-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OhcAb8/FJctdKo89aasi4T1iam01/hAti/E0IMZaZ5xRqvrY9AIY4oB29FQPxww6 EeFCii+HGVMkWiaVHF0KUg== 0001104659-10-047648.txt : 20100908 0001104659-10-047648.hdr.sgml : 20100908 20100908123143 ACCESSION NUMBER: 0001104659-10-047648 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20100908 DATE AS OF CHANGE: 20100908 GROUP MEMBERS: MOUNTAIN MERGER SUB CORP GROUP MEMBERS: VESTAR CAPITAL PARTNERS V, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: HEALTH GRADES INC CENTRAL INDEX KEY: 0001027915 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 621623449 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58765 FILM NUMBER: 101061705 BUSINESS ADDRESS: STREET 1: 500 GOLDEN RIDGE RD STREET 2: SUITE 100 CITY: GOLDEN STATE: CO ZIP: 80401 BUSINESS PHONE: 3037160041 MAIL ADDRESS: STREET 1: 500 GOLDEN RIDGE RD STREET 2: SUITE 100 CITY: GOLDEN STATE: CO ZIP: 80401 FORMER COMPANY: FORMER CONFORMED NAME: HEALTHGRADES COM INC DATE OF NAME CHANGE: 20000118 FORMER COMPANY: FORMER CONFORMED NAME: SPECIALTY CARE NETWORK INC DATE OF NAME CHANGE: 19961210 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: HEALTH GRADES INC CENTRAL INDEX KEY: 0001027915 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 621623449 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58765 FILM NUMBER: 101061706 BUSINESS ADDRESS: STREET 1: 500 GOLDEN RIDGE RD STREET 2: SUITE 100 CITY: GOLDEN STATE: CO ZIP: 80401 BUSINESS PHONE: 3037160041 MAIL ADDRESS: STREET 1: 500 GOLDEN RIDGE RD STREET 2: SUITE 100 CITY: GOLDEN STATE: CO ZIP: 80401 FORMER COMPANY: FORMER CONFORMED NAME: HEALTHGRADES COM INC DATE OF NAME CHANGE: 20000118 FORMER COMPANY: FORMER CONFORMED NAME: SPECIALTY CARE NETWORK INC DATE OF NAME CHANGE: 19961210 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Mountain Acquisition Corp. CENTRAL INDEX KEY: 0001497550 IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: C/O VESTAR CAPITAL PARTNERS V, L.P. STREET 2: 245 PARK AVENUE, 41ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10167 BUSINESS PHONE: 212-351-1600 MAIL ADDRESS: STREET 1: C/O VESTAR CAPITAL PARTNERS V, L.P. STREET 2: 245 PARK AVENUE, 41ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10167 SC TO-T/A 1 a10-14888_26sctota.htm SC TO-T/A

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE TO

(Rule 14d-100)

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1)

OR SECTION 13(e)(1)OF THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 8)

Health Grades, Inc.

(Name of Subject Company (Issuer))

Mountain Acquisition Corp.

Mountain Merger Sub Corp.

Vestar Capital Partners V, L.P.

(Name of Filing Persons (Offeror))

Common Stock, Par Value $0.001 Per Share

(Title of Class Securities)

42218Q102

(CUSIP Number of Class of Securities)

Steven Della Rocca

Mountain Acquisition Corp.

c/o Vestar Capital Partners V, L.P.

245 Park Avenue, 41st Floor

New York, New York 10167

(212) 351-1600

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)

With a copy to:

Michael Movsovich

Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10022

(212) 446-4800

CALCULATION OF FILING FEE

Transaction Valuation*		Amount of Filing Fee**
$294,000,586.00		$20,962.24

* Calculated solely for purposes of determining the filing fee. The calculation assumes the purchase of 30,534,195 shares of common stock, par value $0.001 per share, at $8.20 per share. The transaction value also includes the aggregate offer price for 3,688,167 shares issuable pursuant to outstanding options with an exercise price less than $8.20 per share, which is calculated by multiplying the number of shares underlying such outstanding options at each exercise price therefor by an amount equal to $8.20 minus such exercise price. The transaction value also includes the aggregate net offer price for 125,000 shares issuable pursuant to a warrant and 1,700,000 shares issuable pursuant to a confidentiality and non-competition agreement with Mr. Kerry R. Hicks, the Chief Executive Officer of Health Grades.

** Calculated in accordance with Exchange Act Rule 0-11 by multiplying the transaction value by 0.0000713.

x Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

Amount Previously Paid:	$20,962.24	Filing Party:	Mountain Acquisition Corp.
Form or Registration No.:	Schedule TO	Date Filed:	August 10, 2010

o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

x third-party tender offer subject to Rule 14d-1.

o issuer tender offer subject to Rule 13e-4.

o going-private transaction subject to Rule 13e-3.

x amendment to Schedule 13D under Rule 13d-2.

Check the following box if the filing is a final amendment reporting the results of the tender offer: o

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

o Rule 13e-4(i) (Cross-Border Issuer Tender Offer).

o Rule 14d-1(d) (Cross-Border Third-Party Tender Offer).

This Amendment No. 8 to the Tender Offer Statement on Schedule TO (the “Schedule TO”) amends and supplements the Schedule TO relating to the tender offer by Mountain Merger Sub Corp., a Delaware corporation (“Purchaser”) and a direct wholly-owned subsidiary of Mountain Acquisition Corp., a Delaware corporation (“Parent”), for all of the outstanding common stock, par value $0.001 per share (the “Shares”), of Health Grades, Inc., a Delaware corporation (“Health Grades”), at a price of $8.20 per share net to the seller in cash without interest and less any required withholding taxes, if any, upon the terms and conditions set forth in the offer to purchase dated August 10, 2010 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached as Exhibit (a)(1)(B), which, together with any amendments or supplements, collectively constitute the “Offer.”

All the information set forth in the Offer to Purchase is incorporated by reference herein in response to Items 1 through 9 and Item 11 in this Schedule TO, and is supplemented by the information specifically provided in this Schedule TO.

This Amendment No. 8 is being filed to amend and supplement Item 12 as reflected below.

Item 12. Exhibits.

Regulation M-A Item 1016

Item 12 of the Schedule TO is amended and supplemented by adding the following exhibit:

Exhibit No.
(b)(3)		Third-Party Security Agreement, dated November 9, 2007.†

(b)(4)		Promissory Note, dated November 9, 2007.†

(d)(3)		Form of Tender and Support Agreement (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Health Grades, Inc. with the Securities and Exchange Commission on July 28, 2010).

SIGNATURES

After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: September 8, 2010

	MOUNTAIN MERGER SUB CORP.

	By:	/s/ STEVEN DELLA ROCCA
	Name:	Steven Della Rocca
	Title:	Secretary

	MOUNTAIN ACQUISITION CORP.

	By:	/s/ STEVEN DELLA ROCCA
	Name:	Steven Della Rocca
	Title:	Secretary

	VESTAR CAPITAL PARTNERS V, L.P.

	By: Vestar Associates V, L.P.,
	its General Partner

	By: Vestar Managers V Ltd., its General Partner

	By:	/s/ BRIAN P. SCHWARTZ
	Name:	Brian P. Schwartz
	Title:	Authorized Signatory

EXHIBIT INDEX

(a)(1)(A)		Offer to Purchase, dated August 10, 2010.*

(a)(1)(B)		Letter of Transmittal.*

(a)(1)(C)		Notice of Guaranteed Delivery.*

(a)(1)(D)		Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.*

(a)(1)(E)		Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.*

(a)(1)(F)		Joint Press Release of Health Grades, Inc. and Vestar Capital Partners V, L.P., dated July 28, 2010 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by Mountain Merger Sub Corp. with the Securities and Exchange Commission on July 29, 2010).*

(a)(1)(G)		Summary Advertisement as published on August 10, 2010.*

(a)(5)		Class Action Complaint and Jury Demand dated July 30, 2010 (Reginald W. Harris v. Vestar Capital Partners V, L.P. et al.).*

(a)(6)		Class Action Complaint and Jury Demand dated August 4, 2010 (Medford Bragg v. Vestar Capital Partners V, L.P. et al.).*

(a)(7)		Press Release of Affiliates of Vestar Capital Partners V, L.P., dated August 10, 2010.*

(a)(8)		Verified Class Action Complaint dated August 12, 2010 (Tove Forgo v. Health Grades, Inc. et. al.).*

(a)(9)		Verified Class Action Complaint for Breach of Fiduciary Duty dated August 16, 2010 (Peter P. Weigard v. Kerry Hicks, et. al.).*

(a)(10)		Shareholder Class Action Complaint and Jury Demand dated August 17, 2010 (Sarah E. Tomsky v. Health Grades, Inc., et. al.).*

(a)(11)		Transcript From September 3, 2010 Hearing Containing the Court’s Ruling on Plaintiffs’ Motion for Preliminary Injunction, In re Health Grades, Inc. Shareholders Litigation, Consolidated C.A. No. 5716-VCS (pending in the Delaware Court of Chancery) (incorporated by reference to Exhibit (a)(5)(F) to the amendment to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Health Grades, Inc. with the Securities and Exchange Commission on September 7, 2010).*

(b)(1)		Equity Financing Commitment, dated July 27, 2010.*

(b)(2)		Loan and Security Agreement, dated November 9, 2007.†

(b)(3)		Third-Party Security Agreement, dated November 9, 2007.†

(b)(4)		Promissory Note, dated November 9, 2007.†

(d)(1)		Agreement and Plan of Merger, dated as of July 27, 2010, by and among Mountain Acquisition Corp., Mountain Merger Sub Corp., Mountain Acquisition Holdings, LLC and Health Grades, Inc. (incorporated by reference to Exhibit 2.1 to the Form 8-K filed by Health Grades, Inc. with the Securities and Exchange Commission on July 28, 2010).*

(d)(2)		Amendment to the Agreement and Plan of Merger, dated as of August 9, 2010, by and among Mountain Acquisition Corp., Mountain Merger Sub Corp., Mountain Acquisition Holdings, LLC and Health Grades, Inc. (incorporated by reference to Exhibit 2.1 to the Form 8-K filed by Health Grades, Inc. with the Securities and Exchange Commission on August 9, 2010).*

(d)(3)		Form of Tender and Support Agreement (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Health Grades, Inc. with the Securities and Exchange Commission on July 28, 2010).

* Previously filed.

† The name of the bank has not been made public pursuant to the instruction to Item 1007(d) of Regulation M-A.

EX-99.(B)(2) 2 a10-14888_26ex99db2.htm EX-99.(B)(2)

(b)(2)

LOAN AND SECURITY AGREEMENT

Revolving Line of Credit
(Just In Time Loan - Partnership)

This LOAN AND SECURITY AGREEMENT dated November 9, 2007, for reference purposes only, is executed by and between * * *, a division of * * * (“Bank”) and VESTAR CAPITAL PARTNERS V, L.P., a Cayman Islands exempted limited partnership (“Borrower”). The exhibits attached hereto (“Exhibits”) are incorporated herein by this reference, and this agreement and the Exhibits are referred to herein as the “Agreement.”

ARTICLE 1

DEFINITIONS

For purposes of the Loan Documents, capitalized terms not otherwise defined in this Agreement shall have the meanings provided below or in the Commercial Code.

1.1 Agreement - means this Agreement and any extensions, supplements, amendments or modifications to this Agreement.

1.2 Bank - means and refers to * * *, a division of * * *.

1.3 Bank Expenses - means all costs and expenses incurred by Bank in connection with: (i) this Agreement or other Loan Documents; (ii) the transactions contemplated hereby or thereby; (iii) the enforcement of any rights hereunder or thereunder; (iv) the recordation or filing of any documents; (v) Bank’s Attorneys’ Fees; (vi) if applicable, the creation, perfection or enforcement of the lien on any item of Collateral; and (vii) any expenses incurred in any proceedings in the U.S. Bankruptcy Courts in connection with any of the foregoing.

