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Exhibit 10.21  


AMENDED AND RESTATED

CREDIT AGREEMENT  


 by and among  


 CREDITCARDS.COM, 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  


 June 18, 2007  








  



 
 

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; CONVERTIBLE JUNIOR PIK NOTES, REVOLVING FACILITY, CONVERSION OF THE CONVERTIBLE JUNIOR PIK NOTES	
 	

19
	2.1	 	Term Loans; PIK Notes	 	19
	2.2	 	The Closing	 	21
	2.3	 	The Revolving Facility	 	21
	2.4	 	Advances	 	22
	2.5	 	Revolving Facility Disbursements	 	22
	2.6	 	Several Commitments	 	22
	2.7	 	Letters of Credit	 	22
	2.8	 	Conversion of the Convertible Junior PIK Notes	 	25
	

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

25
	3.1	 	Interest Rates and Interest Payments	 	25
	3.2	 	Scheduled Repayment of the Loans	 	26
	3.3	 	Optional Prepayment of Loans	 	27
	(b)	 	Optional Junior PIK Excess Cash Payment	 	28
	3.4	 	Notice of Optional Prepayment	 	28
	3.5	 	Mandatory Prepayment	 	29
	3.6	 	Home Office Payment	 	30
	3.7	 	Taxes	 	30
	3.8	 	Break Fund Payments	 	31
	3.9	 	Priority of Payment	 	31
	3.10	 	Maximum Lawful Rate	 	32
	3.11	 	Capital Adequacy/Increased Cost	 	32
	3.12	 	Certain Waivers	 	32
	3.13	 	Payments	 	33
	3.14	 	Letter of Credit Fees	 	33
	

ARTICLE IV CONDITIONS	
 	

33
	4.1	 	Conditions Precedent to Make Loans	 	33
	4.2	 	Conditions Precedent to each Advance	 	35
	4.3	 	Waiver	 	36
	

ARTICLE V REPRESENTATIONS AND WARRANTIES	
 	

36
	5.1	 	Representations and Warranties	 	36
	5.2	 	Absolute Reliance on the Representations and Warranties	 	41
	

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

42
	6.1	 	Assignments	 	42
	6.2	 	Participations	 	43
	6.3	 	Replacement of Lost Notes	 	44
	6.4	 	Replacement of Lenders	 	44
	 	 	 	 	 



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ARTICLE VII COVENANTS	
 	

44
	7.1	 	Affirmative Covenants	 	44
	7.2	 	Negative Covenants	 	48
	7.3	 	Financial Covenants	 	54
	

ARTICLE VIII EVENTS OF DEFAULT	
 	

60
	8.1	 	Events of Default	 	60
	8.2	 	Consequences of Event of Default	 	61
	8.3	 	Security	 	62
	

ARTICLE IX AGENT	
 	

63
	9.1	 	Authorization and Action	 	63
	9.2	 	Delegation of Duties	 	63
	9.3	 	Exculpatory Provisions	 	63
	9.4	 	Reliance	 	63
	9.5	 	Non-Reliance on the Agent and Other Lenders	 	64
	9.6	 	No Liability of Lenders	 	64
	9.7	 	The Agent in its Individual Capacity	 	64
	9.8	 	Successor Agent	 	64
	9.9	 	Collections and Disbursements	 	64
	9.10	 	Reporting	 	65
	9.11	 	Consent of Lenders	 	65
	9.12	 	Indemnification	 	66
	9.13	 	Collateral Matters	 	66
	9.14	 	This Article Not Applicable to Loan Parties	 	67
	

ARTICLE X SUBORDINATION OF NOTES	
 	

67
	10.1	 	General	 	67
	10.2	 	Default in Respect of Senior Loans and Junior Loans	 	67
	10.3	 	Insolvency, Major Event of Default, etc.	 	68
	10.4	 	Exercise of Remedies of Junior Lenders and Convertible Junior PIK Lenders	 	69
	10.5	 	Proof of Claim	 	70
	10.6	 	Acceleration of Junior Loans; Convertible Junior PIK Notes	 	70
	10.7	 	Turnover of Payments	 	71
	10.8	 	No Prejudice or Impairment	 	71
	10.9	 	Subrogation	 	72
	10.10	 	Amendments	 	72
	 	 	 	 	 





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ARTICLE XI MISCELLANEOUS	
 	

72
	11.1	 	Successors and Assigns	 	72
	11.2	 	Modifications and Amendments	 	72
	11.3	 	No Implied Waivers; Cumulative Remedies; Writing Required	 	72
	11.4	 	Reimbursement of Expenses	 	73
	11.5	 	Holidays	 	73
	11.6	 	Notices	 	73
	11.7	 	Survival	 	74
	11.8	 	Governing Law	 	75
	11.9	 	Jurisdiction, Consent to Service of Process	 	75
	11.10	 	Jury Trial Waiver	 	75
	11.11	 	Severability	 	76
	11.12	 	Headings	 	76
	11.13	 	Indemnity	 	76
	11.14	 	Environmental Indemnity	 	76
	11.15	 	Marshaling; Payments Set Aside	 	77
	11.16	 	Nonliability of Lenders	 	77
	11.17	 	Counterparts	 	78
	11.18	 	Integration	 	78
	11.19	 	Confidentiality	 	78
	11.20	 	Amendment and Restatement	 	78





