EX-10.1






Exhibit 10.1




 





AMENDED AND RESTATED CREDIT AGREEMENT




dated as of




May 30, 2008




among




HEARTLAND PAYMENT SYSTEMS, INC.

a Delaware corporation




The Lenders Party Hereto




and




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger;




KEYBANK NATIONAL ASSOCIATION,

as a Lender and Syndication Agent




SUNTRUST BANK,

as a Lender and Documentation Agent




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	ARTICLE I. Definitions
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	18	 
	SECTION 1.03. Terms Generally
	 	 	18	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	19	 
	 
	 	 	 	 
	ARTICLE II. The Credits
	 	 	19	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	19	 
	SECTION 2.02. Loans and Borrowings
	 	 	20	 
	SECTION 2.03. Requests for Borrowings
	 	 	20	 
	SECTION 2.04. Swingline Loans
	 	 	21	 
	SECTION 2.05. Letters of Credit
	 	 	22	 
	SECTION 2.06. Funding of Borrowings
	 	 	26	 
	SECTION 2.07. Interest Elections
	 	 	27	 
	SECTION 2.08. Termination, Reduction, and Increase of Commitments
	 	 	28	 
	SECTION 2.09. Repayment of Loans; Evidence of Debt
	 	 	29	 
	SECTION 2.10. Prepayment of Loans
	 	 	30	 
	SECTION 2.11. Fees
	 	 	31	 
	SECTION 2.12. Interest
	 	 	32	 
	SECTION 2.13. Alternate Rate of Interest
	 	 	33	 
	SECTION 2.14. Increased Costs
	 	 	33	 
	SECTION 2.15. Break Funding Payments
	 	 	34	 
	SECTION 2.16. Taxes
	 	 	35	 
	SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	36	 
	SECTION 2.18. Mitigation Obligations; Replacement of Lenders
	 	 	38	 
	 
	 	 	 	 
	ARTICLE III. Representations and Warranties
	 	 	39	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	39	 
	SECTION 3.02. Authorization; Enforceability
	 	 	39	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	40	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	40	 
	SECTION 3.05. Properties
	 	 	40	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	40	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	41	 
	SECTION 3.08. Investment Company Status
	 	 	41	 
	SECTION 3.09. Taxes
	 	 	41	 
	SECTION 3.10. ERISA
	 	 	41	 
	SECTION 3.11. Disclosure
	 	 	41	 
	 
	 	 	 	 
	ARTICLE IV. Conditions
	 	 	42	 
	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	42	 






- i -









 






	 	 	 	 	 
	 	 	Page	 
	 
	SECTION 4.02. Each Credit Event
	 	 	43	 
	 
	 	 	 	 
	ARTICLE V. Affirmative Covenants
	 	 	44	 
	 
	 	 	 	 
	SECTION 5.01. Financial Statements; Ratings Change and Other Information
	 	 	44	 
	SECTION 5.02. Notices of Material Events
	 	 	45	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	46	 
	SECTION 5.04. Payment of Obligations
	 	 	47	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	47	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	47	 
	SECTION 5.07. Compliance with Laws
	 	 	47	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	47	 
	SECTION 5.09. Additional Guarantors
	 	 	47	 
	 
	 	 	 	 
	ARTICLE VI. Negative Covenants
	 	 	48	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	48	 
	SECTION 6.02. Liens
	 	 	49	 
	SECTION 6.03. Fundamental Changes
	 	 	50	 
	SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	50	 
	SECTION 6.05. Swap Agreements
	 	 	51	 
	SECTION 6.06. Restricted Payments
	 	 	51	 
	SECTION 6.07. Transactions with Affiliates
	 	 	52	 
	SECTION 6.08. Restrictive Agreements
	 	 	52	 
	SECTION 6.09. Leverage Ratios
	 	 	52	 
	SECTION 6.10. Fixed Charge Coverage Ratio
	 	 	52	 
	SECTION 6.11. Asset Sales
	 	 	53	 
	SECTION 6.12. Sale and Leaseback Transactions
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VII. Events of Default
	 	 	54	 
	 
	 	 	 	 
	ARTICLE VIII. The Administrative Agent
	 	 	56	 
	 
	 	 	 	 
	ARTICLE IX. Miscellaneous
	 	 	58	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	58	 
	SECTION 9.02. Waivers; Amendments
	 	 	59	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	59	 
	SECTION 9.04. Successors and Assigns
	 	 	61	 
	SECTION 9.05. Survival
	 	 	64	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	64	 
	SECTION 9.07. Severability
	 	 	65	 
	SECTION 9.08. Right of Setoff
	 	 	65	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	65	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	66	 
	SECTION 9.11. Headings
	 	 	66	 
	SECTION 9.12. Confidentiality
	 	 	66	 
	SECTION 9.13. Interest Rate Limitation
	 	 	67	 
	SECTION 9.14. USA PATRIOT ACT
	 	 	67	 
	SECTION 9.15. Amendment and Restatement
	 	 	67	 






- ii -









 






SCHEDULES:




Schedule 2.01 — Commitments

Schedule 3.06 — Disclosed Matters

Schedule 6.01 — Existing Indebtedness

Schedule 6.02 — Existing Liens

Schedule 6.08 — Existing Restrictions




EXHIBITS:




Exhibit A — Form of Assignment and Assumption (with Annex I)

Exhibit B — Form of Opinion of Borrower’s Counsel

Exhibit C — Form of Guaranty

Exhibit D — Form of Borrowing Request

Exhibit E — Form of Interest Election Request

Exhibit F — Form of Promissory Note

Exhibit G — Form of Compliance Certificate

Exhibit H — Investment Standards




- iii -









 





          AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 30, 2008, among HEARTLAND PAYMENT
SYSTEMS, INC., a Delaware corporation, the LENDERS party hereto from time to time, and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.




          The parties hereto agree as follows:




ARTICLE I.




Definitions




                    SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



          “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.




          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.




          “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.




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




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




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.




          “Applicable Margin” means (a) with respect to the Term Loan, (i) for Eurodollar Loans,
0.75% and (ii) for ABR Loans, 0.00% and (b) with respect to a Revolving Loan, the percentage per
annum set forth in the following table, based on the Total Leverage Ratio then in effect for the
Borrower (it being agreed and understood that on the Effective Date the Applicable Margin for
Revolving Loans is -0.50% for ABR Loans and 0.50% for Eurodollar Loans).




- 1 -









 








	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin	 	Applicable Margin for
	     Total Leverage Ratio	 	for ABR Loans	 	Eurodollar Loans
	Greater than or equal to
2.0 to 1.00
	 	 	0	%	 	 	1.25	%
	Less than 2.0 to 1.0 and
greater than or equal to
1.5 to 1.0
	 	 	0	%	 	 	1.00	%
	Less than 1.5 to 1.0 and
greater than or equal to
1.0 to 1.0
	 	 	0	%	 	 	0.75	%
	Less than 1.0 to 1.0
	 	 	-0.50	%	 	 	0.50	%






          The Applicable Margin for Revolving Loans shall be determined in accordance with the foregoing
table based on the Borrower’s most recent annual or quarterly financial statements delivered
pursuant to this Agreement (the “Financials”). Adjustments, if any, to the Applicable
Margin for Revolving Loans shall be effective on the date that the Administrative Agent has
received the applicable Financials. If the Borrower fails to deliver the Financials to the
Administrative Agent at the time required pursuant to this Agreement, then the Applicable Margin
for Revolving Loans shall be the highest Applicable Margin set forth in the foregoing table until
the date that such Financials are so delivered.




          “Applicable Percentage” means, with respect to any Lender at any time, (a) with
respect to Revolving Loans, LC Exposure or Swingline Exposure, a percentage equal to a fraction,
the numerator of which is such Lender’s Revolving Credit Commitment at such time and the
denominator of which is the Total Revolving Credit Commitment at such time (provided that
if the Revolving Credit Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon such Lender’s share of the Total Revolving Credit Exposure at such time) and
(b) with respect to the Term Loans, a percentage equal to a fraction, the numerator of which is the
outstanding principal amount of the Term Loans of such Lender at such time and the denominator of
which is the aggregate outstanding amount of the Term Loans of all Term Lenders at such time.




          “Approved Fund” has the meaning assigned to such term in Section 9.04.




          “Assessment Rate” means, for any day, the annual assessment rate in effect on such day
that is payable by a member of the Bank Insurance Fund classified as “well capitalized” and within
supervisory subgroup “B” (or a comparable successor risk classification) within the meaning of
12 C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance Corporation for
insurance by such Corporation of time deposits made in dollars at the offices of such member in the
United States; provided that if, as a result of any change in any law, rule or regulation,
it is no longer possible to determine the Assessment Rate as aforesaid, then the Assessment Rate
shall be such annual rate as shall be determined by the Administrative Agent to be representative
of the cost of such insurance to the Lenders.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by
Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A
or any other form approved by the Administrative Agent.




2









 





          “Availability Period” means the period from and including the Effective Date to but
excluding the Revolving Credit Termination Date.




          “Base CD Rate” means the sum of (a) the Three Month Secondary CD Rate multiplied by
the Statutory Reserve Rate plus (b) the Assessment Rate.




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.




          “Borrower” means Heartland Payment Systems, Inc., a Delaware corporation.




          “Borrowing” means (a) Revolving Loans of the same Type made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, (b) Term Loans of the same Type made, converted or continued on the same date and, in the
case of Eurodollar Loans, as to which a single Interest Period is in effect or (c) a Swingline
Loan.




          “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03, in the form of Exhibit D or any other form approved by the
Administrative Agent.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.




          “Capital Expenditures” means, without duplication, any expenditure or commitment to
expend money for any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with GAAP.




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




          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of Equity Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed
by directors so nominated; or (c) the acquisition of direct or indirect Control of the Borrower by
any Person or group.




3









 





          “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or
(c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by
any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if
any) with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Term Loans or Swingline Loans.




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




          “Commitment” means a Revolving Credit Commitment or a Term Commitment.




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.




          “Customer Acquisition Costs” means cash customer acquisition costs paid during any
period by Borrower consisting of (i) bonus payments in the ordinary course of business made to
relationship managers and sales managers in the sales workforce of the Borrower for the
establishment of new merchant relationships; and (ii) payments made to buy out commissions of sales
employees of Borrower.




          “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.




