Exhibit 10.20


 




 





 


CREDIT AGREEMENT


 


 


by and among


 


DEMARSECO HOLDINGS,
INC.,


 


as the Borrower,


 


CCCI HOLDINGS, INC.,


 


as the Guarantor


 


AMERICAN CAPITAL
FINANCIAL SERVICES, INC.,

as Agent,


 


and


 


THE LENDERS
IDENTIFIED ON

ANNEX A HERETO


 


 


October 30,
2006


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS

  	
  2

  
	
   

  	
  1.1

  	
  Certain Definitions.

  	
  2

  
	
   

  	
  1.2

  	
  Accounting Principles.

  	
  18

  
	
   

  	
  1.3

  	
  Other Definitional
  Provisions; Construction.

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II TERM LOANS

  	
  19

  
	
   

  	
  2.1

  	
  Term Loans.

  	
  19

  
	
   

  	
  2.2

  	
  The Closing.

  	
  20

  
	
   

  	
  2.3

  	
  The Revolving Facility.

  	
  20

  
	
   

  	
  2.4

  	
  Advances.

  	
  21

  
	
   

  	
  2.5

  	
  Revolving Facility
  Disbursements.

  	
  21

  
	
   

  	
  2.6

  	
  Several Commitments.

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III INTEREST;
  REPAYMENT OF THE NOTES; TAXES; FEES

  	
  22

  
	
   

  	
  3.1

  	
  Interest Rates and
  Interest Payments.

  	
  22

  
	
   

  	
  3.2

  	
  Scheduled Repayment of the
  Loans.

  	
  23

  
	
   

  	
  3.3

  	
  Optional Prepayment of
  Loans.

  	
  23

  
	
   

  	
  3.4

  	
  Notice of Optional
  Prepayment.

  	
  24

  
	
   

  	
  3.5

  	
  Mandatory Prepayment.

  	
  24

  
	
   

  	
  3.6

  	
  Home Office Payment.

  	
  25

  
	
   

  	
  3.7

  	
  Taxes.

  	
  25

  
	
   

  	
  3.8

  	
  Break Fund Payments

  	
  27

  
	
   

  	
  3.9

  	
  Priority of Payment.

  	
  27

  
	
   

  	
  3.10

  	
  Maximum Lawful Rate.

  	
  27

  
	
   

  	
  3.11

  	
  Capital Adequacy/Increased
  Cost.

  	
  28

  
	
   

  	
  3.12

  	
  Certain Waivers.

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV CONDITIONS

  	
  29

  
	
   

  	
  4.1

  	
  Conditions Precedent to
  Make Loans.

  	
  29

  
	
   

  	
  4.2

  	
  Conditions Precedent to
  each Advance.

  	
  33

  
	
   

  	
  4.3

  	
  Waiver.

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V REPRESENTATIONS
  AND WARRANTIES

  	
  34

  
	
   

  	
  5.1

  	
  Representations and
  Warranties.

  	
  34

  
	
   

  	
  5.2

  	
  Absolute Reliance on the
  Representations and Warranties.

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI ASSIGNMENTS;
  PARTICIPATIONS; LOST NOTES; REPLACEMENT OF LENDERS

  	
  40

  
	
   

  	
  6.1

  	
  Assignments.

  	
  40

  
	
   

  	
  6.2

  	
  Participations.

  	
  42

  
	
   

  	
  6.3

  	
  Replacement of Lost Notes.

  	
  43

  
	
   

  	
  6.4

  	
  Replacement of Lenders.

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII COVENANTS

  	
  44

  
	
   

  	
  7.1

  	
  Affirmative Covenants.

  	
  44

  
	
   

  	
  7.2

  	
  Negative Covenants.

  	
  49

  



 


ii

















 


	
   

  	
  7.3

  	
  Financial Covenants.

  	
  55

  	 

	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII EVENTS OF DEFAULT

  	
  57

  	 

	
   

  	
  8.1

  	
  Events of Default.

  	
  57

  	 

	
   

  	
  8.2

  	
  Consequences of Event of
  Default.

  	
  59

  
	
   

  	
  8.3

  	
  Security.

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX AGENT

  	
  61

  	 

	
   

  	
  9.1

  	
  Authorization and Action.

  	
  61

  	 

	
   

  	
  9.2

  	
  Delegation of Duties.

  	
  61

  
	
   

  	
  9.3

  	
  Exculpatory Provisions.

  	
  62

  
	
   

  	
  9.4

  	
  Reliance.

  	
  62

  
	
   

  	
  9.5

  	
  Non-Reliance on the Agent
  and Other Lenders.

  	
  62

  
	
   

  	
  9.6

  	
  No Liability of Lenders.

  	
  63

  
	
   

  	
  9.7

  	
  The Agent in its
  Individual Capacity.

  	
  63

  
	
   

  	
  9.8

  	
  Successor Agent.

  	
  63

  
	
   

  	
  9.9

  	
  Collections and
  Disbursements.

  	
  63

  
	
   

  	
  9.10

  	
  Reporting.

  	
  64

  
	
   

  	
  9.11

  	
  Consent of Lenders.

  	
  64

  
	
   

  	
  9.12

  	
  Indemnification.

  	
  65

  
	
   

  	
  9.13

  	
  Collateral Matters.

  	
  66

  
	
   

  	
  9.14

  	
  This Article Not
  Applicable to Loan Parties.

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X SUBORDINATION OF
  NOTES

  	
  66

  	 

	
   

  	
  10.1

  	
  General.

  	
  66

  	 

	
   

  	
  10.2

  	
  Default in Respect of
  Senior Notes.

  	
  66

  
	
   

  	
  10.3

  	
  Insolvency, Major Event of
  Default, etc.

  	
  67

  
	
   

  	
  10.4

  	
  Exercise of Remedies of
  Junior Lenders.

  	
  68

  
	
   

  	
  10.5

  	
  Proof of Claim.

  	
  69

  
	
   

  	
  10.6

  	
  Acceleration of Junior
  Loans.

  	
  69

  
	
   

  	
  10.7

  	
  Turnover of Payments.

  	
  69

  
	
   

  	
  10.8

  	
  No Prejudice or
  Impairment.

  	
  70

  
	
   

  	
  10.9

  	
  Subrogation.

  	
  70

  
	
   

  	
  10.10

  	
  Amendments.

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI MISCELLANEOUS

  	
  70

  	 

	
   

  	
  11.1

  	
  Successors and Assigns.

  	
  70

  	 

	
   

  	
  11.2

  	
  Modifications and
  Amendments.

  	
  71

  
	
   

  	
  11.3

  	
  No Implied Waivers;
  Cumulative Remedies; Writing Required.

  	
  71

  
	
   

  	
  11.4

  	
  Reimbursement of Expenses.

  	
  71

  
	
   

  	
  11.5

  	
  Holidays.

  	
  71

  
	
   

  	
  11.6

  	
  Notices.

  	
  71

  
	
   

  	
  11.7

  	
  Survival.

  	
  73

  
	
   

  	
  11.8

  	
  Governing Law.

  	
  73

  
	
   

  	
  11.9

  	
  Jurisdiction, Consent to
  Service of Process.

  	
  73

  
	
   

  	
  11.10

  	
  Jury Trial Waiver.

  	
  74

  
	
   

  	
  11.11

  	
  Severability.

  	
  75

  



 


iii

















 


	
   

  	
  11.12

  	
  Headings.

  	
  75

  
	
   

  	
  11.13

  	
  Indemnity.

  	
  75

  
	
   

  	
  11.14

  	
  Environmental Indemnity.

  	
  75

  
	
   

  	
  11.15

  	
  Marshaling; Payments Set
  Aside.

  	
  76

  
	
   

  	
  11.16

  	
  Nonliability of Lenders.

  	
  77

  
	
   

  	
  11.17

  	
  Counterparts.

  	
  77

  
	
   

  	
  11.18

  	
  Integration.

  	
  77

  
	
   

  	
  11.19

  	
  Confidentiality.

  	
  77

  



 


	
  ANNEXES

  	
   

  
	
  Annex
  A

  	
   

  	
  Lenders
  and Payment Information

  	
   

  
	
  Annex
  B

  	
   

  	
  Permitted
  Acquisition Conditions Precedent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EBITDA
  Schedule

  	
  (Section 1.1)

  	
   

  
	
  Card
  Issuer Agreements

  	
  (Section 1.3)

  	
   

  
	
  Terminated
  Indebtedness Schedule

  	
  (Section 4.1(q))

  	
   

  
	
  Organizational
  Schedule

  	
  (Section 5.1(a))

  	
   

  
	
  Consents
  Schedule

  	
  (Section 5.1(f))

  	
   

  
	
  Litigation
  Schedule

  	
  (Section 5.1(j))

  	
   

  
	
  Environmental
  Schedule

  	
  (Section 5.1(l))

  	
   

  
	
  Properties
  Schedule

  	
  (Section 5.1(q))

  	
   

  
	
  Intellectual
  Property Schedule

  	
  (Section 5.1(r))

  	
   

  
	
  Deposit
  Accounts Schedule

  	
  (Section 5.1(v)

  	
   

  
	
  Post-Closing
  Schedule

  	
  (Section 7.1(m))

  	
   

  
	
  Permitted
  Indebtedness Schedule

  	
  (Section 7.2(a))

  	
   

  
	
  Permitted
  Liens Schedule

  	
  (Section 7.2(b))

  	
   

  
	
  Permitted
  Investments Schedule

  	
  (Section 7.2(h))

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  
	
  Exhibit
  A-1

  	
  Form of Senior Term A Note

  	
   

  
	
  Exhibit
  A-2

  	
  Form of Senior Term B Note

  	
   

  
	
  Exhibit
  A-3

  	
  Form of
  Junior Term C Note

  	
   

  
	
  Exhibit
  A-4

  	
  Form of
  Junior Term D Note

  	
   

  
	
  Exhibit
  A-5

  	
  Form of
  Revolving Facility Note

  	
   

  
	
  Exhibit
  B-1

  	
  Form of Pledge Agreement

  	
   

  
	
  Exhibit
  B-2

  	
  Form of Security Agreement

  	
   

  
	
  Exhibit
  C

  	
  Form of IP Security Agreement

  	
   

  
	
  Exhibit
  D

  	
  Form of Guaranty

  	
   

  
	
  Exhibit
  E

  	
  Form of Management Fee Subordination
  Agreement

  	
   

  
	
  Exhibit
  F

  	
  Form of Assignment of Representations

  	
   

  
	
  Exhibit
  G

  	
  Form of Compliance Certificate

  	
   

  
	
  Exhibit
  H

  	
  Form of Assignment Agreement

  	
   

  
	
  Exhibit
  I

  	
  Form of Closing Checklist

  	
   

  
					



 


iv

















 


CREDIT AGREEMENT


 


$3,000,000 Revolving
Loan Facility Maturing December 31, 2012


 


$18,750,000
Aggregate Principal Amount of

Senior Secured Term A Loans

Due December 31, 2012


 


$18,750,000
Aggregate Principal Amount of

Senior Secured Term B Loans

Due December 31, 2012


 


$18,750,000
Aggregate Principal Amount of

Junior Secured Term C Loans

Due December 31, 2012


 


$18,750,000
Aggregate Principal Amount of

Junior Secured Term D Loans

Due December 31, 2012


 


THIS CREDIT
AGREEMENT (this “Agreement”), dated as of October 30, 2006, is by
and among CCCI Holdings, Inc., a Delaware corporation (“Parent”),
DeMarseCo Holdings, Inc., a Delaware corporation (the “Borrower” and,
collectively with Parent, each a “Loan Party” and collectively the “Loan
Parties”), the lenders that are now and hereafter at any time parties
hereto and are listed in Annex A (or any amendment or supplement
thereto, which Annex A will be deemed amended upon the consummation of
any assignment consummated in accordance with the terms hereof) attached hereto
(each a “Lender” and collectively, the “Lenders”), and AMERICAN
CAPITAL FINANCIAL SERVICES, INC., a Delaware corporation (“ACFS”), as
administrative and collateral agent for the Lenders (in such capacity, “Agent”).
Capitalized terms used and not defined elsewhere in this Agreement are defined
in Article I hereof.


 


RECITALS


 


A.            The Borrower desires
that the Lenders extend credit in the form of (a) Senior Term A Loans on
the Closing Date in an aggregate principal amount of $18,750,000, (b) Senior
Term B Loans on the Closing Date in an aggregate principal amount of
$18,750,000, (c) Junior Term C Loans in an aggregate principal amount of
$18,750,000, (d) Junior Term D Loans on the Closing Date in an aggregate
principal amount of $18,750,000, and (e) revolving loans at any time and
from time to time during the Revolving Facility Term in an aggregate principal
amount at any time outstanding not in excess of $3,000,000, all in connection
with (i) the acquisition by Borrower from Sellers of substantially all of
the assets, certain executory contracts and certain liabilities of the Sellers
as set forth in the Acquisition Agreement (the “Acquisition”), and (ii) the
financing of the working capital expenses of the Loan Parties subsequent to the
Acquisition.


 


B.            The Lenders are
willing to extend such credit to the Borrower for the account of the Borrower
on the terms and subject to the conditions set forth herein.


 


C.            Borrower has agreed
to secure all of its obligations under this Agreement and the other Transaction
Documents by granting to the Agent, for the benefit of the Lenders, a Lien on


 

















 


substantially all of its assets, including a pledge of all of the
Capital Stock of each of its Subsidiaries (except that the Loan Parties shall
not be required to pledge more than 65% of the outstanding voting Capital Stock
of any Foreign Subsidiary) pursuant to the terms and provisions of the
applicable Security Documents; and


 


D.            Parent has agreed to
guarantee the obligations of Borrower under this Agreement and the other
Transaction Documents and to secure the respective obligations under this
Agreement and the other Transaction Documents by granting to the Agent, for the
benefit of the Lenders, a Lien on substantially all of their respective assets,
including a pledge of all of the Capital Stock of each of their respective
Subsidiaries (except that the Loan Parties shall not be required to pledge more
than 65% of the outstanding voting Capital Stock of any Foreign Subsidiary)
pursuant to the terms and provisions of the applicable Security Documents.


 


NOW, THEREFORE, the
parties hereto, in consideration of the premises and their mutual covenants and
agreements herein set forth and intending to be legally bound hereby, covenant
and agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


1.1           Certain
Definitions.


 


In addition to other
words and terms defined elsewhere in this Agreement, the following words and
terms shall have the meanings set forth below:


 


“ACAS” means
American Capital Strategies, Ltd., a Delaware corporation.


 


“ACFS” has
the meaning assigned to such term in the preamble hereto.


 


“Acquisition”
has the meaning assigned to such term in the recitals hereto.


 


“Acquisition
Agreement” means Asset Purchase Agreement by and among Borrower, Target and
Target Partners (each as defined therein), dated as of the Closing Date.


 


“Adjusted EBITDA”
means, for any period, the sum of EBITDA for such period plus, to the extent a
Permitted Acquisition has been consummated during such period, Pro Forma EBITDA
attributable to such Permitted Acquisition (but only that portion of Pro Forma
EBITDA attributable to the portion of such period that occurred prior to the
date of consummation of such Permitted Acquisition).


 


“Advance” has
the meaning assigned to such term in Section 2.3 hereof.


 


“Affiliate”
means with respect to any Person, any other Person that is directly or
indirectly controlling, controlled by or under common control with such Person
or entity or any of its Subsidiaries, and the term “control” (including the
terms “controlled by” and “under common control with”) means having, directly
or indirectly, the power to direct or cause the direction of the management or
policies of a Person, whether through ownership of voting


 


2

















 


securities, the ability to exercise voting power, or by contract or
otherwise. Without limiting the foregoing, the ownership of ten percent (10%)
or more of the voting securities of a Person shall be deemed to constitute
control and notwithstanding anything to the contrary herein, no Lender, the
Agent, nor any of their respective Affiliates shall be deemed to be an
Affiliate of the Loan Parties by virtue of the Transactions. Notwithstanding
the foregoing, no portfolio company of ACAS other than a Loan Party shall be
deemed an Affiliate of any Loan Party.


 


“Agent” has
the meaning assigned to such term in the preamble hereto and any successor
agent provided for hereunder.


 


“Agreement”
means this Credit Agreement, as the same may be amended, restated, supplemented
or otherwise modified from time to time.


 


“Annual
Statements” has the meaning assigned to such term in Section 5.1(c)(i)
hereof.


 


“Assignment
Agreement” has the meaning assigned to such term in Section 6.1 hereof.


 


“Assignment
of Representations” has the meaning assigned to such term in Section 4.1(k)
hereof.


 


“Blocking
Notice” means a written notice from Agent to the Junior Lenders pursuant to
which such Lenders are notified of a Senior Loan Payment Default.


 


“Borrower”
has the meaning assigned to such term in the preamble hereto.


 


“Borrowing Date”
has the meaning assigned to such term in Section 2.5(a) hereof.


 


“Business”
means the principal business of the Loan Parties as set forth in Section 5.1(b)
hereof.


 


“Business Day”
means any day other than a Saturday, Sunday or other day on which banking
institutions in Maryland are authorized or required by law to close.


 


“Card Issuer
Agreement” means the agreements set forth on Schedule 1.3 hereto between
Borrower and any credit card issuer, as amended, modified or supplemented from
time to time.


 


“Capital
Expenditures” means for any period of determination capital expenditures of
the Loan Parties for such period determined and consolidated in accordance with
GAAP, excluding (a) expenditures made to fund the purchase price for assets
acquired in Permitted Acquisitions and (b) expenditures made in connection
with the replacement, substitution or restoration of assets to the extent
financed with insurance proceeds, cash awards arising from a taking by eminent
domain or condemnation or cash proceeds of asset dispositions reinvested in
replacement assets.


 


“Capital Stock”
means (a) with respect to any Person that is a corporation, any and all shares,
interests or equivalents in capital stock (whether voting or nonvoting, and
whether common or preferred) of such corporation, and (b) with respect to any
Person that is not a corporation, any and all partnership, membership, limited
liability company or other equity


 


3

















 


interests of such person (including all economic, voting and other
rights related thereto); and in each case, any and all warrants, rights or
options to purchase any of the foregoing.


 


“Capitalized
Leases” means, with respect to any Person, leases of (or other agreements
conveying the right to use) any property (whether real, personal or mixed) by
such Person as lessee that, in accordance with GAAP, either would be required
to be classified and accounted for as capital leases on a balance sheet of such
Person or would otherwise be disclosed as such in a note to such balance sheet.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. § 9604, et  seq.), as amended from time to time,
and rules, regulations, standards guidelines and publications in each case
issued by a Governmental Authority from time to time thereunder.


 


“Change of
Control” means the occurrence of any of the following:


 


(a)           any
transaction or series of related transactions resulting in the sale or issuance
of securities or any rights to securities of Parent or any transaction or
series of related transactions resulting in the sale, transfer, assignment or
other conveyance or disposition of any securities or any rights to securities
of Parent, in each case, as a result of which the Persons who were holders of
one hundred percent (100%) of the voting securities of Parent immediately prior
to such transaction or series of transactions as a result of such transaction
or series of transactions hold less than fifty percent (50%) of the issued and
outstanding voting securities of Parent, on a fully diluted basis;


 


(b)           a merger,
consolidation, reorganization, recapitalization or share exchange (whether or
not Parent is the surviving and continuing entity) in which the stockholders or
equityholders of Parent immediately prior to such transaction receive, in
exchange for securities of Parent owned by them (whether alone or together with
cash, property or other securities), cash, property or securities of the resulting
or surviving entity and as a result thereof Persons who were holders of voting
securities of Parent immediately prior to such transaction hold less than fifty
percent (50%) of the issued and outstanding Capital Stock, calculated on a
fully diluted basis, of the resulting or surviving entity entitled to vote in
the election of directors, managers or similar governing body or otherwise;


 


(c)           the
failure of the Parent to own and control, directly or indirectly, through one
or more wholly-owned Subsidiaries, one hundred percent (100%) of the issued and
outstanding Capital Stock of the Borrower and any other of its respective
Subsidiaries;


 


(d)           the
initial Public Offering of securities by any Loan Party other than an offering
of securities for an employee benefit plan on SEC Form S-8 or a successor form;


 


(e)           the
Equity Investors and their Affiliates, taken together, shall cease to directly
or indirectly own and control more than fifty percent (50%) of the outstanding
voting securities of the Parent, on a fully-diluted basis, necessary at all
times to elect a majority of the board of directors (or similar governing body)
of the Parent and to direct the management policies and decisions of the
Borrower; or


 


4

















 


(f)            Elisabeth
DeMarse ceases to be employed as the Chief Executive Officer of Borrower or
otherwise dies or becomes disabled and, in any case, shall not have been
replaced by a replacement Person reasonably satisfactory to Agent within one
hundred twenty (120) calendar days, or any such replacement Person ceases to be
employed as the Chief Executive Officer otherwise dies or becomes disabled
unless replaced in the same time period and with an individual having similar
experience and qualifications as the Person being replaced or otherwise reasonably
satisfactory to Agent;


 


“Charter
Documents” means the articles of incorporation, certificate of
incorporation, certificate of limited partnership, certificate of limited
liability company, charter or analogous organic instrument filed with the
appropriate Governmental Authorities of each of the Loan Parties, as
applicable, including all amendments and supplements thereto.


 


“Closing” has
the meaning assigned to such term in Section 2.2 hereof.


 


“Closing Date”
means the first date on which any Loan is made is issued as finally determined
pursuant to Section 2.2 hereof.


 


“Code” means
the Internal Revenue Code of 1986, as amended from time to time, and rules,
regulations, standards, guidelines and publications, in each case issued by a
Governmental Authority from time to time thereunder.


 


“Collateral”
has the meaning assigned to such term in the Security Agreement.


 


“Condition”
means any condition that results in or otherwise relates to any Environmental
Liabilities.


 


“Controlled Group”
means the “controlled group of corporations” as that term is defined in Section
1563 of the Code, of which the Loan Parties are a part from time to time.


 


“Covered Taxes”
has the meaning assigned to such term in Section 3.7 hereof.


 


“Currency Hedging
Agreement” means any currency swap agreement, cap agreement, collar
agreement or other currency hedging agreement or arrangement.


 


“Default”
means any event or condition that, but for the giving of notice or the lapse of
time, or both, would constitute an Event of Default.


 


“Disposition”
means, as to any asset or right of any Loan Party, (a) any sale, lease,
assignment or other transfer (other than to a Loan Party), (b) any loss,
destruction or damage thereof or (c) any actual condemnation, confiscation,
requisition, seizure or taking thereof, in each case excluding
(i) Dispositions in any Fiscal Year, the Net Cash Proceeds of which do not
in the aggregate exceed $500,000, (ii) the sale or other transfer of
inventory in the ordinary course of business, (iii) dispositions of cash
and cash equivalents, (iv) transfers between Loan Parties not prohibited
herein, (v) any licenses or sublicenses of intellectual property in the
ordinary course of business, and (vi) the sale or other transfer of investments
expressly permitted by Section 7.2(h).


 


5

















 


“EBITDA”
means for any period, the Loan Parties’ Net Income for such period (adjusted
for and specifically excluding extraordinary gains or extraordinary losses and
gains or losses from the sale of securities, the extinguishment of debt or the sales
of assets, other than sales in the ordinary course of business), plus
(a) without duplication and to the extent deducted in determining such Net
Income, the sum of (i) interest expense for such period, (ii) income and
franchise tax expense for such period, (iii) depreciation expenses and
amortization expenses for such period, (iv) Management Fees paid in
accordance with Section 7.2(g) below for such period, (v) Transaction
Costs incurred on or about the Closing Date not to exceed $1,250,000, (vi) all
non-recurring charges and expenses of Parent unrelated to the Acquisition
incurred and paid prior to the Closing Date, (vii) other non-recurring
charges and expenses not to exceed $500,000 and explicitly itemized in the most
recent financial statement delivered to Agent pursuant to this Agreement, and minus
(b) (i) without duplication and to the extent included in determining
such Net Income, interest income, and (ii) non-recurring revenue or gains related
to the Business, all determined on a consolidated basis in accordance with GAAP.
For purposes of this Agreement, EBITDA for the Loan Parties (i) for each month
from September 30, 2005 through August 31, 2006 shall be deemed to be the
amounts set forth on the “EBITDA Schedule,” attached hereto as Schedule 1.1
for each such month and (ii) for the month ending September 30, 2006 and
October 31, 2006, shall be deemed to be the amount of actual EBITDA of the
Sellers for each month, as approved by Agent.


 


“Eligible Assignee” shall mean:


 


(A) with respect to any Loan, (i) Agent,
(ii) an Affiliate of Agent, (iii) a Lender holding all or a portion
of any Loan as of the Closing Date, (iv) an Affiliate of a Lender holding all
or a portion of any Loan on the Closing Date, (v) any assignee pursuant to any
pledge or collateral assignment or other assignment of a Loan or a part thereof
to a third party lender or other financing source for Agent, any Lender holding
all or a portion of any Loan as of the Closing Date or any of their respective
Affiliates, (vi) any
foreclosure, deed in lieu of foreclosure or other exercise of rights or
remedies by a pledgee or assignee under clause (v) (including any agent
therefor) whereby a Loan (or part thereof) is further sold, assigned or
conveyed, (vii) each and every subsequent sale, assignment or conveyance of a Loan
(or a part thereof) by or to any Person following any event described in clause
(vi), or (viii) any other Person that is an “accredited investor” (as defined
in Regulation D under the Securities Act) to whom Borrower consents, such
consent not to be unreasonably withheld, conditioned or delayed;


 


(B) with respect to any Loans, any other Person so
long as such Person enters into an agreement with Agent which provides that
Agent shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement or to
otherwise exercise any voting rights of a holder of Notes under this Agreement
or any of the Transaction Documents; or


 


(C) with respect to Revolving Facility Note,
any other Person with Borrower’s consent, such consent not to be
unreasonably withheld, conditioned or delayed (except upon the occurrence
and during the continuation of a Major Event of Default, in which case
such consent shall not be required).


 


6

















 


“Employment
Agreements” has the meaning assigned to such term in Section 4.1(o) hereof.


 


“Enforcement
Action” shall mean any action to enforce or attempt to enforce any right or
remedy available to any Junior Lender with respect to the Collateral pledged
pursuant to the Transaction Documents, any applicable law, or otherwise,
including any action taken by Agent or any Junior Lender to (a) repossess,
replevy, attach, garnish, levy upon, collect the proceeds of, foreclose or
realize its Lien upon, sell, liquidate or otherwise dispose of, or otherwise
restrict or interfere with the use of, any Collateral, whether by judicial
action, under power of sale, by self-help repossession, by set-off, by
notification to account obligors of any Loan Party, or otherwise, or (b)
commence or pursue any judicial, arbitral or other proceeding or legal action
of any kind seeking injunctive or other equitable relief to prohibit, limit or
impair the commencement or pursuit by Agent or any Senior Lender of any of
their respective rights or remedies with respect to the Collateral under or in
connection with the Transaction Documents or otherwise available to any Senior
Lender under applicable Law with respect to the Collateral; provided, however, “Enforcement
Action” shall not include (a) any Unsecured Remedies, (b) making any argument,
or filing any objection, motion or other pleading to preserve or protect a Lien
on Collateral, (c) taking action, not adverse to the priority of the Lien
securing the Senior Loans or in contravention of this Agreement, in order to
create, perfect, preserve or protect the Lien securing the Junior Loans, or (d)
the taking of any action any Lender to exercise any rights relating to any
equity securities held by such Lender (i.e., exercising any warrants,
converting convertible preferred stock, etc.).


