Lender will use its reasonable best efforts to obtain), such Lender shall not be under anyobligation to provide such information to them.     **15.11****Collateral Matters**.
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          (a) The Lenders hereby irrevocably authorize Agent, at its option and in its sole discretion,to release any Lien on any Collateral (i) upon the termination of the Commitments and payment andsatisfaction in full by Borrower of all Obligations, (ii) constituting property being sold ordisposed of if a release is required or desirable in connection therewith and if Borrower certifiesto Agent that the sale or disposition is permitted under Section 6.4 of this Agreement orthe other Loan Documents (and Agent may rely conclusively on any such certificate, without furtherinquiry), (iii) constituting property in whichBorrower or its Subsidiaries owned no interest at the time the Agent’s Lien was granted nor atany time thereafter, or (iv) constituting property leased to Borrower or its Subsidiaries under alease that has expired or is terminated in a transaction permitted under this Agreement. Except asprovided above, Agent will not execute and deliver a release of any Lien on any Collateral withoutthe prior written authorization of (y) if the release is of all or substantially all of theCollateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by Agent orBorrower at any time, the Lenders will confirm in writing Agent’s authority to release any suchLiens on particular types or items of Collateral pursuant to this Section 15.11;provided, however, that (1) Agent shall not be required to execute any documentnecessary to evidence such release on terms that, in Agent’s opinion, would expose Agent toliability or create any obligation or entail any consequence other than the release of such Lienwithout recourse, representation, or warranty, and (2) such release shall not in any mannerdischarge, affect, or impair the Obligations or any Liens (other than those expressly beingreleased) upon (or obligations of Borrower in respect of) all interests retained by Borrower,including, the proceeds of any sale, all of which shall continue to constitute part of theCollateral.          (b) Agent shall have no obligation whatsoever to any of the Lenders to assure that theCollateral exists or is owned by Borrower or its Subsidiaries or is cared for, protected, orinsured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently orlawfully created, perfected, protected, or enforced or are entitled to any particular priority, orto exercise at all or in any particular manner or under any duty of care, disclosure or fidelity,or to continue exercising, any of the rights, authorities and powers granted or available to Agentpursuant to any of the Loan Documents, it being understood and agreed that in respect of theCollateral, or any act, omission, or event related thereto, subject to the terms and conditionscontained herein, Agent may act in any manner it may deem appropriate, in its sole discretion givenAgent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shallhave no other duty or liability whatsoever to any Lender as to any of the foregoing, except asotherwise provided herein.     **15.12****Restrictions on Actions by Lenders; Sharing of Payments**.          (a) Each of the Lenders agrees that it shall not, without the express written consent ofAgent, and that it shall, to the extent it is lawfully entitled to do so, upon the written requestof Agent, set off against the Obligations, any amounts owing by such Lender to Borrower or itsSubsidiaries or any deposit accounts of Borrower or its Subsidiaries now or hereafter maintainedwith such Lender. Each of the Lenders further agrees that it shall not, unless specificallyrequested to do so in writing by Agent, take or cause to be taken any action, including, thecommencement of any legal or equitable proceedings to enforce any Loan Document against Borrower orany Guarantor or to foreclose any Lien on, or otherwise enforce any security interest in, any ofthe Collateral.          (b) If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, orotherwise, any proceeds of Collateral or any payments with respect to the Obligations, except forany such proceeds or payments received by such Lender from Agent pursuant to the terms of thisAgreement, or (ii) payments from Agent in excess of such Lender’s Pro Rata Share of all suchdistributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in kind, andwith such endorsements as may be required to negotiate the same to Agent, or in immediatelyavailable funds, as applicable, for the account of all of the Lenders and for application to theObligations in accordance with the applicable provisions of this Agreement, or (B) purchase,without recourse or warranty, an undivided interest and participation in the Obligations owed tothe other Lenders so that such excess payment received shall be applied ratably as among theLenders in accordance with their Pro Rata Shares; provided, however, that to the extent that suchexcess payment received by the purchasing party is thereafter recovered from it, those purchases ofparticipations shall be rescinded in whole or in part, as applicable, and the applicable portion ofthe purchase price paid therefor shall be returned to such purchasing party, but without interestexcept to the extent that such purchasing party is required to pay interest in connection with therecovery of the excess payment.     **15.13****Agency for Perfection****.**Agent hereby appoints each other Lender as its agent(and each Lender hereby accepts such appointment) for the purpose of perfecting the Agent’s Liensin assets which,in accordance with Article 8 or Article 9, as applicable, of the Code can be perfected bypossession or control. Should any Lender obtain possession or control of any such Collateral, suchLender shall notify Agent thereof, and, promptly upon Agent’s request therefor shall deliverpossession or control of such Collateral to Agent or in accordance with Agent’s instructions.