          “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06, which Schedule 3.06 shall be deemed to be
automatically amended to include any action, suit or proceeding or environmental matter as to which
notice is given pursuant to Section 5.02.




          “Dividends” means cash dividends on Equity Interests in Borrower paid by the Borrower
during the relevant period.




          “dollars” or “$” refers to lawful money of the United States of America.




          “Earn-Out Obligations” shall mean, with respect to any Person, obligations of such
Person that are recognized under GAAP as a liability of such Person, payable in cash or which may
be payable in cash at the seller’s or obligee’s option arising from the acquisition of a business
or a line of business (whether pursuant to an acquisition of Equity Interests or assets, the
consummation of a merger or consolidation or otherwise) and payable to the seller or sellers
thereof.




4









 





          “EBITDA” means, for any period, Net Income for such period plus (a) without
duplication and to the extent deducted in determining Net Income for such period, the sum of
(i) Interest Expense for such period, (ii) expense for Taxes for such period net of tax refunds,
(iii) all FAS 123R expenses for such period, and (iv) all amounts attributable to depreciation and
amortization expense of the Borrower and the Subsidiaries for such period, minus
(b) without duplication and to the extent included in Net Income, any extraordinary gains, all
calculated for the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.




          “Effective Date” means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).




          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.




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




          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.




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




          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by




5









 




the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any
Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer
Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA.




          “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.




          “Event of Default” has the meaning assigned to such term in Article VII.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Foreign Lender’s failure to comply with
Section 2.16(e), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.16(a).




          “Existing Credit Agreement” means that certain Credit Agreement, dated as of
September 5, 2007, among the Borrower, the Administrative Agent, and the other parties signatory
thereto.




          “Facility Fee Rate” means the applicable percentage rate per annum set forth in the
following table, based on the Total Leverage Ratio then in effect for the Borrower; provided that
on the Effective Date, the Facility Fee Rate shall be 0.125% per annum.




	 	 	 	 	 
	     Total Leverage Ratio	 	Facility Fee Rate
	Greater than or equal to 2.0 to 1.00
	 	 	0.25	%
	Less than 2.0 to 1.0 and greater than or equal to 1.5 to
1.0
	 	 	0.20	%
	Less than 1.5 to 1.0 and greater than or equal to 1.0 to
1.0
	 	 	0.15	%
	Less than 1.0 to 1.0
	 	 	0.125	%






6









 






          The Facility Fee Rate shall be determined in accordance with the foregoing table based on the
Borrower’s most recent annual or quarterly financial statements delivered pursuant to this
Agreement (the “Financials”). Adjustments, if any, to the related fees shall be effective
on the date that the Administrative Agent has received the applicable Financials. If the Borrower
fails to deliver the Financials to the Administrative Agent at the time required pursuant to this
Agreement, then the Facility Fee Rate shall be the greatest Facility Fee Rate set forth in the
foregoing table until the date that such Financials are so delivered.




          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.




          “Financial Officer” means, as to any Person, the chief financial officer, principal
accounting officer, treasurer or controller of such Person.




          “Fixed Charges” means, for any period as to the Borrower and the Subsidiaries, and
without duplication, an amount equal to the sum of (a) cash Interest Expense, (b) scheduled
principal payments in respect of any Indebtedness (excluding any amounts owed by the Borrower or
its Subsidiaries to sponsoring banks for advances of Interchange Fees to merchants in the ordinary
course of business), and (c) payments made in respect of Taxes.




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.




          “Funded Debt” means, at any time as to the Borrower and the Subsidiaries, and without
duplication, an amount equal to the sum of (a) the aggregate principal amount of all Loans
outstanding on such date, plus (b) the aggregate principal amount of drawings under Letters
of Credit issued hereunder which have not been reimbursed pursuant to Section 2.05 hereof,
plus (c) the aggregate principal amount of all Indebtedness of the Borrower and the
Subsidiaries of the following types (without duplication): (i) all obligations for borrowed money
and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar
instruments; (ii) any direct or contingent obligations arising under standby letters of credit;
(iii) Earn-Out Obligations; (iv) Capital Lease Obligations; (v) all obligations to pay the deferred
purchase price of property or services (but excluding current accounts payable arising in the
ordinary course of business which are not more than 90 days past due the original due date); and
(vi) obligations secured by (or for which the holder of such obligations has an existing right,
contingent or otherwise, to be secured by) a Lien on property owned or being purchased by Borrower
or any of the Subsidiaries (including obligations arising under conditional sales or other title
retention agreements), whether or not such obligations shall have been assumed by Borrower or any
of its Subsidiaries or is limited in recourse; provided, that for the purposes of




7









 




(vi) hereunder, the amount of such Funded Debt shall be limited to the greater of (x) the
amount of such Funded Debt as to which there is recourse to such Person and (y) the fair market
value of the property which is subject to such Lien. Notwithstanding anything to the contrary
above, any amounts owed by the Borrower or its Subsidiaries to sponsoring banks for advances of
Interchange Fees to merchants in the ordinary course of business shall not constitute “Funded
Debt”.




          “GAAP” means generally accepted accounting principles in the United States of America.




          “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Guarantee” of or by any Person (as used in this definition, the “guarantor”) means
any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.




          “Guaranties” means collectively, the Amended and Restated Guaranties executed by the
Guarantors as of the Effective Date hereof in the form of Exhibit C attached hereto,
together with any other Guaranties executed by the Guarantors hereafter Guaranteeing the
Obligations. “Guaranty” shall mean any of the Guaranties.




          “Guarantors” shall mean The Heartland Payroll Company, L.L.C., an Ohio limited
liability company and Debitek, Inc., a Delaware corporation, and any other direct or indirect
present or future domestic subsidiary of the Borrower. “Guarantor” shall mean any of the
Guarantors.




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




8









 





          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed provided, that for
the purposes of (f) hereunder, the amount of such Indebtedness shall be limited to the greater of
(i) the amount of such Indebtedness as to which there is recourse to such Person and (ii) the fair
market value of the property which is subject to such Lien (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of letters of credit and
letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of
bankers’ acceptances, (k) all payment or reimbursement obligations of the Borrower or its
Subsidiaries with respect to Payroll Deposits which are not paid or reimbursed by Borrower or its
Subsidiaries in the ordinary course of their business and consistent with past practices or in
accordance with any applicable contract terms governing such obligations, (l) all obligations under
any Swap Agreement and (m) all payment or reimbursement obligations with respect to amounts
withheld from merchants which are not paid or reimbursed by Borrower or its Subsidiaries in the
ordinary course of their business and consistent with past practices or in accordance with any
applicable contract terms governing such obligations. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Intangible Assets” means those assets of the Borrower and its Subsidiaries which are
(a) deferred assets, other than prepaid insurance and prepaid taxes; (b) patents, copyrights,
trademarks, trade names, franchises, goodwill, experimental expenses; (c) unamortized debt discount
and expense; (d) write-ups of assets after the Effective Date, but specifically excluding any cash
deposited into a sinking fund for payment of debentures and similar instruments; and (e) other
similar assets which would be classified as intangible assets on a balance sheet of the Borrower
and its Subsidiaries, prepared in accordance with GAAP.




          “Interchange Fees” means fees payable by a merchant to a credit card issuer with
respect to Processing Transactions.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.07, in the form of Exhibit E or any other
form approved by the Administrative Agent.





9









 








          “Interest Expense” means, with reference to any period, total interest expense
(including the interest component of Capital Lease Obligations) of the Borrower and its
Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers’ acceptance financing and net costs under Swap Agreements in respect
of interest rates to the extent such net costs are allocable to such period in accordance with
GAAP), calculated on a consolidated basis for the Borrower and its Subsidiaries for such period in
accordance with GAAP.




          “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each November, February, May, and August, (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period, and (c)  with respect to any
Swingline Loan, the day that such Loan is required to be repaid.




          “Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last Business Day of the
last calendar month of such Interest Period. For purposes hereof, the date of a Eurodollar
Borrowing initially shall be the date on which such Eurodollar Borrowing is made and, thereafter,
shall be the effective date of the most recent conversion or continuation of such Eurodollar
Borrowing.




          “Investment Standards” means the investment standards of the Borrower attached hereto
as Exhibit H; as such Exhibit H shall automatically be updated to include any
amendments, restatements or other modifications to the Investment Standards which could not
reasonably be expected to have a Material Adverse Effect.




          “Issuing Bank” means JPMorgan Chase Bank, N.A., in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(i). The Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank”
shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.




          “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, with respect to any Revolving Credit Lender at any time, such
Revolving Credit Lender’s Applicable Percentage of the Total LC Exposure at such time.




10









 





          “Lenders” means the Persons listed on Schedules 2.01(a) and (b) and
any other Person that shall have become a party hereto pursuant to an Assignment and Assumption,
other than any such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline
Lender.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement.




          “Letter of Credit Fee” means the letter of credit fee defined in
Section 2.11(b) of this Agreement.




          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Jones Market Service (the Telerate screen) (or on any
successor or substitute page of such Service, or any successor to or substitute for such Service,
providing rate quotations comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate
for dollar deposits with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the “LIBO Rate” with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate (rounded upwards, if necessary, to
the next 1/16 of 1%) at which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period.




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.




          “Loans” means the loans made by the Lenders to the Borrower pursuant to
Sections 2.01 and 2.04 of this Agreement.




          “Loan Documents” means this Agreement, the Guaranties, and any other document executed
in connection herewith now or hereafter, including without limitation any Promissory Notes and
security agreements, as any of the foregoing may hereafter be amended, supplemented, modified,
renewed, or extended.




          “Material Adverse Change” means any event, development or circumstance that has had or
would reasonably be expected to have a Material Adverse Effect.




          “Material Adverse Effect” means a material adverse effect on (i) the business, assets,
property or condition (financial or otherwise) of the Borrower and the Subsidiaries taken as a
whole, or (ii) the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Administrative Agent and the Lenders thereunder.




11









 





          “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $5,000,000. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or
any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.




          “Maturity Date” means (a) with respect to the Revolving Loans, September 5, 2012 and
(b) with respect to the Term Loans, December 31, 2011.




          “Moody’s” means Moody’s Investors Service, Inc.




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




          “Net Income” means, for any period, the consolidated net income (or loss) of the
Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by the terms of any
contractual obligation (other than under any Loan Document) or Requirement of Law applicable to
such Subsidiary.