1.4 Bankruptcy Code - means the U. S. Bankruptcy Code as now enacted or hereafter amended.

1.5 Borrower Resolution - means, if Borrower is an entity, the resolution, consent or other written authorization executed by Borrower’s governing board, partner(s), member(s), manager(s) or officer(s), as the case may be, authorizing Borrower to execute and deliver this Agreement and the other Loan Documents and to enter into the transactions contemplated hereby and thereby, in form and content acceptable to Bank.

1.6 Borrower’s Books - means all of Borrower’s books and records including, but not limited to: minute books, ledgers, and records indicating, summarizing or evidencing Borrower’s assets, liabilities, the Collateral, the Obligations, and all information relating thereto; records indicating, summarizing or evidencing Borrower’s business operations or financial condition; and all computer programs, disc or tape files, printouts, runs, and other computer prepared information and the equipment containing such information,

1.7 Business Day - means any day other than a day on which commercial banks are authorized or required by law to close in the State of California.

1.8 Capital Call - means any demand or request submitted by the Partnership (or by the Bank) to any Limited Partner or General Partner to make a Capital Contribution or to make a payment on a Capital Commitment.

1.9 Capital Contribution - means for any Limited Partner and General Partner, the sum of the net amount of cash and the Fair Market Value (as described in the Partnership Agreement) of any other property contributed by such Partner to the capital, or equity, of the Partnership.

1.10 Capital Commitments - is defined in Exhibit B.

1.11 Collateral - is defined in Exhibit B.

1.12 Commercial Code - means the Uniform Commercial Code, as now enacted or hereafter amended, applicable in the State of California.

1.13 Designated Representative - is the person(s) identified in the Borrower Resolution or otherwise agreed by Borrower in writing.

1.14 Disbursement Date - means the first date on which proceeds of any Advance are disbursed by Bank to Borrower.

1.15 Distribution - means: (i) any payment, dividend or distribution arising from or in connection with any capital or equity investment in Borrower, and (ii) any return of capital or return of any investment in Borrower.

1.16 Exhibit - means any Exhibit attached hereto and incorporated herein.

1.17 General Partner(s) - means those individuals or entities denominated general partners of Borrower under or by reason of the Partnership Agreement.

1.18 Governmental Authorities - means: (i) the United States; (ii) the Cayman Islands, (iii) the state, county, city or other political subdivision; (iv) all other governmental or quasi-governmental authorities, boards, bureaus, agencies, commissions, departments, administrative tribunals, instrumentalities and authorities; and (v) all judicial authorities and public utilities having or exercising jurisdiction over Borrower, Borrower’s assets, the Collateral or any Guarantor. The term “Governmental Authority” means any one of the Governmental Authorities.

1.19 Governmental Permits - means all permits, approvals, licenses and authorizations now or hereafter issued by any Governmental Authority for or in connection with the conduct of Borrower’s business or the ownership or use by Borrower of its assets and properties and the Collateral or in connection with the conduct of Guarantor’s business or the ownership or use by Guarantor of Guarantor’s assets or properties.

1.20 Governmental Requirements - means all existing and future laws, ordinances, rules, regulations, orders, and requirements of all Governmental Authorities applicable to Borrower, any Guarantor, the Collateral or any of Borrower’s or any of Guarantor’s assets or properties.

1.21 Guaranties - means, collectively all guaranty agreements of any kind (including third-party pledge agreements) now or hereafter executed by any Guarantor, and all extensions, renewals, modifications and replacement thereof.

1.22 Guarantor - means, collectively: (i) the Person or Persons, if any, now or hereafter guaranteeing payment of the Loan or payment or performance of the Obligations, and (ii) any Person pledging collateral for the Obligations including without limitation any Pledgor.

1.23 Insolvency Proceeding - means any proceeding commenced by or against any Person, including Borrower, under any provision of the Bankruptcy Code or the Cayman Islands’ Companies Law (as amended), or under any other bankruptcy or insolvency law, including, but not limited to, assignments for the benefit of creditors, formal or informal moratoriums, compositions or extensions with some or all creditors.

1.24 Limited Partner(s) - means those individuals or entities denominated limited partners of the Borrower under or by reason of the Partnership Agreement.

1.25 Liquid Assets - means the following assets of the Borrower: (i) cash and certificates of deposit; (ii) treasury bills and other obligations of the federal government; and (iii) readily marketable securities (including commercial paper, but excluding restricted stock and stock subject to the provisions of Rule 144 of the Securities and Exchange Commission).

1.26 Liquidation Distribution - means any Distribution arising from the liquidation or termination or winding down of Borrower.

1.27 Loan - means the Line of Credit and all Advances made by Bank thereunder.

1.28 Loan Documents - means this Agreement and all other documents now or hereafter executed by Borrower, Guarantor or any other Person and delivered to Bank at Bank’s request in connection with the transactions contemplated in this Agreement, and all extensions, renewals, modifications and replacements of any or all of such documents.

1.29 Management Agreement - means that certain Management Agreement between Borrower and Vestar Capital Partners dated August 11, 2005.

1.30 Note - means: (i) the promissory note or notes executed in connection herewith and all extensions, renewals, modifications and replacements thereof; and (ii) any additional note or notes now or hereafter executed by Borrower in favor of Bank which specifically recite that they arise out of the Loan Documents, and all extensions, renewals, modifications and replacements thereof.

1.31 Obligations - means all debts, obligations and liabilities of Borrower to Bank under or in connection with this Agreement, the Note, and any of the other Loan Documents, regardless whether such Obligations are currently existing or hereafter created, whether liquidated or unliquidated, including Attorneys’ Fees. Notwithstanding anything to the contrary contained in the Loan Documents, the term “Obligations” shall not include any debts that are or may hereafter constitute ‘consumer credit’ which is subject to the disclosure requirements of the federal Truth-In Lending Act (15 U.S.C. Section 1601, et seq.) or any similar state law in effect

from time to time, unless Bank and Borrower shall otherwise agree in a separate written agreement.

1.32 Organizational Agreements - means the formation and organizational documents of any partnership, limited liability company, corporation or other legal entity.

1.33 Partnership - means Borrower.

1.34 Permitted Liens - means any and all of the following: (i) liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings; and (ii) any other liens and encumbrances agreed to in writing by Bank.

1.35 Person - means any natural person or any entity, including any corporation, partnership, joint venture, trust, limited liability company, unincorporated organization, trustee, or Governmental Authority.

1.36 Pledgor - means any Person (other than Borrower) who executes a security agreement or pledge agreement which further secures repayment and/or performance of the Obligations as may be further identified in Exhibit A.

1.37 Third Party Security Agreement - means any Security Agreement or Pledge Agreement executed by Pledgor.

ARTICLE 2

LOAN AMOUNT AND TERMS

2.1 Line of Credit Loan.

(a) Subject to and upon the terms and conditions of this Agreement and so long as no Event of Default has occurred, up to the Advance Expiration Date (defined below), Bank will make a revolving line of credit loan (“Line of Credit”) to Borrower. The Line of Credit shall not exceed Twenty-Five Million Dollars ($25,000,000) (the “Maximum Loan Amount”).

(b) Subject to the terms and conditions of this Agreement, principal may be advanced, repaid and readvanced from time-to-time until March 25, 2009 (the “Advance Expiration Date”), which date may be extended by a written agreement of Bank and Borrower. The principal of each Advance shall be due and payable forty-five (45) days following the Disbursement Date (the “Repayment Date”); provided that all amounts outstanding under the Line of Credit shall be due and payable on the earliest to occur of: (i) the date on which the Borrower has received funding of Capital Calls totaling ninety percent (90%) of the Capital Commitments, or (ii) May 9, 2009 (the “Maturity Date”).

(c) Borrower may obtain advances of principal under the Line of Credit (“Advances”) from time to time upon the oral or written request to Bank of a Designated Representative of Borrower. Any request for an Advance shall be made at least one (1) Business Day prior to the requested date for such Advance, specifying the amount of the requested

Advance. Bank shall render monthly statements of amounts owing by Borrower under this Agreement, including statements of all principal, interest, fees and Bank Expenses owing, and such statement shall be presumed to be correct and accurate and constitute an account stated between Borrower and Bank unless, within thirty (30) days after receipt thereof by Borrower, Borrower shall deliver to Bank, by registered or certified mail, at Bank’s place of business indicated in Exhibit A written objection thereto specifying the alleged error or errors contained in such statement.

(d) Borrower hereby expressly authorizes Bank to rely on any request for an Advance made by any Designated Representative so long as the proceeds of the Advance are deposited by Bank into Borrower’s Account identified on Exhibit A. Borrower agrees that it, solely, shall bear the risk that any such Advance was not so authorized. All Advances shall be conclusively presumed to have been made for the benefit of Borrower when said Advances are deposited into Borrower’s Account.

(e) The terms of the Line of Credit shall be reflected in and incorporated into a separate promissory note, which shall be subject to the terms of this Agreement. Interest on the Advances shall accrue as specified in the Note. Borrower hereby agrees to make payment on the Advances (principal and interest) as specified in the Note.

2.2 Fees and Expenses. Borrower shall pay to Bank a loan fee and other fees, if any, in the amount shown on Exhibit A. In addition, Borrower agrees to reimburse Bank for any and all Bank Expenses and hereby authorizes and approves all advances and payments by Bank for items constituting Bank Expenses.

2.3 Application of Payments. Upon the occurrence of an Event of Default, Bank, at its option, shall have the right to apply all payments made under this Agreement or other Loan Documents to principal, interest and other Bank Expenses in such order and amounts as Bank may determine in its sole discretion.

ARTICLE 3

SECURITY INTEREST

3.1 Grant of Lien. Borrower hereby grants to Bank a continuing valid, first priority security interest in all present and future Collateral, defined in Exhibit B, now owned or hereafter acquired to secure payment and performance of the Obligations. Upon the full and final payment of the Obligations and termination of this Agreement, Bank shall take such actions as may be required to release and terminate the security interests, liens and assignments created in this Section.

3.2 Assignment of Capital Contributions and Capital Commitments.

(a) Borrower hereby assigns, transfers and sets over to Bank and its successors: (i) all of its rights to receive payments on Capital Calls and Capital Contributions and Capital Commitments from the General Partners and the Limited Partners (including Capital Calls previously made, and rights to Capital Contributions and Capital Commitments, already accrued but not received) pursuant to, among other things, the Partnership Agreement, such

amounts shall be paid to Bank whether or not an Event of Default has occurred, up to the aggregate amount of all outstanding Obligations, and (ii) all rights to require and collect such Capital Commitments, and Capital Contributions and Capital Calls from the General Partners and the Limited Partners as and when due to Borrower following an Event of Default under this Agreement, up to the aggregate amount of all outstanding Obligations.

(b) Borrower shall take such steps as are requested by Bank for the payment of all future Capital Contributions and all pending and future Capital Commitments and all pending and future Capital Calls into the Account specified in Exhibit A. Funds deposited into the Account shall be applied to reduce the Obligations, whether or not an Event of Default has occurred, except as otherwise provided in Section 9.4.

3.3 Right to Purchase. If a Limited Partner fails to make a Capital Contribution or Capital Commitments when due (a “Defaulting Limited Partner) and after the other existing Limited Partners and the General Partners decline to purchase the interest of the Defaulting Limited Partner in the Partnership, Bank or its designee shall have the right, but in no event the obligation, following an Event of Default, as part of a foreclosure thereon, to exercise the Borrower’s right to purchase the interest of the Defaulting Limited Partner in the partnership only after the Partnership has failed to exercise its remedies as specified in the relevant Partnership Agreement. Neither Bank nor its designee has a duty to make such purchase and presently has no intention to make such purchase. Nothing in this Section shall be deemed to constitute Bank’s agreement to waive an Event of Default or to forbear from exercising its rights and remedies in connection with an Event of Default.

3.4 Pledgor Collateral. If Pledgor Collateral is specified in Exhibit B, Borrower shall arrange for the delivery to Bank concurrent herewith of a Third Party Security Agreement duly executed by Pledgor (the assets identified as collateral therein are referred to in this Agreement as “Pledgor Collateral”).