 


“Environmental
Laws” means any Laws that address, are related to or are otherwise
concerned with environmental issues (and health or safety issues related
thereto), including any Laws relating to any emissions, releases or discharges
of Pollutants into ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, handling, clean-up or control of
Pollutants or any exposure or impact on worker health and safety.


 


“Environmental
Liabilities” means any obligations or liabilities (including any claims,
suits or other assertions of obligations or liabilities) that are:


 


(a)           related
to environmental issues (and health or safety issues related thereto)
(including on-site or off-site contamination by Pollutants of surface or
subsurface soil or water, and occupational safety and health); and


 


(b)           based
upon or related to (i) any provision of past, present or future United
States or foreign Environmental Law (including CERCLA and RCRA) or common law,
or (ii) any judgment, order, writ, decree, permit or injunction imposed by
any court, administrative agency, tribunal or otherwise.


 


The term “Environmental
Liabilities” includes: 
(i) fines, penalties, judgments, awards, settlements, losses,
damages (including foreseeable and unforeseeable consequential damages), costs,
fees (including attorneys’ and consultants’ fees), expenses and disbursements;
(ii) defense and other responses to any administrative or judicial action
(including claims, notice letters, 


 


7

















 


complaints, and
other assertions of liability); and (iii) financial responsibility for
(1) cleanup costs and injunctive relief, including any Removal, Remedial
or other Response actions, and natural resource damages, and (2) any other
compliance or remedial measures.


 


“Equity Investors” shall
mean the Sponsor or its Affiliates (or any employees, officers, directors,
partners or managers thereof).


 


“ERISA” means
the Employee Retirement Income Security Act of 1974, as amended from time to
time, and rules, regulations, standards, guidelines and publications, in each
case issued by a Governmental Authority from time to time thereunder.


 


“ERISA Affiliate”
means any Person that is treated as under common control or as a single
employer or as a member of an affiliated service group with a Loan Party and
its Subsidiaries under Section 414(b), (c), (m) or (o) of the Code.


 


“Event of Default”
means any of the events of default described in Section 8.1 hereof.


 


“Excess Cash Flow”
means, for any period, the following, calculated for the Loan Parties on a
consolidated basis, in accordance with GAAP: 
(a) EBITDA for such period, minus (b) the sum of
(i) Capital Expenditures (exclusive of Capital Expenditures financed
during such period under Capitalized Leases or other Indebtedness) made by the
Loan Parties during such period in cash, to the extent permitted hereunder;
(ii) scheduled principal payments made by the Loan Parties with respect to
Indebtedness during such period; (iii) amounts paid in cash by the Loan
Parties during such period for income and franchise taxes and interest;
(iv) increases in working capital of the Loan Parties during such period;
(v) Management Fees paid in cash in accordance with Section 7.2(g)(B)
during such period, and (vi) non-cash income to the extent included in the
calculation of Net Income,  plus
(c) decreases in working capital of the Loan Parties during such period, plus
(d) non-cash expenses to the extent included in the calculation of Net Income.


 


“Executive
Officers” means any executive officer or manager of any Loan Party.


 


“Fee Letter”
means that certain fee letter dated as of the date hereof, among Parent,
Borrower and the Agent.


 


“Financial
Projections” has the meaning assigned to such term in Section 5.1(c)(ii)
hereof.


 


“Financial
Statements” has the meaning assigned to such term in Section 5.1(c) hereof.


 


“Financing
Statements” has the meaning assigned to such term in Section 4.1(g)
hereof.


 


“Fiscal Year”
or “fiscal year” means each twelve (12) month period ending on
December 31 of each year.


 


“Fixed Charges”
means, for any period, and each calculated for such period (without
duplication) on a consolidated basis, (a) cash interest expense of the
Loan Parties; plus (b) scheduled payments of principal with respect
to all Indebtedness of the Loan Parties; plus (c) cash payment of
income or franchise taxes included in the determination of Net Income, 


 


8

















 


excluding any provision for deferred taxes; plus
(d) payment of deferred taxes accrued in any prior period; plus (e)
Management Fees paid in cash in accordance with Section 7.2(g); (provided
that for the first three Measurement Dates following the Closing Date, each
item set forth above shall be calculated for each applicable Measurement Period
from the Closing Date and then annualized).


 


“Fixed Charges
Coverage Ratio” means for a particular Measurement Period, the ratio of (a)
EBITDA minus Capital Expenditures (exclusive of Capital Expenditures
financed during such period under Capitalized Leases or other Indebtedness), to
(b) Fixed Charges, in each case of the Loan Parties on a consolidated basis
during such Measurement Period (provided that for the first three
Measurement Dates following the Closing Date, Capital Expenditures shall be calculated
for each Measurement Period from the Closing Date and then annualized).


 


“Foreign
Subsidiary” means any Subsidiary organized under the laws of any
jurisdiction outside the United States of America.


 


“GAAP” has
the meaning assigned to such term in Section 1.2 hereof.


 


“Governmental
Authorities” means any federal, state or municipal court or other
executive, legislative or judicial governmental department, commission, board,
bureau, agency or instrumentality, governmental or quasi-governmental, domestic
or foreign.


 


“Guarantor”
means Parent and any other Person who guaranties the Indebtedness under this
Agreement (other than Borrower).


 


“Guaranty”
means any guaranty of the payment or performance of any Indebtedness or other
obligation and any other arrangement whereby credit is extended to one obligor
on the basis of any promise of another Person, whether that promise is
expressed in terms of an obligation to pay the Indebtedness of such obligor, or
to purchase an obligation owed by such obligor, or to purchase goods and
services from such obligor pursuant to a take-or-pay contract, or to maintain
the capital, working capital, solvency or general financial condition of such
obligor, whether or not any such arrangement is reflected on the balance sheet
of such other Person, or referred to in a footnote thereto, but shall not
include endorsements of items for collection in the ordinary course of business
and shall not include ordinary course of business indemnification provisions
and customary indemnification provisions set forth in asset acquisition or
disposition documents. For the purpose of all computations made under this
Agreement, the amount of a Guaranty in respect of any obligation shall be
deemed to be equal to the maximum aggregate amount of such obligation or, if
the Guaranty is limited to less than the full amount of such obligation, the
maximum aggregate potential liability under the terms of the Guaranty.


 


“Indebtedness”
means, for any Person at the time of any determination, without duplication,
all obligations, contingent or otherwise, of such Person that, in accordance
with GAAP, should be classified upon the balance sheet of such Person as
indebtedness, but in any event including:  (a) all obligations for
borrowed money, (b) all obligations arising from installment purchases of
property or representing the deferred purchase price of property or services in
respect of which such Person is liable, contingently or otherwise, as obligor or



 


9

















 


otherwise (other than trade payables and other current liabilities
incurred in the ordinary course of business on terms customary in the trade),
(c) all obligations evidenced by notes, bonds, debentures, acceptances or
instruments, or arising out of letters of credit or bankers’ acceptances issued
for such Person’s account, (d) all obligations, whether or not assumed, secured
by any Lien or payable out of the proceeds or production from any property or
assets now or hereafter owned or acquired by such Person (but only up to the
value of such property or assets), (e) all obligations for which such
Person is obligated pursuant to a Guaranty, (f) the capitalized portion of
lease obligations under Capitalized Leases, (g) all obligations for which
such Person is obligated pursuant to any Interest Rate Protection Agreement,
Currency Hedging Agreement or other derivative agreements or arrangements, and
(h) all obligations of such Person upon which interest charges are customarily
paid or accrued.


 


“Interest Rate
Protection Agreement” means any interest rate swap, interest rate cap,
interest rate collar or other interest rate hedging agreement or arrangement.


 


“Interim
Statements” has the meaning assigned to such term in Section 5.1(c)(i)
hereof.


 


“Investment”
as applied to any Person means the amount paid or agreed to be paid or loaned,
advanced or contributed to other Persons, and in any event shall include (a)
any direct or indirect purchase or other acquisition of any notes, obligations,
instruments, stock, securities or ownership interest (including partnership and
membership interests and joint venture interests) and (b) any capital
contribution to any other Person.


 


“IP Security
Agreement” has the meaning assigned to such term in Section 4.1(g)
hereof.


 


“Junior Lenders”
means, collectively the Junior Term C Lenders and the Junior Term D Lenders.


 


“Junior Loans”
means all Indebtedness, obligations and liabilities under or relating to the
Junior Notes.


 


“Junior Notes”
has the meaning assigned to such term in Section 2.1 hereof.


 


“Junior Term C
Lenders” means a lender of a Junior Term C Loan.


 


“Junior Term C
Loans” means all Indebtedness, obligations and liabilities under or
relating to the Junior Term C Notes.


 


“Junior Term C
Notes” has the meaning assigned to such term in Section 2.1 hereof.


 


“Junior Term D
Lenders” means a lender of a Junior Term D Loan.


 


“Junior Term D
Loans” means all Indebtedness, obligations and liabilities under or
relating to the Junior Term D Notes.


 


“Key Management”
means Elisabeth DeMarse.


 


10

















 


“Knowledge”
shall mean the actual knowledge of John Durrett, Elisabeth DeMarse, David Lack,
Philip Siegel and/or Craig Milius after due inquiry.


 


“Laws” means
all U.S. and foreign federal, state or local statutes, laws, rules,
regulations, ordinances, codes, policies, rules of common law, and the like,
now or hereafter in effect, including any judicial or administrative
interpretations thereof, and any judicial or administrative orders, consents,
decrees or judgments.


 


“Lenders” has
the meaning assigned to such term in the preamble hereto, together with their
successors and assigns.


 


“Lien” means
any lien, security interest, pledge, bailment, mortgage, hypothecation, deed of
trust, conditional sales and title retention agreement (including any lease in
the nature thereof), charge, encumbrance or other similar arrangement or
interest in real or personal property, now owned or hereafter acquired, whether
such interest is based on common law, statute or contract.


 


“Life Insurance”
means that certain paid life insurance policy issued by a carrier reasonably
acceptable to the Agent insuring, for a period from 90 days after the Closing
Date through December 31, 2012, the life of Key Management, in an amount
equal to $5,500,000, and a collateral assignment thereof assigning such life
insurance policy to the Agent, in form and substance acceptable to the Agent.


 


“Loan” means
any loan made by any Lender pursuant to this Agreement.


 


“Loan Parties”
has the meaning assigned to such term in the preamble hereto.


 


“Major Event of
Default” means the occurrence of an Event of Default described in
Section 8.1(a), with respect to the payment of principal or interest under
the Notes, (g) or (h) hereof.


 


“Manage” and “Management”
means generation, production, handling, distribution, processing, use, storage,
treatment, operation, transportation, recycling, reuse and/or disposal, as
those terms are defined in CERCLA, RCRA and other Environmental Laws (including
as those terms are further defined, construed, or otherwise used in rules,
regulations, standards, guidelines and publications issued pursuant to, or
otherwise in implementation of, such Environmental Laws).


 


“Management
Agreement” means that certain management agreement between the Loan Parties
and Sponsor dated as of the date hereof.


 


“Management Fees”
has the meaning assigned to such term in Section 7.2(g)(B).


 


“Management Fee
Subordination Agreement” has the meaning assigned to such term in Section
4.1(n).


 


“Material Adverse
Effect” means a material adverse effect on (a) the business, assets,
operations, financial condition of the Borrower and its Subsidiaries, taken as
a whole, (b) the legality, validity or enforceability of any Transaction
Document, (c) the perfection or priority of 


 


11

















 


the Liens granted on a portion of the Collateral with a book value of
which is greater than 10% of the total amount of Collateral pursuant to the
Security Documents, (d) the ability of any Loan Party to perform any of
its respective material obligations under the Transaction Documents or
(e) the rights and remedies of the Agent, the Lenders or the Issuing
Lenders under the Transaction Documents taken as a whole.


 


“Measurement Date”
has the meaning assigned to such term in Section 7.3(a).


 


“Measurement
Period” means the twelve (12) month period ending on a Measurement Date.


 


“Moody’s” has
the meaning assigned to such term in Section 7.2(h) hereof.


 


“Multiemployer
Plan” means a multiemployer plan (within the meaning of Section 3(37) of
ERISA) that is maintained for the benefit of the employees of the Loan Parties
or any member of the Controlled Group.


 


“Net Cash
Proceeds” means:


 


(a)           with respect to any
Disposition, the aggregate cash proceeds (including cash proceeds received
pursuant to policies of insurance and by way of deferred payment of principal
pursuant to a note, installment receivable or otherwise, but only as and when
received) received by any Loan Party pursuant to such Disposition net of
(i) the reasonable direct costs relating to such Disposition (including
sales commissions and legal, accounting and investment banking fees,
commissions and expenses), (ii) any portion of such proceeds deposited in
an escrow account pursuant to the documentation relating to such Disposition (provided
that such amounts shall be treated as Net Cash Proceeds upon their release from
such escrow account to any Loan Party), (iii) taxes paid or reasonably
estimated by any Loan Party to be payable as a result thereof (after taking
into account any available tax credits or deductions and any tax sharing
arrangements), (iv) amounts required to be applied to the repayment of any
Indebtedness secured by a Lien prior to the Lien of the Agent on the asset
subject to such Disposition and (v) all money actually applied within one
hundred eighty (180) days to reinvest in productive assets of the Business or
to repair, replace or reconstruct damaged property or property affected by
loss, destruction, damage, condemnation, confiscation, requisition, seizure or
taking, all of the costs and expenses reasonably incurred in connection with
the collection of such proceeds, award or other payments, and any amounts
retained by or paid to parties having superior rights to such proceeds, awards
or other payments; and


 


(b)           with respect to any
issuance of equity securities (excluding proceeds from the issuance of equity
securities on the Closing Date, proceeds from the issuance of equity securities
to members of the management of any Loan Party or to Sponsor or its Affiliates
(or any employees, officers, directors, partners or managers thereof), proceeds
of the issuance of the equity securities to the Borrower or any of its
wholly-owned Subsidiaries, proceeds of the issuance of equity securities used
solely to finance Capital Expenditures solely to the extent permitted by
Section 7.3(b), and proceeds from the issuance of equity securities that are
used to consummate a Permitted Acquisition), the aggregate cash proceeds
received, directly or 


 


12

















 


indirectly, by any
Loan Party pursuant to such issuance, net of the reasonable direct costs
relating to such issuance (including reasonable sales and underwriter’s
commission).


 


“Net Debt to
Adjusted EBITDA Ratio” means the ratio of (a) all Indebtedness of the Loan
Parties on a consolidated basis, as of a particular Measurement Date, less
unencumbered cash on hand not subject to any Lien (excluding Permitted Liens
described in Sections 7.2(b)(i) through (viii), (x) and (xi)) and all cash equivalents
set forth in Section 7.2(h)(i), (ii), (iii), (iv) and (v) to (b) the Adjusted
EBITDA for the Measurement Period ending on such Measurement Date.


 


“NETFINITI
Business” shall mean the proposed affiliate marketing business of the Loan
Parties as described in the offering materials provided to Agent prior to the
Closing Date.


 


“Net Income”
means, for any period, the net income (or loss) of the Loan Parties on a
consolidated basis for such period, after deduction of all expenses, taxes and
other proper charges, determined in accordance with GAAP, for such period taken
as a single accounting period; provided that there shall be excluded (a)
the income of any Person (other than the Borrower and each of its Subsidiaries);
except to the extent of the amount of cash dividends and other cash
distributions actually paid to the Borrower or any of its Subsidiaries during
such period, and (b) the income or loss of any Person accrued prior to the date
it becomes a Subsidiary or is merged into or consolidated with the Borrower or
any Subsidiary or the date that such Person’s assets are acquired by the
Borrower or any Subsidiary.


 


“Notes”
means, collectively, the Revolving Facility Notes, the Senior Term A Notes, the
Senior Term B Notes, the Junior Term C Notes and the Junior Term D Notes.


 


“Notice of
Borrowing” has the meaning assigned to such term in Section 2.5(a)
hereof.


 


“Organization
Documents” means the by-laws, partnership agreement, operating agreement,
limited liability company agreement or other comparable document of any Loan
Party, including all amendments and supplements thereto.


 


“Other Taxes”
has the meaning assigned to such term in Section 3.7 hereof.


 


“Parent” has
the meaning assigned to such term in the preamble hereto.


 


“Patriot Act”
has the meaning assigned to such term in Section 5.1(w) hereof.


 


“PBGC” means
the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title IV of ERISA, or any other Governmental Authority succeeding to the functions
thereof.


 


“Permitted
Acquisition” means any acquisition (a) by a Loan Party of all or
substantially all of the assets of a Person, of all or substantially all of any
business or division of a Person or any domain name or other intellectual
property of a Person, or (b) by a Loan Party of no less than 100% of
the Capital Stock, of any Person (upon merger or otherwise), in each case to
the extent that each of the conditions precedent set forth in Annex B shall
have been satisfied in a manner satisfactory to the Agent.


 


13

















 


“Permitted Liens”
has the meaning assigned to such term Section 7.2(b) hereof.


 


“Person”
means any individual, partnership, limited partnership, corporation, limited
liability company, association, joint stock company, trust, joint venture,
unincorporated organization or governmental entity or department, agency or
political subdivision thereof.


 


“Plan” means
any employee benefit plan (within the meaning of Section 3(3) of ERISA), other
than a Multiemployer Plan, established or maintained by any of the Loan Parties
or any member of the Controlled Group.


 


“Pledge Agreement”
has the meaning assigned to such term in Section 4.1(f) hereof.


 


“Pollutant”
includes any “hazardous substance” and any “pollutant or contaminant” as those
terms are defined in CERCLA; any “hazardous waste” as that term is defined in
RCRA; and any “hazardous material” as that term is defined in the Hazardous
Materials Transportation Act (49 U.S.C. § 1801 et  seq.), as
amended (including as those terms are further defined, construed, or otherwise
used in rules, regulations, standards, guidelines and publications issued
pursuant to, or otherwise in implementation of, said Environmental Laws); and
including any petroleum product or byproduct, solvent, flammable or explosive
material, radioactive material, asbestos, polychlorinated biphenyls (PCBs),
dioxins, dibenzofurans, heavy metals, and radon gas; and including any other
substance or material that is reasonably determined to present a threat, hazard
or risk to human health or the environment.


 


“Proceeding”
shall mean any (a) insolvency, bankruptcy, receivership, custodianship,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to any Loan Party or any of their respective properties,
whether under any bankruptcy, reorganization or insolvency law or laws, federal
or state, or any law, federal or state, relating to relief of debtors,
readjustment of indebtedness, reorganization, composition or extension, (b)
proceeding for any liquidation, liquidating distribution, dissolution or other
winding up of any Loan Party, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings, (c) assignment for the benefit
of creditors of any Loan Party or (d) other marshaling of the assets of any
Loan Party.


 


“Pro Forma EBITDA”
means, with respect to any Target acquired in a Permitted Acquisition, EBITDA
for such Target for the most recent twelve (12) month period for which financial
statements are made available to the Agent prior to the consummation of the
Permitted Acquisition, adjusted by extraordinary expenses, increased costs,
identifiable and verifiable expense reductions and excess management
compensation, if any, in each case calculated by the Borrower and approved by
the Agent in its reasonable discretion.


 


“Properties and
Facilities” has the meaning assigned to such term in Section 5.1(q) hereof.


 


“Proprietary
Rights” means all patents, trademarks, trade names, service marks, Internet
domain names, copyrights, rights of publicity and privacy, inventions,
production methods, licenses, formulas, know-how and trade secrets, regardless
of whether such are registered with any Governmental Authorities, including
applications therefor.


 


14

















 


“Public Offering”
means any sale of Capital Stock to the public pursuant to an offering
registered under the Securities Act or to the public effected through a broker,
dealer or market maker pursuant to the provisions of Rule 144 under the
Securities Act.


 


“RCRA” means
the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et  seq.),
as amended and all rules, regulations, standards, guidelines, and
publications issued thereunder.


 


“Related Fund”
means (a) any fund, trust or similar entity that invests in commercial
loans in the ordinary course of business and is advised or managed by
(i) a Lender, (ii) an Affiliate of a Lender, (iii) the same
investment advisor that manages a Lender of (iv) an Affiliate of an
investment advisor that manages a Lender or (b) any finance company,
insurance company or other financial institution which temporarily warehouses
loans for any Lender or any Person described in clause (a) above.


 


“Release”
means any releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, depositing, or disposing
into the indoor or outdoor environment, or into or out of any property,
including the abandonment or discarding of barrels, containers and other
receptacles containing any Pollutant.


 


“Removal,” “Remedial”
and “Response” actions include the types of activities covered by
CERCLA, RCRA, and other comparable Environmental Laws, and whether the
activities are those that might be taken by a Governmental Authority or those
that a Governmental Authority or any other Person might seek to require of
waste generators, handlers, distributors, processors, users, storers, treaters,
owners, operators, transporters, recyclers, reusers, disposers, or other
Persons under “removal,” “remedial,” or other “response” actions.


 


“Reorganization
Subordination Securities” shall mean any debt or equity securities of any
Loan Party or any other Person that are distributed to any Lender in respect of
(i) the Junior Term D Loans that, in the case of debt securities, are
subordinate and junior in right of payment to the Junior Term C Loans, the
Senior Term B Loans and the Senior Term A Loans (or subordinate and junior in
right of payment to any debt securities issued in substitution of all or any
portion of the Junior Term C Loans, the Senior Term B Loans and the Senior Term
A Loans) to at least the same extent as the Junior Term D Loans is subordinated
to the Junior Term C Loans, the Senior Term B Loans and the Senior Term A Loans
under this Agreement, (ii) the Junior Term C Loans that, in the case of debt
securities, are subordinate and junior in right of payment to the Senior Term B
Loans and the Senior Term A Loans (or subordinate and junior in right of
payment to any debt securities issued in substitution of all or any portion of
the Senior Term B Loans and the Senior Term A Loans) to at least the same
extent as the Junior Term C Loans is subordinated to the Senior Term B Loans
and the Senior Term A Loans under this Agreement or (iii) the Senior Term B
Loans that, in the case of debt securities, are subordinate and junior in right
of payment to the Senior Term A Loans (or subordinate and junior in right of
payment to any debt securities issued in substitution of all or any portion of
the Senior Term A Loans) to at least the same extent as the Senior Term B Loans
is subordinated to the Senior Term A Loans under this Agreement.


 


15

















 


“Reportable Event”
means any “reportable event” under Section 4043(c) of ERISA and the regulations
promulgated thereunder, other than an occurrence for which the thirty (30) day
notice contained in 29 C.F.R. § 2615.3(a) is waived.


 


“Required Lenders”
means, at any time, the Lenders holding a percentage of the Revolving Facility
Commitment (or, if the Revolving Facility has terminated, the sum of the outstanding
principal amount of the Revolving Facility) and the outstanding principal
amount of the Senior Term A Loans, the Senior Term B Loans, the Junior Term C
Loans and the Junior Term D Loans aggregating at least sixty-six and two-thirds
percent (66-2⁄3%), at such time.


 


“Revolving
Facility” has the meaning assigned to such term in Section 2.3 hereof.


 


“Revolving
Facility Commitment” has the meaning assigned to such term in
Section 2.3 hereof.


 


“Revolving
Facility Notes” has the meaning assigned to such term in Section 2.3
hereof.


 


“Revolving
Facility Term” means the period commencing on the Closing Date and ending
on the earlier of (a) December 31, 2012 and (b) the repayment in
full of the Revolving Facility Notes and the termination of the Lenders’
commitment to make Advances thereunder in accordance with the terms of this
Agreement.


 


“S&P” has
the meaning assigned to such term in Section 7.2(h) hereof.


 


“SEC” means
the Securities and Exchange Commission and any Governmental Authority
succeeding to the functions thereof.


 


“Securities Act”
means the Securities Act of 1933, as amended.


 


“Securitization”
means a public or private offering by a Lender or any of its direct or indirect
Affiliates or their respective successors and assigns, of securities which
represent an interest in, or which are collateralized, in whole or in part, by
the Loans and Transaction Documents.


 


“Security
Agreement” has the meaning assigned to such term in Section 4.1(f) hereof.


 


“Security
Documents” means the Pledge Agreement, the Security Agreement, the IP
Security Agreement, the Financing Statements, the Website Host Waiver and
Consent, the Assignment of Representations, the collateral assignment of Life
Insurance and all other mortgages, security agreements, documents, instruments
and other materials necessary to create or perfect any Lien upon the assets of
any Loan Party.


 


“Seller(s)” shall
mean the Target (as defined in the Acquisition Agreement).


 


“Senior Loans”
means the Indebtedness and other obligations under or relating to the Senior
Notes.


 


16

















 


“Senior Lenders”
means, collectively, the Senior Term A Lenders and the Senior Term B
Lenders.


 


 “Senior Loan Payment Default” has the
meaning assigned to such term in Section 10.2(a).


 


“Senior Notes”
has the meaning assigned to such term in Section 2.1 hereof.


 


“Senior
Term A Lenders” means a lender of a Senior Term A Loan.


 


“Senior Term A
Loans” means the Indebtedness and other obligations under or relating to
the Senior Term A Notes.


 


“Senior Term A
Notes” has the meaning assigned to such term in Section 2.1 hereof.


 


“Senior
Term B Lenders” means a lender of a Senior Term B Loan.


 


“Senior Term B
Loans” means the Indebtedness and other obligations under or relating to
the Senior Term B Notes.


 


“Senior Term B
Notes” has the meaning assigned to such term in Section 2.1 hereof.


 


“Side Letter”
shall mean that certain side letter between Agent and Borrower, dated as of the
date hereof.


 


“Significant
Event of Default” means an Event of Default described in Sections 8.1(a); 8.1(d);
8.1(e) (solely due to a breach of Sections 7.1(b)(iv), 7.1(d), 7.1(e)(i) or
7.1(e)(ii)); 8.1(g) and/or 8.1(h).


 


“Stockholders
Agreement” shall mean that certain stockholders agreement by and among
Parent and each of its stockholders dated on or about the Closing Date, as the
same may be amended, modified or supplemented and in effect from time to time.


 


“Sponsor”
shall mean, collectively, Austin Ventures VIII, L.P., a Delaware limited
partnership, and Austin Ventures IX, L.P., a Delaware limited partnership.