          “Obligations” means all obligations, liabilities and indebtedness of the Borrower and
its Subsidiaries to the Lenders, their Affiliates and the Administrative Agent arising under or in
connection with this Agreement or any other document or instrument executed in connection herewith
(including without limitation the other Loan Documents and any Swap Agreement entered into by the
Borrower or any of its Subsidiaries with any Lender or any Affiliate of any Lender), whether now
existing or hereafter created, direct or indirect, matured or unmatured, liquidated or
unliquidated, primary or secondary, due or not yet due, including without limitation all of their
respective obligations, liabilities and indebtedness with respect to the principal of and interest
on the Loans (including but not limited to interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization, or like proceeding relating to
the Borrower or any of its Subsidiaries, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), drawings under any Letter of Credit, and the payment or
performance of all other obligations, liabilities, and indebtedness owed by any of them to the
Lenders, their Affiliates and the Administrative Agent hereunder or under any one or more documents
or instruments executed and delivered in connection herewith (including without limitation the
other Loan Documents and any Swap Agreement entered into by the Borrower or any of its Subsidiaries
with any Lender or any Affiliate of any Lender) or with any Letter of Credit entered into by
Borrower or any of such Subsidiaries with any Lender or any




12









 




Affiliate of any Lender, including without limitation all fees, costs, expenses and indemnity
obligations hereunder and thereunder.




          “Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.




          “Participant” has the meaning set forth in Section 9.04.




          “Payroll Deposits” means funds collected and held or invested by the Borrower or its
Subsidiaries in connection with their payroll processing business pursuant to contracts with
customers.




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




          “Permitted Encumbrances” means:




          (a) Liens imposed by law for taxes that are not yet due or are being contested in compliance
with Section 5.04;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with Section 5.04;




          (c) pledges and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or regulations;




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




          (e) judgment liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;




          (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower or any Subsidiary; and




          (g) any Lien granted in favor of the Administrative Agent and/or the Lenders to secure payment
of the Obligations and other Indebtedness of the Borrower.




          “Permitted Investments” means investments made by the Borrower pursuant to the
Investment Standards.




13









 





          “Permitted Repurchases” means, for any twelve-month period, the sum of (a) proceeds
from the exercise of stock options and (b) upon prior written request by Borrower (which request
shall not be given more than twice per any twelve-month period), the net amount paid by Borrower
with respect to any repurchases of its Equity Interests consummated during such twelve-month period
that Lenders agree shall be excluded from the calculation of the Fixed Charge Coverage Ratio for
such twelve-month period.




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




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective. THE PRIME RATE IS A REFERENCE RATE AND MAY NOT BE SUCH
BANK’S LOWEST RATE.




          “Promissory Note” has the meaning set forth in Section 2.09(e).




          “Processing Transactions” means bank card payment processing services provided by the
Borrower and its Subsidiaries to merchants pursuant to service contracts between the Borrower
and/or a Subsidiary and such merchants.




          “Register” has the meaning set forth in Section 9.04.




          “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.




          “Required Lenders” means, at any time, Lenders holding more than 50% of the sum of
(i) the Total Revolving Credit Exposure and unused Revolving Credit Commitments at such time (with
each Revolving Credit Lender’s LC Exposure and Swingline Exposure being deemed “held” by such
Revolving Credit Lender for purposes of this definition) plus (ii) the aggregate
outstanding principal amount of the Term Loans (or, if the Term Loans shall not yet have been made,
the Total Term Commitment) at such time.




          “Required Revolving Credit Lenders” means, at any time, Revolving Credit Lenders
holding more than 50% of the Total Revolving Credit Exposure and unused Revolving Credit
Commitments at such time (with each Revolving Credit Lender’s LC Exposure and Swingline Exposure
being deemed “held” by such Revolving Credit Lender for purposes of this definition).





14











 




          “Required Term Lenders” means, at any time, Term Lenders holding more than 50% of
the aggregate outstanding principal amount of the Term Loans (or, if the Term Loans shall not yet
have been made, the Total Term Commitment) at such time.


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


          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Borrower or any Subsidiary or any
option, warrant or other right to acquire any such Equity Interests in the Borrower or any
Subsidiary.


          “Revolving Credit Commitment” means, with respect to each Revolving Credit Lender, the
commitment of such Revolving Credit Lender to make Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder, in an aggregate amount at any one time outstanding
not to exceed the amount set forth opposite such Revolving Credit Lender’s name on
Schedule 2.01(a) under the caption “Revolving Credit Commitment”, or in the Assignment and
Assumption pursuant to which such Revolving Credit Lender shall have assumed its Revolving Credit
Commitment, as applicable, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08(b), (b) increased from time to time pursuant to Section 2.08(d), or
(c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.


          “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.


          “Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time or, if the Revolving Credit Commitments have terminated or expired, a
Lender with Revolving Credit Exposure.


          “Revolving Credit Termination Date” means the first (1st) Business Day immediately
prior to September 5, 2012.


          “Revolving Loan” means a Loan made pursuant to Section 2.01(a).


          “Sale and Leaseback Transaction” means, with respect to any Person, any direct or
indirect arrangement pursuant to which properties are sold or transferred by such Person or a
subsidiary of such Person and are thereafter leased back from the purchaser or transferee thereof
by such Person or one of its subsidiaries.



15









 







          “Senior Leverage Ratio” means, at any date of determination, the ratio of (a) Funded
Debt less the aggregate amount of Subordinated Indebtedness of the Borrower and its
Subsidiaries on such date to (b) EBITDA.


          “Service Center” means the real property and improvements to be acquired and/or
constructed by the Borrower located at 1 Heartland Way, Jeffersonville, Indiana.


          “Service Center Indebtedness” means Indebtedness of the Borrower incurred to finance
the acquisition and construction of the Service Center on terms and conditions and pursuant to
documentation that would not reasonably be expected to have a Material Adverse Effect;
provided that (a) such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or acquisition and (ii) the aggregate principal
amount of Indebtedness with respect thereto shall not exceed $45,000,000 at any time outstanding.


          “S&P” means Standard & Poor’s.


          “Stated Amount” means, as to each Letter of Credit, the face amount of the Letter of
Credit without regard to any drawings made thereunder and whether any conditions to drawing could
then be met.


          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject
(a) with respect to the Base CD Rate, for new negotiable nonpersonal time deposits in dollars of
over $100,000 with maturities approximately equal to three months and (b) with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities”
in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.


          “Subordinated Indebtedness” of a Person means any Indebtedness of such Person the
payment of which is subordinated to the Obligations to the written satisfaction of the
Administrative Agent.


          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than



16









 







50% of the general partnership interests are, as of such date, owned, controlled or held, or
(b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.


          “Subsidiary” means any subsidiary of the Borrower.


          “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.


          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.


          “Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.


          “Swingline Loan” means a Loan made pursuant to Section 2.04.


          “Swingline Limit” is defined in Section 2.04.


          “Tangible Assets” means, as of any date, the sum of the aggregate book value of the
assets which appear on a balance sheet of the Borrower and its Subsidiaries minus the
aggregate book value of Intangible Assets, on a combined and consolidated basis prepared as of such
date in accordance with GAAP.


          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.


          “Term Commitment” means, with respect to each Term Lender, the commitment of such
Lender to make a single Term Loan on the Effective Date pursuant to Section 2.01(b) in an
amount not to exceed the amount set forth opposite such Term Lender’s name on
Schedule 2.01(b) under the caption “Term Commitment”.


          “Term Lender” means, at any time, any Lender that has a Term Commitment or an
outstanding Term Loan at such time.


          “Term Loan” has the meaning set forth in Section 2.01(b).


          “Three Month Secondary CD Rate” means, for any day, the secondary market rate for
three month certificates of deposit reported as being in effect on such day (or, if such day is not
a Business Day, the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will, under the



17









 







current practices of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for three month certificates
of deposit of major money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.


          “Total LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of
all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.


          “Total Leverage Ratio” shall have the meaning set forth in Section 6.09(a).


          “Total Revolving Credit Commitment” means, at any time, the sum of the Revolving
Credit Commitments of all Revolving Credit Lenders at such time. The Total Revolving Credit
Commitment shall be $50,000,000 on the Effective Date.


          “Total Revolving Credit Exposure” means, at any time, the sum of the Revolving Credit
Exposures of all Revolving Credit Lenders at such time.


          “Total Term Commitment” means, at any time, the sum of the Term Commitments of all
Term Lenders at such time. The Total Term Commitment shall be $25,000,000 on the Effective Date.


          “Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder.


          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.


          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.



               SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type
(e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving
Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar
Revolving Borrowing”).



               SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed



18









 




by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



               SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided that, if the Borrower notifies the Administrative Agent that
the Borrower requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such provision amended in
accordance herewith.



ARTICLE II.




The Credits




               SECTION 2.01. Commitments.


          (a) Subject to the terms and conditions set forth in this Agreement, each Revolving Credit
Lender agrees to make loans to the Borrower (each such loan, a “Revolving Loan”) from time
to time during the Availability Period in an aggregate principal amount that will not result in
(i) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Credit Commitment or
(ii) the sum of the Total Revolving Credit Exposure exceeding the Total Revolving Credit
Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.


          (b) Subject to the terms and conditions set forth in this Agreement, each Term Lender agrees
to make a single loan to the Borrower on the Effective Date (each such loan, a “Term
Loan”), in the principal amount of such Term Lender’s Term Commitment. Once repaid or prepaid,
Term Loans may not be reborrowed. Any portion of the Term Commitments not utilized by the Borrower
on the Effective Date shall be permanently terminated. The Term Loans shall amortize as set forth
in Section 2.09(a).



19









 








               SECTION 2.02. Loans and Borrowings.


          (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans
made by the Revolving Credit Lenders ratably in accordance with their respective Revolving Credit
Commitments. Each Term Loan shall be made as part of a Borrowing consisting of Term Loans made by
the Term Lenders ratably in accordance with their respective Term Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall
be responsible for any other Lender’s failure to make Loans as required. The Term Loans shall
amortize as set forth in Section 2.09(a).


          (b) Subject to Section 2.13, each Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall
be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement or impose withholding or other obligations on the Borrower of any
amount or nature which it would not have incurred if such option had not been exercised.


          (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $500,000 and not less than
$1,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $1,000,000; provided that
an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance
of the Total Revolving Credit Commitments or the amount that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each Swingline
Loan shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000,
provided that a Swingline Loan may be in an aggregate principal amount that is equal to the
entire unused balance of the Swingline Limit. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more than a
total of fifteen (15) Eurodollar Borrowings outstanding.