ARTICLE 4

REPRESENTATIONS AND WARRANTIES

Until Bank is repaid in full, Borrower makes the following representations and warranties:

4.1 Existence. If Borrower is an entity, Borrower is duly organized, validly existing and in good standing under the laws of the state in which it is organized, and is qualified to do business and is in good standing in each jurisdiction in which the ownership of its assets or the conduct of its business requires qualification as a foreign entity.

4.2 Authority. This Agreement and each of the other Loan Documents have been duly authorized and, upon execution and delivery, will constitute legal, valid and binding agreements and obligations of Borrower or any Person executing the same, enforceable in accordance with their respective terms.

4.3 Borrower. In Exhibit A: (i) the full and correct name and address; (ii) state of incorporation or formation; and (iii) all trade names for Borrower, are complete and accurate.

4.4 Partnership Agreement; Organizational Agreements. Each of the Partnership Agreement and/or Organizational Agreements delivered to the Bank is a true, correct and complete copy of such document.

4.5 No Conflicts. The execution, delivery and performance by Borrower, any Guarantor or any Person of this Agreement and the other Loan Documents and the granting of any liens shall not: (i) violate any Governmental Requirements applicable to such Person; (ii) constitute a breach of any provision contained in the organizational papers of such Person; or (iii) constitute an event of default under any agreement to which such Person is now a party or by which such Person may be bound.

4.6 Financial Information. All financial and other information that has been or will be supplied to Bank is sufficiently complete to give Bank accurate knowledge of Borrower’s and any Guarantor’s financial condition and is a true statement of Borrower’s and any Guarantor’s financial condition and reflects any and all material contingent liabilities.

4.7 Lawsuits. There is no material lawsuit, tax claim or adjustment, or other dispute, pending or threatened against Borrower, its property or any of its businesses, or the Collateral.

4.8 Compliance and Taxes. Borrower is in compliance with all Governmental Requirements and has satisfied, prior to delinquency, all taxes due or payable by Borrower or assessed on the Collateral.

4.9 Permits; Franchises. Borrower possesses, and will maintain, all Governmental Permits, memberships, franchises, contracts and licenses required and all trademark rights, trade names, trade name rights, patents, patent rights and fictitious name rights necessary to enable Borrower to conduct the business in which Borrower is now engaged without conflict with the rights of others.

4.10 Transaction. Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying any “margin stock” (as defined in Regulation G of the Board of Governors of the Federal Reserve System), and no part of the proceeds of the Loan shall be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock, unless such use is approved in writing by Bank or otherwise expressly contemplated by the Loan Documents.

4.11 No Defaults. There is no default by Borrower on any obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation to which it is a party.

4.12 Title to Assets. Borrower has and at all times will have: (i) good, marketable and indefeasible title to the Collateral, free and clear of all liens, claims, encumbrances, or other security interests except Permitted Liens; and (ii) the right to grant the security interest in the Collateral.

4.13 No Offsets or Defenses. Each account, right to payment, instrument, document, chattel paper and other item of Collateral is (or will be when arising or issued) the valid and

legally enforceable obligation, subject to no defense or set off (other than those arising in the ordinary course of business) of the obligor named therein. All outstanding Capital Calls and all Capital Commitments are currently in full force and effect and free from any right of offset or other defense, except as otherwise provided in this Agreement.

4.14 Investment Company Compliance. Borrower shall not become an “investment company” or a company controlled by an “investment company,” under the Investment Company Act of 1940 or undertake as one of its important activities extending credit to purchase or carry margin stock, or use the proceeds of the Loan for that purpose; fail to meet the minimum funding requirements of ERISA, permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur, fail to comply with the Federal Fair Labor Standards Act or violate any other law or regulation, if the violation could reasonably be expected to cause a material adverse change in Borrower’s financial condition.

4.15 Continuing and Cumulative Warranties. The warranties and representations set forth in this Section and in any other Loan Document shall be true and correct in all material respects at the time of execution of this Agreement or other Loan Document and shall constitute continuing representations and warranties as long as any of the Obligations remain unpaid or unperformed. The warranties and representations shall be cumulative and in addition to any other warranties and representations which Borrower shall give, or cause to be given, to Bank, now or hereafter.

ARTICLE 5

COVENANTS

Borrower agrees, until Bank is repaid in full or the Loan Documents are terminated, whichever occurs first:

5.1 Accounting Methods; Books and Records. Borrower shall: (i) maintain a standard and modern system of accounting in accordance with generally accepted accounting principles or such other accounting principles as agreed to by Bank, consistently applied during the term of the Loan; (ii) not modify or change its method of accounting; and (iii) permit Bank and any of Bank’s representatives, on demand, during usual business hours, to have access to and examine Borrower’s Books. Borrower irrevocably authorizes all accountants and auditors employed by it to respond to and answer all requests from Bank for financial and other information.

5.2 Existence. If Borrower is an entity, Borrower shall maintain its existence in good standing under the laws of the state of its organization and maintain its qualification as a foreign entity in each jurisdiction in which the nature of its business requires such qualification.

5.3 Use of Proceeds. Borrower shall use the Loan proceeds only to provide bridge financing for investments in portfolio companies and for one (1) fiscal quarter of management fees payable under the Management Agreement, pending receipt of payment from Borrower’s Limited Partners and General Partners following a Capital Call; and not for any other purpose without the written consent of Bank.

5.4 Change. Borrower shall not: (i) without thirty (30) days’ prior written consent of Bank, change its name, business structure, identity or state of formation or dissolve, suspend business, liquidate, or merge with any other entity; (ii) without thirty (30) days’ prior written consent of Bank, amend, modify or waive any material provision in the Partnership Agreement (other than the addition of other Limited Partners and General Partners) including, without limitation, the provisions relating to Capital Calls, Capital Commitments, and Capital Contributions; (iii) without thirty (30) days’ prior written notice to Bank, change the location of its business; (iv) transfer or sell any of its assets other than in the ordinary course of business; or (v) purchase or lease all or the greater part of the assets or business of another.

5.5 Reliance by Bank. Bank may conclusively presume that all oral or written requests, statements, information, certifications, and representations submitted or made by Borrower to Bank in connection with the Loan are true and correct, and Bank shall be entitled to rely thereon, without investigation or inquiry of any kind, in disbursing Loan proceeds and taking or refraining from taking any other action in connection with the Loan.

5.6 Further Assurances. Upon Bank’s request, Borrower, at Borrower’s expense, shall: (i) execute (or reexecute) and deliver such further documents and notices satisfactory to Bank and take any action requested by Bank to carry out the intent of this Agreement and the other Loan Documents; and (ii) provide such reports and information available to Borrower concerning its business and financial condition and the Collateral.

5.7 Financial Information. Borrower shall deliver or cause to be delivered to Bank within ten (10) days of a request from Bank, updated financial information. Borrower shall be at all times in compliance with all financial requirements of Bank and shall immediately notify Bank of any adverse change in the financial condition of Borrower. Borrower acknowledges that Bank will review its credit annually and authorizes Bank to make whatever inquiries it deems necessary and appropriate, including for the purposes of verifying or checking on any information given and evaluating Borrower’s credit and re-verifying its credit from time to time, including obtaining credit bureau reports.

5.8 Insurance. Borrower shall maintain insurance against such casualties, risks and liabilities, in such forms and for such amounts as are required by Bank. The form and substance of all such insurance policies policy shall be reasonably acceptable to Bank and maintained with insurers reasonably acceptable to Bank. Upon Bank’s request, Borrower shall provide Bank with evidence satisfactory to Bank regarding the maintenance of the insurance required by this Section. If Borrower fails to provide or pay for any such Policy, Bank, at its option and in its discretion, shall have the right, but not the obligation, to obtain the same at Borrower’s expense.

5.9 Maintenance of Properties. Borrower shall: (i) maintain its properties in good condition and repair, normal depreciation excepted; (ii) not misuse or permit misuse of any of its properties or the Collateral; and (iii) not use or permit use of any of its properties or the Collateral for any unlawful purpose or in any negligent manner or outside the ordinary course of business.

5.10 Liens. Borrower shall keep all of its assets free of all liens, except Permitted Liens.

5.11 Capital Calls, Capital Commitments and Capital Contributions.

(a) Borrower shall not sell assign, encumber, lease or transfer in any way all or any right to make or enforce Capital Calls or Capital Commitments or future Capital Contributions.

(b) Borrower shall provide Bank a notice certified by a Designated Representative that a Capital Contribution or Capital Commitment has been requested from, or a Capital Call has been made upon, any Limited Partners or any General Partners of Borrower, within ten (10) days of each Capital Contribution or Capital Commitment requested or Capital Call.

(c) Absent the occurrence of an Event of Default and action by Bank to collect the Capital Commitments and/or the Capital Contributions, Borrower shall enforce all of its rights under the Partnership Agreement and the collection of all Capital Commitments and Capital Contributions and Capital Calls in accordance with its past business practice.

(d) Whether or not an Event of Default has occurred, Borrower shall promptly deliver all collections of any Capital Commitments and/or Contributions and/or Capital Calls to Bank as provided above, except as otherwise provided in Section 9.4.

5.12 Solvency. Borrower shall remain solvent at all times during the term of this Agreement such that the total value of its assets will exceed its liabilities (contingent and non-contingent) and will be able to pay its debts as they come due.

5.13 Taxes. Borrower shall pay when due all taxes.

5.14 Delivery. On Bank’s request (before or after an Event of Default), Borrower shall deliver to Bank any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by Borrower.

5.15 Pension Plans. Borrower shall pay all amounts necessary to fund all of its employee benefit plans in accordance with their terms, and shall not permit the occurrence of any event with respect to any such plan which would result in its liability, including any liability to the Pension Benefit Guaranty Corporation or any other Governmental Authority.

5.16 Compliance with Applicable Laws. Borrower shall at all times comply with and keep in effect all Governmental Permits relating to it, the Collateral, and its other assets. Borrower shall at all times comply with and shall cause the Collateral to comply with: (i) all Governmental Requirements; (ii) all requirements and orders of all judicial authorities which have jurisdiction over Borrower or the Collateral; and (iii) all covenants, conditions, restrictions and other documents relating to Borrower or the Collateral.

5.17 Notifications. Borrower shall promptly notify Bank of: (i) any material adverse change in its financial condition and of any condition or event which constitutes a breach of or Event of Default under this Agreement; (ii) any material pending, threatened or imminent litigation, governmental investigations or claims, complaints, actions or prosecutions involving Borrower; and (iii) any material loss of or damage to any Collateral.

5.18 Distributions. Prior to the occurrence of an Event of Default hereunder, Borrower may make any Distribution (other than Liquidation Distributions) which it has customarily made to its Limited Partners and General Partners in the ordinary course of Borrower’s business. Following the occurrence of an Event of Default, Borrower shall not make any Distributions to its Limited Partners or General Partners. At no time shall Borrower make any Liquidation Distributions to its Limited Partners or General Partners.

ARTICLE 6

EVENT OF DEFAULT

The occurrence of any of the following shall constitute an “Event of Default” under this Agreement, at the option of Bank:

6.1 Failure to Pay. If Borrower fails to make a payment under this Agreement or any Note when due.

6.2 Failure to Perform. If Borrower or other Person fails to perform any obligation or covenant or comply with any requirement under this Agreement or other Loan Document beyond any applicable cure period or the occurrence of an Event of Default under any Third Party Security Agreement or any other Loan Document.

6.3 Misrepresentation. If any statement, information, certification, representation or warranty, whether oral or written, made by Borrower to Bank is false or misleading.

6.4 Guarantor. If Borrower or Guarantor or Pledgor fails to provide any document or information required to be provided by Guarantor under this Agreement or the Guaranty.

6.5 Insolvency. If a voluntary Insolvency Proceeding is commenced by Borrower or Guarantor (if any); or if an involuntary Insolvency Proceeding is commenced against Borrower or Guarantor and not dismissed within sixty (60) days.