 


“Subsidiary”
means, with respect to any Person, (a) any corporation (or similar entity under
foreign Law) of which an aggregate of more than fifty percent (50%) of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the board of directors (or equivalent body) of such corporation (irrespective
of whether, at the time, Capital Stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time, directly or indirectly, owned legally or
beneficially by such Person or one or more Subsidiaries of such Person, or with
respect to which any such Person has the right to vote or designate the vote of
fifty percent (50%) or more of such Capital Stock whether by proxy, agreement,
operation of law or otherwise, and (b) any partnership, limited liability
company, association, joint venture, trust or other entity in which such Person
and/or one or more Subsidiaries of such Person shall have an interest (whether
in the form of voting or participation in profits or capital contribution) of
more than fifty percent (50%) or of 


 


17

















 


which any such Person is a general partner or may exercise the powers
of a general partner. Unless the context otherwise requires, each reference to
a Subsidiary shall be a reference to a Subsidiary of the Borrower.


 


“Target”
means the Person, or business or substantially all of the assets of a Person,
acquired in an acquisition.


 


“Taxes” has
the meaning assigned to such term in Section 3.7 hereof.


 


“Term Loan”
shall mean any Senior Loans or Junior Loans made pursuant to this Agreement.


 


“Transaction
Costs” means the one-time costs and expenses of the Loan Parties related to
the Transactions.


 


“Transaction
Documents” means this Agreement, the Notes, each Guaranty, the Security
Documents, the Fee Letter, the Management Fee Subordination Agreement, any
other subordination or intercreditor agreement entered into by the Agent, on
behalf of the Lenders, with the holders of other Indebtedness of any Loan
Party, and all other agreements, instruments and documents delivered from time
to time in connection herewith and therewith as any or all of the foregoing may
be supplemented or amended from time to time.


 


“Transactions”
means the establishment of term loans, the incurrence of debt in connection
therewith and the issuance of notes, as contemplated by this Agreement, the
Notes, the Security Documents and all other Transaction Documents.


 


“UST” means
an underground storage tank, including as that term is defined, construed and
otherwise used in RCRA and in rules, regulations, standards, guidelines and
publications issued pursuant to RCRA and comparable state and local Laws.


 


“Unsecured
Remedies” means (a) filing of any claim or statement of interest, or voting
any claim or interest, in any Proceeding, (b) declaring or joining in the
declaration of the Junior Loans to be due and payable or otherwise accelerating
the maturity of the principal or any other portion of the Junior Loans, (c)
commencing any administrative, legal or equitable action against any of the
Loan Parties, including an involuntary petition commencing a Proceeding, and
(d) defending or otherwise contesting any attempt to object to or disallow any
portion of the Junior Loans.


 


“Website Host Waiver
and Consent” shall mean that certain Website Host Waiver and Consent dated
on or about the Closing Date, between Borrower’s website host, Borrower and
Agent.


 


1.2           Accounting
Principles.


 


The character or
amount of any asset, liability, capital account or reserve and of any item of
income or expense to be determined, and any consolidation or other accounting
computation to be made, and the construction of any definition containing a
financial term, pursuant to this Agreement shall be determined or made in
accordance with generally accepted accounting 


 


18

















 


principles in the United States of America consistently applied (“GAAP”),
unless such principles are inconsistent with the express requirements of this
Agreement. All amounts used for purposes of financial calculations required to
be made herein shall be without duplication. If at any time any change in GAAP
would affect the computation of any financial ratio or financial requirement
set forth in any Transaction Document, and either the Borrower or the Required
Lenders shall so request, the Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended,
(a) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (b) the Borrower shall provide
to the Agent and the Lenders financial statements and other documents required
under this Agreement which include a reconciliation between calculations of
such ratio or requirement made before and after giving effect to such change in
GAAP.


 


1.3           Other
Definitional Provisions; Construction.


 


Whenever the context
so requires, neuter gender includes the masculine and feminine, the singular
number includes the plural and vice versa. The word “including,” “includes” or
similar variation when used herein means “including without limitation” unless
the context states otherwise. The words “hereof,” “herein” and “hereunder” and words
of similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and references
to any section, article, annex, schedule, exhibit or like references are
references to this Agreement unless otherwise specified. A Default or Event of
Default shall “continue” or be “continuing” until such Default or Event of
Default has been cured or waived by the Agent and the Lenders (to the extent
required herein). References in this Agreement to any Persons shall include
such Persons, successors and permitted assigns. References to any statute or
act shall include all related current regulations and all amendments and any
successor statutes, acts and regulations. References to any agreement, instrument
or document shall include all schedules, exhibits, annexes and other
attachments thereto. Other terms contained in this Agreement (which are not
otherwise specifically defined herein) have meanings provided to such terms in
Article 9 of the Maryland Uniform Commercial Code on the date hereof to the
extent the same are used or defined therein.


 


ARTICLE II


 


TERM LOANS


 


2.1           Term
Loans.


 


Subject to the terms
and conditions set forth in this Agreement and in reliance upon the
representations, warranties and agreements set forth herein, the Lenders shall
make:


 


(a)           loans
(the “Senior Term A Loans”) to the Borrower on the Closing Date in an
aggregate amount equal to $18,750,000, which loans made by a Lender shall be,
requested by such Lender, evidenced by the Borrower’s Senior Secured Term A
Notes, to be substantially in the form of the promissory note attached hereto
as Exhibit A-1 (including any promissory notes 


 


19

















 


issued in
substitution therefor pursuant to the terms of this Agreement, the “Senior
Term A Notes”).


 


(b)           loans
(the “Senior Term B Loans”) to the Borrower on the Closing Date in an
aggregate amount equal to $18,750,000, which loans made by a Lender shall be,
if requested by such Lender, evidenced by the Borrower’s Senior Secured Term B
Notes, to be substantially in the form of the promissory note attached hereto
as Exhibit A-2 (including any promissory notes issued in substitution
therefor pursuant to the terms of this Agreement, the “Senior Term B Notes”,
and together with the Senior Term A Notes, the “Senior Notes”).


 


(c)           loans
(the “Junior Term C Loans”) to the Borrower on the Closing Date in an
aggregate amount equal to $18,750,000, which loans made by a Lender shall be,
if requested by such Lender, evidenced by the Borrower’s Junior Secured Term C
Notes, to be substantially in the form of the promissory note attached hereto
as Exhibit A-3 (including any promissory notes issued in substitution
therefor pursuant to the terms of this Agreement, the “Junior Term C Notes”).


 


(d)           loans
(the “Junior Term D Loans”) to the Borrower on the Closing Date in an
aggregate amount equal to $18,750,000, which loans made by a Lender shall be,
if requested by such Lender, evidenced by the Borrower’s Junior Secured Term D
Notes, to be substantially in the form of the promissory note attached hereto
as Exhibit A-4 (including any promissory notes issued in substitution
therefor pursuant to the terms of this Agreement, the “Junior Term D Notes”).


 


Each Lender shall be obligated to make loans
pursuant to the preceding paragraphs, in an amount equal to the pro rata
portion of the applicable loans to be made by each Lender as set forth on Annex
A attached hereto.


 


2.2           The
Closing.


 


The initial Loans
hereunder (the “Closing”) shall be made at the offices of DLA Piper US
LLP at 1221 S. Mopac Expressway, Suite 400, Austin, Texas  78746, on October 30, 2006 or at such
place or by such method or on such other date as may be mutually agreeable to
the Loan Parties and the Lenders. The date and time of the Closing as finally
determined pursuant to this Section 2.2 are referred to herein as the “Closing
Date.”  The making of the Loans less
any unpaid fees due and owing on the Closing Date pursuant to the Fee Letter
and any other unpaid amounts payable pursuant to Section 4.1(t) hereof, shall
be made by wire transfer of immediately available funds in the manner agreed to
by the Borrower and the Agent. The Notes, if any, shall be issued in such name
or names and in such permitted denomination or denominations as set forth on Annex A
attached hereto or as the Lenders may request in writing not less than two (2)
Business Days before the Closing Date.


 


2.3           The
Revolving Facility.


 


Subject to the terms
and conditions set forth in this Agreement and in reliance upon the
representations, warranties and agreements set forth herein, the Lenders with a
revolving loan commitment shall on a pro rata basis as set forth on Annex A
attached hereto make loans and 


 


20

















 


advances (each such loan or advance individually, an “Advance”
and collectively, the “Advances”) to the Borrower under a secured
revolving line of credit (the “Revolving Facility”) from time to time,
but for so long as ACFS is the Agent not more frequently than once a week,
during the Revolving Facility Term; provided that notwithstanding any
other provision of this Agreement, the aggregate amount of all Advances at any
one time outstanding under the Revolving Facility shall not exceed $3,000,000
(the “Revolving Facility Commitment”). This Revolving Facility is a
revolving credit facility, which may be drawn, repaid and redrawn, from time to
time during the Revolving Facility Term as permitted under this Agreement. All
Advances made by a Lender under the Revolving Facility shall be, if requested
by such Lender, evidenced by a single promissory note made by the Borrower in
favor of the Lenders substantially in the form of the promissory note attached
hereto as Exhibit A-5 (including any promissory notes issued in
substitution therefor, the “Revolving Facility Notes”).


 


2.4           Advances.


 


(a)           Except as
otherwise permitted by the Agent from time to time and as provided for in
subsection (b) below, each Advance shall be in an amount of at least $100,000.


 


(b)           Any
amounts, even if less than $100,000, paid by the Agent or any Lender on behalf
of any Loan Party under and in accordance with any Transaction Document shall
be deemed an “Advance.”  Any such Advance
shall constitute a borrowing by the Borrower under the Revolving Facility for
all purposes of this Agreement.


 


2.5           Revolving
Facility Disbursements.


 


(a)           The Loan
Parties may deliver by facsimile or other means set forth in Section 11.6
to the Agent irrevocable written notice (a “Notice of Borrowing”)
requesting an Advance under the Revolving Facility, which notice shall (i)
specify the proposed borrowing date of such requested Advance (the “Borrowing
Date”) which shall be a Business Day, (ii) specify the principal amount of
such requested Advance, and (iii) certify the matters contained in Section
4.2(b) and (c). A Notice of Borrowing shall be delivered no later than 12:00
noon (Eastern Standard Time) at least two (2) Business Days, or such fewer days
as the Agent in its sole discretion may allow, but not more than four (4)
Business Days, before the proposed Borrowing Date of such requested Advance. No
Advance shall be made if it would cause the aggregate outstanding amount of
Advances to exceed the Revolving Facility Commitment. The Agent and the Lenders
shall be entitled to rely conclusively on any Executive Officer’s authority to
deliver a written notice requesting an Advance on behalf of the Borrower and
neither the Agent nor any Lender shall have any duty to verify the identity of
or signature of any Person identifying himself as an Executive Officer of the
Borrower.


 


(b)           On each
Borrowing Date, the Borrower irrevocably authorizes the Lenders to disburse the
proceeds of the requested Advance to the Borrower’s account provided to the
Agent in writing prior to the initial Advance, for credit to the Borrower (or
to such other account as to which the Borrower shall instruct the Lenders) via
Federal funds wire transfer no later than 4:00 p.m. (Eastern Standard Time).


 


21

















 


(c)           The Agent
shall enter all Advances under the Revolving Facility as debits to a loan
account in the name of the Borrower and shall also record in said loan account
all payments paid to the Agent by the Borrower in respect of the obligations
hereunder, and may record therein, in accordance with customary accounting
practice, other debits and credits, including interest and all charges and
expenses properly chargeable to the Loan Parties pursuant to the Transaction
Documents; provided that the failure of the Agent to make any such
recordation shall not affect the obligations of the Borrower to make payments
when due of any amounts owing in respect of the Revolving Facility and Advances
made pursuant to the Transaction Documents.


 


2.6           Several
Commitments.


 


The failure of any
Lender to make its pro rata share of any requested loan or advance on any date
shall not relieve any other Lender of its obligation, if any, to make its pro
rata share of any such loan or Advance on such date.


 


ARTICLE III


 


INTEREST;
REPAYMENT OF THE NOTES; TAXES; FEES


 


3.1           Interest
Rates and Interest Payments.


 


(a)           ACFS
is the Agent. For so long as ACFS is the Agent, the
Borrower covenants and agrees to make payments of interest to the Agent, for
the ratable benefit of the respective Lenders, of accrued interest on the
outstanding principal amount of the Loans, as set forth in this Section 3.1(a).


 


(i)            The
Revolving Facility will bear interest on the outstanding principal amount of
each Advance thereunder from the applicable Borrowing Date thereof at an annual
rate equal to a fixed rate of interest equal to 11.4% per annum.


 


(ii)           The
Senior Term A Loans will bear interest on the outstanding principal amount
thereof at a fixed rate of interest equal to 10.9% per annum.


 


(iii)          The Senior
Term B Loans will bear interest on the outstanding principal amount
thereof at a fixed rate of interest equal to 11.15% per annum.


 


(iv)          The Junior
Term C Loans will bear interest on the outstanding principal amount
thereof at a fixed rate of interest equal to 11.65% per annum.


 


(v)           The
Junior Term D Loans will bear interest on the outstanding principal amount
thereof at a fixed rate of interest equal to 11.90% per annum.


 


(b)           Interest
Payment Dates. Accrued interest shall be payable in
cash on the first (1st) Business Day of each calendar month, commencing on
December 1, 2006 (for the period from the Closing Date through December 1,
2006) and at maturity. After maturity and at any time an Event of Default
exists, all accrued interest on all loans shall be payable in cash on demand at
the rates specified in Section 8.2(c).


 


22

















 


(c)           Computation
of Interest. Interest shall be computed for the actual
number of days elapsed on the basis of a year of three hundred sixty (360)
days.


 


3.2           Scheduled
Repayment of the Loans.


 


The Borrower
covenants and agrees to repay to the Agent, for the ratable benefit of the
respective Lenders, the unpaid principal balance of the Loans in full, together
with all accrued and unpaid interest, fees and other amounts due hereunder as
set forth in this Section 3.2.


 


(a)           The
Revolving Facility shall be repaid on December 31, 2012.


 


(b)           The Loans
shall be repaid in quarterly payments payable on the first (1st) Business Day
of each January, April, July and October, commencing on January 1, 2007
and ending on and including December 31, 2012 in the aggregate amounts for
each such quarterly payment set forth opposite the applicable period as
follows:


 


	
  Periods

  	
   

  	
  Aggregate

  Quarterly Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  January 1, 2007 and each quarter thereafter

  	
   

  	
  $

  	
  187,500

  	
   

  
					



 


and, thereafter, one
(1) final payment of the principal amount as is then outstanding, together
with all accrued and unpaid interest thereon, and other Indebtedness owing to
any Lender, on December 31, 2012.


 


3.3           Optional
Prepayment of Loans.


 


Subject to the terms
of this Section 3.3, the Borrower may prepay to the Agent, for the ratable
benefit of the respective Lenders, the outstanding principal amount of the Term
Loans, in whole or in part in multiples of $100,000, or such lesser amount as
is then outstanding, together with the accrued but unpaid interest, if any, on
the principal amount so prepaid, plus a prepayment penalty, if applicable,
representing the amortization of certain of Lenders’ costs incurred in
connection with the purchase of such Term Loans equal to the principal amount
so prepaid multiplied by the following percentage:


 


	
  If Prepaid During the
  12-Month Period Ending on

  October    of the Following Years:

  	
   

  	
  Percentage

  	
   

  
	
  2007

  	
   

  	
  2

  	
  %

  
	
  2008

  	
   

  	
  1

  	
  %

  



 


; provided that no prepayment fee shall be due or payable on the
aggregate principal amount of the Term Loans repaid up to $45,000,000 (whether
paid pursuant to Sections 3.2, 3.3 or 3.5 hereof).


 


All such prepayments shall be applied by the
Agent in the manner set forth in Section 3.8. Notwithstanding Sections
3.5(a) and (b) below, if any mandatory prepayment occurs during the 


 


23

















 


continuance of a Major Event of Default or
results in or causes a Major Event of Default, then the provisions of
Section 10.3 shall apply.


 


3.4           Notice
of Optional Prepayment.


 


If the Borrower
shall elect to prepay any Term Loans pursuant to Section 3.3 hereof, the
Borrower shall give notice of such prepayment to the Agent not less than five
(5) days or more than ninety (90) days prior to the date fixed for prepayment,
specifying (a) the date on which such prepayment is to be made (which date
must be a Business Day), (b) the principal amount of each such tranche of Term
Loans to be prepaid on such date and (c) the prepayment premium, if any, and
accrued interest applicable to the prepayment. Such notice shall be accompanied
by a certificate of an Executive Officer and of the chief financial officer of
the Borrower that such prepayment is being made in compliance with
Section 3.3.


 


3.5           Mandatory
Prepayment.


 


(a)           The
Borrower shall (x) prepay the Term Loans until paid in full and
(y) thereafter repay Advances under the Revolving Facility, at the
following times and in the following amounts:


 


(i)            Within
five (5) Business Days of the receipt by any Loan Party of any Net Cash
Proceeds from any Disposition, in an amount equal to such Net Cash Proceeds (it
being understood that amounts being held for application pursuant to the
provisions of clause (v) of paragraph (a) of the definition of the term “Net
Cash Proceeds” shall not be required to be used to make any prepayment
hereunder unless such Net Cash Proceeds are not so applied within the period
described in such clause (v));


 


(ii)           Within
five (5) Business Days of the receipt by any Loan Party of any Net Cash
Proceeds from any issuance of its equity securities, pursuant to which and the
extent to which the Loan Parties receive Net Cash Proceeds in an amount equal
to such Net Cash Proceeds;


 


(iii)          Within
five (5) Business Days of the receipt by any Loan Party of any net proceeds
from any Life Insurance in excess of $500,000 (which such Loan Party shall be
entitled to retain and apply to costs, expenses and compensation paid to or in
connection with the recruitment and hiring of a replacement chief executive
officer), in an amount equal to such net proceeds; and


 


(iv)          Within fifteen
(15) Business Days after delivery of the annual financial statements pursuant
to Section 7.1(e)(i) (but in no event more than 135 days after the end of each
Fiscal Year) (commencing with Fiscal Year 2006), in an amount equal to seventy-five
percent (75%) of Excess Cash Flow for such Fiscal Year; provided that
for the Fiscal Year ending December 31, 2006, Excess Cash Flow shall be
calculated for the period from the Closing Date to December 31, 2006, as
reduced by any optional prepayments of the Loans pursuant to Section 3.4 during
such period.


 


24





















 


(b)           Advances
under the Revolving Facility shall be prepaid (immediately, without the
necessity of any demand, and whether or not a Default or Event of Default has
occurred) in an amount as shall be necessary at any time so that the aggregate
amount of Advances under the Revolving Facility outstanding at any time does
not exceed the Revolving Facility Commitment.


 


(c)           Any
prepayment of the Loans pursuant to this Section 3.5 shall be applied in
accordance with Section 3.8 as if such prepayment were an optional prepayment,
provided that any prepayment pursuant to Section 3.5(a)(i) (solely
with respect to Net Cash Proceeds from insurance proceeds not reinvested as
described in clause (v) of Subsection (a) of the definition of Net Cash
Proceeds), Section 3.5(a)(iii) or Section 3.5(a)(iv) shall not be subject to a
prepayment premium. Notwithstanding
Section 3.5(a) above, if any mandatory prepayment occurs during the
continuance of a Major Event of Default or results in or causes a Major
Event of Default, then the provisions of Section 10.3 shall apply.


 


3.6           Home
Office Payment.


 


The Borrower will
pay all sums becoming due on such Loan for principal, premium, if any, and
interest to the Agent by the method and at the address specified for such
purpose in Annex A attached hereto, or by such other method or at such
other address as the Lenders shall have from time to time specified to the
Borrower in writing for such purpose, without the presentation or surrender of
any Note or the making of any notation thereon, except that upon written
request of the Borrower made concurrently with or reasonably promptly after
payment or prepayment in full of any Loan, each Lender shall surrender the
Note, if any, for cancellation, reasonably promptly after such request, to the
Borrower at its principal executive office.


 


3.7           Taxes.


 


(a)           Any and
all payments by the Loan Parties hereunder or under the Loans or other
Transaction Documents that are made to or for the benefit of the Agent and the
Lenders shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings and
penalties, interests and all other liabilities with respect thereto
(collectively, “Taxes”), excluding Taxes imposed on the Agent’s or the
Lenders’ net income or capital and franchise taxes imposed on any of them by
the jurisdiction under the Laws of which any of them is organized or any
political subdivision thereof (all such nonexcluded Taxes being hereinafter
referred to as “Covered Taxes”). If any of the Loan Parties shall be
required by law to deduct any Covered Taxes from or in respect of any sum
payable hereunder or under any Loan or Transaction Document to the Agent for
the benefit of the Lenders, or to the Lenders, the sum payable shall be increased
as may be necessary so that after making all required deductions of Covered
Taxes (including deductions of Covered Taxes applicable to additional sums
payable under this paragraph), each Lender receives an amount equal to the sum
it would have received had no such deductions been made. The Loan Parties shall
make such deductions and the Loan Parties shall pay the full amount so deducted
to the relevant Governmental Authority in accordance with applicable Law. In
addition, the Loan Parties agree to pay any present or future stamp,
documentary, excise, privilege, intangible or similar levies that arise at any
time or from time to time from any payment made under any and all Transaction
Documents or from the execution or delivery by the Loan Parties or from the
filing or recording or maintenance of, or otherwise with respect to the
exercise by the Agent or 


 


25





















 


the Lenders of
their respective rights under any and all Transaction Documents (collectively, “Other
Taxes”). Subject to Section 3.7(c) below, the Loan Parties will indemnify
the Agent and the Lenders for the full amount of Covered Taxes imposed on or
with respect to amounts payable hereunder and Other Taxes, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payment of this indemnification shall be made within thirty (30) days
from the date the Agent or the Lenders provide the Borrower with a certificate
certifying and setting forth in reasonable detail the calculation thereof as to
the amount and type of such Taxes. The Borrower shall have the right to receive
that portion of any refund of any Taxes and Other Taxes received by a Lender
for which the Borrower has previously paid any additional amount or indemnified
such Lender and which leaves the Lender, after the Borrower’s receipt thereof,
in no better or worse financial position than if no such Taxes or Other Taxes
had been imposed or additional amounts or indemnification paid to the Lender
and, at the request of the Borrower, each Lender shall make a claim for any
refund of any Taxes or Other Taxes. Any such certificates submitted by the
Agent or the Lenders in good faith to the Borrower shall, absent manifest
error, be final, conclusive and binding on all parties. The obligation of the
Loan Parties under this Section 3.7 shall survive the payment of the Loans
and the termination of this Agreement. Within thirty (30) days after the Loan
Parties having received a receipt for payment of Covered Taxes and/or Other
Taxes, the Loan Parties shall furnish to the Agent, the original or certified
copy of a receipt evidencing payment thereof.


 


(b)           Each
Lender that (i) is organized under the laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia,
and (ii)(A) is a party hereto on the Closing Date or (B) becomes an
assignee of an interest under this Agreement under Section 6.1 after the
Closing Date (unless such Lender was already a Lender hereunder immediately
prior to such assignment) shall execute and deliver to the Borrower and the
Agent one or more (as the Borrower or the Agent may reasonably request) Forms W-8ECI,
W-8BEN, W-8IMY (as applicable) or other applicable form, certificate or
document prescribed by the United States Internal Revenue Service certifying as
to such Lender’s entitlement to exemption from withholding or deduction of
Taxes. The Borrower shall not be required to pay additional amounts to any
Lender pursuant to this Section 3.7 to the extent that the obligation to pay
such additional amounts would not have arisen but for the failure of such
Lender to comply with this paragraph.


 


(c)           To the
extent such lending office already acts as the designated lending office for
such Lender with other borrowers, each Lender shall use commercially reasonable
efforts to change its applicable lending office by designating a different
lending office to avoid the imposition of any withholding tax subject to this
Section 3.7. The Borrower shall not be required to indemnify any Lender or to
pay any additional amounts to any Lender, in respect of withholding tax to the
extent that (i) the obligation to withhold amounts with respect to such
withholding tax existed on the date such Lender became a party to this
Agreement or, with respect to payments to a new designated lending office, the
date such Lender designated such new lending office with respect to the Loans,
or (ii) the obligation to pay such additional amounts would not have arisen but
for a failure by such Lender to comply with the provisions of paragraph (b)
above or (iii) such Lender is treated as a “conduit entity” within the meaning
of U.S. Treasury Regulations Section 1.881-3 or any successor provision.


 


26





















 


3.8           Break
Fund Payments


 


In the event of the
payment of any principal of any Loan other than on the date such payment was
scheduled pursuant to Section 3.2 hereof or the due date for mandatory
prepayments pursuant to Section 3.5 hereof (including payments as a result
of an Event of Default), the Borrower shall compensate each Lender, upon demand
(which demand shall be accompanied by a statement setting forth the basis for
the amount being claimed, a copy of which shall be furnished to the Agent), for
the net loss, cost and expense attributable to such event (including any net
loss, cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds of such Lender).


 


3.9           Priority
of Payment.


 


All payments
received pursuant to Sections 3.3, 3.4 or 3.5 shall be
applied by the Agent in the following manner:


 


First, all reasonable
out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the
Agent in connection with enforcing the rights of the Lenders under the
Transaction Documents, including all court costs (whether at trial, appellate
or administrative levels) of the Agent and its agents, representatives, and
attorneys incurred in connection with the sale or with the retaking, holding,
handling, preparing for sale (or other disposition) of the Collateral and all
other fees and expenses incurred by the Agent for which it is entitled to
payment or reimbursement pursuant to Section 11.4 hereof or pursuant to any
other Transaction Document;


 


Second, all fees and expenses
for which the Lenders are entitled to payment or reimbursement pursuant to the
provisions of Section 3.8 and/or 11.4 hereof or pursuant to any other
Transaction Document (including under any Interest Rate Protection Agreement
and Currency Hedging Agreement owing to any Lender);


 


Third, any prepayment
premium that would be applicable in connection with the Notes pro rata if such
payment were a voluntary prepayment under Section 3.3;


 


Fourth, principal
outstanding under the Revolving Facility and all accrued and unpaid interest
due and owing to the Lenders pro rata;


 


Fifth, all principal outstanding
under the Notes pro rata; and


 


Sixth, all other obligations
owing to the Agent and the Lenders hereunder and under the other Transaction
Documents.


 


3.10         Maximum
Lawful Rate.


 


This Agreement, the
Notes and the other Transaction Documents are hereby limited by this Section 3.10.
In no event, whether by reason of acceleration of the maturity of the amounts
due hereunder or otherwise, shall interest and fees contracted for, charged,
received, paid or agreed to be paid to the Lenders exceed the maximum amount
permissible under such applicable Law. If, from any circumstance whatsoever,
interest and fees would otherwise be payable to the 


 


27

















 


Agent or the Lenders in excess of the maximum amount permissible under
applicable Law, the interest and fees shall at any time be reduced to the
maximum amount permitted under applicable Law. If from any circumstance, the
Agent or the Lenders shall have received anything of value deemed interest by
applicable Law in excess of the maximum lawful amount, an amount equal to any
excess of interest shall be applied to the reduction of the principal amount of
the Loans, in such manner as may be determined by the Agent, and not to the
payment of fees or interest, or if such excessive interest exceeds the unpaid
balance of the principal amount of the Loans, such excess shall be refunded to
the Loan Parties.