          (d) Notwithstanding any other provision of this Agreement, the (i) Borrower shall not be
entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date for Revolving Loans; and
(ii) Borrower shall not be entitled to request a Eurodollar Borrowing, upon the occurrence and
during the continuance of a payment Default.



               SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of the proposed Borrowing; provided that in the case of an
ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e), any such notice



20









 




may be given not later than noon, New York City time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Borrowing Request in a form approved by the Administrative Agent and signed by the
Borrower. Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:




     (i) the aggregate amount of the requested Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;




     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the
term “Interest Period”; and




     (v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.



               SECTION 2.04. Swingline Loans.


          (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Availability
Period, in an aggregate principal amount (the “Swingline Limit”) at any time outstanding that
will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$5,000,000 or (ii) the sum of the Total Revolving Credit Exposure exceeding the Total Revolving
Credit Commitments; provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline
Loans.


          (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the
case of a Swingline Loan made to finance the 


21









 






reimbursement of an LC Disbursement as provided in
Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on
the requested date of such Swingline Loan. Any Swingline Loan will reduce the availability under
the Swingline Lender’s Commitment (or participant Lender’s Revolving Credit Commitment as to any
participation under the following subsection (c) as applicable) on a dollar-for-dollar basis.


          (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Revolving Credit Lenders to
acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Swingline Loans in which such Revolving Credit
Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give
notice thereof to each Revolving Credit Lender, specifying in such notice such Revolving Credit
Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Credit Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such Revolving Credit Lender’s
Applicable Percentage of such Swingline Loan or Loans. Each Revolving Credit Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Revolving Credit Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Revolving Loans made by such Revolving Credit Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving
Credit Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Revolving Credit Lenders. The Administrative Agent shall notify
the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and
not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or
other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall
be promptly remitted by the Administrative Agent to the Revolving Credit Lenders that shall have
made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may
appear; provided that any such payment so remitted shall be repaid to the Swingline Lender
or to the Administrative Agent, as applicable, if and to the extent such payment is required to be
refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.



               SECTION 2.05. Letters of Credit.


          (a) General. Subject to the terms and conditions set forth herein, the Borrower may
request the issuance of Letters of Credit for its own account, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit 


22









 






application or other
agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control.


          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal
or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing Bank’s standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the Total LC Exposure shall not exceed $5,000,000 and
(ii) the sum of the Total Revolving Credit Exposure shall not exceed the Total Revolving Credit
Commitments.


          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Revolving Credit Termination
Date.


          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Revolving Credit Lenders, the Issuing Bank hereby grants to each Revolving
Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Revolving Credit Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Revolving Credit Lender’s Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower for any reason.
Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.


23









 






          (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 3:00 p.m., New York City time, on the
date that such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time on such date, or, if such notice has not been
received by the Borrower prior to 10:00 a.m., New York City time on such date, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to 10:00 a.m., New
York City time, or (ii) the Business Day immediately following the day that the Borrower receives
such notice, if such notice is not received prior to 10:00 a.m. New York City time;
provided that, if such LC Disbursement is not less than $500,000, the Borrower may, subject
to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or
2.04 that such payment be financed with an ABR Revolving Borrowing or Swingline Loan in an
equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment
shall be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If
the Borrower fails to make such payment when due, the Administrative Agent shall notify each
Revolving Credit Lender of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof and such Revolving Credit Lender’s Applicable Percentage thereof. Promptly
following receipt of such notice, each Revolving Credit Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.06 with respect to Revolving Loans made by such Revolving Credit
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the
Revolving Credit Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the
amounts so received by it from the Revolving Credit Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that
Revolving Credit Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Bank, then to such Revolving Credit Lenders and the Issuing Bank as their interests may appear.
Any payment made by a Revolving Credit Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving
Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve
the Borrower of its obligation to reimburse such LC Disbursement.



          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Obligations. Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment



24









 




thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank; provided that the foregoing
shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of
any direct damages (as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with the terms of a Letter of
Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any notice or information
to the contrary, or refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.


          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Lenders with respect to any such LC Disbursement.


          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.12(c) shall apply. Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank, except that interest accrued on and after the date of
payment by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall
be for the account of such Lender to the extent of such payment.


          (i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.11(b). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under


25









 






this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to
the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank,
or to such successor and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.


          (j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative Agent or the Required
Revolving Credit Lenders (or, if the maturity of the Revolving Loans has been accelerated, Lenders
with LC Exposure representing greater than 50% of the Total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving
Credit Lenders, an amount in cash equal to the Total LC Exposure as of such date plus any accrued
and unpaid interest thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately due and payable,
without demand or other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Article VII. Such deposit shall
be held by the Administrative Agent as collateral for the payment and performance of the
Obligations. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the Borrower for the Total LC Exposure at such time or, if the
maturity of the Revolving Loans has been accelerated (but subject to the consent of Lenders with LC
Exposure representing greater than 50% of the Total LC Exposure), be applied to satisfy other
Obligations of the Borrower. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events
of Default have been cured or waived.



               SECTION 2.06. Funding of Borrowings.


          (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account
of the Administrative Agent most recently designated by it for such purpose by notice to the
Lenders; provided that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City and designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the 


26









 






reimbursement of an LC Disbursement
as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the Issuing
Bank.


          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing. If the Borrower pays
such amounts, any such payment shall be without prejudice to the Borrower’s rights under
Section 2.18(b).



               SECTION 2.07. Interest Elections.


          (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected Borrowing, in which case
each such portion shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Swingline Borrowings, which may not be converted or continued.


          (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.


          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




     (i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the



27









 







portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period
to be applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.


          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.


          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event
of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.




     SECTION 2.08. Termination, Reduction, and Increase of Commitments.


          (a) Unless previously terminated, (i) the Revolving Credit Commitments shall terminate on the
Maturity Date for Revolving Loans and (ii) the Term Commitments shall terminate on the Effective
Date immediately after the funding of the Term Loans.


          (b) The Borrower may at any time terminate, or from time to time reduce, the Revolving Credit
Commitments; provided that (i) each reduction of the Revolving Credit Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Borrower shall not terminate or reduce the Revolving Credit Commitments if, after giving effect to
any concurrent prepayment of the Revolving Loans in accordance with Section 2.10, the sum
of the Total Revolving Credit Exposure would exceed the Total Revolving Credit Commitments.


28









 






          (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Credit Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall
advise the Revolving Credit Lenders of the contents thereof. Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable; provided that a notice of termination of the
Revolving Credit Commitments delivered by the Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied. Any termination or reduction of the Revolving Credit Commitments
shall be permanent. Each reduction of the Revolving Credit Commitments shall be made ratably among
the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments.


          (d) The Borrower shall have the right, without the consent of the Revolving Credit Lenders but
with the prior consent of the Administrative Agent (not to be unreasonably withheld), to cause from
time to time an increase in the aggregate Revolving Credit Commitments of the Revolving Credit
Lenders by adding one or more additional Revolving Credit Lenders each with its own additional
Revolving Credit Commitment or by allowing one or more Revolving Credit Lenders to increase their
respective Revolving Credit Commitments; provided that (i) no Event of Default shall have occurred
and be continuing, (ii) no such increase shall result in the Total Revolving Credit Commitment
exceeding $75,000,000, (iii) each such increase shall be in a minimum amount of $5,000,000 and
integral multiples of $1,000,000, (iv) no Revolving Credit Lender’s Commitment shall be increased
without such Revolving
Credit Lender’s consent, and (v) if, on the effective date of any such increase, any Revolving
Loans have been funded, the Borrower shall be responsible for paying any breakage fees or costs in
connection with the reallocation of such outstanding Revolving Loans.



               SECTION 2.09. Repayment of Loans; Evidence of Debt.


          (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for
the account of each Revolving Credit Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date for Revolving Loans, (ii) to the Administrative Agent for the account of each
Term Lender the aggregate outstanding principal amount of the Term Loans on the last Business Day
of each fiscal quarter, commencing March 31, 2009, in the amount of $2,083,333 (which amount shall
be reduced as a result of the application of prepayments in accordance with Section 2.10 );
provided, however, that the final principal payment installment of the Term Loans shall be repaid
on the Maturity Date for Term Loans and in any event shall be an amount equal to the aggregate
principal amount of all Term Loans outstanding on such date and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date for
Revolving Loans and the first date after such Swingline Loan is made that is the 15th or last day
of a calendar month and is at least five Business Days after such Swingline Loan is made; provided
that on each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans
then outstanding.


29









 






          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.


          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.


          (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the Obligations;
provided that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans in accordance with the terms of this Agreement.


          (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note in
substantially the form of Exhibit F-1 (in the case of Revolving Loans) or
Exhibit F-2 (in the case of Term Loans) (each, a “Promissory Note”) payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns)
and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such
Promissory Note and interest thereon shall at all times (including after assignment pursuant to
Section 9.04) be represented by one or more Promissory Notes in such form payable to the
order of the payee named therein (or, if such Promissory Note is a registered note, to such payee
and its registered assigns).



               SECTION 2.10. Prepayment of Loans.


          (a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with paragraph (b) of this
Section.


          (b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment
of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the
date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00
noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Revolving Credit Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such 


30









 






notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance
of a Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12. Optional
prepayments of the Term Loans pursuant to Section 2.10(a) shall be applied on a pro rata
basis to the regular installments of principal due under the Term Loans, including the payment due
on the Maturity Date for Term Loans.



               SECTION 2.11. Fees.


          (a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving
Credit Lender a facility fee, which shall accrue at the Facility Fee Rate on the average daily
unused portion of the Revolving Credit Commitment of such Revolving Credit Lender during the period
from and including the Effective Date to but excluding the Revolving Credit Termination Date;
provided that, if such Revolving Credit Lender continues to have any Revolving Credit Exposure
after its Revolving Credit Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Revolving Credit Lender’s Revolving Credit Exposure from and including
the date on which its Commitment terminates to but excluding the date on which such Revolving
Credit Lender ceases to have any Revolving Credit
Exposure. Accrued facility fees shall be payable in arrears on the last day of November,
February, May, and August of each year and on the Revolving Credit Termination Date (and on any
later date upon which Revolving Credit Exposure ceases to exist, if any), commencing on the first
such date to occur after the date hereof; provided that any facility fees accruing after the date
on which the Revolving Credit Commitments terminate shall be payable on demand. All facility fees
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). Upon a Default that with the
passage of time or the giving of notice or both would constitute an Event of Default under
subsections (a) and (b) of Article VII, all fees and other amounts (except for the Letter of Credit
Fee) will bear interest at two percent per annum above the rate applicable to ABR Loans, until such
Default is cured or waived.