6.6 Receivers. If a receiver or similar official is appointed for any of the Collateral.

6.7 Injunction. If Borrower is enjoined, restrained or in any way prevented by court order from continuing to conduct all or any material part of Borrower’s business affairs.

6.8 Security. If the validity or priority of the Bank’s security interest in the Collateral is impaired for any reason or Bank, in good faith, believes the Collateral is in danger of misuse, dissipation, loss or damage.

6.9 Transfers; Dissolution; Death. If there is a dissolution, termination or liquidation of Borrower or any Guarantor if Borrower or any Guarantor is a corporation, partnership, limited liability company or other entity; or the transfer of more than twenty-five percent (25%) of the beneficial interests in Borrower or any Guarantor; or the death or incompetency of Borrower or any Guarantor if Borrower or any Guarantor is an individual.

6.10 Lawsuits. If any lawsuit is filed against Borrower which, if lost, would impair the Collateral or Borrower’s financial condition or ability to repay the Loan.

6.11 Judgments. If any judgments or arbitration awards are entered against Borrower or Borrower enters into any settlement agreements with respect to any litigation or arbitration, any of which would materially impair the Collateral or Borrower’s financial condition or ability to repay the Loan.

6.12 Failure to Receive Capital Commitment. If Borrower fails to receive, within 60 days from the time of such request, any Capital Commitment or Capital Contribution or payment on any Capital Calls from any Limited Partner or General Partner individually holding five percent (5%) or more of the total Capital Commitments or from Limited Partners or General Partners who are collectively holding five percent (5%) or more of the total Capital Commitments.

6.13 Material Adverse Change. If a material adverse change occurs in the Collateral or Borrower’s financial condition or ability to repay the Loan.

ARTICLE 7

REMEDIES, INDEMNIFICATION AND WAIVERS

7.1 Remedies.

(a) General. If an Event of Default shall have occurred and not been cured or waived in accordance with the terms hereof, Bank shall have the following rights and powers and may, at its option, without notice of its election and without demand, do any one or more of the following: (i) declare any or all of the Obligations to be immediately due and payable; (ii) discontinue advancing money or extending credit in connection with the Loan or under any other document or agreement between Bank and Borrower; (iii) obtain the appointment of a receiver to take possession of and, at the option of Bank, to collect, sell or dispose of the Collateral; or (iv) exercise any or all rights and remedies under this Agreement or any other Loan Document or applicable law, including without limitation the rights of a secured party under the Commercial Code. The remedies of Bank, as provided herein, shall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion of Bank, and may be exercised as often as occasion therefore shall arise.

(b) Rights to Payment. If an Event of Default has occurred and not been cured or waived in accordance with the terms hereof, Bank may: (i) in Bank’s or Borrower’s name, demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with the Investment Interests, including without limitation, a demand on the other parties for payment of amounts arising thereunder; and (ii) take possession of and endorse and collect any or all notes, checks, drafts, money orders, or other instruments of payment relating to the Investment Interests or any other Collateral.

(c) Capital Contributions and Capital Calls. Bank may: (i) enforce all Capital Calls made on any Limited Partners or General Partners; and (ii) make demand, enforce and collect all Capital Contributions and Capital Commitments owed under the Partnership

Agreement by the Limited Partners or the General Partners whether or not a Capital Call has been made thereon. As regards any Capital Commitments or Capital Contributions or Capital Calls, Bank may take action to collect the Capital Commitments and Capital Contributions directly from the parties obligated thereon and to apply the proceeds to the Obligations. Nothing in this Section shall limit the rights of the Bank to collect the Capital Commitments or Capital Contributions or Capital Calls pursuant to the “Assignment of Capital Contributions and Capital Commitments” Section above prior to the occurrence of an Event of Default.

(d) Deficiency. Borrower shall at all times remain liable for any deficiency remaining on the Obligations for which Borrower is liable after any disposition of Collateral. Nothing herein shall require Bank to foreclose on any Collateral.

7.2 Indemnification. Borrower shall indemnify and hold Bank harmless from and against any and all claims, damages, liabilities, actions, and expenses (including Attorneys’ Fees) of every kind (collectively, the “Claims”) arising out of or relating to any of the following: (i) a breach of any Obligations or warranties under this Agreement; (ii) any act or omission by Borrower or any Guarantor or their employees or agents; or (iii) the Collateral or any of Borrower’s properties. Borrower’s obligation to indemnify under this Section shall survive the cancellation of the Obligations and the release of the Bank’s lien on any Collateral.

7.3 Waivers. Borrower waives: (i) the right to direct the application of any and all payments or collections at any time or times hereafter received by Bank on account of any Obligations except for such application as are explicitly required under this Agreement; (ii) demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension or renewal relating to any of the Loan Documents; (iii) all rights, remedies, and benefits under California Civil Code Sections 1479 and 2822(a); and (iv) all rights to require marshalling of assets or liens or all rights to require Bank to exercise any other right or power or to pursue any other remedy which Bank may have.

ARTICLE 8

MISCELLANEOUS

8.1 Relationship. Bank shall not be deemed a partner, joint venturer, trustee, fiduciary or participant in Borrower or Borrower’s business. The relationship of Borrower and Bank is solely that of borrower and lender.

8.2 Power of Attorney. Borrower irrevocably appoints Bank, with full power of substitution, as its attorney-in-fact, coupled with an interest, with full power, in Bank’s own name or in the name of Borrower: (i) at any time to sign, record and file all documents referred to in this Agreement; and (ii) after an Event of Default: (a) endorse any checks, notes, and other instruments or documents evidencing the Collateral, or proceeds thereof; (b) discharge claims, demands, liens, or taxes affecting any of the Collateral; (c) settle, and give releases of, any insurance claim that relates to any of the Collateral, obtain payment of claim, and make all determinations with respect to any such policy of insurance, and endorse Borrower’s name on any proceeds of such policies of insurance; or (d) instruct any person having control of any

books or records relating to the Collateral to give Bank full rights of access thereto. Bank shall have the right to exercise the power of attorney granted in this Section directly or to delegate all or part of such power. Bank shall not be obligated to act on behalf of Borrower as attorney-in-fact. For purposes of the power of attorney granted in this Section 8.2 only, this Agreement is being “executed as a deed” as required under Cayman Islands law.

8.3 Choice of Law; Venue. This Agreement and all other Loan Documents shall be deemed to have been entered into, and are to be performed in, the State of California. The validity of this Agreement and the other Loan Documents and of any of their respective terms or provisions, as well as the right and duties of the parties hereto or thereto, and the liens granted herein or therein, shall be governed by and construed in accordance with California law. The parties to this Agreement expressly agree that such choice of law shall be effective as provided under California Civil Code Section 1645.5 which shall include transactions otherwise covered by subdivision (1) of Section 1105 of the Commercial Code. The parties agree that all actions or proceedings arising in connection with this Agreement and the other Loan Documents shall be tried and litigated only in the state courts located in the County of San Francisco, State of California, or the federal courts located in the Northern District of California. Borrower waives any right Borrower may have to assert the doctrine of forum non conveniens or to object to such venue and hereby consents to any court-ordered relief.

8.4 Successors and Assigns. The Loan Documents shall be binding on Borrower’s and Bank’s successors and assigns. Borrower agrees that it may not assign any of the Loan Documents without Bank’s prior consent. Bank may assign, in whole or in part, all of its right, title and interest in and to this Agreement or any Loan Documents at any time without the consent of Borrower. In connection with any assignment, Bank may disclose all documents and information that Bank has or may hereafter have relating to Borrower and/ or any Guarantor.

8.5 Severability; Waivers. Each provision of any Loan Document shall be severable from every other provision of the Loan Documents for the purpose of determining the legal enforceability of any provision. No waiver by Bank of any of its rights or remedies in connection with the Loan Documents shall be effective unless such waiver is in writing and signed by Bank. No act or omission by Bank to exercise a right as to any event shall be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event of the said right.

8.6 Attorneys’ Fees. On demand, Borrower shall reimburse Bank for all costs and expenses, including without limitation reasonable attorneys’ fees, costs and disbursements (and fees and disbursements of Bank’s in-house counsel) (collectively “Attorneys’ Fees”) expended or incurred by Bank in connection with the amendment and/or enforcement of this Agreement and Bank’s rights hereunder whether or not suit is brought. Attorneys’ Fees shall include, without limitation, attorneys’ fees and costs incurred in any State, Federal or Bankruptcy Court. and in any Insolvency Proceeding of any kind in any way related to this Agreement or any other Loan Document.

8.7 Notices. Any notice, demand or request required under the Loan Documents shall be given in writing (at the addresses set forth in Exhibit A) by any of the following means: (i) personal service; (ii) electronic communication, whether by telex, telegram or telecopying or

other form of electronic communication; (iii) overnight courier; or (iv) registered or certified, first class U.S. mail, return receipt requested, or to such other addresses as Bank and Borrower may specify from time to time in writing. Any notice, demand or request sent pursuant to either subsection (i) or (ii) above, shall be deemed received upon such personal service or upon dispatch by electronic means. Any notice, demand or request sent pursuant to subsection (iii) above, shall be deemed received on the Business Day immediately following deposit with the overnight courier, and, if sent pursuant to subsection (iv) above, shall be deemed received forty-eight (48) hours following deposit into the U.S. mail.

8.8 Headings. Article and section headings are for reference only and shall not affect the interpretation or meaning of any provisions of the Loan Documents.

8.9 No Third Party Beneficiaries. The Loan Documents are entered into for the protection and benefit of Bank and Borrower and their respective permitted successors and assigns. No other Person shall have any rights or causes of action under the Loan Documents.

8.10 Integration; Amendment. No modification or amendment to this Agreement or any other Loan Documents shall be effective unless in writing, executed by Bank. Except for currently existing obligations of Borrower to Bank, all prior agreements, understandings, representations, warranties and negotiations between the parties whether oral or written, if any, are merged into this Agreement.

8.11 Joint and Several Liability. Should more than one Person sign this Agreement or any other Loan Document as Borrower, the obligations of each signatory shall be joint and several.

8.12 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall constitute but one and the same agreement. A signed copy of this Agreement transmitted by a party to another party via facsimile or an emailed “pdf version shall be binding on the signatory thereto.

8.13 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, BANK AND BORROWER HEREBY VOLUNTARILY, UNCONDITIONALLY AND IRREVOCABLY WAIVE TRIAL BY JURY IN ANY LITIGATION OR PROCEEDING IN A STATE OR FEDERAL COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF: THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, CLAIMS RELATING TO THE APPLICATION, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING (INCLUDING TORT AND CLAIMS FOR BREACH OF DUTY) BETWEEN BANK AND BORROWER.

This Agreement is executed as of the date stated at the top of the first page.

[Signatures On Following Page]

[SIGNATURE PAGE TO LOAN AND SECURITY AGREEMENT]

BANK		BORROWER

* * *		VESTAR CAPITAL PARTNERS V, L.P.
a division of * * *		a Cayman Islands exempted limited partnership

By:	/s/ Thomas Young
		By:	Vestar Associates V, L.P.
Name:	Thomas Young		a Scottish limited partnership
			its general partner
Title:	Managing Director
			By:			Vestar Managers V Ltd.
						a Cayman Islands exempted company
						its general partner

						By:		/s/ Brian P. Schwartz

						Name:		Brian P. Schwartz

						Title:		Chief Financial Officer


		Witnessed By:					/s/ Susan Hoffmann

		Name:			Susan Hoffmann

		Date:		11/9/07

EXHIBIT A
TO
LOAN AND SECURITY AGREEMENT
Revolving Line of Credit
Just in Time Loan - Partnership

LOAN SCHEDULE

This Loan Schedule is an integral part of the Loan Agreement between Bank and Borrower, and the following terms are incorporated in and made a part of the Loan Agreement to which this Loan Schedule is attached:

1. Borrower: Borrower represents that its name, address and state of incorporation or formation (if any) is as follows:

1.1 Name: Vestar Capital Partners V, L.P.

1.2 Trade Names or DBAs (if any): None

1.3 Country of Formation or Incorporation: Cayman Islands

1.4 Address for Notices: 245 Park Avenue, 41st Floor, New York, NY 10167

1.5 Tax identification Number: 98-0462742

2. Guarantor(s): Vestar Capital Partners, a New York general partnership

Vestar Associates V, L.P., a Scottish limited partnership

Vestar Managers V Ltd., a Cayman Islands exempted limited partnership

3. Bank’s Notice Address:

* * *

Attn: Commercial Loan Operations

4. Interest on Advances:

4.1 Interest Rate. Absent an Event of Default, interest on the Advances shall be calculated as a variable rate based on the Prime Rate (as defined in the Note) minus one percent (1%), and shall accrue daily from the Disbursement Date of any Advance. The interest rate shall be adjusted upon a change in the Prime Rate.