 


3.11         Capital
Adequacy/Increased Cost.


 


If, after the date
hereof, either the introduction of or any change of the interpretation of any Law
or the compliance by any Lender with any guideline or request from any Governmental
Authority (whether or not having the force of law) has or would have the effect
of reducing the rate of return on the capital or assets of any Lender, or
increasing the costs of such Lender, in either case as a consequence of, as
determined by the Agent or any Lender in its sole discretion, the existence of
any Lender’s obligations under this Agreement or any other Transaction
Documents, then, upon demand by such Lender, in reasonable detail setting forth
the aggregate amount of such additional amounts and the basis therefor, the
Borrower within five (5) Business Days of such demand shall pay to such Lender,
from the time not earlier than 90 days prior to the date of such demand as
specified by such Lender, additional amounts sufficient to compensate such
Lender in light of such circumstances. The obligations of the Borrower under
this Section 3.11 shall survive the payments of the Loans and the
termination of this Agreement.


 


3.12         Certain
Waivers.


 


Except as otherwise
provided for in this Agreement, the Borrower unconditionally waives (a) any
rights to presentment, demand, protest or (except as expressly required hereby)
notice of any kind, and (b) any rights of rescission, setoff, counterclaim
or defense to payment of the Loans in accordance with the terms of this
Agreement that the Borrower may have or claim against any Lender, the Agent or
any prior Lender or Agent, absent gross negligence or willful misconduct of
such Lender, the Agent or such prior Lender or Agent.


 


3.13         Payments.


 


Notwithstanding
anything to the contrary herein, in the event that the Borrower timely sent
required payments hereunder to the appropriate bank account designated by Agent
(in accordance with the terms hereof) using the appropriate wiring instructions
designated by Agent (in accordance with the terms hereof) and through no fault
of the Borrower such payments are not credited to such account within the time
period set forth herein, no payment default shall have occurred so long as
documentation reasonably acceptable to Agent of the above facts are promptly provided
to Agent upon Agent’s request.


 


28

















 


ARTICLE IV


 


CONDITIONS


 


4.1           Conditions
Precedent to Make Loans.


 


The obligation of
the Lenders to establish the Revolving Facility and to make Loans hereunder, is
subject to the satisfaction, prior to or at the Closing, of the following
conditions precedent:


 


(a)           Credit
Agreement. The Agent shall have received on or prior
to the Closing Date this Agreement, duly executed and delivered by Parent and
the Borrower.


 


(b)           Representations
and Warranties True. The representations and
warranties contained in Article V hereof shall be true and correct in all
material respects at and as of the Closing Date as though then made.


 


(c)           Material
Adverse Change. There will have been no change in the
business or financial condition of the Loan Parties since October 5, 2006 which
has had a Material Adverse Effect.


 


(d)           Completion
of the Acquisition. The Loan Parties shall have
executed definitive documentation with regard to the Acquisition, including the
Acquisition Agreement and the related documents contemplated therein, each in
form and substance satisfactory to the Agent, and all conditions precedent to
the consummation of the Acquisition shall have been satisfied and payment of
the purchase price shall occur simultaneously with the making of the Loans
hereunder.


 


(e)           Capitalization
of the Borrower and the Subsidiaries. The Agent shall
be satisfied with the equity capitalization of the Borrower and the
Subsidiaries following the Acquisition and shall have received a summary pro
forma capitalization table or other evidence detailing the equity ownership of
the Borrower following the Acquisition and (i) Sponsor and its Affiliates (and
employees, officers, directors, partners and members thereof) shall control and
own at least sixty percent (60%) of the Capital Stock of the Parent immediately
following the Acquisition and (ii) Parent shall control and directly or
indirectly own at least one hundred percent (100%) of the Capital Stock of Borrower
immediately following the Acquisition.


 


(f)            Security
Agreements. The Loan Parties and the Agent, for the
benefit of the Lenders, shall have entered into (i) (A) a pledge agreement,
with the Agent granting a Lien and security interest on all outstanding Capital
Stock of the Borrower and each of the direct or indirect Subsidiaries of the
Borrower  (except that the Loan Parties
shall not be required to pledge more than 65% of the outstanding voting Capital
Stock of any Foreign Subsidiary) in form and substance as set forth in Exhibit B-1
attached hereto (as the same may be amended, supplemented or otherwise modified



 


29





















 


from time to
time in accordance with the terms thereof, the “Pledge Agreement”) and
(B) a security agreement, with the Agent granting a Lien and security interest
on substantially all assets of Borrower and Parent, in form and substance as
set forth in Exhibit B-2 attached hereto (as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof, the “Security Agreement”); (ii) a
collateral patent, trademark, copyright and license security agreement in form
and substance as set forth in Exhibit C attached hereto (as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, the “IP Security Agreement”); and
(iii) a collateral assignment of all policies evidencing Life Insurance
maintained by the Loan Parties, in form and substance satisfactory to the
Agent.


 


(g)           Financing
Statements. The Loan Parties shall have authorized the
Agent, for the benefit of the Lenders, to prepare and file such financing
statements and other instruments (collectively, “Financing Statements”)
as the Agent shall require in order to perfect and maintain the continued
perfection of the first priority security interest (subject to Permitted Liens)
created by the Pledge Agreement, the Security Agreement, the IP Security
Agreement and the other applicable Transaction Documents and the Loan Parties hereby
authorize the Agent to prepare and file such Financing Statements.


 


(h)           Search
Results; Lien Terminations. The Agent shall have
received search reports of filings with appropriate government agencies, dated
a date within 15 days of the Closing Date, showing that there are no Liens on
the assets of the Loan Parties (in each case, under their present names or any
previous names) other than Permitted Liens and other than those with respect to
which the Loan Parties have delivered to the Agent executed UCC-3 termination
statements or similar termination statements. The Loan Parties shall deliver
such other UCC-3 or other termination statements as the Agent may reasonably
request.


 


(i)            Guaranty. Parent and each Guarantor shall have executed and delivered to the
Agent a guaranty in favor of the Agent and the Lenders in respect of the
obligations under this Agreement, the Notes and the other Transaction Documents
in form and substance as set forth in Exhibit D attached hereto
(the “Guaranty”).


 


(j)            Deposit
Account Control Agreements. The Loan Parties shall
have delivered to the Agent such deposit account control agreements each in
form and substance satisfactory to the Agent, as the Agent may request with
respect to the Loan Parties’ cash management system.


 


(k)           Assignment
of Representations. The Loan Parties shall have
executed in favor of the Agent, for the benefit of the Lenders, an Assignment
of Representations, Warranties, Covenants, Indemnities and Rights in form and
substance as set forth in Exhibit F attached hereto in respect of the
Loan Parties’ rights under the Acquisition Agreement, which assignment shall be
expressly permitted by the Acquisition Agreement or shall have been consented
to by the Seller under the Acquisition in writing.


 


(l)            Stock
Certificates. The Agent shall have received all
certificates, instruments and other documents representing all Capital Stock
being pledged pursuant to such Pledge Agreement and stock powers for such
certificates, instruments and other documents executed in blank.


 


(m)          Pledged
Notes. The Agent shall have received all instruments
representing Pledge Notes (as defined in the Pledge Agreement) being pledged
pursuant to the Pledge Agreement duly endorsed in favor of the Agent or in
blank.


 


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(n)           Management
Fee Subordination Agreement. Sponsor shall have
entered into a management fee subordination agreement subordinating the payment
of management fees by the Borrower to Sponsor pursuant to the Management
Agreement, to payment of the obligations hereunder in form and substance as set
forth in Exhibit E attached hereto (as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof).


 


(o)           Employment
Agreements. The Borrower shall have entered into
employment agreement with each member of Key Management (collectively, the “Employment
Agreements”), each on terms and conditions acceptable to the Agent, and
such employment agreements shall be in full force and effect as of the Closing
Date and shall not have been amended or modified. The Borrower shall have
provided the Lenders with copies of the Employment Agreements, all agreements
containing non-competition provisions, the form of employment agreements that
the Loan Parties shall use with any and all of their respective directors,
officers or employees, a schedule of the list of directors, officers and
employees who have entered into an agreement that is substantially different
from the form employment agreement, and a schedule listing the minimum, maximum
and mean values of all salaries for the directors, officers and employees of
the Loan Parties.


 


(p)           Termination
of Existing Indebtedness. The Loan Parties shall have
paid in full and otherwise satisfied all outstanding Indebtedness of the Loan
Parties, including the Existing and the Indebtedness listed on the “Terminated
Indebtedness Schedule” attached hereto as Schedule 4.1(q), pursuant
to payoff letters executed and delivered by the lenders thereof to the
Borrower, in form and substance satisfactory to the Agent, other than any
Indebtedness permitted pursuant to Section 7.2(a) below.


 


(q)           Equity
Investment. The Agent or its Affiliates shall have the
right to make on the Closing Date an equity investment in Parent in an amount
up to $8,000,000 on the same terms and conditions as the equity investment in
Parent by the Sponsor.


 


(r)            Required
Leverage. After giving effect to all of the Loans on
the Closing Date, the ratio of Net Debt to Adjusted EBITDA of the Loan Parties
shall not be greater than 4.4:1.00.


 


(s)           Closing
Documents. The Loan Parties will have delivered or
caused to be delivered to the Agent all of the following documents in form and
substance satisfactory to the Agent:


 


(i)            one or
more Notes (as requested by the Agent and the Lenders pursuant to Section 2.1
and Annex A hereof) in aggregate original principal amounts as set forth
herein, duly completed and executed by the Borrower;


 


(ii)           certificates
of good standing dated not more than thirty (30) days prior to the Closing Date
for each of the Loan Parties issued by their respective jurisdictions of
organization and each jurisdiction where they are qualified to operate as a
foreign corporation, or its equivalent;


 


31





















 


(iii)          a copy of
the Charter Documents of each of the Loan Parties, certified by the appropriate
governmental official of the jurisdiction of its organization as of a date not
more than thirty (30) days prior to the Closing Date;


 


(iv)          a copy of
the Organization Document of each of the Loan Parties, certified as of the
Closing Date by the secretary, assistant secretary, manager or general partner,
as applicable, of each respective Loan Party;


 


(v)           a
certificate of the secretary, assistant secretary, manager or general partner
of each of the Loan Parties, certifying as to the names and true signatures of
the officers or other authorized person of the respective Loan Party authorized
to sign this Agreement and the other Transaction Documents to be delivered by
the respective Loan Party hereunder;


 


(vi)          copies of
the resolutions duly adopted by each Loan Party’s board of directors, general
partners, board of managers or other governing body, authorizing the execution,
delivery and performance by the respective Loan Party of this Agreement, the
Notes and each of the other Transaction Documents and other agreements,
instruments and documents contemplated hereby and thereby (including the
Acquisition Agreement, the and the ) to which the respective Loan Party is a party,
and the consummation of all of the other Transactions, certified as of the
Closing Date by the secretary, assistant secretary, manager or general partner
of the respective Loan Party;


 


(vii)         a
certificate dated as of the Closing Date from an Executive Officer, general
partner or manager of the Borrower stating that the conditions specified in
this Section 4.1 have been fully satisfied or waived by the Agent and that no
Default or Event of Default shall have then occurred and be continuing;


 


(viii)        certificates
of insurance evidencing the existence of all insurance required to be
maintained by the Loan Parties pursuant to Section 7.1(c) and that the
Agent has been named as a lender’s loss payee and an additional insured on all
related insurance policies as required by Section 7.1(c), and the Agent
shall be satisfied with the type and extent of such coverage;


 


(ix)           [Reserved];


 


(x)            (a) an
opinion of DLA Piper US, LLP, counsel to the Loan Parties, regarding the
Transactions and the Transaction Documents, and (b) a reliance letter
addressed to the Agent and executed by Jenkens & Gilchrist or such
other reliance language satisfactory to the Agent permitting the Agent and the
Lenders to rely on such counsel’s opinion delivered pursuant to the Acquisition
Agreement;


 


(xi)           copies of
all consents described in the “Consents Schedule” attached hereto as Schedule
5.1(f) and all material leases to which any of the Loan Parties is a party;


 


(xii)          a summary
sources and uses of the Acquisition, and the Transactions, including all fees
and expenses to be paid related thereto;


 


32





















 


(xiii)         an
intellectual property security agreement from the Loan Parties; and


 


(xiv)        such other
documents as set forth on the Closing Checklist attached hereto as Exhibit I.


 


(t)            The
Agent’s and Lenders’ Fees and Expenses. On the Closing
Date, the Borrower shall have paid the fees due and owing on the Closing Date
pursuant to the Fee Letter and the reasonable fees and expenses of the Agent
and Lenders, payable by the Borrower pursuant to Section 11.4 hereof (and
the Borrower hereby authorizes the Agent to deduct from the initial loan
proceeds made available to the Borrower, all such amounts).


 


(u)           Legal
Investment. On the Closing Date, the making of the
Loans and the establishment of the Revolving Facility shall not be prohibited
by any applicable law, rule or regulation of any Governmental Authority
(including Regulations T, U or X of the Board of Governors of the Federal
Reserve System) as a result of the promulgation or enactment thereof or any
changes therein, or change in the interpretation thereof by any Governmental
Authority, subsequent to the date of this Agreement.


 


(v)           Background
Investigations. The Agent shall be satisfied with the
results of background investigations of Key Management, Dan Smith and Jeff
Whitmire.


 


(w)          Proceedings. All proceedings taken or required to be taken in connection with the
Transactions and the Acquisition to be consummated at or prior to the Closing
and all documents incident thereto will be satisfactory in form and substance
to the Agent and its special counsel.


 


4.2           Conditions
Precedent to each Advance.


 


The obligation of
the Lenders on any date (including the Closing Date) to make an Advance under
the Revolving Facility is subject to the satisfaction, prior to such Advance or
issuance, of the following conditions precedent:


 


(a)           Notice
of Borrowing. The Agent shall have received a duly
executed Notice of Borrowing with respect to each Advance in accordance with Section
2.5(a).


 


(b)           Compliance. (i) No Default or Event of Default shall have occurred and be
continuing, (ii) as of the most recent Measurement Date for which financial
statements have been required to be delivered pursuant to Section 7.1(e)(ii)
and that occurs prior to the applicable Borrowing Date, the Borrower shall have
been (and shall be on a pro forma basis, assuming the Indebtedness outstanding
on the applicable Borrowing Date (after giving effect to the Advance on the
Borrowing Date and the application of the proceeds of such Advance) was
outstanding on such most recent Measurement Date) in compliance with each of
the covenants set forth in Section 7.3, (iii) repayment of the Loans shall not
have been accelerated in accordance with Section 8.2, (iv) the Borrower shall
then be in compliance with all terms, covenants and conditions of each
Transaction Document, and (v) the representations and warranties of the
Borrower contained in Article V hereof shall be true and correct on and as of
the Closing Date and shall be true and correct in all material respects on and
as of any such date after the Closing Date with the same effect as though made
on and as of the date of each Advance (except with 


 


33





















 


respect to
such representations and warranties that expressly relate only to a specific
earlier date).


 


(c)           No
Material Adverse Change. Since the date of the last
audited financial statements of the Loan Parties delivered to the Agent there
has been no Material Adverse Effect.


 


(d)           Additional
Documents. The Agent shall have received prior to the
date of each Advance all additional documents and certificates that the Agent
shall have reasonably requested.


 


4.3           Waiver.


 


Any condition
specified in this Article IV may be waived by the Required Lenders; provided
that no such waiver of a condition set forth in Section 4.2 will be
effective unless it is set forth in a writing executed by the Required Lenders.


 


ARTICLE V


 


REPRESENTATIONS
AND WARRANTIES


 


5.1           Representations
and Warranties.


 


As a material
inducement to the Agent and the Lenders to enter into this Agreement and make
the Loans contemplated hereunder, each of Parent and the Borrower hereby
represents and warrants to the Agent and the Lenders as follows (each such representation
and warranty being made after giving effect to the consummation of the
Acquisition):


 


(a)           Organization
and Power. Each of the Loan Parties is a corporation,
limited partnership or limited liability company duly organized, validly
existing and in good standing under the Laws of its jurisdiction of formation. Each
of the Loan Parties has all requisite corporate or other organizational power
and authority and all material licenses, permits, approvals and authorizations
necessary to own and operate its properties, to carry on its businesses as now
conducted and to carry out the Transactions, and is qualified to do business in
the jurisdictions listed on the “Organizational Schedule” attached
hereto as Schedule 5.1(a), which includes every jurisdiction where the
failure to so qualify might reasonably be expected to have a Material Adverse
Effect. Each of the Loan Parties has its principal place of business as set
forth on the “Organizational Schedule”. The copies of the Charter
Documents and Organization Documents of the Loan Parties that have been
furnished to the Agent reflect all amendments made thereto at any time prior to
the date of this Agreement and are correct and complete.


 


(b)           Principal
Business. The Loan Parties are primarily engaged in the
business of maintaining a website on the internet that allows consumers to
search, compare and apply for credit cards (the “Business”).


 


34





















 


(c)           Financial
Statements and Financial Projections.


 


(i)            Financial
Statements. The Borrower has delivered to the Agent
copies of the Seller’s audited consolidated year-end financial statements for
and as of the end of the two fiscal years ended December 31, 2004 and 2005
(the “Annual Statements”) and copies of their unaudited consolidated
monthly financial statements for and as of the eight months ended August 31,  2006 (the “Interim Statements” and,
collectively with the Annual Statements, the “Financial Statements”). The
Financial Statements fairly represent in all material respects the consolidated
financial condition of the Seller as of their dates and the results of
operations for the fiscal periods then ended and have been prepared in
accordance with GAAP consistently applied subject to adjustments as described
in the report of Ernst & Young, LLP, and further subject, in the case of
the Interim Statements, to normal year-end adjustments and absence of footnote
disclosure.


 


(ii)           Financial
Projections. The Borrower has delivered to the Agent
consolidated financial projections of the Loan Parties for the period ending
December 31, 2006 through December 31, 2012 derived from various
assumptions of the Borrower’s management (the “Financial Projections”). The
Financial Projections represent a reasonable good faith estimate of possible
results in light of the history of the Business and the Seller, present and
foreseeable conditions and the intentions of the Borrower’s management,
however, actual results will undoubtedly vary.


 


(iii)          Accuracy
of Financial Statements. As of the Closing Date, the
Loan Parties do not have any material liabilities, contingent or otherwise, or
forward or long-term commitments that are not disclosed in the Financial
Statements or, in the case of Financial Statements that have notes, in the
notes thereto, other than obligations or liabilities under the Transaction
Documents and the Acquisition Agreement, and except as disclosed therein, as of
the Closing Date there are no unrealized or anticipated losses from any
commitments of the Loan Parties that may cause a Material Adverse Effect.


 


(d)           Capitalization
and Related Matters. As of the Closing Date, the
authorized Capital Stock of each Loan Party and the number and ownership of all
outstanding Capital Stock of each Loan Party is as set forth on the Organizational
Schedule. As of the Closing Date, none of the Loan Parties will be subject
to any obligation (contingent or otherwise) to repurchase or otherwise acquire
or retire any shares of its Capital Stock, except as set forth herein, in the
Stockholders Agreement and in the Charter Documents, respectively, as in effect
on the date hereof. As of the Closing, all of the outstanding shares of each
Loan Party’s Capital Stock will be validly issued, fully paid and nonassessable.
Based on the representations and warranties given by the holders of Capital
Stock of the Loan Parties on or prior to the date hereof, none of the Loan
Parties has violated, in any material respect, any applicable federal or state
securities Laws in connection with the offer, sale or issuance of any of its
Capital Stock other than as described on the Organizational Schedule. Except
for the Stockholders Agreement, as of the Closing Date, there are no agreements
among Parent’s stockholders with respect to the voting or transfer of Parent’s
Capital Stock.


 


35





















 


(e)           Subsidiaries. Except as set forth on the Organizational Schedule, the sole
Subsidiary of the Parent is the Borrower and the Borrower has no Subsidiaries.


 


(f)            Authorization;
No Breach. The execution, delivery and performance of
this Agreement and the other Transaction Documents to which each Loan Party is
a party, and the consummation of the Transactions and the Acquisition have been
duly authorized by each of the Loan Parties. Except as described in the “Consents
Schedule” attached hereto as Schedule 5.1(f), the execution and
delivery by each of the Loan Parties of the Transaction Documents to which it
is a party and the consummation of the Transactions and the Acquisition do not
and will not (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under,
(iii) except as created pursuant to the Security Documents, result in the
creation of any Lien upon any of the Loan Parties’ Capital Stock or assets
pursuant to, (iv) give any third party the right to accelerate any
obligation under, (v) result in a violation of, or (vi) except for
filings in connection with the perfection of the Liens granted pursuant to the
Security Documents, require any authorization, consent, approval, exemption or
other action by or notice to any Governmental Authority pursuant to, the
Charter Documents of any of the Loan Parties, or any Law to which any of the
Loan Parties is subject, or any agreement, instrument, contract, order,
judgment, writ, injunction or decree to which any of the Loan Parties is a
party or to which they or their assets are subject, the breach or violation of
which would be material to the performance or observance of the Loan Parties of
their respective obligations under the Transaction Documents, the
enforceability of the Transaction Documents or the Liens for the benefit of the
Lenders in the Collateral.


 


(g)           Governmental
Approvals. Except as specifically provided by the
Transaction Documents and except for filings in connection with the perfection
of the Liens granted pursuant to the Security Documents, no registration with
or consent or approval of, or other action by, any Governmental Authority is or
will be required in connection with the consummation of the Transactions, the
Acquisition and the transactions contemplated by the Loan Parties, except for
those registrations, consents, approvals or actions which if not made, obtained
or taken would be immaterial to the Loan Parties, taken as a whole.


 


(h)           Enforceability. This Agreement constitutes, and each of the other Transaction
Documents when duly executed and delivered by each of the Loan Parties who are
parties thereto will constitute, legal, valid and binding obligations of each
of the Loan Parties enforceable in accordance with their respective terms
subject to applicable bankruptcy, reorganization, moratorium or similar laws of
general applicability affecting the enforcement of creditors’ rights and
subject to general equitable principles which may limit the right to obtain
equitable remedies.


 


(i)            No
Material Adverse Change. Since August 31, 2006, there
has been no event or occurrence that would be reasonably likely to have a
Material Adverse Effect.


 


(j)            Litigation. Except as described in the “Litigation Schedule” attached
hereto as Schedule 5.1(j), as of the Closing Date there are no
actions, suits or proceedings at law or in equity or by or before any
arbitrator or any Governmental Authority of which any Loan Party has received
written notice now pending or, to the knowledge of the Loan Parties, threatened
against 


 


36





















 


or filed by or
affecting any of the Loan Parties or any of their directors or officers in
their capacity as directors and officers or the Business, assets or rights of
any of the Loan Parties.


 


(k)           Compliance
with Laws. The Loan Parties are not in violation in
any material respect of any applicable Law. The Loan Parties are not in default
in any material respect with respect to any judgment, order, writ, injunction,
decree, rule or regulation of any Governmental Authority applicable to any Loan
Party. There is no investigation, enforcement action or regulatory action
pending or, to the Loan Parties’ Knowledge, threatened against or directly affecting
any of the Loan Parties by any Governmental Authority, except as set forth on
the Litigation Schedule. Except as
set forth in the Litigation Schedule, or as disclosed pursuant to
the terms of Section 7.1(f), there is
no remedial or other corrective action that any of the Loan Parties is required
to take to remain in compliance in all material respects with any judgment,
order, writ, injunction or decree of any Governmental Authority or to maintain
any material permits, approvals or licenses granted by any Governmental
Authority in full force and effect.


 


(l)            Environmental
Protection. Except as specified in “Environmental
Schedule” attached hereto as Schedule 5.1(l) and after giving effect
to the Transactions, solely as of the Closing Date, to the Knowledge of the Loan
Parties, and as of any date thereafter as required by Section 4.2, (i) the
business of the Loan Parties, the methods and means employed by the Loan
Parties in the operation thereof (including all operations and conditions at or
in the properties of the Loan Parties), and the assets owned, leased, managed,
used, controlled, held or operated by the Loan Parties, comply in all material
respects with all applicable Environmental Laws; (ii) with respect to the
Properties and Facilities, as of the Closing Date, and except as disclosed in
the Environmental Schedule, the Loan Parties have obtained, possess, and
are in material compliance with all permits, licenses, reviews, certifications,
approvals, registrations, consents, and any other authorizations required under
any Environmental Laws; (iii) as of the Closing Date, the Loan Parties
have not received (x) any claim or notice of violation, lien, complaint,
suit, order or other claim or notice to the effect that the Loan Parties are or
may be liable to any Person as a result of (A) the environmental condition
of any of their Properties and Facilities or any other property, or
(B) the Release or threatened Release of any Pollutant, or (y) any
letter or request for information under Section 104 of the CERCLA or comparable
state Laws, and none of the operations of the Loan Parties is the subject of
any investigation by a Governmental Authority evaluating whether any Removal,
Remedial or Response action is needed by the Loan Parties to respond to a
Release or threatened Release of any Pollutant at the Properties and Facilities
or at any other location, including any location to which the Loan Parties have
transported, or arranged for the transportation of, any Pollutants with respect
to the Properties and Facilities; (iv) as of the Closing Date, except as
disclosed in the Environmental Schedule, no Loan Party nor any prior
owner or operator has incurred in the past, or is now subject to, any
Environmental Liabilities; (v) as of the Closing Date, except as disclosed
in the Environmental Schedule, there are no Liens, covenants, deed
restrictions, notice or registration requirements, or other limitations
applicable to the Properties and Facilities (other than Permitted Liens), based
upon any Environmental Laws or other legal obligations; (vi) as of the
Closing Date, there are no USTs located in, at, on, or under the Properties and
Facilities other than the USTs identified in the Environmental Schedule
as USTs, and each of those USTs is in full compliance with all Environmental
Laws; and (vii) as of the Closing Date, except as disclosed in the Environmental
Schedule, there are no PCBs, lead paint, asbestos (of any type or form), or
materials, articles or products containing PCBs, lead paint or asbestos,
located in, at, on, under, a part of, or otherwise 


 


37





















 


related to the
Properties and Facilities (including any building, structure, or other
improvement that is a part of the Properties and Facilities), and all of the
PCBs, lead paint, asbestos, and materials, articles and products containing
PCBs, lead paint or asbestos identified in the Environmental Schedule
are in compliance in all material respects with all Environmental Laws.