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     **15.14****Payments by Agent to the Lenders****.**All payments to be made by Agent to theLenders shall be made by bank wire transfer of immediately available funds pursuant to such wiretransfer instructions as each party may designate for itself by written notice to Agent.Concurrently with each such payment, Agent shall identify whether such payment (or any portionthereof) represents principal, premium, fees, or interest of the Obligations.     **15.15****Concerning the Collateral and Related Loan Documents****.**Each member of the LenderGroup authorizes and directs Agent to enter into this Agreement and the other Loan Documents. Eachmember of the Lender Group agrees that any action taken by Agent in accordance with the terms ofthis Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent ofits powers set forth therein or herein, together with such other powers that are reasonablyincidental thereto, shall be binding upon all of the Lenders.     **15.16****Audits and Examination Reports; Confidentiality; Disclaimers by Lenders; OtherReports and Information**. By becoming a party to this Agreement, each Lender:          (a) is deemed to have requested that Agent furnish such Lender, promptly after it becomesavailable, a copy of each field audit or examination report respecting Borrower or its Subsidiaries(each a “Report” and collectively, “Reports”) prepared by or at the request ofAgent, and Agent shall so furnish each Lender with such Reports,          (b) expressly agrees and acknowledges that Agent does not (i) make any representation orwarranty as to the accuracy of any Report, and (ii) shall not be liable for any informationcontained in any Report,          (c) expressly agrees and acknowledges that the Reports are not comprehensive audits orexaminations, that Agent or other party performing any audit or examination will inspect onlyspecific information regarding Borrower and its Subsidiaries and will rely significantly uponBorrower’s and its Subsidiaries’ books and records, as well as on representations of Borrower’spersonnel,          (d) agrees to keep all Reports and other material, non-public information regarding Borrowerand its Subsidiaries and their operations, assets, and existing and contemplated business plans ina confidential manner in accordance with Section 17.9, and          (e) without limiting the generality of any other indemnification provision contained in thisAgreement, agrees: (i) to hold Agent and any other Lender preparing a Report harmless from anyaction the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lendermay reach or draw from any Report in connection with any loans or other credit accommodations thatthe indemnifying Lender has made or may make to Borrower, or the indemnifying Lender’sparticipation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrower, and (ii)to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing aReport harmless from and against, the claims, actions, proceedings, damages, costs, expenses, andother amounts (including, attorneys fees and costs) incurred by Agent and any such other Lenderpreparing a Report as the direct or indirect result of any third parties who might obtain all orpart of any Report through the indemnifying Lender.In addition to the foregoing: (x) any Lender may from time to time request of Agent in writingthat Agent provide to such Lender a copy of any report or document provided by Borrower or itsSubsidiaries to Agent that has not been contemporaneously provided by Borrower or such Subsidiaryto such Lender, and, uponreceipt of such request, Agent promptly shall provide a copy of same to such Lender, (y) to theextent that Agent is entitled, under any provision of the Loan Documents, to request additionalreports or information from Borrower or its Subsidiaries, any Lender may, from time to time,reasonably request Agent to exercise such right as specified in such Lender’s notice to Agent,whereupon Agent promptly shall request of Borrower the additional reports or information reasonablyspecified by such Lender, and, upon receipt thereof from Borrower or such Subsidiary, Agentpromptly shall provide a copy of same to such Lender, and (z) any time that Agent renders toBorrower a statement regarding the Loan Account, Agent shall send a copy of such statement to eachLender.