(a) Prime Rate - is defined in the Note.

4.2 Default Rate. From and after either: (i) the occurrence of an Event of Default; or (ii) the maturity of the Note (whether resulting from acceleration or otherwise) additional interest

A-1

on the unpaid principal balance of all Advances shall accrue at a rate equal to the Default Rate set forth in the Note. Such interest shall be in addition to the interest specified above.

5. Payments: Borrower hereby agrees to make payments of principal and interest as set forth in the Note(s). Borrower shall pay the principal balance of the Line of Credit in full, together with all accrued and unpaid interest and all other amounts owed hereunder, on or before the Maturity Date.

6. Fees: Borrower hereby agrees to pay to Bank the following fees at the times specified.

6.1 Loan Fee. A loan fee in the amount of $40,000, payable concurrently herewith, such amount being fully earned on the date this Agreement is executed by the parties hereto.

6.2 Other Fees. All Attorneys’ Fees incurred in the preparation of this Agreement.

7. Authorization to Charge Account:

7.1 Automatic Payment Authorization. Borrower authorizes Bank to make automatic deductions from the following deposit account (“Borrower’s Account”) maintained by Borrower at Bank’s offices in order to pay, when and as due, all of the regularly scheduled installment payments of interest, principal, or both principal and interest (an “Automatic Payment”) that Borrower is required or obligated to make under the Note:

Account No: 96600700608

Bank agrees to provide Borrower with ten (10) days prior written notice before making any such automatic deductions.

7.2 Default. Without limiting any of the terms of the Loan Documents, Borrower acknowledges and agrees that if Borrower defaults in its obligation to make an Automatic Payment because the collected funds in Borrower’s Account are insufficient to make such Automatic Payment in full on the date that such Automatic Payment is due, then Borrower shall be responsible for all late payment charges and other consequences of such default by Borrower under the terms of the Loan Documents.

7.3 Revocation of Authorization. Subject to the Section immediately following this Section, this authorization shall continue in full force and effect until the date which is five (5) Business Days after the date on which Bank actually receives written notice from Borrower expressly revoking the authority granted to Bank to charge Borrower’s Account for Automatic Payments in connection with the Loan. No such revocation by Borrower shall in any way release Borrower from or otherwise affect Borrower’s obligations under the Loan Documents, including Borrower’s obligations to continue to make all Automatic Payments required under the terms of the Note.

7.4 Termination by Bank. Bank, at its option and in its discretion, reserves the right to terminate the arrangement for automatic deductions from Borrowers Account pursuant to this Section at any time effective upon written notice of such election (a “Termination Notice”) given by Bank to Borrower. Without limiting the generality of the immediately preceding sentence,

A-2

Bank may elect to give a Termination Notice to Borrower if Borrower fails to comply with any of Bank’s rules, regulations, or policies relating to Borrower’s Account, including requirements regarding minimum balance, service charges, overdrafts, insufficient funds, uncollected funds, returned items, and limitations on withdrawals.

7.5 Increase. If for any reason the automatic deduction arrangement specified above is terminated, the interest rate applicable to the Loan set forth in above shall be increased by an additional one-half of one percent (0.5%) above the otherwise applicable interest rate under the terms of the Note.

8. Covenants:

8.1 Information. Within forty-five (45) days of Bank’s written request, Borrower shall deliver to Bank all financial information available concerning the business, property, financial condition and affairs of Borrower.

8.2 Balance Sheet. Within one hundred fifty (150) days after the close of Borrower’s fiscal year, Borrower shall deliver to Bank a balance sheet and a statement of profit and loss for Borrower for such fiscal year certified by the party to whom such statements apply and in compliance with the requirements of this Exhibit.

8.3 Tax Returns. Within thirty (30) days after filing, Borrower shall deliver to Bank a complete and accurate copy of each federal income tax return and each application for an extension of time to file each federal income tax return filed by Borrower.

8.4 Quarterly Financial Statements. Within forty-five (45) days of the end of each of the first three fiscal quarters of any year, Borrower shall deliver to Bank quarterly financial statements.

8.5 Annual Financial Statements. Within one hundred fifty (150) days of Borrower’s fiscal year end, Borrower shall deliver to Bank annual financial statements audited by a certified public accountant.

8.6 No Additional Indebtedness. Without Bank’s prior written consent, Borrower shall not directly or indirectly make, create, incur, assume, or permit to exist any guaranty of any kind of any indebtedness or other obligation of any other person during the term of this Agreement, excluding: (i) debts owing by Borrower as of the date of this Agreement that are reflected in the financial statements referred to in this Section agreed to by Bank (other than those that are being paid substantially concurrently with the funding of the Loan); (ii) other borrowings from Bank; and (iii) indebtedness secured by purchase money mortgages or liens which encumber only the property being purchased.

8.7 Guaranties. Borrower shall not guarantee any third party obligation or the obligation of any partner, member, officer, director or shareholder of Borrower, without prior written consent of Bank, other than guaranties to portfolio companies which: (i) when aggregated with all outstanding guaranties to portfolio companies do not exceed Fifty Million Dollars ($50,000,000); and (ii) are made in accordance with all provisions of Borrower’s Organizational Documents.

A-3

8.8 Annual Delivery. If the term of the Line of Credit is for more than one (1) year, Borrower’s delivery obligations under this Section shall be continuing obligations during the term of the Line of Credit.

9. Additional Covenants:

9.1 Notwithstanding the provisions of Section 2.1(a) and the Maximum Loan Amount set forth therein, the maximum amount of the Line of Credit shall not exceed the amount of unfunded Capital Commitments.

9.2 Each request for an Advance is to be accompanied by a borrowing base certificate acceptable to Bank that details (i) the total dollar amount of Capital Calls made prior to the date of the borrowing base certificate, (ii) the total dollar amount of funded Capital Commitments, (iii) and the total dollar amount of any Capital Calls that remain outstanding, each as of the date of the borrowing base certificate.

9.3 Following an Event of Default and immediately upon written demand by Bank, Borrower will suspend all management and other fees payable under the Management Agreement until Bank is paid in full.

9.4 Funds from Capital Calls will be used first by Borrower to repay outstanding Advances. Notwithstanding the forgoing, Borrower shall have the right to make one additional Capital Call (“Additional Capital Call”) during the 45-day period between the Disbursement Date and the Repayment Date of an Advance without having to first use the funds from the Additional Capital Call to repay the outstanding Advance; provided (i) Borrower notifies Bank, in writing, prior to the Additional Capital Call specifying the date and amount of the Additional Capital Call and the use of the proceeds thereof; (ii) no Event of Default has occurred; and (iii) the outstanding Advance is fully paid on or before the Repayment Date. Upon the occurrence of an Event of Default or the failure of Borrower to repay the outstanding Advance by the Repayment Date, Bank shall have the right to apply all funds received from the Second Capital Call to pay all outstanding Obligations.

9.5 Borrower agrees to cause, within five (5) days after the date of this Agreement, the filing of a UCC-3 termination statement which terminates the UCC-1 financing statement, No. 2006 01270090669 filed by Citizens Bank of Massachusetts, as debtor.

9.6 Borrower agrees to deliver to Bank within fifteen (15) days after the date of this Agreement a signed legal opinion from Cayman Islands counsel in a form acceptable to Bank. Failure to provide the Opinion Letter shall be an Event of Default under this Agreement.

A-4

EXHIBIT B
TO
LOAN AND SECURITY AGREEMENT

Revolving Line of Credit
Just In Time Loan - Partnership

DESCRIPTION OF COLLATERAL

1. The Collateral (“Collateral”) consists of all of Borrower’s right, title and interest in and to the following assets whether currently existing or hereafter arising:

(a) Cash Calls. All: (i) cash and/or property required to be contributed by each and every Limited Partner and General Partner of Borrower to the capital of Borrower, as described in that certain Agreement of Exempted Limited Partnership of Vestar Capital Partners V, L.P. dated July 12, 2005, as amended and restated by that certain Agreement of Exempted Limited Partnership of Vestar Capital Partners V, L.P. dated August 11, 2005, and any amendments, restatements or supplements or addenda thereto (“Partnership Agreement”); and (ii) all obligations and rights to payment owed to Borrower by any of the General Partners and/or the Limited Partners in connection with the Partnership Agreement, including without limitation any cash calls or capital calls; and (iii) all other amounts owed to Borrower by, and any other payments due to Borrower from, any of the General Partners and/or the Limited Partners whether or not specifically identified in the Partnership Agreement as contribution to the capital of the Partnership. (All of the foregoing are referred to collectively as the “Capital Commitments”.)

(b) Fund Investments. All of Borrower’s interests in: (i) all partnerships, limited liability companies or other investment vehicles (collectively the “Funds”); (ii) all Organizational Agreements relating to the Funds; and (iii) all investment property relating to the foregoing assets, including without limitation, securities, securities entitlements, securities accounts, and financial assets (The foregoing assets are collectively referred to as the “Investment Interests”.)

(c) Liquidating Dividends. All liquidating dividends or distributions owed or to be owed to Borrower arising from or related to a liquidation or dissolution of any of the Funds.

(d) Revenues. All accounts, contract rights, general intangibles, instruments, documents, cash, and deposit accounts or other revenues of Borrower, now owned or hereafter acquired relating to or arising from the Capital Commitments, and/or the Investment Interests together with all substitutions for, additions and accessions to and proceeds thereof.

(e) Investment Property. All investment property relating to the foregoing assets, including without limitation, securities, securities entitlements, securities accounts, and financial assets.

(f) Intellectual Property. All of the following which relate to any of the foregoing assets: copyright rights, copyright applications, copyright registrations and like

B-1

protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, and all trademarks.

(g) Supporting Obligations. All Supporting Obligations, documents, instruments, deposit accounts relating to any of the foregoing assets and all insurance proceeds arising from any of the forgoing assets.

(h) Books and Records. All Borrower’s Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions and accessions to and proceeds thereof.

Notwithstanding the foregoing, the Collateral shall not include any Collateral listed in Sections 1(b) or 1(e) if Borrower’s grant of a security interest in such Collateral causes an event of default under any portfolio company’s financing documents.

2. Pledgor Collateral consists of all of Pledgor’s right title and interest in and to the following assets whether currently existing or hereafter arising:

(a) Management and Advisory Fees. All fees, rights to payment, accounts, revenues or consideration of any type paid or owed by Borrower to Vestar Capital Partners (“Pledgor”) arising from all consulting, advising, investment or management services provided to borrower by or through Pledgor as further specified pursuant to that certain Third Party Security Agreement (Management and Advisory Fees) dated as of the date hereof. Together with such other assets as are set forth in the Third Party Security Agreement.

Unless otherwise defined herein, the terms used herein shall have the meaning provided in the Commercial Code.

B-2

EX-99.(B)(3) 3 a10-14888_26ex99db3.htm EX-99.(B)(3)

(b)(3)

THIRD-PARTY SECURITY AGREEMENT

(Management and Advisory Fees)

This Third-Party Security Agreement (Management and Advisory Fees) (the “Agreement”), dated November 9, 2007 for reference purposes only, is executed by and between VESTAR CAPITAL PARTNERS, a New York general partnership (referred to as “Debtor”), and * * *, a division of * * * (“Lender”), with reference to the following facts:

A. Concurrent herewith Lender and VESTAR CAPITAL PARTNERS V, L.P. (“Borrower”) are entering into a Loan and Security Agreement of even date herewith (“Loan Agreement”).