 


(m)          Legal Investments;
Use of Proceeds. The Borrower will use the proceeds
from loans made hereunder to consummate the Acquisition, to refinance certain Existing
Indebtedness of the Loan Parties, and to finance the working capital expenses
and general corporate requirements of the Loan Parties subsequent to the
Acquisition. The Loan Parties are not engaged in the business of extending
credit for the purpose of purchasing or carrying any “margin stock” or “margin
security” (within the meaning of Regulations T, U or X issued by the Board of
Governors of the Federal Reserve System), and no proceeds of the loans made
hereunder will be used to purchase or carry any margin stock or margin security
or to extend credit to others for the purpose of purchasing or carrying any margin
stock or margin security.


 


(n)           Taxes. Each of the Loan Parties has filed or caused to be filed all Federal,
state, local and foreign tax returns that are required to be filed by it, and
has paid or caused to be paid all material taxes shown to be due and payable on
such returns or on any assessments received by it, including payroll taxes,
except to the extent subject to a contest maintained in good faith by
appropriate proceedings and with respect to which the Loan Parties have set on
their books adequate reserves with respect thereto.


 


(o)           Labor
and Employment. The Loan Parties are and each of their
Plans are in compliance in all material respects with those provisions of
ERISA, the Code, the Age Discrimination in Employment Act, and the regulations and
published interpretations thereunder that are applicable to the Loan Parties or
any such Plan. As of the Closing Date, no Reportable Event has occurred with
respect to any Plan as to which any of the Loan Parties are or were required to
file a report with the PBGC. As of the Closing Date, no Plan has any material
amount of unfunded benefit liabilities (within the meaning of Section
4001(a)(18) of ERISA) or any accumulated funding deficiency (within the meaning
of Section 302(a)(2) of ERISA), whether or not waived, and neither the Loan
Parties nor any member of the Controlled Group has incurred or expects to incur
any material withdrawal liability under Subtitle E of Title IV of ERISA to a
Multiemployer Plan. The Loan Parties are in compliance in all material respects
with all labor and employment Laws of all applicable domestic and foreign
jurisdictions. As of the Closing Date, to the Knowledge of the Loan Parties,
there are no pending or threatened labor disputes, work stoppages or strikes. For
all times after the Closing Date, there are no pending or, to the Knowledge of
the Loan Parties, threatened labor disputes, work stoppages or strikes.


 


(p)           Investment
Company Act. None of the Loan Parties is an “investment
company” or “controlled” by an investment company within the meaning of the
Investment Company Act of 1940, as amended (other than any “control” of the
Loan Parties attributable to ACAS).


 


(q)           Properties;
Security Interests. The Loan Parties have good and
marketable title to, or valid leasehold interests in, all of the material
assets and properties necessary for the operation of the Business
(collectively, the “Properties and Facilities”), subject to no Liens
except for Permitted Liens. All of the Properties and Facilities are in good
repair, working order and condition (ordinary wear and tear excepted) and all
such assets and properties are owned or 


 


38





















 


leased by the
Loan Parties free and clear of all Liens except for Permitted Liens. The
Properties and Facilities constitute all of the material assets, properties and
rights of any type used in or necessary for the conduct of the Business. The
Security Documents, taken as a whole, create and grant to the Agent a valid and
perfected first priority security interest in all the Collateral thereunder,
subject only to Permitted Liens. All real estate owned or leased by any of the
Loan Parties as of the Closing Date is listed on the “Properties Schedule,”
attached hereto as Schedule 5.1(q).


 


(r)            Intellectual
Property; Licenses. Each of the Loan Parties owns or
is licensed to use (i) all Proprietary Rights necessary to conduct the Business
and (ii) all material Proprietary Rights used in conducting the Business, in
each case, as heretofore conducted or as proposed to be conducted by it in
connection with the NETFINITI Business. All Proprietary Rights registered in
the name of any of the Loan Parties and applications therefor filed by any of
the Loan Parties as of the Closing Date are accurately listed on the “Intellectual
Property Schedule,” attached hereto as Schedule 5.1(r). The
Intellectual Property Schedule identifies, as of the Closing Date, for each
such Proprietary Right the relevant jurisdiction of application or
registration, if any, the name, title or mark for the Proprietary Right at
issue, and its current status. Solely as of the Closing Date, to the Loan
Parties’ Knowledge, and for any date thereafter, as required by
Section 4.2, no event has occurred that permits, or after notice or lapse
of time or both would permit, the revocation or termination of any of the
foregoing, which taken in isolation or when considered with all other such
revocations or terminations could reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, none of the Loan Parties has notice or
knowledge of any facts or any occurrence that could reasonably be expected to preclude
or impair the Loan Parties’ ability to retain or obtain its ownership of or
right to use any Proprietary Right used in or necessary to conduct the Business
as heretofore conducted or as proposed to be conducted by it in connection with
the NETFINITI Business, or any authorization necessary for the operation of the
Business.


 


(s)           Solvency. After giving effect to the Transactions, (i) the fair value of the
assets of the Loan Parties, at a fair valuation, will exceed their debts and
liabilities, subordinated, contingent or otherwise, (ii) the present fair
saleable value of the property of the Loan Parties will be greater than the
amount that will be required to pay the probable liability of their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured, (iii) the Loan Parties will be
able to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured, and (iv) the Loan
Parties will not have unreasonably small capital with which to conduct the
business in which they are engaged as such business is now conducted and is
proposed to be conducted following the Closing Date.


 


(t)            Complete
Disclosure. All factual information furnished by or on
behalf of the Loan Parties to the Agent for purposes of or in connection with
this Agreement or the Transactions (excluding third party reports) is, and all
other such factual information hereafter furnished by or on behalf of the Loan
Parties (excluding third party reports) will be, true and accurate in all
material respects on the date as of which such information is furnished and not
incomplete by omitting to state any fact necessary to make such information taken
as a whole not materially misleading at such time in light of the circumstances
under which such information was provided. To the Knowledge of the Loan Parties,
with respect to third party reports, all 


 


39





















 


factual
information furnished by or on behalf of the Loan Parties to the Agent for
purposes of or in connection with this Agreement or the Transactions is true
and accurate in all material respects on the date as of which such information
is furnished and not incomplete by omitting to state any fact necessary to make
such information taken as a whole not materially misleading at such time in
light of the circumstances under which such information was provided.


 


(u)           Broker’s
or Finder’s Commissions. No broker’s or finder’s or
placement fee or commission will be payable to any broker or agent engaged by
any of the Loan Parties or any of its officers, directors or agents with
respect to the transactions contemplated by this Agreement, including the
Transactions, except for fees payable to ACFS, the Lenders and the Agent. The
Loan Parties agree to indemnify the Agent and the Lenders and to hold them
harmless in accordance with the terms of Section 11.13 from and against
any claim, demand or liability for brokers’ or finders’ or placement fees or
similar commissions, whether or not payable by the Loan Parties, alleged to
have been incurred in connection with such transactions, other than any broker’s
or finder’s fees payable to Persons engaged by the Agent or the Lenders without
the knowledge of the Loan Parties.


 


(v)           Deposit
Accounts. Except as is listed on the “Deposit
Accounts Schedule,” attached hereto as Schedule 5.1(v), as of
the Closing Date no Loan Party maintains any deposit account, including term
deposit, certificate of deposit or money market account, with any Person.


 


(w)          Foreign
Assets Control Regulations, Etc. None of the Loan
Parties is an “enemy” or an “ally of the enemy” within the meaning of Section 2
of the Trading with the Enemy Act of the United States of America (50 U.S.C.
App. §§ 1 et seq.), as amended. None of the Loan Parties is in violation
of (a) the Trading with the Enemy Act, as amended (b) any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto or (c) the USA Patriot Act, Title III of Pub. L. 107-56,
signed into law October 26, 2001 (the “Patriot Act”). No Loan Party
(i) is a blocked person described in section 1 of the Anti-Terrorism Executive
Order No. 13224 or (ii) to the best of its knowledge, engages in any
dealings or transactions, or is otherwise associated, with any such blocked
person.


 


5.2           Absolute
Reliance on the Representations and Warranties.


 


All representations
and warranties contained in this Agreement and any financial statements,
instruments, certificates, schedules or other documents delivered in connection
herewith, shall survive the execution and delivery of this Agreement,
regardless of any investigation made by the Agent or the Lenders or on the
Agent’s or the Lenders’ behalf.


 


ARTICLE VI


 


ASSIGNMENTS;
PARTICIPATIONS; LOST NOTES; REPLACEMENT OF LENDERS


 


6.1           Assignments.


 


(a)           Any
Lender may at any time assign to one or more Eligible Assignee (any such
Person, an “Assignee”) all or any portion of such Lender’s loans and
commitments hereunder, 


 


40





















 


with the prior
written consent of the Agent (which consent shall not be unreasonably withheld
and shall not be required for an assignment by a Lender to a Lender or an
Affiliate of a Lender or a Related Fund of a Lender or a Person described in
clause (A)(v) of the definition of Eligible Assignee); provided, however,
notwithstanding anything to the contrary herein, a Lender will provide at least
ten (10) Business Days’ prior written notice of its intent to assign all or any
portion of its Loans to Borrower and such notice shall contain a list of
proposed assignees; provided, further, so long as no Significant Event
of Default exists, the Borrower shall approve of or reject (which approval
shall not be unreasonably withheld, conditioned or delayed and shall not be
required for an assignment by a Lender to a Lender or an Affiliate of a Lender
or a Related Fund of a Lender or a Person described in clause (A)(v) of the
definition of Eligible Assignee) each such proposed assignee for such proposed
assignment prior to the expiration of the ten (10) Business Day period
beginning upon Borrower’s receipt of such notice of the proposed assignment and
such assigning Lender shall only negotiate with the proposed assignees approved
of by Borrower (in accordance with this Section) or with proposed assignees
suggested by Borrower during such ten (10) Business Day period). Except as the
Agent may otherwise agree, any such assignment (other than any assignment by a
Lender to a Lender or an Affiliate or Related Fund of a Lender or a Person
described in clause (A)(v) of the definition of Eligible Assignee) shall be in
a minimum aggregate amount equal to $1,000,000 or, if less, the entire
commitment or the principal amount of the loan being assigned. The Borrower and
the Agent shall be entitled to continue to deal solely and directly with such
Lender in connection with the interests so assigned to an Assignee until the
Agent shall have received and accepted an effective assignment agreement
substantially in the form of Exhibit H attached hereto (an “Assignment
Agreement”) executed, delivered and fully completed by the applicable
parties thereto and a processing fee of $3,500 to be paid by the Lender to whom
such interest is assigned; provided that (x) no such fee shall be
payable in connection with any assignment by a Lender to a Lender or an
Affiliate or Related Fund of a Lender and (y) no Assignment Agreement
shall be required in connection with assignments by ACAS or any of its
Affiliates to ACAS or any of its Affiliates. No assignment may be made to any
Person if at the time of such assignment the Borrower would be obligated to pay
any greater amount under Section 3 to the Assignee than the Borrower is then
obligated to pay to the assigning Lender under such Section (and if any
assignment is made in violation of the foregoing, the Borrower will not be
required to pay such greater amounts). Any attempted assignment not made in
accordance with this Section 6.1 shall be treated as the sale of a
participation hereunder. The Borrower shall be deemed to have granted its
consent to any assignment requiring its consent hereunder unless the Borrower
has expressly objected to such assignment within three (3) Business Days after
notice thereof.


 


(b)           From and
after the date on which the conditions described above have been met,
(i) such Assignee shall be deemed automatically to have become a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to such Assignee pursuant to an Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and (ii) the assigning
Lender, to the extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment Agreement, shall be released from its rights
(other than its indemnification rights) and obligations hereunder. Upon the reasonable
request of the Assignee (and, as applicable, the assigning Lender) pursuant to
an effective Assignment Agreement, the Borrower shall execute and deliver to
the Agent for delivery to the Assignee (and, as applicable, the assigning
Lender) Notes in the principal amount of the Assignee’s pro rata share of the 


 


41





















 


Revolving
Facility Commitment and the principal amount of the Assignee’s pro rata share
of each term loan (and, as applicable, Notes in the principal amount of the pro
rata share of the Revolving Facility Commitment and each Term Loan retained by
the assigning Lender) and the applicable assigning Lender shall deliver the
Notes so assigned to the Borrower for cancellation within ten (10) Business
Days after the consummation of such assignment.


 


(c)           The
Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at one of its offices in the United States a copy of each Assignment
Agreement delivered to it and a register for the recordation of the names and
addresses of each Lender, and the commitments of, and principal amount of the
loans owing to, such Lender pursuant to the terms hereof. The entries in such
register shall be conclusive, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded therein pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. Such register shall be available for inspection by the
Borrower at any reasonable time upon reasonable prior notice to the Agent. Any
assignment or transfer of all or part of a Loan shall be registered on such
register only upon delivery of a duly executed Assignment Agreement.


 


(d)           The
parties to this Agreement acknowledge that the preceding provisions of this
Section 6.1 concerning assignments of Loans relate only to absolute assignments.
In addition to any other assignment permitted pursuant to this Section 6.1, any
Lender may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender, and its Notes, if any, (A) to any Federal
Reserve Bank or (B) to a trustee for the benefit of a Lender’s investors
or to another representative of a financing party for the assigning Lender.


 


6.2           Participations.


 


Any Lender may at
any time sell to one or more Persons participating interests in its Loans,
commitments and other interests hereunder (any such Person, a “Participant”)
with the prior written consent of the Agent (which consent shall not be
unreasonably withheld and shall not be required for a participation by a Lender
to a Lender or an Affiliate of a Lender or a Related Fund of a Lender or a
Person described in clause (A)(v) of the definition of Eligible Assignee); provided,
however, notwithstanding anything to the contrary herein, a Lender will
provide at least ten (10) Business Days’ prior written notice of its intent to
sell a participation to Borrower and such notice shall contain a list of
proposed Participants; provided, further, so long as no
Significant Event of Default exists, the Borrower shall approve or reject
(which approval shall not be unreasonably withheld, conditioned or delayed and
shall not be required for a participation by a Lender to a Lender or an
Affiliate of a Lender or a Related Fund of a Lender or a Person described in
clause (A)(v) of the definition of Eligible Assignee) each such proposed
Participant for such proposed participation prior to the expiration of the ten
(10) Business Day period beginning upon Borrower’s receipt of such notice of
the proposed participation and such selling Lender shall only negotiate with
the proposed Participants approved by Borrower (in accordance with this
Section) or with proposed Participants suggested by Borrower during such ten
(10) Business Day period); provided, further, that the conditions
of Section 6.1(a) are satisfied. In the event of a sale by a Lender of a
participating interest to a Participant, (i) such Lender’s obligations
hereunder shall remain unchanged for all purposes, (ii) the Borrower and
the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations hereunder and
(iii) all amounts payable by the Borrower shall be 


 


42

















 


determined as if such Lender had not sold such participation and shall
be paid directly to such Lender. No Participant shall have any direct or
indirect voting rights with respect to its participating interest hereunder
except with respect to any event described in Section 9.11 expressly
requiring the unanimous vote of all Lenders or, as applicable, all affected
Lenders. Each Lender agrees to incorporate the requirements of the preceding
sentence into each participation agreement which such Lender enters into with
any Participant. The Borrower agrees that if amounts outstanding under this
Agreement are due and payable (as a result of acceleration or otherwise), each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement; provided
that such right of set-off shall be subject to the obligation of each
Participant to share with the Lenders. The Borrower also agrees that each
Participant shall be entitled to the benefits, and subject to the obligations,
of Section 3 as if it were a Lender (provided that no Participant shall
receive any greater compensation pursuant to Section 3 than would have been
paid to the participating Lender if no participation had been sold).


 


6.3           Replacement
of Lost Notes.


 


Upon receipt of
evidence reasonably satisfactory to the Borrower of the mutilation,
destruction, loss or theft of any Note and the ownership thereof, the Borrower
shall, upon the written request of the holder of such Note, execute and deliver
in replacement thereof a new Note in the same form, in the same original
principal amount and dated the same date as the Note so mutilated, destroyed,
lost or stolen; and such Note so mutilated, destroyed, lost or stolen shall
then be deemed no longer outstanding hereunder. If the Note being replaced has
been mutilated, it shall be surrendered to the Borrower; and if such replaced
Note has been destroyed, lost or stolen, such holder shall furnish the Borrower
with an indemnity in writing to save it harmless in respect of such replaced
Note.


 


6.4           Replacement
of Lenders.


 


If
(i) the Borrower becomes obligated to pay additional amounts to any Lender
or Participant pursuant to Section 3.7 or 3.11 or (ii) any Lender does not
consent to any matter requiring its consent under Section 9.11 when the Required
Lenders have otherwise consented to such matter or (iii) any Lender with a
Revolving Facility Commitment defaults in its obligation to make Advances under
Section 2.3, then the Borrower may within one hundred twenty (120) days
thereafter either prepay any Loans then held by such Lender (or by a Lender for
such Participant), or designate another Person which is acceptable to the Agent
in its reasonable discretion (such other bank being called a “Replacement
Lender”) to purchase the Loans of such Lender and such Lender’s rights
hereunder and such Lender or Participant agrees to sell such Loans and rights
hereunder to such Replacement Lender, without recourse to or warranty by, or
expense to, such Lender, for a purchase price equal to the outstanding
principal amount of the Loans payable to such Lender plus any accrued but
unpaid interest on such Loans and all accrued but unpaid fees owed to such
Lender and any other amounts payable to such Lender under this Agreement, and
to assume all the obligations and commitments of such Lender hereunder, and,
upon such purchase and assumption (pursuant to an Assignment Agreement), such
Lender or Participant shall no longer be a party hereto or have any rights
hereunder or with respect hereto (other than rights with respect to indemnities
and similar rights applicable to such Lender prior to the date of such purchase
and assumption) and shall be relieved from all obligations to the


 


43














 


Borrower hereunder, and the
Replacement Lender shall succeed to the rights and obligations of such Lender
hereunder.


 


ARTICLE VII



COVENANTS


 


7.1           Affirmative
Covenants.


 


Each of Parent and
the Borrower covenants that, so long as all or any of the principal amount of
the Loans made hereunder or any interest or other amount thereon shall remain
outstanding (other than indemnity obligations which are not yet due and
payable), or the Revolving Facility Term shall not have expired, each of Parent
and the Borrower shall and shall cause each of the other Loan Parties to:


 


(a)           Existence. Except as otherwise expressly permitted herein, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence.


 


(b)           Businesses
and Properties; Compliance with Laws. (i) Do or
cause to be done all things that are commercially and reasonably necessary to
preserve, renew and keep in full force and effect the rights, licenses,
registrations, permits, certifications, approvals, consents, franchises,
patents, copyrights, trade secrets, trademarks and trade names, and any other
trade names that are material to the conduct of their businesses;
(ii) comply in all material respects with all Laws applicable to the
operation of such business, including all Environmental Laws, whether now in
effect or hereafter enacted and with all other applicable Laws, (iii) take
all action that is commercially and reasonably required to obtain, preserve,
renew and extend all Proprietary Rights that are material to the operation of
such business, (iv) take all action that is commercially and reasonably
necessary to maintain, preserve and protect all property material to the
conduct of such business, and (v) except for obsolete or worn out equipment,
keep their material property in good repair, working order and condition
(ordinary wear and tear excepted) and from time to time make, or cause to be
made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times as contemplated by
the Loan Parties in their reasonable discretion.


 


(c)           Insurance. Maintain insurance required by the Transaction Documents,
including:  (i) within ninety (90)
days following the Closing Date, the Life Insurance; (ii) coverage on
their insurable properties (including all inventory, equipment and real
property) against the perils of fire, theft and burglary; (iii) public
liability; (iv) workers’ compensation; and (v) such other risks as are
customary with companies similarly situated and in the same or similar business
as that of the Loan Parties under policies issued by financially sound and
reputable insurers in such amounts as are customary with companies similarly
situated and in the same or similar business. Each of the Loan Parties shall
pay all insurance premiums payable by it and shall deliver the policy or
policies of such insurance (or certificates of insurance with copies of such
policies) to the Agent. All insurance policies of the Loan Parties shall
contain endorsements, in form and substance reasonably satisfactory to the
Agent, providing that the insurance shall not be cancelable except upon thirty
(30) days’ prior written notice to the Agent. The Agent, on behalf


 


44

















 


of the
Lenders, shall be shown as a loss payee, an additional named insured party or
an assignee, as applicable, under all such insurance policies for casualty or
general liability in a form and manner reasonably satisfactory to the Agent.


 


(d)           Obligations
and Taxes. Pay and discharge promptly when due all
material taxes, assessments and governmental charges or levies imposed upon
them or upon their income or profits or in respect of their properties before
the same shall become delinquent or in default, as well as all lawful claims
for labor, materials and supplies or otherwise, which, if unpaid, would
reasonably be expected to give rise to Liens upon a material portion of such
properties (other than Permitted Liens); provided that the Loan Parties
shall not be required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the Loan Parties shall have set aside on their books adequate
reserves with respect thereto.


 


(e)           Financial
Statements; Reports. Furnish to the Agent:


 


(i)            Annual Statements. Within one hundred twenty (120)
days after the end of each fiscal year, balance sheets, and statements of
operations, owners’ equity and cash flows of the Loan Parties showing the
financial condition and operations of the Loan Parties (on a consolidated
basis) as of the close of such year and the results of operations during such
year, all of the foregoing consolidated financial statements to be audited
(which audit report shall not contain any material qualification, exception or
scope limitation not acceptable to the Agent) by Ernst & Young LLP or
another firm of independent certified public accountants of recognized national
standing reasonably acceptable to the Agent and accompanied by an opinion of
such accountants without material exceptions or qualifications.


 


(ii)           Monthly Statements. Within thirty (30) days
after the end of each calendar month, financial statements (including balance
sheets and statements of cash flow and operations) showing the financial
condition and results of operations of the Loan Parties (on a consolidated
basis) as of the end of each such month and for the then elapsed portion of the
current fiscal year, together with comparisons to the corresponding periods in
the preceding year and the budget for such periods, including reasonable
estimates of prior year period accompanied by a certificate of an officer that
such financial statements have been prepared in accordance with GAAP,
consistently applied.


 


(iii)          Format; Management Report; Certificate of Compliance:  Each balance sheet, statement
of operations and cash flow statement furnished to the Agent pursuant to
subsections (i) and (ii) of this Section 7.1(e) will be furnished by
an electronic means in Excel spreadsheet format containing such line items and
other formatting requirements readily available to the Loan Parties as may be
reasonably specified by the Agent. Each financial statement furnished to the
Agent pursuant to subsections (i) and (ii) (to the extent provided as of the
end of each calendar quarter) of this Section 7.1(e) shall be accompanied by
(A) a written narrative report by the management of the Loan Parties
explaining


 


45

















 


material developments and trends in the
Business and such financial statements, (B) a written certificate signed
by the Loan Parties’ chief financial officer to the effect that no Default or
Event of Default has occurred during the period covered by such statements or,
if any such Default or Event of Default has occurred during such period,
setting forth a description of such Default or Event of Default and specifying
the action, if any, taken by the Loan Parties to remedy the same, and
(C) a compliance certificate in the form of Exhibit G attached
hereto showing the Loan Parties’ compliance with each of the covenants set forth
in Section 7.3.


 


(iv)          Accountant Reports. Promptly upon the receipt
thereof, copies of all reports, if any, submitted to the Loan Parties by
independent certified public accountants in connection with each annual,
interim or special audit or review of the financial statements of the Loan
Parties made by such accountants, including any comment letter submitted by
such accountants to management in connection with any annual review.


 


(v)           Projections. As soon as available, but in no
event later than thirty (30) days after the end of each fiscal year, a
projection of the Loan Parties’ balance sheet, and operations, owners’ equity
and cash flow statements, respectively, for such fiscal year and comparable
actual and budgeted figures for the prior fiscal year; and within thirty (30)
days after any material update or amendment of any such plan or forecast, a
copy of such update or amendment, including a description of and reasons for
such update or amendment.


 


(vi)          Additional Information. After the Closing
Date, promptly, from time to time, such other information regarding the
compliance by the Loan Parties with the terms of this Agreement and the other
Transaction Documents or the affairs, operations or financial condition of the
Loan Parties as the Agent or the Required Lenders may reasonably request and
that is reasonably capable of being obtained, produced or generated by the Loan
Parties or of which the Loan Parties have knowledge.


 


(f)            Litigation
and Other Notices. Give the Agent prompt written
notice of the following:


 


(i)            Orders; Injunctions. The issuance by any
Governmental Authority of any injunction, order, decision or other restraint
prohibiting, or having the effect of prohibiting, the making of any Loan
hereunder or the initiation of any litigation or similar proceeding seeking any
such injunction, order or other restraint with respect to any Loan Party.


 


(ii)           Litigation. The notice, filing or commencement
of any action, suit or proceeding against any of the Loan Parties whether at
law or in equity or by or before any court or any Governmental Authority and
that, if adversely determined against any of the Loan Parties, could result in
injunctive relief or could result in uninsured liability in excess of $250,000
in the aggregate (in either case, together


 


46

















 


with copies of
the material pleadings pertaining thereto upon written request of Agent).


 


(iii)          Environmental Matters. (A) Any Release or
threatened Release of any Pollutant required to be reported to any Governmental
Authority under any applicable Environmental Laws, (B) any Removal,
Remedial or Response action taken by any of the Loan Parties or any other
Person outside the ordinary course of business in response to any Pollutant in,
at, on or under, a part of or about any of the Loan Parties’ properties or any
other property, (C) any violation by any of the Loan Parties of any
Environmental Law, in each case, that could or would reasonably be expected to
result in a Material Adverse Effect, or (D) any notice, claim or other
information that any of the Loan Parties could reasonably be expected to be
subject to an Environmental Liability in excess of $250,000.


 


(iv)          Default. Any Default or Event of Default,
specifying the nature and extent thereof and the action (if any) that is
proposed to be taken with respect thereto.


 


(v)           Material Adverse Effect. Using commercially
reasonable efforts, any development in the business or affairs of any of the
Loan Parties that are Known to the Loan Parties that could have or would
reasonably be expected to have a Material Adverse Effect.


 


(vi)          Card Issuer Agreements. Written notice of
cancellation, termination, or any default or event of default under any Card
Issuer Agreement if the aggregate of all Card Issuer Agreements that have been
cancelled, terminated or have a default or event of default represent revenues
for the last twelve months greater than $5,000,000.


 


(vii)         Internet Domain Name. Written notice of any
material infringement of Borrower’s internet domain name and any default under
any agreement with any service provider with respect to its domain name.