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     **15.17****Several Obligations; No Liability****.**Notwithstanding that certain of the LoanDocuments now or hereafter may have been or will be executed only by or in favor of Agent in itscapacity as such, and not by or in favor of the Lenders, any and all obligations on the part ofAgent (if any) to make any credit available hereunder shall constitute the several (and not joint)obligations of the respective Lenders on a ratable basis, according to their respectiveCommitments, to make an amount of such credit not to exceed, in principal amount, at any one timeoutstanding, the amount of their respective Commitments. Nothing contained herein shall conferupon any Lender any interest in, or subject any Lender to any liability for, or in respect of, thebusiness, assets, profits, losses, or liabilities of any other Lender. Each Lender shall be solelyresponsible for notifying its Participants of any matters relating to the Loan Documents to theextent any such notice may be required, and no Lender shall have any obligation, duty, or liabilityto any Participant of any other Lender. Except as provided in Section 15.7, no member ofthe Lender Group shall have any liability for the acts of any other member of the Lender Group. NoLender shall be responsible to Borrower or any other Person for any failure by any other Lender tofulfill its obligations to make credit available hereunder, nor to advance for it or on its behalfin connection with its Commitment, nor to take any other action on its behalf hereunder or inconnection with the financing contemplated herein.**16. WITHHOLDING TAXES**.          (a) All payments made by Borrower hereunder or under any note or other Loan Document will bemade without setoff, counterclaim, or other defense. In addition, all such payments will be madefree and clear of, and without deduction or withholding for, any present or future Taxes, and inthe event any deduction or withholding of Taxes is required, Borrower shall comply with the nextsentence of this Section 16(a). If any Taxes are so levied or imposed, Borrower agrees topay the full amount of such Taxes and such additional amounts as may be necessary so that everypayment of all amounts due under this Agreement, any note, or other Loan Document, including anyamount paid pursuant to this Section 16(a) after withholding or deduction for or on accountof any Taxes, will not be less than the amount provided for herein; provided, however, thatBorrower shall not be required to increase any such amounts if the increase in such amount payableresults from Agent’s or such Lender’s own willful misconduct or gross negligence (as finallydetermined by a court of competent jurisdiction). Borrower will furnish to Agent as promptly aspossible after the date the payment of any Tax is due pursuant to applicable law, certified copiesof tax receipts evidencing such payment by Borrower.          (b) Borrower agrees to pay any present or future stamp, value added or documentary taxes orany other excise or property taxes, charges, or similar levies that arise from any payment madehereunder or from the execution, delivery, performance, recordation, or filing of, or otherwisewith respect to this Agreement or any other Loan Document.          (c) If a Lender or Participant is entitled to claim an exemption or reduction from UnitedStates withholding tax, such Lender or Participant agrees with and in favor of Agent, to deliver toAgent (or, in the case of a Participant, to the Lender granting the participation only) one of thefollowing before receiving its first payment under this Agreement:               (i) if such Lender or Participant is entitled to claim an exemption from United Stateswithholding tax pursuant to its portfolio interest exception, (A) a statement of the Lender orParticipant,signed under penalty of perjury, that it is not a (I) a “bank” as described in Section881(c)(3)(A) of the IRC, (II) a 10% shareholder of Borrower (within the meaning of Section871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to Borrower within themeaning of Section 864(d)(4) of the IRC, and (B) a properly completed and executed IRS Form W-8BENor Form W-8IMY (with proper attachments);