          (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each
Revolving Credit Lender, based on such Revolving Credit Lender’s Applicable Percentage, a letter of
credit fee (the “Letter of Credit Fee”) with respect to each Letter of Credit
issued hereunder, which shall be payable monthly in arrears on the last day of each month
commencing with the month after the Effective Date and which shall accrue at a rate per annum equal
to the Applicable Margin used to determine the interest rate applicable to Eurodollar Loans on the
Stated Amount of the Letters of Credit, during the period from and including the Effective Date to
but excluding the later of the date on which such Revolving Credit Lender’s Revolving Credit
Commitment terminates and the date on which such Revolving Credit Lender ceases to have any LC
Exposure; and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per
annum on the average daily amount of the Total LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date of Revolving Credit Termination Date and the date on
which there ceases to be any LC Exposure, as well as the Bank’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter


31









 






of Credit or processing of drawings
thereunder. Fronting fees accrued through and including the last day of November, February, May,
and August of each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the Revolving Credit Termination Date and any such fees accruing after the
Revolving Credit Termination Date shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within ten (10) days after demand. All
fronting fees and all Letter of Credit Fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first day but excluding
the last day). Upon a Default that with the passage of time or the giving of notice or both would
constitute an Event of Default under subsections (a) and (b) of Article VII, the Letter of
Credit Fee will be increased by two percent per annum, until such Default is cured or waived.


          (c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.


          (d) The Borrower agrees to pay to the Administrative Agent, on the Effective Date, for the
account of each Term Lender based on such Term Lender’s Applicable Percentage, a non-refundable
facility fee in an aggregate amount equal to $37,500.


          (e) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and Letter of Credit Fees, to the applicable Lenders.
Fees paid shall not be refundable under any circumstances.



               SECTION 2.12. Interest.


          (a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear
interest at the Alternate Base Rate plus the Applicable Margin.


          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.


          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise (until such payment is made or the Default is waived or cured), such
overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to
(i) in the case of overdue principal of any Loan, two percent (2%) per annum plus the rate
otherwise applicable to such Loan as provided in the preceding paragraphs of this Section (until
such Default is cured or waived) or (ii) in the case of any other amount, two percent (2%) per
annum, plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.


          (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Credit
Commitments; provided that (i) interest accrued pursuant to paragraph (c) of


32









 






this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other
than a prepayment of an ABR Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of
such conversion.


          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.



               SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:


          (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or


          (b) the Administrative Agent is advised by the Required Revolving Credit Lenders or the
Required Term Lenders, as applicable, that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their
Loans (or its Loan) included in such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii) if
any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.



               SECTION 2.14. Increased Costs.


          (a) If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate) or the Issuing Bank; or




     (ii) impose on any Lender or the Issuing Bank or the London interbank market
any other condition affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein;



33









 




and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.


          (b) If any Lender or the Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing
Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the
Issuing Bank’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the
Issuing Bank’s holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s
holding company for any such reduction suffered.


          (c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as
the case may be, the amount shown as due on any such certificate within 10 Business Days after
receipt thereof.


          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing Bank, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 270-day period referred to above shall be extended to include
the period of retroactive effect thereof.



               SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any principal of
any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice may be revoked under Section 2.10(b) and is revoked in
accordance therewith), (d) the assignment of any Eurodollar



34









 




Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 Business Days after receipt thereof.



               SECTION 2.16. Taxes.


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


          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.


          (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may
be, on or with respect to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.


          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental


35









 






Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


          (d) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.


          (e) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this
Section 2.16, it shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.16 with respect to the Taxes or Other Taxes giving rise to such refund), net of
all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund);
provided, that the Borrower, upon the request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the
event the Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the Administrative Agent or any Lender to
make available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.



               SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.


          (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, New York
City time, on the date when due, in immediately available funds, without set off or counterclaim.
Any amounts received after such time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the Administrative Agent at its
offices at 270 Park Avenue, New York, New York, except payments to be made directly to the Issuing
Bank or Swingline Lender as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension. All
payments hereunder shall be made in dollars.


36









 






          (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements
then due to such parties.


          (c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans or participations in
LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in LC Disbursements and
Swingline Loans and accrued interest thereon than the proportion received by any other Lender of
the same Class, then the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans and participations in LC Disbursements and Swingline Loans of
other Lenders of the same Class to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders of the same Class ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and participations in LC Disbursements
and Swingline Loans; provided that (i) if any such participations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to the Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.


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


37









 






          (e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender to satisfy such
Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.



               SECTION 2.18. Mitigation Obligations; Replacement of Lenders.


          (a) If any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.16, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.14 or 2.16, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.


          (b) If any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.16, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04 ), all its
interests, rights and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided
that (i) the Borrower shall have received the prior written consent of the Administrative Agent
(and if a Revolving Credit Commitment is being assigned, the Issuing Bank), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.14 or payments required to be made pursuant
to Section 2.16, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.


38









 







ARTICLE III.




Representations and Warranties



          The Borrower represents and warrants to the Lenders that:



               SECTION 3.01. Organization; Powers. Each of the Borrower and its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such
qualification is required.



               SECTION 3.02. Authorization; Enforceability.


          (a) The Transactions are within the Borrower’s corporate powers and have been duly authorized
by all necessary corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.


          (b) Each of the Guaranties is within the corporate powers of the Guarantor that is a signatory
thereto and has been duly authorized by all necessary corporate and, if required, stockholder
action. Each of the Guaranties has been duly executed and delivered by the Guarantor that is a
signatory thereto and constitutes a legal, valid and binding obligation of such Guarantor,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.


39









 







               SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions and the Guaranties
(a) do not require any consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, agreement
or other instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give
rise to a right thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries (except for payments made pursuant to and in connection with this Agreement, the
Guaranties, and the other Loan Documents), and (d) will not result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Subsidiaries.



               SECTION 3.04. Financial Condition; No Material Adverse Change.


          (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended
December 31, 2007, reported on by Deloitte & Touche LLP, independent public accountants, and
(ii) as of and for the fiscal quarter and the portion of the fiscal year
ended March 31, 2008, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii) above.


          (b) Since December 31, 2007, there has been no Material Adverse Change.



               SECTION 3.05. Properties.


          (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to its business, except for defects in title that
could not reasonably be expected to have a Material Adverse Effect.


          (b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.



               SECTION 3.06. Litigation and Environmental Matters.


          (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the
Borrower or any of its Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, would reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or
(ii) that involve this Agreement, the Guaranties, or the Transactions.


40









 






          (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.


          (c) Since the date of this Agreement, or with respect to any action, suit or proceeding or
environmental matter as to which notice is given pursuant to Section 5.02, the date of such
notice, there has been no change in the status of the Disclosed Matters that, individually or in
the aggregate, has resulted in or could reasonably be expected to have, a Material Adverse Effect.



               SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.



               SECTION 3.08. Investment Company Status. Neither the Borrower nor any of its Subsidiaries
is (a) an “investment company” as defined in, or subject to regulation under, the Investment
Company Act of 1940.



               SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely filed or caused
to be filed all Tax returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good
faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books adequate reserves or (b) to the extent that the failure to do so would not
reasonably be expected to result in a Material Adverse Effect.



               SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is reasonably expected to
occur, would reasonably be expected to result in a Material Adverse Effect. The present value of
all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $250,000 the fair market value of
the assets of such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $250,000 the fair market value of the assets of all such underfunded
Plans.



               SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its



41









 




Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect. The Borrower represents and warrants to the
Lenders and the Administrative Agent that the representations and warranties made by the Borrower
in the Commitment Letter dated August 8, 2007 among the Borrower, the Administrative Agent and J.P.
Morgan Securities Inc. are true and correct as of the date hereof.



ARTICLE IV.




Conditions




               SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with
Section 9.02 ):


          (a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.


          (b) The Administrative Agent (or its counsel) shall have received from each Guarantor either
(i) a counterpart of the Guaranty signed by such Guarantor or (ii) written evidence satisfactory to
the Administrative Agent (which may include telecopy transmission of a signed signature page of
such Guaranty from each of the Guarantors) that such party has signed a counterpart of this
Guaranty.


          (c) The Administrative Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Heller Ehrman LLP, counsel
for the Borrower and the Guarantors, substantially in the form of Exhibit B, and covering
such other matters relating to the Borrower and the Guarantors, this Agreement, the Guaranties, and
the Transactions as the Required Lenders shall reasonably request. The Borrower and the Guarantors
hereby request such counsel to deliver such opinion.


          (d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrower and the Guarantors, the authorization of the Transactions and any
other legal matters relating to the Borrower, this Agreement, the Guarantors, the Guaranties, and
the Transactions, all in form and substance satisfactory to the Administrative Agent and its
counsel.


          (e) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the Borrower, in form and
substance satisfactory to the Administrative Agent, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.


          (f) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of each of the 


42









 






Guarantors, in form
and substance satisfactory to the Administrative Agent, confirming compliance with the conditions
set forth in paragraph (a) of Section 4.02 and stating that the representations and
warranties contained in this Agreement pertaining to the Guarantors are true and correct as of the
date hereof.


          (g) Subject to the proviso in Section 9.03(a), the Lenders, the Administrative Agent,
and the Sole Lead Arranger shall have received all fees and other amounts due and payable on or
prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out
of pocket expenses required to be reimbursed or paid by the Borrower hereunder.


          (h) All approvals of any Governmental Authority and any other third parties necessary in
connection with the Loans contemplated by this Agreement and the continuing operations of the
Borrower and its Subsidiaries (including shareholder approvals, if any) shall have been obtained on
satisfactory terms and shall be in full force and effect.


          (i) The Lenders shall have received (i) satisfactory audited consolidated financial statements
of the Borrower for the two most recent fiscal years ended prior to the Effective Date as to which
such financial statements are available, (ii) satisfactory unaudited interim consolidated financial
statements of the Borrower for each quarterly period ended subsequent to the date of the latest
financial statements delivered pursuant to clause (i) of this subsection as to which such financial
statements are available, and (iii) the Borrower’s most recent projected income statement, balance
sheet and cash flows for the period beginning January 1, 2008 and ending December 31, 2011.