B. This Agreement is being provided pursuant to Section 3.4 of the Loan Agreement to secure obligations of Borrower under the Loan Agreement.

THEREFORE, for valuable consideration, the receipt and adequacy of which are acknowledged, Debtor and Lender agree as follows:

1. Definitions. For purposes of this Agreement, the terms listed on Exhibit A shall have the meanings specified therein. In addition terms not defined in Exhibit A which are defined in Article 9 of the Code or in the Loan Agreement shall have the meaning specified therein.

2. Security Interest.

2.1 Security Interest. Debtor hereby grants to Lender a continuing security interest in all presently existing and hereafter acquired or arising Collateral as described in Exhibit B in order to secure prompt repayment and performance of all Obligations. Upon filing of an appropriate UCC-1 Financing Statement, such security interest constitutes a valid, first priority security interest in the presently existing Collateral, and will constitute a valid, security interest in Collateral acquired after the date hereof.

2.2 Security Documents.

(a) Lender may file all financing statements and confirmation statements as it may deem necessary to perfect and maintain perfected Lender’s security interest.

(b) Debtor shall execute and deliver, or cause to be executed and delivered, to Lender, at any time hereafter at the request of Lender, all documents which Lender may reasonably request, in form satisfactory to Lender, to perfect and maintain perfected Lender’s security interests in the Collateral and in order to fully consummate all of the transactions contemplated under this Agreement.

3. Warranties and Representations. In order to induce Lender to enter into this Agreement, Debtor warrants, represents and agrees that:

3.1 Management Agreement.

(a) Debtor provides management, investment and advisory services to Borrower pursuant to the Management Agreement (as defined in Exhibit A).

(b) The document provided to Lender as the Management Agreement is a full, true and correct copy of the Management Agreement and sets forth all of the terms under which Management Services are provided by Debtor for Borrower. Said document(s) has (have) not been modified, amended or otherwise changed in any material respect.

(c) The Management Agreement is currently in full force and effect; and there are no undisclosed modifications, supplements or addenda to such Management Agreement which would materially adversely affect Debtor’s rights to, or ability to perform its obligations under, such agreements to collect amounts due thereunder.

(d) Debtor is in compliance with all duties and material obligations required in connection with the Management Agreement.

3.2 Title to Collateral. Debtor has, and at all times will have good, legal, equitable and record title to the Collateral and to the Management Agreement free and clear of all liens, claims or interests except for Lender’s lien.

3.3 Assignability of Rights to Collateral. Debtor may grant to Lender a security interest in the Collateral as provided above.

3.4 No Offsets. All Management Fees in which Lender has been granted a security interest in connection with this Agreement are not subject to any defenses, set offs or counter claims.

3.5 Compliance. Any and all material Governmental Requirements which relate to the Management Agreement have been satisfied.

3.6 No Defaults. To the best of Debtor’s knowledge, there is no event which is or, with notice or lapse of time or both, would be an Event of Default.

3.7 Warranties and Representations Cumulative. Debtor’s warranties and representations set forth in Section 3 shall be true and correct at the time of execution of this Agreement by Debtor and shall be automatically deemed repeated with each Advance under the Loan Agreement and shall be true and correct at each such time, except to the extent it relates to an earlier date in which case it shall be true and correct as of such earlier date. All representations shall be conclusively presumed to have been relied upon by Lender regardless of any investigation made or information possessed by Lender. The warranties, representations and agreements set forth herein shall be cumulative and in addition to any and all other warranties, representations and agreements which Debtor shall give, or cause to be given, to Lender, either now or hereafter.

4. General Negative Covenants. During the term hereof and so long as any Obligations remain unpaid or unperformed, unless Lender otherwise agrees in writing, Debtor will not:

4.1 Transfer or Release of Assets. Transfer, abandon, terminate or release the Management Agreement or any item of Collateral except in the ordinary course of business.

4.2 Management Fees. Discount or sell or transfer waive or forfeit any of the Management Fees or any other item of Collateral except (i) to Lender, or (ii) such discounts as are customarily provided for prompt payment.

4.3 Management Agreement. Without the written consent of Lender in advance, which consent will not be unreasonably withheld, terminate or make any material modifications to the Management Agreement which would (i) modify the extent to which Management Services are provided by; (ii) adversely affect the Management Fees, the prompt payment thereof or Debtor’s rights to collect such Management Fees.

5. General Affirmative Covenants. Debtor hereby covenants and agrees that during the term hereof and until all Obligations are fully paid and performed:

5.1 Reimbursements. Upon an Event of Default that is continuing, Debtor shall within five (5) Business Days following demand from Lender, reimburse Lender for all sums expended by Lender which constitute Lender Expenses.

5.2 Management Agreement. At all times, Debtor shall maintain in full force and effect the Management Agreement. Debtor shall also perform all of its responsibilities under the Management Agreement.

5.3 Taxes. Debtor shall promptly pay all foreign, federal, state and local taxes and other governmental charges levied or assessed upon or against any item of Collateral, or upon or against the creation, perfection or continuance of the security interest granted hereby. To the extent that Debtor contests such taxes or charges, Debtor will take appropriate action to promptly pursue such contest to completion.

5.4 Title and Lien Free. Debtor shall at all times have all legal and equitable title to the Collateral and, at Debtor’s expense, keep all Collateral, free and clear of all security interests, liens and encumbrances, except for security interests, liens and encumbrances granted to Lender in connection with other loans.

5.5 Inspection. Debtor shall at all reasonable times, during Debtor’s business hours, permit Lender or its representatives to examine or inspect (upon not less than two business days prior written notice) any Collateral wherever located, and to examine, inspect and copy Debtor’s books and records pertaining to the Collateral and its business and financial condition and to discuss with the other parties to the Management Agreement verifications of amounts owed to Debtor. Debtor shall pay all of Lender’s reasonable costs and expenses in making any such examination or inspection.

5.6 Records. Debtor shall keep accurate and complete books and records pertaining to the Collateral and submit to Lender such periodic reports concerning the Collateral and Debtor’s business as Lender may from time to time reasonably request.

5.7 Reports,. Upon Lender’s request, Debtor shall deliver to Lender such reports and information available to Debtor’s management concerning the Collateral as Lender may reasonably request. Such reports shall be in such form, for such periods, contain such information, and shall be rendered with such frequency as Lender may reasonably designate, but in no case more frequently than every calendar quarter end and shall be subject to normal preparation and distribution of information from Borrower. All reports and information provided to Lender by Debtor shall be complete and accurate in all material respects at the time provided.

6. Events of Default. The occurrence of any one or more of the following events shall constitute an Event of Default under this Agreement at the option of Lender:

6.1 Failure to Make Payment. Debtor fails to make any payment of funds as and when required by this Agreement.

6.2 Breach. There is a breach any other material term, provision, condition, agreement, warranty or representation contained in this Agreement or the occurrence of an Event of Default hereunder or under the Loan Agreement or any of the other Loan Documents.

6.3 Lien Priority. Lender shall cease to have a valid and perfected first priority lien upon any of the Collateral.

6.4 Management Fees. Debtor’s interest in Management Fees is terminated or adversely affected in violation of the Negative Covenants set forth in Section 4 above.

6.5 Management Agreement. The Management Agreement is terminated and not replaced by a similar agreement between Borrower and Debtor; or any action is taken by the Borrower to terminate the Management Agreement without its replacement by a similar agreement between the Borrower and Debtor; there is a modification of the Management Agreement in violation of the Negative Covenants set forth in Section 4 above.

6.6 Material Impairment. If there is a material impairment of the prospect of repayment of all or any portion of the Obligations, or a material impairment of the value of the Collateral.

6.7 Seizure of Assets. If all or any material portion of the Debtor’s non-collateral assets or if any portion of Debtor’s collateral assets are attached, seized, subjected to a writ or distress warrant, or are levied upon, or come into the possession of any Judicial Officer or Assignee.

6.8 Voluntary Insolvency. If an Insolvency Proceeding is commenced by Debtor.

6.9 Involuntary Insolvency. If an Insolvency Proceeding is commenced against Debtor or if an involuntary Insolvency Proceeding is commenced against Debtor and not dismissed within sixty (60) days.

6.10 Injunction. If Debtor is enjoined, restrained or in any way prevented by court order from continuing to conduct all or any material part of Debtor’s business affairs.

6.11 Material Misrepresentations. If any material information or material representation or warranty provided to Lender by or on behalf of Debtor was materially misleading at the time provided.

7. Lender’s Rights and Remedies. If an Event of Default shall have occurred and not been cured or waived in accordance with the terms hereof, Lender shall have the following rights and powers and may, at its option, without notice of its election and without demand, do any one or more of the following, all of which are authorized by Debtor:

7.1 UCC Rights. Lender shall have all of the rights and remedies of a secured party under the Code and under all other applicable laws.

7.2 Protection of Collateral. Without notice to or demand upon Debtor or any guarantor, Lender may make such payments and do such acts as Lender considers necessary or reasonable to protect its security interest in the Collateral, to pay, purchase, contest or compromise any encumbrance, charge or lien which in the opinion of Lender appears to be prior or superior to Lender’s security interest and to pay all expenses incurred in connection therewith.

7.3 Rights to Payment. With respect to any items of Collateral, and without limiting Lender’s rights under Section 7.1 above, Lender may, to the extent Debtor would have the right to take the following action under the applicable documents:

(a) During such time that an Event of Default has occurred and is continuing, Lender may make demand and collect all amounts owed to Debtor in connection with the Management Fees and/or the Management Agreement and any and all amounts owed to Debtor, settle or adjust disputes and claims directly with the obligors and compromise any obligations on terms and in any order which Lender considers advisable.

(b) In Lender’s or Debtor’s name, demand, collect, receive and give receipts for any and all money and other property due or to become due in connection with (1) the Management Agreement, including without limitation a demand on the other parties to the Management Agreement for payment of amounts arising thereunder; and (ii) the Management Fees.

7.4 Judicial Action. if Lender, at its option, seeks to take possession of any or all of the Collateral by court process, Debtor irrevocably and unconditionally agrees that a receiver may be appointed by a court for such purpose without regard to the adequacy of the security for the Obligations and such receiver may, at Lender’s option, collect or dispose of all or part of the Collateral.

7.5 Discharge Claims. Lender may discharge claims, liens, encumbrances and taxes affecting any or all of the Collateral and take such other actions as Lender determines to be necessary or appropriate to protect the Collateral and Lender’s security interest therein. Lender, without releasing Debtor or any other party from any of the Obligations, may, but shall not be required to, perform any of the Obligations in such manner and to such extent as Lender determines to be necessary or appropriate to protect the Collateral and Lender’s security interest therein.

7.6 Remedies Cumulative. The remedies of Lender, as provided herein, shall be cumulative and concurrent, and may be pursued singularly, or together, at the sole discretion of Lender. No act of omission or commission by Lender shall be deemed to be a waiver or release of the same, such waiver or release to be effected only through a written document executed by Lender. A waiver or release with reference to any one event shall not be construed as continuing or as a waiver of any subsequent right, remedy or recourse as to a subsequent event.

8. Liability for Deficiency. The parties obligated under the Loan Documents shall at all times remain liable for any deficiency remaining on the Obligations after any disposition of any or all of the Collateral and after Lender’s application of any proceeds to the Obligations.

9. Authorization. Debtor hereby authorizes Lender, without notice or demand and without affecting its liability hereunder, and without consent of Debtor, from time to time to:

(a) Take and hold additional security for the payment of the Obligations with the consent of the party providing such security; and

(b) Accept additional co-guarantors for the payment of the Obligations.