 


(g)           ERISA. Comply in all material respects with the applicable provisions of
ERISA and the provisions of the Code relating thereto and furnish to the Agent
(i) as soon as possible, and in any event within thirty (30) days after the
Loan Parties know or have reason to know thereof, notice of (w) the
establishment by the Loan Parties of any Plan, (x) the commencement by the
Loan Parties of contributions to a Multiemployer Plan, (y) any failure by
the Loan Parties or any of their ERISA Affiliates to make contributions in an
amount in excess of $100,000 in any fiscal year required by Section 302 of
ERISA (whether or not such requirement is waived pursuant to Section 303 of
ERISA), or (z) the occurrence of any Reportable Event with respect to any
Plan or Multiemployer Plan for which the reporting requirement is not waived,
the occurrence of which could reasonably be expected to have a Material Adverse
Effect or that could impose a Lien on the assets of the Loan Parties, taken as
a whole, with a book value of at least $250,000 in compliance with ERISA,
together with a statement of an officer setting forth details as to such
Reportable Event and the action that the Loan Parties propose to take with
respect thereto, together with a copy of the notice of such Reportable Event
given to the PBGC if any such notice was provided by the Loan Parties, and
(ii) promptly after receipt thereof, a copy


 


47

















 


of any notice
the Loan Parties may receive from the PBGC relating to the intention of the
PBGC to terminate any Plan or Multiemployer Plan, or to appoint a trustee to
administer any Plan or Multiemployer Plan, and (iii) promptly after receipt
thereof, a copy of any notice of withdrawal liability from any Multiemployer
Plan.


 


(h)           Maintaining
Records; Access to Premises and Inspections. Maintain
financial records in accordance with generally accepted practices and upon
reasonable notice, during normal business hours as the Agent may reasonably
request (and at any time after the occurrence and during the continuation of an
Event of Default), (i) permit an authorized representative designated by
the Agent upon reasonable notice to visit and inspect the properties and
financial records of the Loan Parties and to make extracts from such financial
records, at the Loan Parties’ reasonable expense (provided that the Loan
Parties shall not be obligated to pay such expenses with respect to more than
one such visit and inspection per year only for so long as no Event of Default
has occurred and is continuing), and (ii) permit an authorized
representative designated by the Agent to discuss the affairs, finances and
conditions of the Loan Parties with the Loan Parties’ chief financial officer
and such other officers as the Loan Parties shall deem appropriate, and the
Loan Parties’ independent public accountants pursuant to meetings coordinated
by and attended by an officer of the Borrower.


 


(i)            Patriot
Act Compliance. Provide to the Agent and the Lenders
such information and take such actions as are reasonably requested by the Agent
or any Lender in order to assist the Agent and the Lenders with compliance with
the Patriot Act.


 


(j)            Further
Assurances. Use commercially reasonable efforts to
take such actions as are necessary or as the Agent or the Required Lenders may
reasonably request from time to time (including the execution and delivery of
joinders and/or guaranties to this Agreement and any other applicable
Transaction Documents, termination statements, deposit account control
agreements and other documents, the filing or recording of any of the
foregoing, and the delivery of stock certificates and other collateral with
respect to which perfection is obtained by possession) to ensure that the
obligations of the Loan Parties hereunder and under the other Transaction
Documents are secured by substantially all of the assets, equity securities and
personal property of the Loan Parties pursuant to the terms of the Security
Documents (whether now existing or promptly upon the acquisition or creation
thereof after the date hereof).


 


(k)           Additional
Subsidiaries. If any additional Subsidiary is formed
or acquired after the Closing Date, the Borrower shall, within ten (10)
Business Days after such Subsidiary is formed or acquired, (i) notify the
Agent thereof, (ii) cause such Subsidiary (other than any Foreign
Subsidiary) to execute and become a party to a Guaranty of the obligations
hereunder, the Pledge Agreement, the Security Agreement and such other Security
Document in favor of Agent as Agent may reasonably request and
(iii) pledge one hundred percent (100%) of the Capital Stock of such
Subsidiary owned by any Loan Party (except that the Loan Parties shall not be
required to pledge more than 65% of the outstanding voting Capital Stock of any
Foreign Subsidiary) to the Agent pursuant to the Pledge Agreement.


 


48

















 


(l)            Board
of Directors. The Board of Directors of each of the
Loan Parties shall meet at least once each calendar quarter.


 


(m)          Post-Closing
Matters. Comply with the terms and conditions set
forth on Schedule 7.1(m), in each case, in form and substance acceptable to
Agent.


 


7.2           Negative
Covenants.


 


Each of Parent and
the Borrower covenant that, so long as all or any part of the principal amount
of the Loans made hereunder or any interest or other amount thereon shall
remain outstanding (other than indemnity obligations which are not yet due and
payable), or the Revolving Facility Term shall not have expired, neither Parent
nor the Borrower shall, nor shall they permit any other Loan Party to:


 


(a)           Indebtedness. Create, incur, assume, guarantee or be or remain liable for,
contingently or otherwise, or suffer to exist any Indebtedness, except:


 


(i)            Indebtedness under this Agreement;


 


(ii)           the existing Indebtedness of the Loan Parties listed on the “Permitted
Indebtedness Schedule,” attached hereto as Schedule 7.2(a) and any
extensions, renewals, replacements and refinancings thereof that do not
increase the principal amount thereof;


 


(iii)          Indebtedness incurred in the ordinary course of business with respect
to customer deposits, trade payables and other unsecured current liabilities
not the result of borrowing and not evidenced by any note or other evidence of
indebtedness;


 


(iv)          purchase money Indebtedness incurred with respect to equipment and
Indebtedness under Capitalized Leases and extensions, renewals, replacements
and refinancings thereof so long as the aggregate amount of all such
Indebtedness at any time outstanding shall not exceed $1,000,000 and any Liens
securing such Indebtedness are permitted by Section 7.2(b); and


 


(v)           obligations under any Interest Rate Protection Agreement or any
Currency Hedging Agreement, provided that in either case, the agreement
is entered into for the sole purpose of protecting any Loan Party against
fluctuations in interest rates or currency exchange rates; and


 


(vi)          Indebtedness of one Loan Party to another Loan Party, provided, that


 


(A)          the
applicable Loan Parties shall have executed a demand note (collectively, the “Intercompany
Notes”) to evidence any such intercompany Indebtedness owing at any time by
any Loan Party to another Loan Party, which Intercompany Notes shall be in form
and substance reasonably satisfactory to the Agent and shall be pledged and
delivered to the Agent pursuant to the Security Documents as additional
collateral security for the Secured Obligations,


 


49

















 


(B)           the
Borrower shall record all intercompany transactions on its books and records in
a manner reasonably satisfactory to the Agent,


 


(C)           the
obligations of the Borrower under any such Intercompany Notes shall be
subordinated to the Obligations of the Borrower hereunder in a manner
reasonably satisfactory to the Agent,


 


(D)          at the
time any such intercompany loan or advance is made by the Borrower and after
giving effect thereto, the Borrower shall be Solvent, and


 


(E)           no
Default or Event of Default would occur and be continuing after giving effect
to any such proposed intercompany loan;


 


(vii)         additional unsecured Indebtedness that is not described in clauses (a)
through (h) of the definition of Indebtedness, in an amount not to exceed
$200,000 in the aggregate at any time;


 


(viii)        additional unsecured Indebtedness in an amount not to exceed $2,000,000
incurred by the Loan Parties composed of repayment obligations to the Sponsor
solely with respect to a guaranty to secure a corporate credit card for the
Loan Parties’ use in the conduct of the Business, provided that the reward
and/or any bonus points issued by the credit card issuer with respect to such
corporate credit card shall be retained by the Loan Parties; and


 


(ix)           additional unsecured Indebtedness not to exceed $1,000,000 in the
aggregate at any time outstanding.


 


(b)           Negative
Pledge; Liens. Create, incur, assume or suffer to
exist any Lien of any kind on any of their properties or assets of any kind,
except the following (collectively, “Permitted Liens”):


 


(i)            Liens for or priority claims imposed by law that are incidental to the
conduct of business or the ownership of properties and assets (including
mechanic’s, warehousemen’s, carriers’, attorneys’ and statutory landlords’
liens) and deposits, pledges or Liens to secure statutory obligations, surety
or appeal bonds or other liens of like general nature incurred in the ordinary
course of business and not in connection with the borrowing of money; provided
that in each case, the obligation secured is not overdue, or, if overdue, is
being contested in good faith and adequate reserves have been set up by the
Loan Parties as the case may be; and provided, further, that the
lien and security interest provided in the Security Documents or any portion thereof
created or intended to be created thereby is not, in the opinion of the Agent
(utilizing its commercially reasonable discretion in good faith), unreasonably
jeopardized thereby;


 


(ii)           Liens securing the payments of taxes, assessments and governmental
charges or levies incurred in the ordinary course of business that either (y)
are not delinquent, or (z) are being contested in good faith by appropriate
legal or


 


50

















 


administrative proceedings and as to which
adequate reserves have been set aside on their books, and so long as during the
period of any such contest, the Loan Parties shall suffer no loss of any
privilege of doing business or any other right, power or privilege necessary or
material to the operation of the Business;


 


(iii)          Liens listed on the Permitted Lien Schedule attached hereto as Schedule
7.2(b);


 


(iv)          subject to the limitations set forth in Section 7.2(a), Liens arising
in connection with purchase money Indebtedness and Capitalized Leases (and
attaching only to the property being acquired or leased), provided that
any such Lien attaches to such property within sixty (60) days of the
acquisition thereof and attaches solely to the property so acquired;


 


(v)           extensions, renewals, replacements or refinancings of Liens referred to
in clauses (i) through (iv) of this Section 7.2(b); provided that
any such extension, renewal, replacement or refinanced Lien shall be limited to
the property or assets covered by the Lien extended, renewed, replaced or
refinanced and that the obligations secured by any such extension, renewal,
replacement or refinancing Lien shall be in an amount not greater than the
amount of the obligations secured by the Lien extended, renewed, replaced or
refinanced;


 


(vi)          easements, rights-of-way, restrictions, minor defects or irregularities
in title and other similar Liens not interfering in any material respect with
the ordinary conduct of the business of the Loan Parties;


 


(vii)         customary rights of set-off in favor of banks;


 


(viii)        any interest or title of a licensor, sublicensor, lessor, or sublessor
in the property covered by any license or lease agreement of any Loan Party not
otherwise prohibited hereunder;


 


(ix)           attachments and judgment Liens not otherwise constituting an Event of
Default;


 


(x)            Liens on property in existence at the time of any Permitted
Acquisition, so long as it is a Permitted Lien and is not created in connection
with a Permitted Acquisition; or


 


(xi)           Liens granted or created under the Transaction Documents.


 


(c)           Contingent
Liabilities. Become liable for any Guaranty, except
for the endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business and Guarantees
constituting Indebtedness permitted by Section 7.2(a).


 


(d)           Leases. Become liable under any leases if as a result thereof the aggregate
amount of annualized payments on leases during any Fiscal Year will exceed
$500,000.


 


51

















 


(e)           Mergers,
etc. (i) Merge into or consolidate or combine
with any other Person, or purchase, lease or otherwise acquire (in one
transaction or a series of related transactions) all or any part of the
property or assets of any Person other than Permitted Acquisitions and purchases
or other acquisitions of inventory, materials, leases, property and equipment
in the ordinary course of business, or (ii) Dispose of any of its assets,
except for Dispositions of used or surplus equipment, Dispositions of
investments expressly permitted by Section 7.2(h), Dispositions expressly
permitted by the Security Documents, Dispositions among domestic Loan Parties
(solely to the extent assets are transferred from one domestic Loan Party to
another domestic Loan Party or one foreign Loan Party to another foreign Loan
Party), and Dispositions from any loss, damage or destruction provided that the
Net Cash Proceeds thereof are applied in accordance with
Section 3.5(a)(i); provided that with prior written notice to the
Agent, wholly-owned Subsidiaries of Borrower may merge with each other or into
Borrower (as long as in any merger involving Borrower, Borrower is the
surviving entity of such merger); provided, further, the Loan
Parties will not Dispose of assets at any time with an aggregate book value in
excess of $100,000 from domestic Loan Party or Parties to foreign Loan Party or
Parties.


 


(f)            Affiliate
Transactions. Make any loan or advance to any
director, officer or employee of the Loan Parties or any Affiliate thereof, or
enter into or be a party to any transaction or arrangement with any director,
officer or employee of the Loan Parties or any Affiliate of the Loan Parties,
including the purchase from, sale to or exchange of property with, any merger
or consolidation with or into, or the rendering of any service by or for, any
director, officer or employee of the Loan Parties or any Affiliate, except (i)
pursuant to the reasonable requirements of the Loan Parties’ business and upon
fair and reasonable terms no less favorable to the Loan Parties than would be
obtained in a comparable arm’s-length transaction with a Person other than an
Affiliate, (ii) compensation and employment arrangements in the ordinary course
of business consistent with past practices or (iii) for any transaction
expressly permitted by this Agreement, including, without limitation, Section
7.2(a)(viii).


 


(g)           Dividends,
Distributions, and Equity Purchases. Directly or
indirectly, declare or pay any dividends or make any distribution of any kind
on their outstanding Capital Stock (other than in shares of Capital Stock) or
make any other payment of any kind to any of their equityholders (including any
payment of any management fees or any redemption, purchase or acquisition of,
whether in cash or in property, securities or a combination thereof, any
Capital Stock), or set aside any sum for any such purpose other than for such
dividends, distributions or payments paid solely to the Borrower or a
wholly-owned Subsidiary of the Borrower. Notwithstanding the foregoing, the
Loan Parties shall be permitted to make the following dividends, distributions
and payments so long as both (i) no Default or Event of Default shall have
occurred and be continuing or will result from any such dividend, distribution
or payment, and (ii) as of the most recent Measurement Date for which financial
statements have been required to be delivered pursuant to Section 7.1(e)(ii)
and that occurs prior to the applicable date of any such dividend, distribution
or payment, the Loan Parties shall have been (and shall be on a pro forma
basis, assuming the applicable dividend, distribution or payment, advance or
transaction was outstanding or had occurred on such most recent Measurement
Date) in compliance with each of the covenants set forth in Section 7.3:


 


(A)          redemptions
of Capital Stock (or payments with respect to phantom stock units) owned by an
officer of any Loan Party, upon the termination


 


52

















 


of employment of such Person, provided
that the aggregate amount of all such payments may not exceed $500,000 in any
Fiscal Year or $2,000,000 during the term of this Agreement; and


 


(B)           payments
to BPO Newco II, Inc. pursuant to the terms of the Management Agreement (as in
effect on the Closing Date)  (the “Management
Fees”) in an aggregate amount not to exceed $400,000 per Fiscal Year so
long as the subordination agreement as set forth on Exhibit E
attached hereto between the Agent and Sponsor remains in full force and effect.


 


In
addition, notwithstanding the foregoing, the Borrower shall be permitted to pay
cash dividends and distributions on the Capital Stock of the Borrower to Parent
paid and declared in any Fiscal Year solely for the purpose of funding
(I) redemptions permitted under clause (A) above; (II) ordinary
operating expenses of Parent; or (III) payments by Parent in respect of
foreign, federal, state or local taxes owing by Parent or its equityholders in
respect of the Borrower and its Subsidiaries, and Parent shall be permitted to
pay such amounts as cash dividends and distributions on the Capital Stock of
Parent to its equityholders in respect of such taxes.


 


(h)           Advances,
Investments and Loans. Purchase, or hold beneficially
any stock, other securities or evidences of Indebtedness of, or make or permit
to exist any loan, Guaranty or advance to, or make any investment or acquire
any interest whatsoever in, any other Person (including the formation or
acquisition of any Subsidiaries), except:


 


(i)            securities issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof having
maturities of not more than six (6) months from the date of acquisition;


 


(ii)           United States dollar-denominated time deposits, certificates of deposit
and bankers acceptances of any bank or any bank whose short-term debt rating
from Standard & Poor’s Ratings Group, a division of The McGraw-Hill
Companies, Inc. (“S&P”), is at least A-1 or the equivalent or from
Moody’s Investors Service, Inc. (“Moody’s”) is at least P-1 or the equivalent
with maturities of not more than six (6) months from the date of acquisition;


 


(iii)          commercial paper with a rating of at least A-1 or the equivalent by
S&P or at least P-1 or the equivalent by Moody’s maturing within six (6)
months after the date of acquisition;


 


(iv)          marketable direct obligations issued by any state of the United States
of America or any political subdivision of any such state or any public
instrumentality thereof maturing within six (6) months from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody’s;


 


(v)           Investments in money market funds substantially all the assets of which
are comprised of securities of the types described in clauses (i) through (iv)
above;


 


53

















 


(vi)          Investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;


 


(vii)         receivables owing to the Loan Parties created or acquired in the
ordinary course of business and payable on customary trade terms of the Loan
Parties;


 


(viii)        deposits made in the ordinary course of business consistent with past
practices to secure the performance of leases or in connection with bidding on
government contracts;


 


(ix)           advances to employees in the ordinary course of business for business
expenses; provided that the aggregate amount of such advances at any
time outstanding shall not exceed $50,000;


 


(x)            Capital Stock issued by other Loan Parties in existence on the Closing
Date or otherwise permitted hereunder;


 


(xi)           Permitted Acquisitions;


 


(xii)          Guarantees permitted by Section 7.2(c);


 


(xiii)         Interest Rate Protection Agreements and Currency Hedging Agreements
permitted by Section 7.2(a)(vi);


 


(xiv)        Investments by Parent in the Borrower;


 


(xv)         Investments in another Loan Party (other than Parent), including any
Subsidiary that becomes a Loan Party in compliance with Section 7.1(k);


 


(xvi)        Investments in Foreign Subsidiaries; provided that the aggregate amount
of such Investments in any fiscal year shall not exceed $100,000;


 


(xvii)       Investments listed on the Permitted Investments Schedule
attached hereto as Schedule 7.2(h);


 


(xviii)      Investments constituting intercompany Indebtedness permitted by
Section 7.2(a);


 


(xix)         Investments constituting loans to employees, officers and directors of
any Loan Party to purchase Capital Stock of Parent in an aggregate amount not
to exceed $250,000 at any time; and


 


(xx)          other Investments in an aggregate amount not to exceed $250,000 at any
time.


 


(i)            Use
of Proceeds. Use any proceeds from any loan made
hereunder, directly or indirectly, for the purposes of purchasing or carrying
any “margin securities” within the meaning of Regulations T, U or X promulgated
by the Board of Governors of the Federal Reserve Board


 


54

















 


or for the
purpose of arranging for the extension of credit secured, directly or
indirectly, in whole or in part by collateral that includes any “margin
securities.”


 


(j)            Amendment
of Charter Documents. Amend, terminate, modify or
waive or agree to the amendment, modification or waiver of any material term or
provision of their respective Charter Documents or Organization Documents, in
each case in a manner materially adverse to the Agent or the Lenders.


 


(k)           Subsidiaries. Establish or acquire any Subsidiary other than those in existence on
the date hereof and those established or acquired in compliance with Section
7.1(k).


 


(l)            Business. Engage, directly or indirectly, in any business other than the
Business and any business incidental or reasonably related thereto.


 


(m)          Fiscal
Year; Accounting. Change its Fiscal Year or method of
accounting (other than immaterial changes in methods), except as required by
GAAP.


 


(n)           Establishment
of New or Changed Business Locations. Relocate its
principal executive offices or other facilities or establish new business
locations or store any assets with a fair market value in excess of $100,000 in
the aggregate at a location not identified to the Agent on or before the date
hereof, without providing not less than ten (10) Business Days advance written
notice to the Agent.


 


(o)           Changed
Jurisdiction or Names. Change its corporate name,
jurisdiction of organization or organization number without providing not less
than ten (10) Business Days advance written notice to the Agent.


 


(p)           Deposit
Accounts. Establish or maintain any deposit accounts
(i) other than those listed on the Deposit Accounts Schedule without providing
not less than ten (10) Business Days advance notice to the Agent and (ii) that
are not covered by a deposit account control agreement satisfactory to Agent in
its reasonable discretion.


 


7.3           Financial
Covenants.


 


Each of Parent and
the Borrower covenant that, so long as all or any part of the principal amount
of the Loans or any interest or other amount thereon shall remain outstanding
(other than indemnity obligations which are not yet due and payable), or the
Revolving Facility Term shall not have expired:


 


(a)           The Loan
Parties shall maintain, on a consolidated basis, at the end of each fiscal
quarter (each such date being a “Measurement Date”), beginning December
31, 2006:


 


(i)                                     Minimum Fixed Charge Coverage Ratio. A minimum
Fixed Charge Coverage Ratio for the Measurement Period ending on the last day
of each fiscal quarter as set forth below:


 


55

















 


	
  For the Quarter Ended on the
  Measurement Date

  	
   

  	
  Ratio

  
	
  December 31,
  2006

  	
   

  	
  1.50
  to 1.0

  
	
  March 31,
  2007, and each fiscal quarter thereafter

  	
   

  	
  1.50
  to 1.0

  



 


(ii)           Maximum Net Debt to Adjusted EBITDA Ratio. A
maximum Net Debt to EBITDA Ratio as of the Measurement Date as follows:


 


	
  For the Four Month Period Ended

  on the Measurement Date

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  December 31, 2006

  	
   

  	
  4.75 to 1.0

  
	
  March 31, 2007

  	
   

  	
  4.5 to 1.0

  
	
  June 30, 2007

  	
   

  	
  4.25 to 1.0

  
	
  September 30, 2007

  	
   

  	
  4.00 to 1.0

  
	
  December 31, 2007

  	
   

  	
  3.75 to 1.0

  
	
  March 31, 2008

  	
   

  	
  3.50 to 1.0

  
	
  June 30, 2008

  	
   

  	
  3.25 to 1.0

  
	
  September 30, 2008

  	
   

  	
  3.00 to 1.0

  
	
  December 31, 2008

  	
   

  	
  2.50 to 1.0

  
	
  March 31, 2009

  	
   

  	
  2.25 to 1.0

  
	
  June 30, 2009

  	
   

  	
  2.00 to 1.0

  
	
  September 30, 2009

  	
   

  	
  1.75 to 1.0

  
	
  December 31, 2009

  	
   

  	
  1.50 to 1.0

  
	
  March 31, 2010

  	
   

  	
  1.25 to 1.0

  
	
  June 30, 2010

  	
   

  	
  1.00 to 1.0

  
	
  September 30, 2010

  	
   

  	
  0.75 to 1.0

  
	
  December 31, 2010 and each fiscal quarter thereafter

  	
   

  	
  0.50 to 1.0

  



 


(iii)          Minimum EBITDA. A minimum EBITDA for the
Measurement Period as of the Measurement Date as follows:


 


	
  For the Four Month Period Ended

  on the Measurement Date

  	
   

  	
  EBITDA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  16,000,000

  	
   

  
	
  March 31, 2007

  	
   

  	
  $

  	
  16,000,000

  	
   

  
	
  June 30, 2007

  	
   

  	
  $

  	
  16,500,000

  	
   

  
	
  September 30, 2007

  	
   

  	
  $

  	
  16,500,000

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  17,000,000

  	
   

  
	
  March 31, 2008

  	
   

  	
  $

  	
  17,500,000

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  18,000,000

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  18,500,000

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  19,000,000

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  19,000,000

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  19,500,000

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  19,500,000

  	
   

  
						



 


56

















 


	
  For the Four Month Period Ended

  on the Measurement Date

  	
   

  	
  EBITDA

  
	
   

  	
   

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  20,000,000

  
	
  March 31, 2010

  	
   

  	
  $

  	
  20,000,000

  
	
  June 30, 2010

  	
   

  	
  $

  	
  21,000,000

  
	
  September 30, 2010

  	
   

  	
  $

  	
  21,000,000

  
	
  December 31, 2010

  	
   

  	
  $

  	
  22,000,000

  
	
  March 31, 2011

  	
   

  	
  $

  	
  22,000,000

  
	
  June 30, 2011

  	
   

  	
  $

  	
  23,000,000

  
	
  September 30, 2011

  	
   

  	
  $

  	
  23,000,000

  
	
  December 31, 2011

  	
   

  	
  $

  	
  24,000,000

  
	
  March 31, 2012

  	
   

  	
  $

  	
  24,000,000

  
	
  June 30, 2012 and each fiscal quarter thereafter

  	
   

  	
  $

  	
  25,000,000

  



 


(iv)          Concurrently with the closing of each Permitted Acquisition, each
EBITDA level set forth above shall be increased by 85% of Pro Forma EBITDA of
the Target of such Permitted Acquisition for the 12 months preceding the date
of consummation of such Permitted Acquisition; provided, that for the first 12
months after the consummation of such Permitted Acquisition, the EBITDA levels
set forth above will be increased by only 85% of a fraction of such Pro Forma
EBITDA, such fraction to be the number of months that have ended since the
consummation of such Permitted Acquisition (not to exceed 12 months), divided
by 12.


 


(b)           Capital
Expenditures. The Loan Parties shall not make, on a
consolidated basis, during any Fiscal Year any Capital Expenditures that in the
aggregate (after giving effect to all such Capital Expenditures made during
such Fiscal Year) exceed (i) $125,000 for the Fiscal Year ending December 31,
2006, (ii) $750,000 for the Fiscal Year ending December 31, 2007 and (iii)
$1,100,000 for any Fiscal Year thereafter; provided that to the extent that the
aggregate Capital Expenditures made, on a consolidated basis, by the Loan
Parties in any Fiscal Year are less than the amount set forth above for such
Fiscal Year, the lesser of (i) such excess amount and (ii) fifty percent (50%)
of the amount set forth above for such Fiscal Year may be carried forward, but
may be expended only in the immediately succeeding Fiscal Year. Any amount so
carried forward shall be deemed made hereunder following utilization of all
allowed amounts (without regard to such rollover) for Capital Expenditures in
such immediately succeeding Fiscal Year.


 


ARTICLE VIII



EVENTS OF DEFAULT


 


8.1           Events
of Default.


 


An Event of Default
means the occurrence of one or more of the following described events:


 


57

















 


(a)           any Loan
Party shall default in the payment of (i) interest on any of the loans
hereunder or any fee or reimbursement obligations pursuant to this Agreement or
any Transaction Document, in each case within five (5) days after its due date
or (ii) principal of any of the loans hereunder when due, whether at
maturity, upon notice of prepayment in accordance with Section 3.4, upon
any scheduled payment date, mandatory prepayment date or by acceleration or
otherwise;


 


(b)           any Loan
Party shall default under any agreement under which any Indebtedness in an
aggregate principal amount of $1,000,000 or more is created in a manner
entitling the holder of such Indebtedness to accelerate the maturity of such
Indebtedness.