          (j) The Lenders shall have received resolutions, incumbency certificates, a solvency
certificate from the Borrower’s chief financial officer, organizational documents and collateral
releases from prior lenders (if any), all in form and substance reasonably acceptable to the
Administrative Agent, the Sole Lead Arranger, and their counsel.


          (k) The corporate structure, capital structure, other debt instruments, material accounts, and
governing documents of the Borrower and its Affiliates, shall be acceptable to the Administrative
Agent.


          (l) Prepayment in full of all obligations under any existing loan facilities, termination of
the commitments thereunder and release of all liens, if any, granted thereunder (unless otherwise
permitted under this Agreement).


The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 9.02 ) at or prior to 3:00 p.m., New York City time, on May 30, 2008 (and, in the
event such conditions are not so satisfied or waived, the Term Commitment shall terminate at such
time).



               SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing (including, without limitation, the



43









 




Borrowing of the Term Loans), and of
the Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:


          (a) The representations and warranties of the Borrower set forth in this Agreement (including,
without limitation, the representations and warranties set forth in Section 3.04(b) and
Section 3.06 ) and the representations and warranties of the Guarantors set forth in the
Guaranties shall be true and correct on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the
extent that such representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date.


          (b) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall have occurred and be continuing.


          (c) With respect to any Borrowing of Revolving Loans, at the time of and immediately after
giving effect to such Borrowing or the issuance, amendment, renewal or extensions of such Letter of
Credit, as applicable, the sum of the Total Revolving Credit Exposure shall not exceed the Total
Revolving Credit Commitments.


          (d) Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit
shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.



ARTICLE V.




Affirmative Covenants



          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:



               SECTION 5.01. Financial Statements; Ratings Change and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:


          (a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated
balance sheet and related statements of operations, stockholders’ equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Deloitte & Touche LLP or other independent public
accountants of recognized national standing (without a “going concern” or like qualification or
exception and without any qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;


44









 






          (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, its consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case in comparative form
the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of operations of the Borrower
and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of footnotes;


          concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower in the form of Exhibit G or any other
form approved by the Administrative Agent (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.09 and 6.10 and (iii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited financial statements referred to
in Section 3.04 and, if any such change has occurred, specifying the effect of such change
on the financial statements accompanying such certificate;


          (c) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be; provided that such information
need not be provided by the Borrower if it is available on the Security and Exchange Commission’s
EDGAR system and the Borrower sends an email notification to the Administrative Agent at the time
such information becomes available on such system; and


          (d) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.



               SECTION 5.02. Notices of Material Events. The Borrower will furnish to the Administrative
Agent and each Lender prompt written notice of the following:


          (a) the occurrence of any Default;


          (b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, would reasonably be expected to result in a Material Adverse Effect,
provided, that such information need not be provided by the Borrower in a written notice to
Lenders and Administrative Agent if it is available on the Security and Exchange Commission’s EDGAR
system and the Borrower sends an email notification to the Administrative Agent at the time such
information becomes available on such system;





45









 







          (c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, would reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $250,000; and


          (d) any other development that results in, or would reasonably be expected to result in, a
Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.



               SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each of
its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section 6.03.




46












 





                    SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its Subsidiaries to, pay
its obligations, including Tax liabilities, that, if not paid, would result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest would not reasonably be expected
to result in a Material Adverse Effect.



                    SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause each of its
Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses operating in the same
or similar locations.



                    SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and activities. The Borrower
will, and will cause each of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties up to twice each calendar year, during business hours, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with its officers and
independent accountants, provided that upon the occurrence and during the continuation of a
payment Default or an Event of Default, no prior
notice shall be required and the Administrative Agent or any Lender may make unlimited visits and
inspect, examine, make extracts, and discuss, from time to time and at any and all times as it may
elect in its sole discretion.



                    SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it
or its property, except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.



                    SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of (i) the Revolving Loans will be
used only to finance future construction projects and acquisitions of the Borrower in accordance
with the terms of this Agreement and for other working capital needs and general corporate purposes
of the Borrower and the Subsidiaries in the ordinary course of business and (ii) the Term Loans
will only be used to finance the acquisition of certain assets from Alliance Data Systems, Inc.,
and to pay costs and expenses in connection therewith. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation of any of the
regulations of the Board, including Regulations T, U and X.



                    SECTION 5.09. Additional Guarantors. Subject to applicable law, the Borrower and each Subsidiary shall
cause each of its direct or indirect domestic Subsidiaries formed or
acquired after the date of this Agreement in accordance with the terms of



47









 




this Agreement to become a Guarantor by executing a
Guaranty in the form of Exhibit C. Upon execution and delivery thereof, each such Person
shall automatically become a Guarantor hereunder and thereupon shall have all of the rights,
benefits, duties, and obligations in such capacity under the Guaranty and with respect to the Loan
Documents.




ARTICLE VI.




Negative Covenants




          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:




                    SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness, except the following, to the extent that, unless
otherwise provided, immediately prior to incurring such Indebtedness and after giving effect
thereto, the Borrower is in compliance with Section 6.09:




          (a) Indebtedness created hereunder;




          (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01;




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




          (d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary;




          (e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any real property or fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such real
property or assets or secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that (i) such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such construction or improvement and
(ii) the aggregate principal amount of Indebtedness permitted by this clause (e) shall not exceed
$5,000,000 at any time outstanding;




          (f) Indebtedness of any Person that becomes a Subsidiary after the date hereof, and
extensions, renewals and replacements of any such Indebtedness that do not increase the principal
amount thereof; provided that (i) such Indebtedness exists at the time such Person becomes
a Subsidiary and is not created in contemplation of or in connection with such Person becoming a
Subsidiary and (ii) the aggregate principal amount of Indebtedness permitted by this clause (f)
shall not exceed $1,000,000 at any time outstanding;




          (g) Indebtedness of the Borrower or any Subsidiary as an account party in respect of trade
letters of credit;




48









 








          (h) Indebtedness in respect of Swap Agreements permitted by Section 6.05;




          (i) Indebtedness in respect of any Sale and Leaseback Transactions permitted under
Section 6.12;




          (j) Subordinated Indebtedness;




          (k) Service Center Indebtedness;




          (l) Indebtedness in respect of advances made to the Borrower and/or its Subsidiaries by
sponsoring banks for Interchange Fees; and




          (m) other unsecured Indebtedness in an aggregate principal amount not exceeding $5,000,000 at
any time outstanding.




                    SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or
assign or sell
any income or revenues (including accounts receivable) or rights in respect of any thereof, except:



          (a) Permitted Encumbrances;




          (b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date
hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not apply
to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof;




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




          (d) Liens on real property or fixed or capital assets acquired, constructed or improved by the
Borrower or any Subsidiary; provided that (i) such Liens secure Indebtedness permitted by
clause (e) or clause (k) of Section 6.01, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of
the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such Lien
shall not apply to any other property or assets of the Borrower or any Subsidiary; and




          (e) Liens securing Indebtedness permitted by clause (i) of Section 6.01.




49









 








                    SECTION 6.03. Fundamental Changes.



          (a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (ii) any Subsidiary may merge into any other
Subsidiary in a transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary may
sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary
and (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided that any such transaction described in clauses (i) -
(iii) above involving a Subsidiary that is not a wholly owned Subsidiary immediately prior to such
merger shall not be permitted unless also permitted by Section 6.04.




          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto,
including payment and transaction processing businesses.




                    SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will
not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Subsidiary that was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or other right to
acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest in, any other
Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any
assets of any other Person constituting a business unit, except:



          (a) Permitted Investments;




          (b) investments by the Borrower existing on the date hereof in the capital stock of its
Subsidiaries;




          (c) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the
Borrower or any other Subsidiary;




          (d) acquisitions of any capital stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing) or acquisitions of
assets of any Person constituting a business unit that comply on a pro forma basis with all
provisions of this Agreement and the other Loan Documents;




          (e) Guarantees constituting Indebtedness permitted by Section 6.01;






50









 








          (f) investments made with Payroll Deposits in accordance with the Investment Standards;




          (g) advances of Interchange Fees to merchants with respect to Processing Transactions in the
ordinary course of business; and




          (h) loans or advances to (i) non-sales employees of the Borrower or any Subsidiary in an
aggregate outstanding principal amount not to exceed $1,000,000 at any time and (ii) sales
employees of the Borrower or any Subsidiary in an aggregate outstanding principal amount not to
exceed $5,000,000 at any time.




                    SECTION 6.05. Swap Agreements. The Borrower will not, and will not permit any of its Subsidiaries to,
enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate risks
to which the Borrower or any Subsidiary has actual exposure (other than those in respect of Equity
Interests of the Borrower or any of its Subsidiaries or payments restricted by
Section 6.06), and (b) Swap Agreements entered into in order to effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating rate to another floating
rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or
any Subsidiary.



                    SECTION 6.06. Restricted Payments.



          (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or
agree to pay or make, directly or indirectly, any Restricted Payment, except, so long as no Event
of Default shall exist immediately before and after giving effect to any such payment, (i) the
Borrower may declare and pay dividends with respect to its Equity Interests payable in additional
shares of its common stock, (ii) the Borrower may declare and pay cash dividends with respect to
its Equity Interests, (iii) Subsidiaries may declare and pay dividends ratably with respect to
their Equity Interests, (iv) the Borrower may make repurchases with respect to its Equity
Interests, and (v) the Borrower may make Restricted Payments pursuant to and in accordance with
stock option plans or other benefit plans for management or employees of the Borrower and its
Subsidiaries.




          (b) The Borrower will, nor will it permit any Subsidiary to, make or agree to pay or make,
directly or indirectly, any payment or other distribution (whether in cash, securities or other
property) of or in respect of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any Indebtedness, except:





     (i) payment of Indebtedness created under the Loan Documents;




     (ii) payment of regularly scheduled interest and principal payments as and when
due in respect of any Indebtedness, other than payments in respect of the
Subordinated Indebtedness prohibited by the subordination provisions thereof;




     (iii) refinancings of Indebtedness to the extent permitted by
Section 6.01; and



51









 






     (iv) payment of secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness.