10. Other Waivers.

10.1 Guarantor Waivers. To the extent that Debtor is deemed to be a guarantor of the Obligations pursuant to this Agreement, Debtor hereby waives and releases the following rights and remedies available to it: (i) all rights and defenses arising from Lender’s election of remedies, even though that election has destroyed Debtor’s rights of subrogation and reimbursement against Borrower by the operation of law; (ii) any right to require Lender to (A) proceed against Borrower; (B) proceed against or exhaust any security held from any person or marshalling of assets or liens; (C) proceed against any guarantor; or (D) pursue any other remedy available to Lender; (iii) any defense arising by reason of any disability or other defense of Borrower or by reason of the cessation of the liability of Borrower from any cause whatsoever; (iv) all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of default or demand, notices of acceptance of and reliance on this Agreement and of the existence, creation, or incurring of new or additional indebtedness, notices of renewal, extension or modification of the indebtedness; (v) the right to notice of any and all favorable and unfavorable information, whether financial or other, about Borrower, heretofore, now, or hereafter learned or acquired by Lender and all other notices to which Debtor might otherwise be entitled; (vi) any and all suretyship defenses now or hereafter available to it

under the California Civil Code or the Commercial Code, including, without limitation, (A) California Civil Code Sections 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845, 2846, 2847, 2848, 2849, 2850, 2899 and 3433; (B) Chapter 2 of Title 14 of the California Civil Code; or (C) California Commercial Code Section 3605; (vii) the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof (viii) the right of subrogation, indemnity or contribution, all right to enforce any remedy Lender may have against Borrower or any other person, and any right to participate in security now or hereafter held by Lender, including, without limitation, any such right set forth in California Civil Code Sections 1845, 2848 or 2849. Any and all present and future debts and obligations of Borrower to Debtor are hereby postponed in favor of and subordinated to the full payment and performance of all indebtedness of Borrower to Lender. Debtor acknowledges that the waivers provided herein are made with Debtor’s full knowledge of the significance and consequence of such waivers, and that Lender is relying on such waivers.

10.2 Application of Payments. Debtor waives the right to direct the application of any and all payments or collections at any time or times hereafter received by Lender on account of any Obligations, and Debtor agrees that Lender shall have the continuing exclusive right to apply and reapply such payments or collections to the Obligations in any manner as Lender may deem advisable.

10.3 Notices of Demand, Etc.. Debtor waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension or renewal of any or all commercial paper, accounts, documents, instruments, chattel paper, and guaranties at any time held by Lender on which Debtor may in any way be liable.

10.4 Confidentiality of Accounting. Debtor waives the right to assert a confidential relationship, if any, Debtor may have with any accounting firm and/or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agrees that Lender may contact directly any such accounting firm and/or service bureau in order to obtain such information.

11. Actions. Lender shall have the right, but not the obligation, to commence, appear in, or defend any action or proceeding which affects or which Lender determines may affect (a) the Collateral; (b) Debtor’s or Lenders rights or obligations under this Agreement; or (c) Borrowers or Lender’s rights under the other Loan Documents, Whether or not Borrower is in default under Loan Agreement, Lender shall at all times have the right to take any and all actions which Lender in its good faith business judgment determines to be necessary or appropriate to protect Lender’s interest in connection with the Loan.

12. Miscellaneous.

12.1 Taxes and Other Expenses Regarding the Collateral. If Debtor fails to pay promptly when due to any person or entity, monies which Debtor is required to pay by reason of any provision in this Agreement, Lender may, but need not, pay the same and charge Debtor’s account therefor, and Debtor shall promptly reimburse Lender therefor. Lender need not inquire as to, or contest the validity of, any such tax or lien and the receipt of the usual

official notice for the payment thereof shall be conclusive evidence that the same was validly due and owing.

12.2 Notices. Any notice, demand or request required hereunder shall be given in writing (at the addresses set forth below) by any of the following means: (a) personal service; (b) electronic communication, whether by telex, telegram or telecopying; (c) overnight courier; or (d) registered or certified, first class U.S. mail, return receipt requested.

To Debtor:		To Lender:

Vestar Capital Partners		* * *
245 Park Avenue, 41st Floor		Attn: Commercial Loan Administration
New York, NY 10167		Fax No.: * * *
Fax No.: 212-808-4922

Such addresses may be changed by notice to the other parties given in the same manner as above provided. Any notice, demand or request sent pursuant to either subsection (a) or (b), above, shall be deemed received upon such personal service or upon dispatch by electronic means. Any notice, demand or request sent pursuant to subsection (c), above, shall be deemed received on the business day immediately following deposit with the overnight courier, and, if sent pursuant to subsection (d), above, shall be deemed received forty-eight (48) hours following deposit into the U.S. mail.

12.3 Destruction of Debtor’s Documents. Any documents, schedules, invoices or other papers delivered to Lender may be destroyed or otherwise disposed of by Lender six (6) months after they are delivered to or received by Lender unless Debtor does request, in writing, the return of the said documents, schedule, invoices or other papers and makes arrangements, at Debtor’s expense, for their return.

12.4 Choice of Law. This Agreement shall be deemed to have been entered into, and are to be performed in, the State of California. The validity of this Agreement and of any of its terms or provisions, as well as the right and duties of the parties hereto, and the liens granted herein, shall be governed by and construed in accordance with California law. The parties to this Agreement expressly agree that such choice of law shall be effective as provided under California Civil Code Section 1645.5 which shall include transactions otherwise covered by subdivision (1) of Section 1105 of the Commercial Code. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state courts located in the County of San Francisco, State of California, or the federal courts located in the Northern District of California. Debtor waives any right Debtor may have to assert the doctrine of forum non conveniens or to object to such venue and hereby consents to any court-ordered relief.

12.5 Confidentiality. In handling all confidential information, Lender will comply with all state and federal privacy statutes and regulations applicable to banks. However, Lender may disclose all information (i) to state and federal regulatory and compliance bodies (ii) to Lenders attorneys, advisors, accountants, and affiliates, (iii) to representatives of the party to whom the information relates, or (iv) as may be required by appropriate legal proceedings.

12.6 Attorneys’ Fees. On demand Debtor shall reimburse Lender for all costs and expenses, including without limitation reasonable attorneys’ fees costs and disbursements (and fees and disbursements of Lender’s in- house counsel) (collectively the “Fees and Costs”) expended or incurred by Lender in any arbitration, mediation, judicial reference, legal action, legal proceeding or otherwise in connection with (a) the amendment, interpretation and enforcement of this Agreement, including, without limitation, Fees and Costs incurred in connection with any workout, attempted workout, and/or in connection with the rendering of legal advice as to Lender’s rights, remedies and obligations under this Agreement and/or the Loan Documents, (b) collecting any sum which becomes due Lender under this Agreement or the Loan Documents, (c) any proceeding, or any appeal, or (d) the protection, preservation of enforcement of any rights of Lender under this Agreement or the Loan Documents. Fees and Costs shall include, without limitation, attorneys’ fees and costs incurred in connection with the following: (1) contempt proceedings; (2) discovery; (3) any motion, adversary proceeding, contested matter, confirmation or opposition to plan of reorganization or any other activity of any kind in connection with a bankruptcy case or relating to any petition under Title 11 of the United States Code; (4) garnishment, levy, and debtor and third party examinations; and (5) post-judgment motions and proceedings of any kind, including without limitation any activity taken to collection or enforce any judgment.

12.7 Agreement Binding, Assignment. This Agreement shall be binding and deemed effective when executed by Debtor and accepted and executed by Lender. This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties; provided, however, that neither Lender nor Debtor may assign this Agreement or any rights hereunder without the other party’s prior written consent and any prohibited assignment shall be absolutely void. No consent to an assignment by Lender shall release Debtor or any guarantor from their obligations to Lender.

12.8 Article and Section Headings. Article and Section headings and Article and Section numbers have been set forth herein for convenience only. Unless the contrary is compelled by the context, everything contained in each Article and Section applies equally to this entire Agreement.

12.9 Construction. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against Lender or Debtor, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of all parties hereto.

12.10 Time of Essence. Time is of the essence of each provision of this Agreement.

12.11 No Third Party Beneficiaries. This Agreement is entered into for the sole protection and benefit of Lender and Debtor, and their respective permitted successors and assigns. No other Person shall have any rights or causes of action under this Agreement.

12.12 Further Assurances. Debtor will promptly and duly execute and deliver to Lender such further documents and assurances and take such further action as Lender may

from time to time reasonably request including, without limitation, any amendments hereto in order to establish and protect the rights, interests and remedies created or intended to be created in favor of Lender hereunder.

12.13 Cumulative Rights. Debtor’s liability and Lender’s rights, powers, and remedies hereunder and under any other agreement now or hereafter relating hereto, shall be cumulative and not alternative, and such rights, powers, and remedies shall be in addition to all rights, powers, and remedies given to Lender by law.

12.14 Performance of Covenants. Debtor shall perform all of its covenants under this Agreement at its sole cost and expense.

12.15 No Waiver by Lender. No waiver by the Lender of any of its rights or remedies in connection with this Agreement shall be effective unless such waiver is in writing and signed by the Lender. No act or omission by Lender to exercise a right as to any event shall be construed as continuing, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event.

12.16 Term. This Agreement shall continue in full force and effect as long as any of the Obligations are outstanding and until terminated by written agreement of Lender.

12.17 Severability. Each provision of this Agreement shall be severable from every other provision for the purpose of determining the legal enforceability of any specific provision.

12.18 Integration. This Agreement cannot be changed or terminated orally. No modification or amendment to this Agreement shall be effective unless in writing, executed by Lender. Except as to currently existing obligations of Debtor to Lender, all prior agreements, understandings, representations, warranties, and negotiations between the parties, if any, are merged into this Agreement.

13. Joint and Several. If there is more than one party who is defined as Debtor in this Agreement, this Agreement shall be binding jointly and severally on each such Debtor and the assets of such Debtor.

14. WAIVER OF JURY TRIAL. BANK AND DEBTOR HEREBY VOLUNTARILY, UNCONDITIONALLY AND IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION ARBITRATION OR PROCEEDING IN A STATE OR FEDERAL COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING (INCLUDING TORT AND CLAIMS FOR BREACH OF DUTY), BETWEEN BANK AND DEBTOR,

(Signatures on following page)

IN WITNESS WHEREOF, Debtor has executed and delivered this Agreement on the date first hereinabove written.

		Debtor:

		VESTAR CAPITAL PARTNERS
		a New York general partnership

			By:	Vestar Management Corporation II
				a Delaware corporation
				its General Partner

				By:	/s/ Daniel S. O’Connell

				Name:	Daniel S. O’Connell

				Title:	President


			By:	Vestar Management Corporation III
				a Delaware corporation
				its General Partner

				By:	/s/ Arthur J. Nagle

				Name:	Arthur J. Nagle

				Title:	President

Accepted:

* * *
a division of * * *

By:	/s/ Thomas Young

Name:	Thomas Young

Title:	Managing Director

EXHIBIT A

TO SECURITY AGREEMENT

DEFINITIONS

Agreement means this Security Agreement, any concurrent or subsequent rider to this Security Agreement and any extensions, supplements, amendments or modifications to this Security Agreement and/or to any such rider.

Lender means * * *, a Nevada banking corporation, with a place of business located at * * *.

Lender Expenses means all reasonable costs and expenses incurred by Lender in connection with this Agreement, the Note, the Loan Agreement or any other document executed in connection with this Agreement or the transactions contemplated hereby, including, without limitation, (i) all reasonable costs and expenses incurred by Lender in collecting or realizing upon the Collateral (with or without suit), to correct any default or enforce any provision of this Agreement, costs and expenses of suit incurred by Lender in enforcing or defending this Agreement or any portion hereof, costs and expenses incurred to enforce Lender’s enforcement rights; and (ii) all reasonable attorneys’ fees and expenses incurred by Lender as set forth, in Section 12.6.

Borrower means Vestar Capital Partners V, L.P., a Cayman Islands exempted limited partnership.

Business Day means any day other than a day on which commercial banks in California are authorized or required by law to close.

Code means the California Uniform Commercial Code, as presently in force and effect and any replacements therefore as and when such replacements become effective. Any and all terms used in this Agreement which are defined in the Code and not specifically defined herein shall be construed and defined in accordance with the meaning and definition ascribed to such terms under the Code.