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               (ii) if such Lender or Participant is entitled to claim an exemption from, or a reduction of,withholding tax under a United States tax treaty, a properly completed and executed copy of IRSForm W-8BEN;               (iii) if such Lender or Participant is entitled to claim that interest paid under thisAgreement is exempt from United States withholding tax because it is effectively connected with aUnited States trade or business of such Lender, a properly completed and executed copy of IRS FormW-8ECI;               (iv) if such Lender or Participant is entitled to claim that interest paid under thisAgreement is exempt from United States withholding tax because such Lender or Participant serves asan intermediary, a properly completed and executed copy of IRS Form W-8IMY (with properattachments); or               (v) a properly completed and executed copy of any other form or forms, including IRS Form W-9,as may be required under the IRC or other laws of the United States as a condition to exemptionfrom, or reduction of, United States withholding or backup withholding tax.Each Lender or Participant shall provide new forms (or successor forms) upon the expiration orobsolescence of any previously delivered forms and to promptly notify Agent (or, in the case of aParticipant, to the Lender granting the participation only) of any change in circumstances whichwould modify or render invalid any claimed exemption or reduction.          (d) If a Lender or Participant claims an exemption from withholding tax in a jurisdictionother than the United States, such Lender or such Participant agrees with and in favor of Agent, todeliver to Agent (or, in the case of a Participant, to the Lender granting the participation only)any such form or forms, as may be required under the laws of such jurisdiction as a condition toexemption from, or reduction of, foreign withholding or backup withholding tax before receiving itsfirst payment under this Agreement, but only if such Lender or such Participant is legally able todeliver such forms, provided, however, that nothing in this Section 16(d) shall require aLender or Participant to disclose any information that it deems to be confidential (includingwithout limitation, its tax returns). Each Lender and each Participant shall provide new forms (orsuccessor forms) upon the expiration or obsolescence of any previously delivered forms and topromptly notify Agent (or, in the case of a Participant, to the Lender granting the participationonly) of any change in circumstances which would modify or render invalid any claimed exemption orreduction.          (e) If a Lender or Participant claims exemption from, or reduction of, withholding tax andsuch Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all orpart of the Obligations of Borrower to such Lender or Participant, such Lender or Participantagrees to notify Agent (or, in the case of a sale of a participation interest, to the Lendergranting the participation only) of the percentage amount in which it is no longer the beneficialowner of Obligations of Borrower to such Lender or Participant. To the extent of such percentageamount, Agent will treat such Lender’s or such Participant’s documentation provided pursuant toSection 16(c) or 16(d) as no longer valid. With respect to such percentage amount,such Participant or Assignee may provide new documentation, pursuant to Section 16(c) or16(d), if applicable. Borrower agrees that each Participant shall be entitled to thebenefits of this Section 16 with respect to its participation in any portion of theCommitments and the Obligations so long as such Participant complies with the obligations set forthin this Section 16 with respect thereto, and provided that a Participant shall not beentitled to any additional amounts pursuant to this Section 16 in excess of the amount towhich the Lender granting the participation would have been entitled with respect to theparticipation sold to such Participant.          (f) If a Lender or a Participant is entitled to a reduction in the applicable withholding tax,Agent (or, in the case of a Participant, the Lender granting the participation) may withhold fromany interest payment to such Lender or such Participant an amount equivalent to the applicablewithholding tax after taking into account such reduction. If the forms or other documentationrequired by subsection (c) or (d) of this Section 16 are not delivered to Agent(or, in the case of a Participant, to the Lender granting the participation), then Agent (or, inthe case of a Participant, the Lender granting the participation) may withhold from any interestpayment to such Lender or such Participant not providing such forms or other documentation anamount equivalent to the applicable withholding tax.