                    SECTION 6.07. Transactions with Affiliates. The Borrower will not, and will not permit any of its
Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except (a) in the ordinary course of business at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an
arm’s-length basis from unrelated third parties, (b) transactions between or among the Borrower and
its wholly owned Subsidiaries not involving any other Affiliate, (c) any Restricted Payment
permitted by Section 6.06 and (d) any investment permitted by clause (h) of
Section 6.04.



                    SECTION 6.08. Restrictive Agreements. The Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement
that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any
Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions with respect to any
shares of its capital stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that
(i) the foregoing shall not apply to restrictions and conditions imposed by law or by this
Agreement, (ii) the foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 6.08 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or condition), (iii) the
foregoing shall not apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only
to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases restricting the assignment thereof.



                    SECTION 6.09. Leverage Ratios.



          (a) Total Leverage Ratio. The Borrower will not permit the ratio of Funded Debt to
EBITDA to be greater than 2.5 to 1.00 (the “Total Leverage Ratio”), determined on the last
day of each fiscal quarterly period for the four fiscal quarters ending on such date.




          (b) Senior Leverage Ratio. The Borrower will not permit the Senior Leverage Ratio to
be greater than 2.25 to 1.00, determined on the last day of each fiscal quarterly period for the
four fiscal quarters ending on such date.




                    SECTION 6.10. Fixed Charge Coverage Ratio.



     The Borrower shall not permit the ratio of EBITDA minus Customer Acquisition Costs
minus the net amount paid by Borrower with respect to any repurchases of its Equity



52









 




Interests (excluding Permitted Repurchases) minus Capital Expenditures (excluding any
Capital Expenditures with respect to the Service Center) minus Dividends (all of the
foregoing operations resulting in an amount that equals the numerator) divided by Fixed Charges (as
the denominator) to be less than 1.35 to 1:00, determined on the last day of each fiscal quarterly
period for the four fiscal quarters ending on such date.




                    SECTION 6.11. Asset Sales.



          The Borrower shall not and shall not permit any Subsidiary to, sell, transfer, lease or
otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Borrower
permit any Subsidiary to issue any additional Equity Interest in such Subsidiary (other than to the
Borrower or another Subsidiary in compliance with Section 6.03), except:




          (a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and
(ii) used, obsolete, worn out or surplus equipment or property in the ordinary course of business;




          (b) sales, transfers and dispositions to the Borrower or any Subsidiary, provided that
any such sales, transfers or dispositions involving a Subsidiary shall be made in compliance with
Section 6.07;




          (c) sales, transfers and dispositions of accounts receivable in connection with the
compromise, settlement or collection thereof;




          (d) sales, transfers and dispositions of investments permitted by Section 6.04 (a) and
(f);




          (e) Sale and Leaseback Transactions permitted by Section 6.12;




          (f) dispositions resulting from any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any property or asset of the
Borrower or any Subsidiary; and




          (g) sales, transfers and other dispositions of assets (including Equity Interests in a
Subsidiary) that are not permitted by any other paragraph of this Section, provided that
the aggregate amount thereof during any fiscal year does not exceed 10% of Tangible Assets as of
the end of the immediately preceding fiscal year;



provided that all sales, transfers, leases and other dispositions permitted hereby (other
than those permitted by paragraphs  (b) and (f) above) shall be made for fair value and for at
least 75% cash consideration.




                    SECTION 6.12.  Sale and Leaseback Transactions.



          Borrower shall not and shall not permit any Subsidiary to, enter into any Sale and Leaseback
Transaction, except for any such sale of any fixed or capital assets by the Borrower or any
Subsidiary that is made for cash consideration in an amount not less than the fair value of




53









 







such
fixed or capital asset and is consummated within 90 days after the Borrower or such Subsidiary
acquires or completes the construction of such fixed or capital asset.




ARTICLE VII.




Events of Default




          If any of the following events (“Events of Default”) shall occur:




          (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation
in respect of any LC Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;




          (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure shall continue unremedied for a
period of five days Business Days;




          (c) any representation or warranty made or deemed made by or on behalf of the Borrower, any
Subsidiary, or any Guarantor in or in connection with this Agreement or any Guaranty, or any
amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in connection with this
Agreement or any Guaranty, or other Loan Document, or any amendment or modification hereof or
thereof or waiver hereunder or thereunder, shall prove to have been untrue in any material respect
when made or deemed made;




          (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence) or 5.08 or in
Article VI or the Guarantor shall fail to observe or perform any covenant, condition, or
agreement contained in any Guaranty;




          (e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article),
and such failure shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request of any Lender);




          (f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable (whether or not such failure results in acceleration);




          (g) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled




54









 







maturity (whether
or not such event or condition results in acceleration); provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;




          (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower, any Subsidiary,
or any Guarantor or its debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower, any Subsidiary, or any Guarantor or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;




          (i) the Borrower, any Subsidiary, or any Guarantor shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower, any Guarantor, or any Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for
the purpose of effecting any of the foregoing;




          (j) the Borrower, any Subsidiary, or any Guarantor shall become unable, shall admit in writing
its inability, or shall fail generally, to pay its debts as they become due;




          (k) one or more judgments for the payment of money in an aggregate amount in excess of
$5,000,000 shall be rendered against the Borrower, any Subsidiary, or any Guarantor, or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower, any Subsidiary, or any
Guarantor to enforce any such judgment;




          (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, would reasonably
be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding (i) $1,000,000 in any year or (ii) $2,000,000 for all periods;




          (m) any of the Loan Documents shall cease to be enforceable or in full force and effect; or




          (n) a Change in Control shall occur;



then, and in every such event (other than an event with respect to the Borrower described in
clause (h) or (i) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
the Borrower, take either one or both of the following actions, at the same or different times:
(i)




55









 







 terminate the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case
any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest or other notice of
any kind, including without limitation, notice of intent to accelerate and notice of acceleration,
all of which are hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any kind, including
without limitation, notice of intent to accelerate and notice of acceleration, all of which are
hereby waived by the Borrower.




ARTICLE VIII.




The Administrative Agent




          Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.




          The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders, the Required Revolving Credit
Lenders or the Required Term Lenders, as the case may be (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.02 or
Section 2.05(j)), and (c) except as expressly set forth herein, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained
by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it with the consent
or at the request of the Required Lenders, the Required Revolving Credit Lenders or the Required
Term Lenders, as the case may be (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02 or Section 2.05(j))
or





56









 







in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any Guaranty, (ii) the contents of
any certificate, report or other document delivered hereunder or in connection herewith or in
connection with any Guaranty, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or in any Guaranty, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, the Guaranties, or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.




          The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.




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




          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint
a successor Administrative Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.03





57









 







shall continue in
effect for the benefit of such retiring Administrative Agent, its sub agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.




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




ARTICLE IX.




Miscellaneous




                    SECTION 9.01. Notices.



          (a) Except in the case of notices and other communications expressly permitted to be given by
telephone (and subject to paragraph (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:





     (i) if to the Borrower, to it at 90 Nassau Street, Princeton, NJ 08542,
Attention of Robert H.B. Baldwin, Jr. and the Legal Department (Telecopy
No. 609-683-3815);




     (ii) if to the Administrative Agent, to the Issuing Bank or to the Swingline
Lender, to JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 10 South
Dearborn Street, 19th Floor, Chicago, Illinois, with a copy to (A) JPMorgan Chase
Bank, N.A., P.O. Box 660197, Dallas, Texas 75266, Attention of John Horst, Mail
Code-TX1-2669, Telephone No. (214) 965-3572,
Telecopy No. (214) 965-2884, or (B) JPMorgan Chase Bank, N.A., 700 North Pearl
Street, Suite 705, Dallas, Texas 75201, Attention of John Horst, Mail Code-TX1-2669,
Telephone No. (214) 965-3572, Telecopy No. (214) 965-2884; and




     (iii) if to any other Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.



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





58









 








          (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.




                    SECTION 9.02. Waivers; Amendments.



          (a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank
and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or consent to any departure by
the Borrower therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default at the time.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement
or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change Section 2.17(b) or
(c) in a manner that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, or (v) change any of the provisions of this Section or the
definition of “Required Lenders” or any other provision hereof specifying the number or percentage
of Lenders required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without the prior
written consent of the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case
may be.




                    SECTION 9.03. Expenses; Indemnity; Damage Waiver.



          (a) The Borrower shall pay (i) all reasonable out of pocket expenses incurred by the
Administrative Agent, the Sole Lead Arranger, and their respective Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative Agent, in




59









 







connection
with the syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement and any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby shall be consummated),
(ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, the Issuing
Bank or any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all
such out-of pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.




          (b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, the Guaranties, or any agreement
or instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder, under the Guaranties, or the consummation of the Transactions or any other
transactions contemplated hereby and under the Guaranties, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries,
or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries,
or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent,
the Issuing Bank or the Swingline Lender in its capacity as such.




          (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special,



60









 




indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, the Loan Documents, or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.




          (e) All amounts due under this Section shall be payable not later than three (3) Business Days
after written demand therefor.




                    SECTION 9.04. Successors and Assigns.



          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.





(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it) with the prior written consent (such consent not to be
unreasonably withheld) of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower, provided that (i) no
consent of the Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund and (ii) no consent of the Administrative
Agent shall be required for an assignment of any Commitment or Loan to an assignee
that is a Lender with a Commitment or Loan immediately prior to giving effect to
such assignment or if an Event of Default has occurred and is continuing.




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




          (A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans of any Class, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000
unless each of the Borrower and the



61









 






Administrative Agent otherwise consent,
provided that no such consent of the Borrower shall be required if
an Event of Default has occurred and is continuing;




          (B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations
under this Agreement, provided that this clause shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of
Commitments or Loans;




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




          (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and




          (E) if the assignee is a Foreign Lender, it shall have delivered any
documentation required by Section 2.16(e).


For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:




          “Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.





     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 9.04 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the



62









 






Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive, and
the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and the
fulfillment of the other applicable conditions of paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the
assigning Lender or the assignee shall have failed to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or
9.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register unless
and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.




(c) (i) Any Lender may, without the consent of the Borrower, the Administrative
Agent, the Issuing Bank or the Swingline Lender, sell participations to one or more
banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of such
obligations and (C) the Borrower, the Administrative Agent, the Issuing Bank and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and
to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and
2.16 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits



63









 






of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.