 


(c)           any
representation or warranty made herein or in any other Transaction Document by
any Loan Party, or any certificate or financial statement furnished pursuant to
the provisions hereof, shall prove to have been false or misleading in any
material respect as of the time made or furnished or deemed made or furnished;


 


(d)           any Loan
Party shall default in the performance of any covenant, condition or provision
of Section 7.1(a), 7.2 or 7.3;


 


(e)           any Loan
Party shall default in the performance of (i) any of the Transaction Documents
beyond any applicable notice or cure periods or (ii) any other covenant,
condition or provision of this Agreement, the Notes or the other Transaction
Documents, and such default shall not be remedied to the Agent’s or the
Required Lenders’ satisfaction within a period of thirty (30) days following
the earlier of (A) written notice from the Agent of such default or
(B) actual knowledge by any Loan Party of such default;


 


(f)            any Loan
Party shall default in the performance of the Side Letter and such default
shall not be remedied to the satisfaction of the Agent or Required Lenders
within a period of thirty (30) days following the occurrence of such default;


 


(g)           a
proceeding shall have been instituted in a court having jurisdiction in the
premises seeking a decree or order for relief in respect of any Loan Party in
an involuntary case under any applicable bankruptcy, insolvency or other
similar Law now or hereafter in effect, or for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
any Loan Party or for any substantial part of its property, or for the
winding-up or liquidation of its affairs, and such proceeding shall remain
undismissed or unstayed and in effect for a period of sixty (60) days;


 


(h)           any Loan
Party shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar Law now or hereafter in effect, shall consent to
the entry of an order for relief in an involuntary case under any such Law, or
shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of any Loan Party or for any substantial part of its property, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any action
directly in furtherance of any of the foregoing;


 


58

















 


(i)            either
(i) a Reportable Event, the occurrence of which could reasonably be
expected to have a Material Adverse Effect or that could cause the imposition
of a Lien on the assets of the Loan Parties in excess of $250,000, taken as a
whole, under Section 4068 of ERISA, shall have occurred with respect to any Plan
or Plans, or (ii) the aggregate amount of the then “current liability” (as
defined in Section 412(l)(7) of the Code) of all accrued benefits under such
Plan or Plans exceeds the then current value of the assets allocable to such
benefits by more than $250,000 at such time;


 


(j)            a final
judgment that, with other undischarged final judgments against any Loan Party,
exceeds an aggregate of $1,000,000 (excluding judgments to the extent the
applicable Loan Party is fully insured or the deductible or retention limit
does not exceed $250,000 and with respect to which the insurer has assumed
responsibility in writing), shall have been entered against any Loan Party if,
within thirty (30) days after the entry thereof, such judgment shall not have
been discharged or execution thereof stayed pending appeal, or if, within
thirty (30) days after the expiration of any such stay, such judgment shall not
have been discharged;


 


(k)           any
Transaction Document shall at any time after the Closing Date cease for any
reason (other than solely due to the action or omission by the Agent of the
Lenders) to be in full force and effect or shall cease to create perfected
security interests in favor of the Agent in the collateral in excess of 10% of
the book value of the Collateral subject or purported to be subject thereto,
subject to no other Liens other than Permitted Liens, or such collateral shall
have been transferred to any Person in violation of the terms of any
Transaction Document;


 


(l)            a Change
of Control shall have occurred; or


 


(m)          Parent
shall engage in any business activity; provided that business activity
shall not include (i) the direct or indirect ownership of Capital Stock of
the Borrower, the issuance of shares of Capital Stock or other equity
securities or any other activity consistent with each of Parent being a holding
company, or (ii) the performance of its obligations under the Transaction
Documents or the Acquisition Agreements to which it is a party.


 


8.2           Consequences
of Event of Default.


 


(a)           Bankruptcy. If an Event of Default specified in paragraphs (g) or (h) of Section
8.1 hereof shall occur, the Revolving Facility shall terminate and the unpaid
balance of the Loans hereunder and interest accrued thereon and all other
liabilities of the Loan Parties to the Lenders shall be immediately due and
payable, without presentment, demand, protest or (except as expressly required
hereby) notice of any kind, all of which are hereby expressly waived.


 


(b)           Other
Defaults. If any other Event of Default shall occur,
the Required Lenders may at their option, by written notice to the Borrower,
terminate the Revolving Facility and/or declare all or any portion of the
unpaid balance of the Loans hereunder and interest accrued thereon and all
other liabilities of the Loan Parties hereunder and thereunder to be forthwith
due and payable, and the same shall thereupon become immediately due and
payable, without presentment, demand, protest or (except as expressly required
hereby) notice of any kind, all of which are hereby expressly waived.


 


59

















 


(c)           Default
Interest and Fees. Following the occurrence and during
the continuance of any Event of Default, at the election of the Required
Lenders, the Lenders or the Issuing Lender, as applicable, shall be entitled to
receive, to the extent permitted by applicable law, and as additional
compensation for the additional risks to the Lenders resulting from the
existence of such Event of Default, interest on the outstanding principal
of, and overdue interest, if any, on, the Loans hereunder at a rate per annum
equal to the interest rate thereon (determined as provided in Section 3.1) plus
two hundred (200) basis points.


 


(d)           Premium. In the event of any acceleration of the loans hereunder pursuant to
Section 8.2(b) hereof, the Borrower shall also pay to the Agent, for the
ratable benefit of the respective Lenders any prepayment premium that would
otherwise be payable upon any voluntary prepayment of such loans.


 


(e)           Priority
of Payment. Notwithstanding anything to the contrary
herein, following an Event of Default and the acceleration of any Loans
hereunder, all payments received, all proceeds of the Collateral and any other
amount collected or received in connection with the obligations of the Borrower
hereunder shall be applied by the Agent in the following manner:


 


first, all reasonable
out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the
Agent in connection with enforcing the rights of the Lenders under the
Transaction Documents, including all court costs (whether at trial, appellate
or administrative levels) of the Agent and its agents, representatives, and
attorneys incurred in connection with the sale or with the retaking, holding,
handling, preparing for sale (or other disposition) of the Collateral and all
other fees and expenses incurred by the Agent for which it is entitled to
payment or reimbursement pursuant to Section 10.4 hereof or pursuant to
any other Transaction Document;


 


second, all fees and
expenses for which the Lenders are entitled to payment or reimbursement
pursuant to the provisions of Section 11.4 hereof or pursuant to any other
Transaction Document;


 


third, any prepayment
premium that would be applicable in connection with the Senior Notes pro rata
if such payment were a voluntary prepayment under Section 3.3;


 


fourth, all accrued and
unpaid interest due and owing to the Senior Lenders pro rata;


 


fifth, all principal
outstanding under the Revolving Facility;


 


sixth, all principal
outstanding under the Senior Notes pro rata;


 


seventh, any prepayment
premium that would be applicable in connection with the Junior Notes pro rata
if such payment were a voluntary prepayment under Section 3.3;


 


60

















 


eighth, all accrued and
unpaid interest due and owing to the Junior Lenders pro rata;


 


ninth, all principal
outstanding under the Junior Notes pro rata;


 


tenth, all obligations
under Interest Rate Protection Agreements and Currency Hedging Agreements owing
to any Lender; and


 


eleventh, all other
obligations owing to the Agent and the Lenders hereunder and under the other
Transaction Documents.


 


8.3           Security.


 


Payments of
principal of, and premium, if any, and interest on, the Loans and all other
obligations of the Borrower under this Agreement, the Notes and the other
Transaction Documents are secured pursuant to the terms of the Security
Documents.


 


ARTICLE IX



AGENT


 


9.1           Authorization
and Action.


 


Each Lender hereby
designates and appoints ACFS as the Agent hereunder and authorizes ACFS to take
such actions as agent on its behalf and to exercise such powers as are
delegated to the Agent by the terms of this Agreement and the other Transaction
Documents, together with such powers as are reasonably incidental thereto. The
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities on
the part of the Agent shall be read into this Agreement or otherwise exist for
the Agent. In performing its functions and duties hereunder, the Agent shall
act solely as agent for the Lenders and does not assume, nor shall be deemed to
have assumed, any obligation or relationship of trust or agency with or for the
Loan Parties or any of their respective successors or assigns. The Agent shall
not be required to take any action that exposes the Agent to personal liability
or that is contrary to this Agreement or applicable Laws. The appointment and
authority of the Agent hereunder shall terminate at the indefeasible payment in
full of the Loans and obligations hereunder.


 


9.2           Delegation
of Duties.


 


The Agent may
execute any of its duties under this Agreement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Agent shall not be responsible to any Lender for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.


 


61

















 


9.3           Exculpatory
Provisions.


 


Neither the Agent
nor any of its directors, officers, agents or employees shall be
(a) liable to any of the Lenders for any action lawfully taken or omitted
to be taken by it or them under or in connection with this Agreement and any
other Transaction Document (except for its, their or such Person’s own gross
negligence or willful misconduct or, in the case of the Agent, the breach of
its obligations expressly set forth in this Agreement or any Transaction
Document, unless such action was taken or omitted to be taken by the Agent at
the direction of the Required Lenders), or (b) responsible in any manner
to any of the Lenders for any recitals, statements, representations or
warranties made by the Loan Parties contained in this Agreement, any other
Transaction Document or in any certificate, report, statement or other document
referred to or provided for in, or received under or in connection with, this
Agreement or any other Transaction Document, for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement,
any other Transaction Document or any other document furnished in connection
herewith, or for any failure of any of the Loan Parties to perform their
respective obligations hereunder, or for the satisfaction (or lack thereof) of
any condition specified in Article IV. The Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements or covenants contained in, or conditions
of, this Agreement or any other Transaction Document, or to inspect the
properties, books or records of any of the Loan Parties.


 


9.4           Reliance.


 


The Agent shall in
all cases be entitled to rely, and shall be fully protected in relying, upon
any document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including counsel to the Loan Parties),
independent accountants and other experts selected by the Agent. The Agent
shall in all cases be fully justified in failing or refusing to take any action
under this Agreement or any other document furnished in connection herewith
unless it shall first receive such direction, advice or concurrence of the
Required Lenders, as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders; provided that unless and until the
Agent shall have received such direction, advice or concurrence, the Agent may
take or refrain from taking any action, as the Agent shall deem advisable and
in the best interests of the Lenders. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, in accordance with a request
of the Required Lenders or all Lenders, as applicable, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all
Lenders.


 


9.5           Non-Reliance
on the Agent and Other Lenders.


 


Each Lender expressly
acknowledges that neither the Agent, nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any representations
or warranties to it and that no act by the Agent or hereafter taken, including
any review of the affairs of the Loan Parties, shall be deemed to constitute
any representation or warranty by the Agent. Each Lender represents and
warrants to the Agent that it has and will, independently and without reliance
upon the Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the


 


62

















 


business, operations, property, prospects, financial and other
conditions and creditworthiness of the Loan Parties and made its own decision
to enter into this Agreement.


 


9.6           No
Liability of Lenders.


 


The Lenders shall
have no liability to the Borrower, any other Loan Party or any other entity as
a result of any actions or failures to act by the Agent hereunder or otherwise.


 


9.7           The
Agent in its Individual Capacity.


 


The Agent, and each
of its Affiliates may make loans to, purchase securities from, provide services
to, accept deposits from and generally engage in any kind of business with the
Loan Parties or any Affiliate of the Loan Parties as though the Agent were not
the Agent hereunder.


 


9.8           Successor
Agent.


 


The Agent may, upon
thirty (30) days’ notice to the Borrower and each Lender, and the Agent will,
upon the direction of the Required Lenders (other than the Agent, in its
individual capacity), resign as the Agent. If the Agent shall resign, then the
Required Lenders during such thirty (30) day period shall appoint a successor
the Agent (with the consent of Borrower so long as no Default or Event of
Default has occurred and is continuing) and if the Required Lenders direct the
Agent to resign, such direction shall include an appointment of a successor the
Agent (with the consent of Borrower so long as no Default or Event of Default
has occurred and is continuing). If for any reason no successor the Agent is
appointed by the Required Lenders during such thirty (30) day period, then
effective upon the expiration of such thirty (30) day period, the Lenders shall
perform all of the duties of the Agent hereunder and the Borrower shall make
all payments in respect of the Loans and obligations hereunder directly to the
applicable Lenders and for all purposes shall deal directly with the Lenders. After
any retiring the Agent’s resignation or removal hereunder as the Agent, the
provisions of Article IX shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Agent under this Agreement. Notwithstanding
the foregoing, ACFS agrees to remain the Agent under this Agreement until ACAS
no longer owns any portion of the Loans or Notes.


 


9.9           Collections
and Disbursements.


 


(a)           The Agent
will have the right to collect and receive all payments of the Loans and
obligations hereunder, and to collect and receive all reimbursements due
hereunder, together with all fees, charges or other amounts due under this
Agreement and the other Transaction Documents with regard to the Loans and
obligations hereunder, and the Agent will remit to each Lender, according to
its pro rata percentage of the applicable Loans and obligations hereunder as
set forth on Annex A attached hereto, all such payments actually
received by the Agent (other fees due and owing to the Agent pursuant to the
Fee Letter and the fees and expenses of the Agent payable by the Borrower
pursuant to Section 11.4 hereof) in accordance with the settlement
procedures established by the Agent from time to time. Settlements shall occur
on such dates as the Agent may elect in its sole discretion, but which shall be
no later than two (2) Business Days following receipt thereof.


 


63

















 


(b)           If any
such payment received by the Agent is rescinded or otherwise required to be
returned for any reason at any time, whether before or after termination of
this Agreement or the other Transaction Documents, each Lender will, upon
written notice from the Agent, promptly pay over to the Agent its pro rata
percentage of the amounts so rescinded or returned, together with interest and
other fees thereon so rescinded or returned.


 


(c)           All
payments by the Agent and the Lenders to each other hereunder shall be in
immediately available funds. The Agent will at all times maintain proper books
of accounts and records reflecting the interest of each Lender in the Loans and
obligations hereunder, in a manner customary to the Agent’s keeping of such
records, which books and records shall be available for inspection by each
Lender at reasonable times during normal business hours, at such Lender’s sole
expense. The Agent may treat the payees of any Loan as the holder thereof until
written notice of the transfer thereof shall have been received by the Agent in
accordance with the provisions hereof. In the event that any Lender shall
receive any payment on account of any Loans or obligations hereunder in an
amount greater than its applicable pro rata percentage of all amounts received
by all Lenders in respect of such class of Loans and obligations hereunder
(including amounts obtained by reason of setoffs) such Lender shall hold such
excess in trust for the Agent (on behalf of all other Lenders) and shall
promptly remit to the Agent such excess amount so that the amounts received by
each Lender in respect of such class of Loans and obligations hereunder shall
at all times be in accordance with its applicable pro rata percentage. If,
however, any Lender that has received any such excess amount fails to remit
such amount to the Agent, the Agent shall reallocate the amounts paid on future
payment dates to each Lender so that, after giving effect to such payments, the
pro rata obligations owed by the Loan Parties to each Lender shall be in an
amount equal to the pro rata amount owed by the Loan Parties before the date of
the payment of such excess amount. In no event shall any Lender be deemed to
have a participation or other right in, to or against any other Lender’s Loan
as a result of the payment of any excess amount.


 


9.10         Reporting. During the term of
this Agreement, the Agent will promptly furnish each Lender with copies of all
notices and financial statements of the Loan Parties required to be delivered
or obtained hereunder and such other financial statements and reports and other
information in the Agent’s possession as any Lender may reasonably request. The
Agent will promptly notify the Lenders when it receives actual notice of any
Event of Default under the Transaction Documents.


 


9.11         Consent
of Lenders.


 


(a)           Except as
expressly provided herein, the Agent shall have the sole and exclusive right to
service, administer and monitor this Agreement, the Loans and the other
Transaction Documents, including the right to exercise all rights, remedies,
privileges and options under this Agreement and under the other Transaction
Documents. Notwithstanding the foregoing, each Lender shall make its own
investment decision with regard to this Agreement and the Loans, including the
credit judgment with respect to the making of Loans and the determination as to
the basis on which and extent to which Loans may be made.


 


(b)           Notwithstanding
anything to the contrary contained in Section 9.11(a) above, the Agent
shall not without the prior written consent of all the Lenders then holding
Loans and


 


64

















 


obligations
hereunder:  (i) extend any payment
date or reduce the amount of any payment due hereunder, including any interest,
principal or fees (other than fees owing solely to the Agent), (ii) reduce
any interest rate applicable to any of the Loans hereunder or any fee payable
to the Lenders hereunder, (iii) waive any Event of Default under Section
8.1(a), (iv) compromise or settle all or a portion of the Loans hereunder,
(v) release any obligor from any of the obligations hereunder except in
connection with full payment and satisfaction of all such obligations or
release all or substantially all of the Collateral, (vi) increase any Loan or
commitment hereunder, (vii) amend the definition of the Required Lenders,
or (viii) amend this Section 9.11(b).


 


(c)           Notwithstanding
anything to the contrary contained in Section 9.11(a) above, and subject
to any applicable limitation set forth in Section 9.11(b) above, the Agent
shall not, without the prior written consent of the Required Lenders:  (i) waive any Event of Default;
(ii) consent to any Loan Parties’ taking any action that, if taken, would
constitute an Event of Default under this Agreement or under any of the other
Transaction Documents; or (iii) amend or modify or agree to an amendment
or modification of this Agreement or other Transaction Documents.


 


(d)           After an
acceleration of any obligations hereunder, the Agent shall, upon written
instruction from the Required Lenders, exercise or refrain from exercising any
and all rights, remedies, privileges and options under this Agreement or the
other Transaction Documents or available at law or in equity to protect the
rights of the Agent and the Lenders and collect the Loans hereunder, including
instituting and pursuing all legal actions against any Loan Party or to collect
such loans, defending any and all actions brought by any Loan Party or other
Person, and incurring expenses or otherwise making expenditures to protect the
collateral securing the obligations hereunder, the Loans or the Agent’s or any
Lender’s rights or remedies under any Transaction Document or applicable Law.


 


(e)           The Agent
shall not increase any Lender’s portion of the Revolving Facility Commitment
without the prior written consent of such Lender.


 


9.12         Indemnification.


 


Whether or not the
transactions contemplated hereby are consummated, each Lender shall indemnify
upon demand the Agent and its directors, officers, employees and agents (to the
extent not reimbursed by or on behalf of the Borrower and without limiting the
obligation of the Borrower to do so), based on such Lender’s pro rata share of
the outstanding Loans and commitments, from and against any and all actions,
causes of action, suits, losses, liabilities, damages and expenses, including
legal costs, except to the extent any thereof result from the applicable Person’s
own gross negligence or willful misconduct, as determined by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender shall
reimburse the Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including legal costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Transaction Document, or any document contemplated by or referred to
herein, to the extent that the Agent is not reimbursed for such expenses by or
on behalf of the Borrower. The undertaking in this Section 9.12 shall survive
repayment of the Loans,


 


65

















 


cancellation of the Notes, expiration or termination of the Letters of
Credit, any foreclosure under, or modification, release or discharge of, any or
all of the Transaction Documents, termination of this Agreement and the
resignation or replacement of the Agent.


 


9.13         Collateral
Matters.


 


The Lenders
irrevocably authorize the Agent, at its option and in its discretion,
(a) to release any Lien granted to or held by the Agent under any
Transaction Document (i) when all obligations hereunder have been paid in
full; (ii) constituting property sold or to be sold or disposed of as part
of or in connection with any sale or other disposition permitted hereunder (it
being agreed and understood that the Agent may conclusively rely without
further inquiry on a certificate of an officer of the Borrower as to the sale
or other disposition of property being made in compliance with this Agreement);
or (iii) subject to Section 9.11, if approved, authorized or ratified in
writing by the Required Lenders; or (b) to subordinate its interest in any
Collateral to any holder of a Lien on such Collateral which is permitted by
Section 7.2(b)(iv) (it being understood that the Agent may conclusively rely on
a certificate from the Borrower in determining whether the Indebtedness secured
by any such Lien is permitted by Section 7.2(a)(v)). Upon request by the Agent
at any time, the Lenders will confirm in writing the Agent’s authority to
release, or subordinate its interest in, particular types or items of
Collateral pursuant to this Section 9.13.


 


9.14         This
Article Not Applicable to Loan Parties.


 


This Article IX is
included in this Agreement solely for the purpose of determining certain rights
as between the Agent and the Lenders and does not create, nor shall it give
rise to, any rights in or obligations on the part of the Loan Parties and all
rights and obligations of the Loan Parties (other than as specifically set
forth herein) under this Agreement shall be determined by reference to the
provisions of this Agreement other than this Article IX.


 


ARTICLE X



SUBORDINATION OF NOTES


 


10.1         General.


 


The Junior Term D
Loans are subordinate and junior in right of payment to the Junior Term C Loans
to the extent provided in this Article 10. The Senior Term B Loans are
subordinate and junior in right of payment to the Senior Term A Loans to the
extent provided in this Article 10. The Junior Loans are subordinate and junior
in right of payment to the Senior Loans to the extent provided in this Article
10.


 


10.2         Default
in Respect of Senior Notes.


 


(a)           Senior
Loan Payment Default. Upon the occurrence of an Event
of Default pursuant to Section 8.1(a) hereof with respect to any Senior Loan
Payment (a “Senior Loan Payment Default”), then, unless and until such
Senior Loan Payment Default shall have been cured or waived in writing by Agent
and the Senior Loans shall have been paid in full in cash, no direct or
indirect payment (in cash, property or by set-off or otherwise, except that


 


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Reorganization
Subordination Securities may be issued and except that payment in kind may be
made by delivery of paid-in-kind notes in respect of the Junior Loans) shall be
made on account of the principal of, or prepayment premium, if any, on, or any
other amount in respect of, or interest on, the Junior Loans, or as a sinking
fund for any Junior Loans, or in respect of any redemption, retirement,
purchase or other acquisition of any Junior Loans, during any period:


 


(i)            commencing on the date of receipt by Junior Lenders of a Blocking
Notice stating that a Senior Loan Payment Default exists and ending on the date
on which such Senior Loan Payment Default shall have been cured or waived in
writing by Agent or the Senior Loans shall have been indefeasibly paid in full
in cash; or


 


(ii)           in which any judicial proceeding or any other proceeding or action
(whether judicial or otherwise) seeking to foreclose or otherwise realize on
any Collateral shall be pending in respect of such Senior Loan Payment Default.


 


(b)           Notice
by Agent. Agent shall give written notice to each
Junior Lender of any Senior Loan Payment Default (and any acceleration of the
maturity of any Indebtedness as a result thereof) and the receipt of any notice
under Section 10.2(a) or (b) promptly upon the occurrence or receipt thereof,
as the case may be.


 


10.3         Insolvency,
Major Event of Default, etc.


 


In the event of:


 


(a)           any
insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to any of the
Loan Parties, its creditors or its Properties and Facilities,


 


(b)           any
proceeding for the liquidation, dissolution or other winding-up of any of the
Loan Parties, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings,


 


(c)           any
assignment by any of the Loan Parties for the benefit of creditors,


 


(d)           any other
marshalling of the assets of any of the Loan Parties, or


 


(e)           any Major
Event of Default;


 


first,
all reasonable out-of-pocket costs and expenses (including, without limitation,
reasonable attorneys’ fees) of Agent in connection with enforcing the rights of
Lenders under the Transaction Documents, including all court costs (whether at
trial, appellate or administrative levels) of the Agent and its agents,
representatives, and attorneys incurred in connection with the sale or with the
retaking, holding, handling, preparing for sale (or other disposition) of the
Collateral and all other fees and expenses incurred by the Agent for which it
is entitled to payment or reimbursement pursuant to Section 11.4 hereof or
pursuant to any other Transaction Document, shall be paid;


 


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second,
all reasonable out-of-pocket costs and expenses (including, without limitation,
reasonable attorneys’ fees) of Lenders in connection with enforcing the rights
of Lenders under the Transaction Documents, shall be paid;


 


third,
all Senior Term A Notes shall be paid in full in cash (including any prepayment
premium that would be applicable if such payment were a voluntary prepayment
under Section 3.3) before any payment or distribution, whether in cash,
securities (other than Reorganization Subordination Securities) or other
property shall be made to any holder of any Senior Term B Notes, Junior Term C
Notes or Junior Term D Notes;


 


fourth,
all Senior Term B Notes shall be paid in full in cash (including any prepayment
premium that would be applicable if such payment were a voluntary prepayment
under Section 3.3) before any payment or distribution, whether in cash,
securities (other than Reorganization Subordination Securities) or other
property shall be made to any holder of any Junior Term C Notes or Junior Term
D Notes;


 


fifth,
all Junior Term C Notes shall be paid in full in cash (including any prepayment
premium that would be applicable if such payment were a voluntary prepayment
under Section 3.3) before any payment or distribution, whether in cash, securities
(other than Reorganization Subordination Securities) or other property shall be
made to any holder of any Junior Term D Notes;


 


sixth,
all Junior Term D Notes shall be paid in full in cash (including any prepayment
premium that would be applicable if such payment were a voluntary prepayment
under Section 3 .3); and


 


seventh,
all other obligations owing to the Agent and the Lenders hereunder and under
the other Transaction Documents.


 


10.4         Exercise
of Remedies of Junior Lenders.


 


(a)           Except as
otherwise expressly set forth herein, so long as the Senior Loans remain
outstanding, Junior Lenders will not, directly or indirectly, take any
Enforcement Action during any Standstill Period. Upon expiration of the
applicable Standstill Period, Junior Lenders may take any Enforcement Action
against or in respect of any Collateral so long as Agent (with respect to the
Senior Loans) has not commenced and is not diligently pursuing Enforcement
Actions with respect to such Collateral.


 


(b)           Solely
with respect to the Junior Loans, no Junior Lender shall exercise any Unsecured
Remedy until the earliest to occur of:


 


(i)            the occurrence of a Proceeding with respect to any Loan Party;


 


(ii)           the acceleration of all or any portion of the Senior Loans; or


 


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(iii)          the passage of one hundred eighty (180) days from the delivery to the
Loan Parties of a notice of a default pursuant to Section 8.2 of this Agreement
if (x) such default shall not have been cured or waived within such period and
(y) the Junior Lenders shall have given Agent at least ten (10) days prior
notice of its intention to exercise Unsecured Remedies prior thereto; provided
that the expiration of such ten (10) day notice period may occur before, on or
after the expiration of the one hundred eighty (180) day period from delivery
of the notice described this clause (iii).


 


(c)           The
Junior Lenders agree that, prior to the payment in full of the Senior Loans it
will not take or receive any Collateral or any proceeds of such Collateral in
connection with the exercise of any right or remedy (including setoff) with
respect to such Collateral. Without limiting the generality of the foregoing,
prior to the payment in full of the Senior Loans, the sole right of the Junior Lenders
with respect to any Collateral shall be the right to receive a share of the
proceeds as set forth herein.


 


10.5         Proof of
Claim.


 


The Junior Lenders hereby grant to the Senior Lenders the right to file
proofs of claim on account of the Junior Loans in any Proceedings in the event
that the holders of Junior Loans fail to do so within five (5) days of the bar
date pertaining thereto; provided, however, that the holders of the Senior
Loans shall not under any circumstances be permitted to vote such claim, all
voting rights with respect thereto being hereby retained by the Junior Lenders.


 


10.6         Acceleration
of Junior Loans.


 


In the event that any Junior Notes shall be declared due and payable as
the result of the occurrence of any one or more Events of Default in respect
thereof, under circumstances when the terms of Section 10.2 do not prohibit
payment on Junior Notes, no payment shall be made in respect of any Junior
Notes unless and until all Senior Loans shall have been paid in full in cash or
such declaration and its consequences shall have been rescinded and all such
Defaults and Events of Default shall have been remedied or waived or shall have
ceased to exist.