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          (g) If the IRS or any other Governmental Authority of the United States or other jurisdictionasserts a claim that Agent or Borrower (or, in the case of a Participant, the Lender granting theparticipation) did not properly withhold tax from amounts paid to or for the account of any Lenderor any Participant due to a failure on the part of the Lender or any Participant (because theappropriate form was not delivered, was not properly executed, or because such Lender failed tonotify Agent or Borrower (or such Participant failed to notify the Lender granting theparticipation) of a change in circumstances which rendered the exemption from, or reduction of,withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold Agentand Borrower harmless (or, in the case of a Participant, such Participant shall indemnify and holdthe Lender granting the participation harmless) for all amounts paid, directly or indirectly, byAgent or Borrower (or, in the case of a Participant, by the Lender granting the participation), astax or otherwise, including penalties and interest, and including any taxes imposed by anyjurisdiction on the amounts payable to Agent or Borrower (or, in the case of a Participant, to theLender granting the participation only) under this Section 16, together with all costs andexpenses (including attorneys fees and expenses). The obligation of the Lenders and theParticipants under this subsection shall survive the payment of all Obligations and the resignationor replacement of Agent.          (h) If Agent or a Lender determines, in its sole discretion, that it has received a refund ofany Taxes as to which it has been indemnified by Borrower or with respect to which Borrower haspaid additional amounts pursuant to this Section 16, so long as no Default or Event ofDefault has occurred and is continuing, it shall pay over such refund to Borrower (but only to theextent of payments made, or additional amounts paid, by Borrower under this Section 16 withrespect to Taxes giving rise to such a refund), net of all out-of-pocket expenses of Agent or suchLender and without interest (other than any interest paid by the relevant Governmental Authoritywith respect to such a refund); provided, that Borrower, upon the request of Agent or such Lender,agrees to repay the amount paid over to Borrower (plus any penalties, interest or other charges,imposed by the relevant Governmental Authority, other than such penalties, interest or othercharges imposed as a result of the willful misconduct or gross negligence of Agent hereunder) toAgent or such Lender in the event Agent or such Lender is required to repay such refund to suchGovernmental Authority. Notwithstanding anything in this Credit Agreement to the contrary, thisSection 16 shall not be construed to require Agent or any Lender to make available its taxreturns (or any other information which it deems confidential) to Borrower or any other Person.**17. GENERAL PROVISIONS**.     **17.1****Effectiveness****.**This Agreement shall be binding and deemed effective whenexecuted by Borrower, Agent, and each Lender whose signature is provided for on the signature pageshereof.     **17.2****Section Headings****.**Headings and numbers have been set forth herein forconvenience only. Unless the contrary is compelled by the context, everything contained in eachSection applies equally to this entire Agreement.     **17.3****Interpretation****.**Neither this Agreement nor any uncertainty or ambiguity hereinshall be construed against the Lender Group or Borrower, whether under any rule of construction orotherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construedand interpreted accordingto the ordinary meaning of the words used so as to accomplish fairly the purposes andintentions of all parties hereto.     **17.4****Severability of Provisions****.**Each provision of this Agreement shall be severablefrom every other provision of this Agreement for the purpose of determining the legalenforceability of any specific provision.
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     **17.5****Bank Product Providers****.**Each Bank Product Provider shall be deemed a third partybeneficiary hereof and of the provisions of the other Loan Documents for purposes of any referencein a Loan Document to the parties for whom Agent is acting; it being understood and agreed that therights and benefits of such Bank Product Provider under the Loan Documents consist exclusively ofsuch Bank Product Provider’s right to share in payments and collections out of the Collateral asmore fully set forth herein. In connection with any such distribution of payments and collections,Agent shall be entitled to assume no amounts are due to any Bank Product Provider unless such BankProduct Provider has notified Agent in writing of the amount of any such liability owed to it priorto such distribution.     **17.6****Debtor-Creditor Relationship****.**The relationship between the Lenders and Agent, onthe one hand, and the Loan Parties, on the other hand, is solely that of creditor and debtor. Nomember of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty toany Loan Party arising out of or in connection with the Loan Documents or the transactionscontemplated thereby, and there is no agency or joint venture relationship between the members ofthe Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue of any LoanDocument or any transaction contemplated therein.     **17.7****Counterparts; Electronic Execution****.**This Agreement may be executed in any numberof counterparts and by different parties on separate counterparts, each of which, when executed anddelivered, shall be deemed to be an original, and all of which, when taken together, shallconstitute but one and the same Agreement. Delivery of an executed counterpart of this Agreementby telefacsimile or other electronic method of transmission shall be equally as effective asdelivery of an original executed counterpart of this Agreement. Any party delivering an executedcounterpart of this Agreement by telefacsimile or other electronic method of transmission alsoshall deliver an original executed counterpart of this Agreement but the failure to deliver anoriginal executed counterpart shall not affect the validity, enforceability, and binding effect ofthis Agreement. The foregoing shall apply to each other Loan Document *mutatis mutandis*.     **17.8****Revival and Reinstatement of Obligations****.**If the incurrence or payment of theObligations by Borrower or Guarantor or the transfer to the Lender Group of any property should forany reason subsequently be asserted, or declared, to be void or voidable under any state or federallaw relating to creditors’ rights, including provisions of the Bankruptcy Code relating tofraudulent conveyances, preferences, or other voidable or recoverable payments of money ortransfers of property (each, a “Voidable Transfer”), and if the Lender Group is required torepay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon thereasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount thereofthat the Lender Group is required or elects to repay or restore, and as to all reasonable costs,expenses, and attorneys fees of the Lender Group related thereto, the liability of Borrower orGuarantor automatically shall be revived, reinstated, and restored and shall exist as though suchVoidable Transfer had never been made.     **17.9****Confidentiality**.          (a) Agent and Lenders each individually (and not jointly or jointly and severally) agree thatmaterial, non-public information regarding Borrower and its Subsidiaries, their operations, assets,and existing and contemplated business plans shall be treated by Agent and the Lenders in aconfidential manner, and shall not be disclosed by Agent and the Lenders to Persons who are notparties to this Agreement, except: (i) to attorneys for and other advisors, accountants, auditors,and consultants to any member of the Lender Group, (ii) to Subsidiaries and Affiliates of anymember of the Lender Group (including the Bank Product Providers), provided that any suchSubsidiary or Affiliate shall have agreed to receive such informationhereunder subject to the terms of this Section 17.9, (iii) as may be required bystatute, decision, or judicial or administrative order, rule, or regulation, (iv) as may be agreedto in advance by Borrower or as requested or required by any Governmental Authority pursuant to anysubpoena or other legal process, (v) as to any such information that is or becomes generallyavailable to the public (other than as a result of prohibited disclosure by Agent or the Lenders),(vi) in connection with any assignment, participation or pledge of any Lender’s interest underthis Agreement, provided that any such assignee, participant, or pledgee shall have agreed inwriting to receive such information hereunder subject to the terms of this Section, and (vii) inconnection with any litigation or other adversary proceeding involving parties hereto which suchlitigation or adversary proceeding involves claims related to the rights or duties of such partiesunder this Agreement or the other Loan Documents.
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          (b) Anything in this Agreement to the contrary notwithstanding, Agent may provide informationconcerning the terms and conditions of this Agreement and the other Loan Documents to loansyndication and pricing reporting services.     **17.10****Lender Group Expenses****.**Borrower agrees to pay any and all Lender Group Expensespromptly after demand therefor by Agent and agrees that its obligations contained in thisSection 17.10 shall survive payment or satisfaction in full of all other Obligations.     **17.11****USA PATRIOT Act****.**Each Lender that is subject to the requirements of the PatriotAct hereby notifies the Borrower that pursuant to the requirements of the Act, it is required toobtain, verify and record information that identifies the Borrower, which information includes thename and address of the Borrower and other information that will allow such Lender to identify theBorrower in accordance with the Patriot Act.     **17.12****Integration****.**This Agreement, together with the other Loan Documents, reflectsthe entire understanding of the parties with respect to the transactions contemplated hereby andshall not be contradicted or qualified by any other agreement, oral or written, before the datehereof.[Signature pages to follow.]
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     **IN WITNESS WHEREOF,**the parties hereto have caused this Agreement to be executed and deliveredas of the date first above written.      **OMNITURE, INC.,**