     (ii) A Participant shall not be entitled to receive any greater payment under
Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
Section 2.16(e) as though it were a Lender.



          (b) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.




                    SECTION 9.05. Survival. All covenants, agreements, representations and warranties made by the Borrower
herein, and by the Guarantors in the Guaranties, and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement and the Guaranties shall be considered
to have
been relied upon by the other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.



                    SECTION 90.6. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the Administrative Agent
constitute the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts



64









 




hereof which, when taken together, bear the signatures of
each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.




                    SECTION 9.07. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



                    SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender
and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this Agreement and
although
such obligations may be unmatured. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender may have.



                    SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.



          (a) This Agreement shall be construed in accordance with and governed by the law of the State
of New York.




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in the courts of any
jurisdiction.




          (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this





65









 







Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by law.




                    SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



                    SECTION 9.11. Headings. Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not affect the construction
of, or be taken into consideration in interpreting, this Agreement.



                    SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and the Lenders agrees
to maintain the confidentiality of the Information (as defined below), except that Information may
be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any regulatory authority,
(c) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement, or the Guaranties,
or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the Administrative Agent, the
Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower. For
the purposes of this Section, “Information” means all information received from the Borrower
relating to the Borrower or its business, other than any such information that is available to the
Administrative Agent, the



66









 




Issuing Bank or any Lender on a nonconfidential basis prior to disclosure
by the Borrower; provided that, in the case of information received from the Borrower after the
date hereof, such information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.




                    SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time
the interest rate applicable to any Loan, together with all fees, charges and other amounts which
are treated as interest on such Loan under applicable law (collectively the “Charges”),
shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender in respect of other
Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.



                    SECTION 9.14. USA PATRIOT ACT. Each Lender that is subject to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby notifies the
Borrower that pursuant to the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender to identify the Borrower in accordance
with the Act.



                    SECTION 9.15. Amendment and Restatement. This Agreement amends and restates in its entirety the Existing
Credit Agreement. The Borrower hereby agrees that (a) the Indebtedness outstanding under the
Existing Credit Agreement and all Loan Documents (as defined in the Existing Credit Agreement) and
all accrued and unpaid interest thereon, and (b) all accrued and unpaid fees under the Existing
Credit Agreement or such other Loan Documents, shall be deemed to be outstanding under and governed
by this Agreement. The Borrower hereby acknowledges, represents, warrants, and agrees that this
Agreement is not intended to be, and shall not be deemed or construed to be, a novation or release
of the Existing Credit Agreement or such other Loan Documents.



67









 





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




	 	 	 	 	 
	 	HEARTLAND PAYMENT SYSTEMS, INC.,

 a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



-1-









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., 

individually and as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Chad N. Smith 	 
	 	 	Senior Vice President 	 
	 




 











 





	 	 	 	 	 
	 	SUNTRUST BANK

 	 
	 	By:  	 	 
	 	 	Timothy M. O’Leary 	 
	 	 	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Jeff Kalinowski 	 
	 	 	Senior Vice President 	 



 









 






	 	 	 	 	 



Schedule 2.01(a)




REVOLVING CREDIT COMMITMENTS




	 	 	 	 	 
	LENDER	 	REVOLVING CREDIT COMMITMENT
	JPMORGAN CHASE BANK, N.A
	 	$	18,000,000	 
	KEYBANK NATIONAL ASSOCIATION
	 	$	16,000,000	 
	SUNTRUST BANK
	 	$	16,000,000	 






Schedule 2.01(a)




-1-









 








Schedule 2.01(b)




TERM CREDIT COMMITMENTS




	 	 	 	 	 
	LENDER	 	TERM CREDIT COMMITMENT
	JPMORGAN CHASE BANK, N.A
	 	$	9,000,000	 
	KEYBANK NATIONAL ASSOCIATION
	 	$	8,000,000	 
	SUNTRUST BANK
	 	$	8,000,000	 






Schedule 2.01(a)




-1-









 








Schedule 3.06




DISCLOSED MATTERS




Schedule 3.06




-1-









 








Schedule 6.01




EXISTING INDEBTEDNESS




Schedule 6.01




-1-









 








Schedule 6.02




EXISTING LIENS




Schedule 6.02




-1-









 








Schedule 6.08




EXISTING RESTRICTIONS




Schedule 6.08




-1-









 








EXHIBIT A




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment
is without recourse to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 	 	 
	1.

	 	Assignor	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	[and is an Affiliate/Approved Fund of (identify Lender]1]	 	 
	 
	 	 	 	 	 	 
	3.

	 	Borrower(s):	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	4.

	 	Administrative Agent:
	 	                                                            , as the administrative agent under the Credit
Agreement	 	 








 




			
	1	 	Select as applicable.





Exhibit A-1




 









 








	 	 	 	 	 
	5.

	 	Credit Agreement:
	 	The Amended and Restated Credit Agreement dated as of May 30, 2008,
among Heartland Payment Systems, Inc., the Lenders parties thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, and the other
agents parties thereto
	 
	 	 	 	 
	6.
	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	Percentage Assigned
	 	 	Commitment/Loans	 	Commitment/Loans	 	of
	Facility Assigned	 	for all Lenders	 	Assigned	 	Commitment/Loans2
	 
	 	$	 	$	 	 	%	 
	 
	 	$	 	$	 	 	%	 
	 
	 	$	 	$	 	 	%	 





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



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




	 	 	 	 	 	 	 
	 	 	ASSIGNOR
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 






	 	 	 	 	 	 	 
	 	 	ASSIGNEE
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	 








 




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





Exhibit A-2




 









 








	 	 	 	 	 
	Consented to and Accepted:	 	 
	 
	 	 	 	 
	JPMORGAN CHASE BANK, N.A. as	 	 
	     Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Title:	 	 






Exhibit A-3





 












 





ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement, the
Guaranties, or any other Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document, including the Guarantors or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates, the Guarantors, or any other
Person of any of their respective obligations under any Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01
thereof, as applicable, and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent or any other Lender, and (v) if it
is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.



     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but



Annex 1-1









 




excluding the Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.




     3. General Provisions. This Assignment and Assumption shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.



Annex 1-2









 





EXHIBIT B




OPINION OF COUNSEL FOR THE BORROWER




May [           ], 2008




To the Lenders and the Administrative
  
Agent Referred to Below

c/o JPMorgan Chase Bank, N.A., as
  
Administrative Agent

270 Park Avenue

New York, New York 10017




Dear Sirs:




     We have acted as counsel for Heartland Payment Systems, Inc., a Delaware corporation (the
“Borrower”), in connection with the Amended and Restated Credit Agreement dated as of May 30, 2008
(the “Credit Agreement”), among the Borrower, the banks and other financial institutions identified
therein as Lenders, and JPMorgan Chase Bank, N.A., as Administrative Agent, and as counsel for The
Heartland Payment Company, L.L.C. an Ohio limited liability company (“HPS”) and Debitek,
Inc., a Delaware corporation (“Debitek”), the Guarantors. Terms defined in the Credit
Agreement are used herein with the same meanings.



     We have examined originals or copies, certified or otherwise identified to our satisfaction,
of such documents, corporate records, certificates of public officials and other instruments and
have conducted such other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.



     Upon the basis of the foregoing, we are of the opinion that:



     1. The Borrower (a) is a corporation duly organized, validly existing and in good standing
under the laws of Delaware, (b) has all requisite power and authority to carry on its business as
now conducted and (c) except where the failure to do so, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is required.



     2. HPS (a) is a limited liability company duly organized, validly existing and in good
standing under the laws of Ohio (b) has all requisite power and authority to carry on its business
as now conducted and (c) except where the failure to do so, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect, is qualified



Exhibit B-1









 




to do business in, and is in good standing in, every jurisdiction where such qualification is
required.




     3. Debitek (a) is a corporation duly organized, validly existing and in good standing under
the laws of Delaware (b) has all requisite power and authority to carry on its business as now
conducted and (c) except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and
is in good standing in, every jurisdiction where such qualification is required.



     4. The Transactions are within the Borrower’s corporate powers and have been duly authorized
by all necessary corporate and, if required, stockholder action. The Credit Agreement has been
duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law.



     5. The Amended and Restated Guaranty signed by HPS (the “HPS Guaranty”) is within the
HPS’s corporate powers and has been duly authorized by all necessary corporate and, if required,
stockholder action. The HPS Guaranty has been duly executed and delivered by HPS and constitutes a
legal, valid and binding obligation of HPS, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.



     6. The Amended and Restated Guaranty signed by Debitek (the “Debitek Guaranty”) is
within the Debitek’s corporate powers and has been duly authorized by all necessary corporate and,
if required, stockholder action. The Debitek Guaranty has been duly executed and delivered by
Debitek and constitutes a legal, valid and binding obligation of Debitek, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors’ rights generally and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law.



     7. The Transactions and the Guaranties (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of the Borrower or any
of its Subsidiaries (including the Guarantors) or any order of any Governmental Authority, (c) will
not violate or result in a default under any indenture, agreement or other instrument binding upon
the Borrower or any of its Subsidiaries (including the Guarantors) or its assets, or give rise to a
right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries
(including the Guarantors) except as provided in the Credit Agreement and the Guaranties, and (d)
will not result in the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries (including the Guarantors).



Exhibit C




 









 





     6. There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to our knowledge, threatened against or affecting the Borrower or any
of its Subsidiaries (including the Guarantors) (a) as to which there is a reasonable possibility of
an adverse determination and that, if adversely determined, would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect (other than the Disclosed
Matters) or (b) that involve the Credit Agreement, the Guaranties, or the Transactions.



     7. Neither the Borrower nor any of its Subsidiaries nor any of the Guarantors is an
“investment company” as defined in, or subject to regulation under, the Investment Company Act of
1940.



     We are members of the bar of the State of New York and the foregoing opinion is limited to the
laws of the State of New York, the General Corporation Law of the State of Delaware and the Federal
laws of the United States of America. This opinion is rendered solely to you in connection with
the above matter. This opinion may not be relied upon by you for any other purpose or relied upon
by any other Person (other than your successors and assigns as Lenders and Persons that acquire
participations in your Loans) without our prior written consent.



	 	 	 
	 

	 	Very truly yours,
	 
	 	 
	 

	 	[Borrower’s counsel]






Exhibit C





 









 








EXHIBIT C




FORM OF GUARANTY





Exhibit B-1