Collateral has the meaning provided in Exhibit B.

Collateral Records means all of Debtor’s existing and hereafter acquired books, records, data and other documentation relating to any or all of the Collateral.

Debtor means Vestar Capital Partners, a New York general partnership.

Debtor’s Books means all of Debtor’s ledgers; books and records indicating, summarizing or evidencing Debtor’s assets, liabilities, the Collateral, the Obligations, and all information relating thereto; and all computer programs, disc or tape files, printouts, runs, and other computer prepared information and the equipment containing such information.

Event of Default has the meaning set forth in Section 6 of this Agreement.

Governmental Requirements means all existing and future federal, state and local laws, rules, regulations or orders applicable to Debtor or its assets, its business, the Management Agreement or the Collateral.

Insolvency Proceeding means any proceeding commenced by or against any person or entity, including Debtor under any provision of the federal Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, including, but not limited to, assignments for the benefit of creditors, formal or informal moratoriums, compositions or extensions with some or all creditors.

Judicial Officer or Assignee means any trustee, receiver, controller, custodian, assignee for the benefit of creditors or any other person or entity having powers or duties like or similar to the powers and duties of a trustee, receiver, controller, or assignee for the benefit of creditors.

Loan Documents means this Agreement, the Loan Agreement, and any other document executed in connection therewith and any amendment, modification or restatement thereof.

Management Agreement means that certain Management Agreement dated as of August 11, 2005 and all amendments and supplements thereto and extensions and replacements thereof.

Management Fees means all fees, rights to payment accounts or consideration of any type paid or owed by Borrower arising from the Management Services provided to or for Borrower.

Management Services means all consulting, advising, investment or management services provided to Borrower in connection with the Management Agreement.

Obligations means any and all obligations, loans, advances, overdrafts, debts, liabilities covenants, promises and duties owing by Borrower to Lender pursuant to any agreement (including without limitation any agreement authorizing Lender to charge Borrower’s account and the Loan Documents), of any kind and description, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including, without limitation, all interest not paid when due and all Lender Expenses.

Other Terms All terms with an initial capital letter that are used but not defined in this Agreement shall have the respective meanings given to such terms in the Loan Documents, and if not defined therein, as defined in the California Commercial Code.

Person means any natural person or any entity, including any corporation, partnership, joint venture, trust, limited liability company, unincorporated organization or trustee.

Proceeds means whatever is received upon the sale, lease, exchange, collection or other disposition of Collateral or proceeds, including, without limitation, proceeds of insurance covering Collateral, tax refunds, and any and all accounts, notes, instruments, chattel paper, equipment, money, deposit accounts, goods, or other tangible and intangible property of Debtor resulting from the sale or other disposition of the Collateral, and the proceeds thereof.

EXHIBIT B

TO SECURITY AGREEMENT

DESCRIPTION OF COLLATERAL

The Collateral consists of all of Debtors right title and interest in and to the following assets whether currently existing hereafter arising, unless otherwise defined herein the terms shall have the meaning provided in the Uniform Commercial Code applicable to the Security Agreement.

(a) all fees, rights to payment, accounts or consideration of any type (collectively “Management Fees”) paid or owed by Vestar Capital Partners V, L.P. arising from all consulting, advising, investment or management services provided to Vestar Capital Partners V, L.P. in connection with that certain Management Agreement dated as of August 11, 2005 and all amendments and supplements thereto and extensions and replacements thereof;

(b) all proceeds of any of the foregoing including without limitation all Accounts, Chattel Paper, Instruments and General Intangibles arising from or on account of the Management Fees; and

EX-99.(B)(4) 4 a10-14888_26ex99db4.htm EX-99.(B)(4)

(b)(4)

PROMISSORY NOTE

(Line of Credit - Prime Rate Adjustable — Interest Only)

$25,000,000

November 9, 2007

1. Promise to Pay. In installments and at the times stated in this Note, for value received, VESTAR CAPITAL PARTNERS V, L.P. (“Borrower”), promises to pay to * * *, a division of * * * (“Lender”), or order, at * * *, or at such other place as Lender may from time to time designate in writing, in immediately available funds and in lawful money of the United States of America, the principal sum of Twenty-Five Million Dollars ($25,000,000), or so much thereof as may be disbursed by Lender, with interest thereon at the interest rate set forth below from the date of initial disbursement of all or any part of the principal of this Note (the “Disbursement Date”).

2. Interest Rate: Payment of Principal and Interest.

2.1 Interest.

(a) Interest Rate. The interest rate shall be equal to the Index minus one percentage point (1%) per annum rounded upward to the nearest one-eighth of one percentage point (0.125%), subject to adjustment as provided in subsection 2.1(b) and (c) below. The interest rate shall be adjusted concurrently with, and such adjustments shall be effective on the same date as, adjustments announced in the Index. “Index” means the rate of interest publicly announced from time to time by * * *, or any successor thereto, as its prime rate or reference rate. If such financial institution publicly announces more than one prime rate or reference rate, then the term “Index” shall mean the higher or highest of such rates.

(b) Interest Rate Increase. In the event that Borrower at any time prior to the Maturity Date does not have an account with Lender for automatic payment of the Loan as set forth in the Loan Agreement, from and after such date the interest rate on the unpaid balance of this Note will be increased by an additional one-half of one percent (0.5%) above the interest rate of specified in Section 2.1(a) until such time as such service is reinstated.

(c) Default Rate of Interest. From and after either (i) the occurrence of an Event of Default; or (ii) the maturity of this Note (whether resulting from acceleration or otherwise), additional interest on the unpaid principal balance of this Note shall accrue at a rate equal to four percent (4%) per annum. Such interest shall be in addition to the interest specified in Sections 2.1(a) or (b) above, as applicable.

(d) Interest Computation. All interest shall be computed on the basis of a 360-day year and charged on actual days elapsed.

2.2 Payments. Principal and interest shall be due and payable as follows:

(a) Payment Date. Payments shall be made on the first (1st) day of December, 2007 and the same date of each month thereafter (each a “Payment Date”) to and including the same date of the month immediately preceding the month on which the Maturity

Date (defined below) occurs, as more specifically provided in Sections 2.2(b), 2.2(c) and 2.2(d) below.

(b) Interest Payments. From the Disbursement Date through the Maturity Date (defined below), interest shall be payable in arrears on each Payment Date.

(c) Principal Payments. The principal amount of each Advance under this Note shall be due and payable forty-five (45) days from the date of such Advance.

(d) Payment on Maturity Date. The entire unpaid principal balance of this Note and all accrued and unpaid interest thereon shall be due and payable on the earlier to occur of: (i) the date on which Borrower has received funding of Capital Calls totaling ninety percent (90%) of the Capital Commitments, or (ii) May 9, 2009 (the “Maturity Date”). BORROWER ACKNOWLEDGES AND AGREES THAT (1) THE LOAN EVIDENCED BY THIS NOTE IS NOT AN AMORTIZING LOAN; AND (2) THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE SHALL BE DUE AND PAYABLE ON THE MATURITY DATE OF THIS NOTE.

(e) Prepayment. Borrower may repay at any time all or part of the outstanding principal balance of this Note without a prepayment fee. All prepayments of principal shall be applied on the most remote principal installment or installments then unpaid.

(f) Payment Application. All payments under this Note shall be credited first to accrued interest then due, thereafter to unpaid principal, and then to other charges, fees, costs, and expenses payable by Borrower under this Note or in connection with the Loan, If any payment of interest is not made when due, at the option of Lender, such interest payment shall bear interest at the same rate as principal from and after the due date of the interest payment. The receipt of any check or other item of payment (a “Payment Item”) by Lender, at its option, shall not be considered a payment until such Payment Item is honored when presented for payment at the drawee bank or institution, and Lender, at its option, may delay the credit of such payment until such Payment Item is so honored.

3. Late Charge. If any installment of interest and/or principal under this Note is not paid within ten (10) days after the date on which it is due, Borrower shall immediately pay a late charge equal to five percent (5%) of such installment of interest and/or principal to Lender to compensate Lender for administrative costs and expenses incurred in connection with such late payment. Borrower agrees that the actual damages suffered by Lender because of any late installment payment are extremely difficult and impracticable to ascertain, and the late charge described in this Section represents a reasonable attempt to fix such damages under the circumstances existing at the time this Note is executed. Lender’s acceptance of any late charge shall not constitute a waiver of any of the terms of this Note and shall not affect Lender’s right to enforce any of its rights and remedies against any Person liable for payment of this Note.

4. Loan Agreement. This Note is made pursuant to and is subject to the Loan and Security Agreement dated the same date as this Note between Borrower and Lender, as amended from time to time (“Loan Agreement”). All terms with an initial capital letter that are used but not specifically defined in this Note shall have respective meanings given to such terms in the

Loan Agreement. The Loan Agreement provides, among other things, for the acceleration of the unpaid principal balance and accrued interest under this Note upon the occurrence of certain events. Lender, at its option and without notice to or demand on Borrower or any other Person, may terminate any or all obligations which it may have to extend further credit to Borrower and may declare the entire unpaid principal balance of this Note and all accrued interest thereon to be immediately due and payable upon the occurrence of any Event of Default.

5. Waivers. Borrower and all sureties, guarantors, endorsers and other Persons now liable or who may become liable for payment of this Note waive presentment, demand for payment, protest, notice of demand, dishonor, protest and nonpayment.

6. Loss of Note. If this Note is lost, stolen, or destroyed, upon Borrower’s receipt of a reasonably satisfactory indemnification agreement executed by Lender, or if this Note is mutilated, upon Lender’s surrender of the mutilated Note to Borrower, Borrower shall execute and deliver to Lender a new promissory note which is identical in form and content to this Note to replace the lost, stolen, destroyed or mutilated Note.

7. Attorneys’ Fees. If Borrower defaults under any of the terms of this Note, Borrower shall pay all Lender Expenses, including without limitation Attorneys’ Fees, incurred by Lender in enforcing this Note immediately upon Lender’s demand, whether or not any action or proceeding is commenced by Lender.

8. Applicable Law; Joint and Several; Successors. This Note shall be governed by and interpreted in accordance with the laws of the State of California. Should more than one Person sign this Note as Borrower, the obligations of each signatory shall be joint and several. This Note shall be binding upon each Borrower and its successor and assigns; provided, however, no Borrower may assign this Note or any of its rights or obligations hereunder. This Note shall inure to the benefit of Lender and its successors and assigns.

9. Index. If the Index ceases to be made available, Lender shall select an alternate index as a substitute for the Index (the “Substituted Index”) which, in Lender’s good faith judgment, is comparable to the Index and which is not likely to result in the interest rate being substantially different than if such prior Index had continued to be made available. In such event, Lender shall adjust the percentage point spread set forth in Section 2.1 above (the “Spread”) based on the value of the Substituted Index as of the last preceding date on which the interest rate was adjusted or, if no such adjustment has yet occurred, as of the date of this Note, such that the sum of the Substituted Index and the adjusted Spread equals the sum of the prior Index plus the prior Spread. Borrower acknowledges and agrees that (a) the Index represents an index which is quoted, published or announced from time to time by the financial institution identified in Section 2.1 above as an index for variable interest rates; (b) the Index does not represent the lowest interest rate charged by Lender: and (c) loans may be made by Lender at, above, or below the Index.

10. Security. This Note is secured.

[SIGNATURE ON FOLLOWING PAGE]

[SIGNATURE PAGE TO PROMISSORY NOTE]

BORROWER:

VESTAR CAPITAL PARTNERS V, L.P. a
Cayman Islands limited partnership

By:	Vestar Associates V, L.P.,
	a Scottish limited partnership its general partner

	By:	Vestar Managers V Ltd.
		a Cayman Islands exempted company its general partner

		By:	/s/ Brian P. Schwartz
		Name:	Brian P. Schwartz
		Title:	Chief Financial Officer

-----END PRIVACY-ENHANCED MESSAGE-----