 


10.7         Turnover
of Payments.


 


If any payment, distribution or security or the proceeds of any
thereof, shall be collected or received by any Junior Lender in contravention
of any of the terms of this Agreement, then, subject to this Agreement, the
holder thereof will forthwith deliver such payment, distribution, security or
proceeds to Agent, to be applied by Agent to permanently repay the Senior
Loans. If the Senior Loans shall have been paid in full, then the Senior
Lenders shall pay to Agent, on behalf of the Junior Lenders, any amount in
excess thereof that the Junior Lenders would have been entitled to but for the
application of the immediately preceding sentence, but solely to the extent any
such amount was actually received by the Senior Lenders and Agent shall apply
such amount in accordance with this Agreement. If any turnover pursuant to this
Section 10.7 is required as a result of a reinstatement of any Senior Loans and
an avoidance, disgorgement or turnover obligation of any Senior Lender by a
court in any Proceeding or otherwise, no Junior


 


69

















 


Lender shall be obligated to make such turnover unless it has received
written demand to do so by such Senior Lender or Agent within ninety (90) days
of such reinstatement.


 


10.8         No
Prejudice or Impairment.


 


The provisions of this Article 10 are solely for the purposes of
defining the relative rights of the Senior Lenders and the Junior Lenders.
Nothing herein shall impair or prevent the Senior Lenders from exercising all
rights and remedies otherwise permitted by applicable Law upon default under any
Transaction Document subject, however, to the provisions of this Agreement. The
right of any Senior Lenders to enforce any provision of this Agreement or any
other Transaction Document shall not at any time in any way be prejudiced or
impaired by any act or failure to act on the part of any Loan Party or by any
act or failure to act by Agent or any Senior Lender or by any noncompliance by
any Person with the terms, provisions and covenants of this Agreement or any
other Transaction Documents, regardless of any knowledge thereof which any
Senior Lender may have or be otherwise charged with. Nothing herein shall
impair, as between each Loan Party and any Junior Lender, the obligation of
such Loan Party, which is unconditional and absolute, to pay to the Junior
Lenders the principal of and interest on the Junior Loans as and when the same
shall become due in accordance with their terms, nor shall anything herein
prevent any Junior Lender from exercising all rights and remedies otherwise
permitted by applicable law upon default under this Agreement or any other
Transaction Document, subject, however, to the provisions of this Article 10.


 


10.9         Subrogation.


 


From and after the indefeasible payment in full in cash of all Senior
Loans, until the principal of, premium, if any, on, and interest on the Junior
Loans shall be paid in full, the Junior Lenders shall be subrogated to all
rights of the Senior Lenders to receive any further payments or distributions
applicable to the Senior Loans to the extent any such payment or distribution
is made to or for the account of the Senior Lenders.


 


10.10       Amendments.


 


Notwithstanding anything to the contrary herein, no amendment, waiver
or other modification of this Article 10 shall be effective unless such
amendment, waiver or other modification shall have been approved in writing by
Agent and all of the Senior Lenders outstanding at the time of such amendment,
waiver or other modification.


 


ARTICLE XI



MISCELLANEOUS


 


11.1         Successors
and Assigns.


 


This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, except that (a) neither
Parent nor the Borrower may assign or transfer its rights hereunder or any
interest herein or delegate their duties hereunder and (b) the Lenders
shall have the right to assign their rights hereunder and under the Loans in
accordance with Article VI.


 


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11.2         Modifications
and Amendments.


 


The provisions of
this Agreement may be modified, waived or amended, but only by a written
instrument signed by Parent, the Borrower, and by the Agent on behalf of the
Lenders upon satisfaction of the conditions set forth in Section 9.11.


 


11.3         No
Implied Waivers; Cumulative Remedies; Writing Required.


 


No delay or failure
in exercising any right, power or remedy hereunder shall affect or operate as a
waiver thereof; nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power or remedy
preclude any further exercise thereof or of any other right, power or remedy. The
rights and remedies hereunder are cumulative and not exclusive of any rights or
remedies that the Agent or the Lenders would otherwise have. Any waiver,
permit, consent or approval of any kind or character of any breach or default
under this Agreement or any such waiver of any provision or condition of this
Agreement must be in writing, satisfy the conditions set forth in Section 9.11
and shall be effective only to the extent specifically set forth in such
writing.


 


11.4         Reimbursement
of Expenses.


 


The Borrower upon
demand shall pay or reimburse the Agent for all reasonable fees and expenses
incurred or payable by the Agent (including reasonable fees and expenses of
counsel for the Agent and charges for services performed for the Lenders by the
Agent’s auditors) from time to time (a) arising in connection with the
negotiation, preparation and execution of this Agreement, the Notes, the
Security Documents, the other Transaction Documents and all other instruments
and documents to be delivered hereunder or thereunder or arising in connection
with the transactions contemplated hereunder or thereunder, and
(b) relating to the administration of this Agreement and the Transaction
Documents, including any amendments, waivers or consents pursuant to the
provisions hereof or thereof but excluding any such fees and expenses incurred
or payable in connection with any syndication of the Loans. The Borrower upon
demand shall pay or reimburse the Agent and the Lenders for all reasonable fees
and expenses incurred or payable by the Agent or the Lenders (including
reasonable fees and expenses of counsel for the Agent and for the Lenders and
charges for services performed for the Lenders by the Agent’s auditors) arising
in connection with the enforcement of this Agreement or the other Transaction
Documents and obligations hereunder or thereunder; provided that, such
reimbursement shall be limited to one counsel for the Lenders.


 


11.5         Holidays.


 


Whenever any payment
or action to be made or taken hereunder or under the Notes shall be stated to
be due on a day that is not a Business Day, such payment or action shall be
made or taken on the next following Business Day, and such extension of time
shall be included in computing interest or fees, if any, in connection with
such payment or action.


 


11.6         Notices.


 


Any notices or other
communications required or permitted under, or otherwise in connection with
this Agreement, shall be in writing and shall be deemed to have been duly given


 


71

















 


when delivered in person, upon confirmation of receipt when transmitted
by facsimile (such confirmation of receipt being an acknowledgement or
transmission report generated by the machine from which the facsimile was sent
indicating that the facsimile was sent in its entirety to the addressee’s
facsimile number) or on receipt after dispatch by registered or certified mail,
postage prepaid, or by courier, addressed in each case as follows:


 


If to the Borrower:


 


DeMarseCo Holdings, Inc.

300 West 6th Street


Suite 2300


Austin, Texas  78701


Attention:                     ,


Facsimile No.:  (512) 476-3952

E-mail:         


 


with a copy to:



DLA Piper US LLP

1221 S. MoPac Expressway

Suite 400

Austin, Texas  78746

Attn:  John J. Gilluly, III and Samer M.
Zabaneh

Facsimile:  (512) 475-7001

E-mail:  john.gilluly@dlapiper.com and
samer.zabaneh@dlapiper.com


 


to the Agent:



American Capital Financial Services, Inc.

2 Bethesda Metro Center, 14th Floor

Bethesda, MD  20814

Attn:  Compliance Officer

Facsimile:  (301) 654-6714

E-mail:  sam.flax @americancapital.com


 


with a copy
to:




American Capital Strategies, Ltd.

2200 Ross Avenue

Suite 4500W

Dallas, Texas 75201

Attn:  Bowen S. Diehl

Telecopier:  (214) 273-6635

E-mail:  Bowen.Diehl@americancapital.com


 


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with a copy to:



Patton Boggs LLP

2001 Ross Avenue, Suite 3000

Dallas, Texas 75201

Attn:  Eric L. White

Facsimile:  (214) 758-1550

E-mail:  ewhite@pattonboggs.com


 


to the Lenders:



As set forth on Annex A attached hereto.


 


or in
accordance with any subsequent written direction from the recipient party to
the sending party. In the event that an addressee of a notice or communication
rejects or otherwise refuses to accept a notice or other communication
delivered or sent in accordance with this Section 11.6, or if the notice or
other communication cannot be delivered because of a change in address for
which no notice was given, then such notice or other communication is deemed to
have been received upon such rejection, refusal or inability to deliver.


 


11.7         Survival.


 


All representations,
warranties, covenants and agreements of Parent and the Borrower contained
herein or made in writing in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder and shall
continue in full force and effect so long as any Loan or obligation hereunder
is outstanding and until payment in full of all of the Borrower’s obligations
and termination of the Revolving Facility Commitment hereunder or thereunder. All
obligations relating to indemnification hereunder shall survive any termination
of this Agreement and shall continue for the length of any applicable statute of
limitations.


 


11.8         Governing
Law.


 


THIS AGREEMENT, AND ALL MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT
GIVING EFFECT TO THE CHOICE OF LAWS PROVISIONS THEREOF.


 


11.9         Jurisdiction,
Consent to Service of Process.


 


(a)           THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMIT, FOR THEMSELVES AND THEIR PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY MARYLAND STATE COURT OR FEDERAL COURT OF THE UNITED STATES
OF AMERICA SITTING IN THE STATE OF MARYLAND, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS


 


73

















 


AGREEMENT,
THE NOTES OR ANY OTHER TRANSACTION DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL CLAIMS
IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
MARYLAND STATE COURT 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 A PARTY HERETO MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR ANY
OTHER TRANSACTION DOCUMENT AGAINST ANOTHER PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.


 


(b)           THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT THEY MAY LEGALLY AND EFFECTIVELY
DO SO, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE NOTES OR ANY OTHER TRANSACTION DOCUMENT IN ANY MARYLAND STATE OR FEDERAL COURT.
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.


 


(c)           EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.6 HEREOF. NOTHING
IN THIS AGREEMENT SHALL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.


 


11.10       Jury Trial
Waiver.


 


EACH PARTY TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING (A) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, OR (B) ARISING FROM ANY DISPUTE OR
CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT AND AGREES THAT ANY SUCH ACTION OR COUNTERCLAIM SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


74

















 


11.11       Severability.


 


Whenever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable Law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable Law in any
jurisdiction, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating any other provision of this
Agreement.


 


11.12       Headings.


 


Article, section and
subsection headings in this Agreement are included for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.


 


11.13       Indemnity.


 


Parent and the
Borrower hereby agree to indemnify, defend and hold harmless the Agent and the
Lenders, their Affiliates and each of their respective officers, directors,
employees, agents, partners, subsidiaries and representatives, and their
respective successors and assigns (an “Indemnified Person”) in
connection with any losses, claims, damages, liabilities and expenses,
including reasonable attorneys’ fees, to which any such Person may become
subject (other than as a result of the gross negligence or willful misconduct
of any Indemnified Person), insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or by
reason of any misrepresentation in any representation or warranty of or by, or
investigation, litigation or other proceedings related to or resulting from any
act of, or omission by, the Loan Parties or Sponsor or any officer, director,
employee, agent or representative of the Loan Parties or Sponsor with respect
to the Transactions, the Notes, the Transaction Documents, Charter Documents,
the Organization Documents or any other agreements entered into in connection
with any such agreements, instruments or documents and to reimburse each
Indemnified Person, upon demand, for any reasonable legal or other reasonable
expenses incurred in connection with investigating or defending any such loss,
claim, damage, liability, expense or action. To the extent that the foregoing
undertakings may be unenforceable for any reason, the Borrower agrees to make
the maximum contribution to the payment and satisfaction of indemnified
liabilities set forth in this Section 11.13 that is permissible under applicable
Law. This indemnity and agreement to defend and hold harmless shall survive any
termination or satisfaction of the Loans and other obligations hereunder or the
sale, assignment or foreclosure thereof or the sale, transfer or conveyance of
all or part of the past and present properties and facilities or any other
circumstances that might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of the Borrower hereunder.


 


11.14       Environmental
Indemnity.


 


The Borrower hereby
releases and discharges, and agrees to indemnify, defend and hold harmless, the
Agent and the Lenders and their Affiliates and each of their respective
officers, directors, employees, agents, partners, subsidiaries, customers,
guests, invitees and representatives, and their respective successors and
assigns (an “Environmental Indemnified Person”)
from and against any and all Environmental Liabilities, whenever and by
whomever asserted, to the extent that such Environmental Liabilities are based
upon, or otherwise relate to:


 


75

















 


(a) any Condition at any time in, at, on, under, a part of, involving
or otherwise related to the Properties and Facilities (including any of the
properties, materials, articles, products, or other things included in or
otherwise a part of the Properties and Facilities); (b) any action or failure
to act of any Person, including any prior owner or operator of the Properties
and Facilities (including any of the properties, materials, articles, products,
or other things included in or otherwise a part of the Properties and
Facilities), involving or otherwise related to the Properties and Facilities or
operations of the Loan Parties; (c) the Management of any Pollutant,
material, article or product (including Management of any material, article or
product containing a Pollutant) in any physical state and at any time,
involving or otherwise related to the Properties and Facilities or any property
covered by clause (d) (including Management either from the Properties and
Facilities or from any property covered by clause (d), and Management to, at,
involving or otherwise related to the Properties and Facilities or any property
covered by clause (d)); (d) Conditions, and actions or failures to act, in, at,
on, under, a part of, involving or otherwise related to any property other than
the Properties and Facilities, which property was, at or prior to the Closing
Date, (i) acquired, held, sold, owned, operated, leased, managed, or
divested by, or otherwise associated with, (A) the Loan Parties, (B) any
of the Loan Parties’ Affiliates, or (C) any predecessor or successor
organization of those identified in (A) or (B); or (ii) engaged in any tolling,
contract manufacturing or processing, or other similar activities for, with, or
on behalf of the Loan Parties; (e) any violation of or noncompliance with
or the assertion of any Lien (other than Permitted Liens) under the
Environmental Laws, (f) the presence of any Pollutants on, at or from the
past and present Properties and Facilities, including human exposure thereto;
(g) any Release affecting the past and present Properties and Facilities,
whether or not the same originates or emanates from such Properties and
Facilities or any contiguous real estate, including any loss of value of such
Properties and Facilities as a result thereof; or (h) a misrepresentation
in any representation or warranty or breach of or failure to perform any
covenant made by the Loan Parties in this Agreement or any other Transaction
Document. This indemnity and agreement to defend and hold harmless shall
survive any termination or satisfaction of the Loans and other obligations
hereunder or the sale, assignment or foreclosure thereof or the sale, transfer
or conveyance of all or part of the past and present Properties and Facilities
or any other circumstances that might otherwise constitute a legal or equitable
release or discharge, in whole or in part, of the Borrower hereunder. Notwithstanding
the foregoing, if and to the extent that any Environmental Liabilities are
directly caused as a result of an Environmental Indemnified Person’s gross
negligence or willful misconduct, such Environmental Indemnified Person and its
Affiliates shall not be entitled to the indemnity provided above.


 


11.15       Marshaling;
Payments Set Aside.


 


Neither the Agent
nor any Lender shall be under any obligation to marshal any assets in favor of
the Borrower or any other Person or against or in payment of any or all of the
obligations hereunder. To the extent that the Borrower makes a payment or
payments to the Agent or any Lender, or the Agent or any Lender enforces its
Liens or exercises its rights of set-off, and such payment or payments or the
proceeds of such enforcement or set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Agent or any Lender
in its discretion) to be repaid to a trustee, receiver or any other party in
connection with any bankruptcy, insolvency or similar proceeding, or otherwise,
then (a) to the extent of such 


 


76

















 


recovery, the obligation hereunder or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or setoff had not occurred
and (b) each Lender severally agrees to pay to the Agent upon demand its
ratable share of the total amount so recovered from or repaid by the Agent to
the extent paid to such Lender.


 


11.16       Nonliability
of Lenders.


 


The relationship
between the Borrower on the one hand and the Lenders and the Agent on the other
hand shall be solely that of borrower and lender. Neither the Agent nor any
Lender shall have any fiduciary responsibility to the Borrower. Neither the
Agent nor any Lender undertakes any responsibility to the Borrower to review or
inform the Borrower of any matter in connection with any phase of the Borrower’s
business or operations. Execution of this Agreement by Parent and the Borrower
constitutes a full, complete and irrevocable release of any and all claims
which such parties may have at law or in equity in respect of all prior
discussions and understandings, oral or written, relating to the subject matter
of this Agreement and the other Transaction Documents. Neither the Agent nor
any Lender shall have any liability with respect to, and Parent and the
Borrower hereby waive, release and agree not to sue for, any special, indirect,
punitive or consequential damages or liabilities.


 


11.17       Counterparts.


 


This Agreement may
be executed in any number of counterparts and by either party hereto on
separate counterparts, each of which, when so executed and delivered, shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Any such counterpart may be delivered by facsimile, email or
similar electronic transmission and shall be deemed the equivalent of an
originally signed counterpart and shall be fully admissible in any enforcement
proceedings regarding this Agreement.


 


11.18       Integration.


 


This Agreement and
the other Transaction Documents set forth the entire understanding of the
parties hereto with respect to all matters contemplated hereby and supersede
all previous agreements and understandings among them concerning such matters. No
statements or agreements, oral or written, made prior to or at the signing
hereof, shall vary, waive or modify the written terms hereof.


 


11.19       Confidentiality.


 


Each of the Agent
and the Lenders agrees to keep confidential all non-public information provided
to it by any Loan Party pursuant to this Agreement and the other Transaction
Documents; provided that nothing herein shall prevent the Agent or any
Lender from disclosing any such information (a) to the Agent, any other Lender
or any Affiliate of any thereof that agrees to comply with the provisions of
this Section, (b) to any Assignee or Participant or any prospective Assignee or
Participant that agrees to comply with the provisions of this Section,
(c) to any of its employees, directors, agents, attorneys, accountants and
other professional advisors on a need-to-know basis that agree to comply with
the provisions of this Section, (d) to


 


77

















 


any financial institution that is a direct or indirect contractual
counterparty to a Currency Hedging Agreement or an Interest Rate Protection
Agreement or such contractual counterparty’s professional advisors that agrees
to comply with the provisions of this Section, (e) upon the request or demand
of any Governmental Authority, (f) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
requirement of Law, (g) in connection with any litigation or similar
proceeding, (h) that has been publicly disclosed other than in breach of this
Section, (i) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about a Lender’s investment portfolio in connection with
ratings issued with respect to such Lender, (j) in connection with the exercise
of any remedy hereunder or under any other Transaction Document, (k) to an investor
or prospective investor in a Securitization that agrees that its access to
information regarding the Loan Parties, the Loans and Transaction Documents is
solely for purposes of evaluating an investment in a Securitization and who
agrees to comply with the provisions of this Section, (l) to a trustee,
collateral manager, servicer, backup servicer, noteholder or secured party in a
Securitization in connection with the administration, servicing and reporting
on the assets serving as collateral for a Securitization, and (m) to a
nationally recognized rating agency that requires access to information
regarding the Loan Parties, the Loans and Transaction Documents in connection
with ratings issued with respect to a Securitization.


 


*          *          *

Signatures Appear on Next Page


 


78

















 


SIGNATURE PAGE TO

CREDIT AGREEMENT


 


IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the day and year first
above written.


 


	
   

  	
  DEMARSECO HOLDINGS, INC.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Elisabeth
  DeMarse

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CCCI HOLDINGS, INC.,

  
	
   

  	
  as Parent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Elisabeth
  DeMarse

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  



 


 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  AMERICAN CAPITAL
  FINANCIAL SERVICES, INC.,

  
	
   

  	
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Bowen Diehl

  
	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERICAN
  CAPITAL STRATEGIES, LTD.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Bowen Diehl

  
	
   

  	
   

  	
  Vice
  President

  



 


 


[Signature Page to Credit Agreement]


 

















 


ANNEX A


 


INFORMATION RELATING
TO LENDERS


 


With respect to all Notes: 



Name and Address

of initial Lender:



AMERICAN CAPITAL STRATEGIES, LTD.

2 Bethesda Metro Center

14th Floor

Bethesda, MD  20814


 


 


With respect to all Notes will be assigned
to:



ACS FUNDING TRUST I

c/o AMERICAN CAPITAL STRATEGIES, LTD.,

as Servicer

2 Bethesda Metro Center, 14th Floor

Bethesda, MD  20814


 


(1)           All
payments:


 


If by wire:


 


	
   

  	
  Bank:

  	
  Wells Fargo
  Bank, N.A.

  
	
   

  	
  ABA #:

  	
  121000248

  
	
   

  	
  Account
  Name:

  	
  ACS Funding
  Trust I

  
	
   

  	
  Account #:

  	
  4000-037515

  



 


If by mail:


 


ACS Funding Trust I


NW 7941


P.O. Box 1450


Minneapolis, MN  55485-7941


 


If by overnight parcel service


(e.g., FedEx, UPS, etc):


 


ACS Funding Trust I, #NW 7941


c/o Regulus


1350 Energy Lane, Suite 200


St. Paul, MN 
55108


 

















 


with sufficient information


to identify the source and


application of such funds.


 


**All checks should be made payable to “ACS Funding Trust I”.


 


(2)           All
notices of payments and written confirmations of such wire transfers:


 


American Capital Strategies, Ltd., as
Servicer


2 Bethesda Metro Center, 14th
Floor


Bethesda, Maryland  20814


Attn: 
Comptroller


Facsimile: 
(301) 654-6714


 


(3)           All
other communications:


 


American Capital Strategies, Ltd., as
Servicer


2 Bethesda Metro Center, 14th
Floor


Bethesda, Maryland  20814


Attn: 
Compliance Officer


Facsimile: 
(301) 654-6714


 


with a copy to:


 


American Capital Strategies, Ltd.


2200 Ross Avenue


Suite 4500W


Dallas, Texas 75201


Attn:  Bowen S. Diehl


Telecopier:  (214) 273-6635


E-mail: 
Bowen.Diehl@americancapital.com


 


with a copy to:


 


American Capital Strategies, Ltd.


2 Bethesda Metro Center, 14th Floor


Bethesda, Maryland  20814


Attn:  General Counsel


Facsimile:  (301) 654-6714


 


A-2

















 


ANNEX B


 


Conditions Precedent to
Permitted Acquisitions


 


(1)           The Agent and the
Lenders shall receive not less than fifteen (15) Business Days’ prior written
notice of such acquisition, which notice shall include a reasonably detailed
description of the proposed terms of such acquisition and identify the
anticipated closing date thereof;


 


(2)           The Agent shall
receive, not less than ten (10) Business Days’ prior to the consummation of
such acquisition, a due diligence package, reasonably satisfactory to it;


 


(3)           The Agent shall
receive evidence that (a) (i) the applicable Target has in place, with
financially sound and reputable insurers, public liability and property damage
insurance with respect to its business and properties against loss or damage of
the kinds customarily carried or maintained by companies similarly situated in
the same or similar businesses and in amounts as are customary with companies
similarly situated in the same or similar businesses, and (ii) pursuant to
endorsements and/or assignments in form and substance reasonably satisfactory
to the Agent, (x) the Agent has been named as lender’s loss payee, for its
benefit and the benefit of the Lenders, in the case of casualty insurance, and
(y) the Agent and each of the Lenders have been named as additional
insureds in the case of all liability insurance or (b) the Borrower’s
Insurance will cover Target following the acquisition and the requirements in
clause (ii) are satisfied;


 


(4)           The Agent, for the
benefit of the Agent and the Lenders, (a) is granted a first priority
perfected Lien (subject only to Permitted Liens) on all real and personal
property being acquired pursuant to such acquisition (and, in the case of an
acquisition involving the purchase of any applicable Target’s equity interests
(other than a Target that will be a Foreign Subsidiary of a Loan Party upon
consummation of such acquisition), all of such purchased equity interests shall
be pledged to the Agent for the benefit of the Agent and the Lenders, and such
Target shall guarantee all obligations of the Borrower under this Agreement and
grant to the Agent, for the benefit of the Agent and the Lenders, a first
priority perfected Lien (subject only to Permitted Liens) on such Person’s
assets in compliance with Section 7.1(k)) and (b) will be provided
such other documents and instruments as the Agent shall request to perfect or
maintain the perfection of its Lien on all real and personal property of the
applicable Target, as the case may be;


 


(5)           after giving effect
to such acquisition and the incurrence of any Loan or other Indebtedness in
connection therewith, (a) no Event of Default shall exist, (b) the
Borrower shall be in compliance on a pro forma basis with the covenants set
forth in Section 7.3 recomputed for the most recently ended month of the
Borrower for which information is available regarding the business being
acquired, and (c) the Borrower can demonstrate to the Agent projected pro
forma compliance with the covenants set forth in Section 7.3, for the 12-month
period immediately following the consummation of the proposed acquisition based
on the combined operating results of the applicable Target and of the Borrower
and their Subsidiaries for the 12-month period ending on the last day of the
month for which financial statements for the applicable Target and for the
Borrower and their Subsidiaries are available;


 

















 


(6)           the aggregate
consideration paid in connection with the acquisition shall not exceed
$2,000,000 and the aggregate consideration paid in connection with all
acquisitions shall not exceed $5,000,000;


 


(7)           all material
consents necessary for such acquisition (including such consents as the Agent
deems reasonably necessary) have been acquired and such acquisition shall not
be hostile and shall have been approved by the applicable Target’s board of
directors or similar governing body;


 


(8)           subject to clause
(4) of this Annex B, as soon as practicable after the closing of
such acquisition, and in any event within twenty (20) Business Days after such
closing, the Borrower shall deliver copies of all material documents executed
in connection with such acquisition (or as reasonably requested by Agent) to
the Agent;


 


(9)           promptly after
obtaining knowledge thereof, the Borrower shall provide notice of any material
change to any of the documents or information previously provided pursuant to clauses
(1) through (8) above.


 


B-2

















 


SCHEDULES


 


Schedule 7.1(m)


 


Post-Closing Schedule


 


•                  Within ninety days
following the Closing Date, the Borrower shall have collaterally assigned to
the Agent a paid life insurance policy issued by a carrier reasonably
acceptable to the Agent insuring, for a period from the Closing Date through
December 31, 2012, the life of the Key Management, in an amount equal to
$5,500,000.


 


•                  Within thirty days
following the Closing Date, the Borrower shall procure an errors and omissions
insurance policy targeted to cover its indemnification obligations in the Card
Issuer Agreements with a minimum limit of $5,000,000.


 


•                  Within fifteen days
following the Closing Date, the Borrower shall deliver insurance endorsements
in favor of Agent with respect to its insurance policies.


 


•                  Within ninety days
following the Closing Date, the Borrower shall have opened a second data center
to serve as a back-up site.


 


•                  Within thirty days
following the Closing Date, the Borrower shall use commercially reasonable
efforts to obtain each Website Host Waiver and Consent.


 


•                  Within thirty days
following the Closing Date, Borrower shall deliver an account control agreement
with respect to the deposit account of the Loan Parties maintained at Frost
National Bank.


 


•                  Within thirty days
following the Closing Date, Borrower shall deliver the LinkShare trademark
usage consent.


 


•                  Within thirty days
following the Closing Date, the Borrower shall use commercially reasonable
efforts to obtain the consents related to the assignments of those contracts
listed in Schedule 5.1(f) hereof.


 

















 


EXHIBITS