	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)
	Organizational Schedule	 	(Section 5.1(a))
	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))




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	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 A-6	 	Form of PIK 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 PIK Note Conversion Amount Calculation




v









 
 

AMENDED AND RESTATED CREDIT AGREEMENT    
    
    $5,500,000 Revolving Loan Facility Maturing June 20, 2013    
    
    $32,725,250 Aggregate Principal Amount of

Senior Secured Term A Loans
  Due June 30, 2013    
    
    $32,725,250 Aggregate Principal Amount of
  Senior Secured Term B Loans
  Due June 30, 2013    
    
    $32,725,250 Aggregate Principal Amount of
  Junior
Secured Term C Loans
  Due June 30, 2013    
    
    $32,725.250 Aggregate Principal Amount of
  Junior Secured Term D Loans
  Due June 30, 2013    
    
    $23,900,000 Aggregate Principal Amount of
  Unsecured
Junior PIK Note
  Due June 30, 2014    




        THIS
AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"), dated as of June 18, 2007, is by and among CCCI
Holdings, Inc., a Delaware corporation ("Parent"), CreditCards.com, Inc. (formerly known as 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.    On
the Original Closing Date, Lenders extended credit pursuant to the Original Credit Agreement in the form of (a) Senior Term A Loans in an aggregate principal
amount of $18,750,000, (b) Senior Term B Loans 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 in an aggregate principal amount of $18,750,000, and (e) revolving loans 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
Borrower desires that the Lenders refinance the Loans (as defined in the Original Credit Agreement) and extend credit on the Closing Date in the form of
(a) Senior Term A Loans in an aggregate principal amount of $32,725,250, (b) Senior Term B Loans in an aggregate principal amount of $32,725,250, (c) Junior Term C Loans in an
aggregate principal amount of $32,725,250, (d) Junior Term D Loans in an aggregate principal amount of $32,725,250, (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 $5,500,000, and (f) Convertible Junior PIK Notes in an aggregate principal amount of
$23,900,000, all in connection with (i) the Recapitalization Transactions and (ii) the financing of the working capital expenses of the Loan Parties. 







 



        C.    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. 


        D.    Borrower
has agreed to secure all of its obligations under this Agreement (other than the Convertible Junior PIK Notes) 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 



        E.    Parent
has agreed to guarantee the obligations of Borrower under this Agreement and the other Transaction Documents and to secure the respective obligations (other than
the Convertible Junior PIK Notes) 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 the Asset Purchase Agreement by and among Borrower, Target and Target Partners (each as defined therein),
dated as of the Original Closing Date. 


        "Additional Junior Term C Loan" has the meaning assigned to such term in Section 2.1(c) hereof. 


        "Additional Junior Term D Loan" has the meaning assigned to such term in Section 2.1(d) hereof. 



        "Additional Senior Term A Loan" has the meaning assigned to such term in Section 2.1(a) hereof. 


        "Additional Senior Term B Loan" has the meaning assigned to such term in Section 2.1(b) hereof. 


        "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 


2







 



management
or policies of a Person, whether through ownership of voting 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 Amended and Restated 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" means that certain Assignment of Representations, Warranties, Covenants, Indemnities and Rights, executed
by the Loan Parties in favor of the Agent on the Original Closing Date, for the benefit of the Lenders, in form and substance as set forth in Exhibit F attached hereto. 



        "Blocking Notice" means a written notice from (i) Agent to the Junior Lenders and the Convertible Junior PIK Lenders pursuant to
which such Lenders are notified of a Senior Loan Payment Default or (ii) Agent to the Convertible Junior PIK Lenders pursuant to which such Lenders are notified of a Junior 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 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. 


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        "Cash Equivalents" means any of the investments set forth in Section 7.2(h)(i) through (v). 


        "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 



	(i)
	the
occurrence of any of the following prior to a Public Offering by Parent: 





        (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
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 


        (e)   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; or 



	(ii)
	the
occurrence of any of the following after a Public Offering by Parent: 





        (a)   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; 



        (b)   the
Sponsors and their Affiliates shall cease to have beneficial ownership (as defined in Rule 13d-3 under the Securities Act) in the aggregate, of at
least 20% of the aggregate outstanding voting power of the Capital Stock of the Parent (excluding, for this purpose, 




4







 


(A) unexercised
warrants, options or other rights to purchase or acquire the Parent's Capital Stock, and (B) any other unexercised obligation of the Parent to issue, directly or
indirectly, shares of its Capital Stock); 


        (c)   the
failure of the Sponsor or their Affiliates to have less than two members of the Board of Directors of the Parent at any time after a Public Offering by Parent; or 


        (d)   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. 





        "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 or any letter of credit is issued as finally determined pursuant to
Section 2.2 hereof. 


        "Closing Date Dividend" means the dividend by Borrower to Parent of a portion of the proceeds of the Loans made on the Closing Date in an
aggregate amount not to exceed $84,370,749.41 as long as Holdings contemporaneously uses the proceeds of such dividend solely for the purpose of repaying a portion of the accreted liquidation
preference to the holders of the Preferred Stock of Parent as more particularly set forth in the Recapitalization Documents. 


        "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. 


        "Convertible Junior PIK Notes" has the meaning assigned to such term in Section 2.1(e) hereof. 



        "Convertible Junior PIK Lender" means a lender that makes a loan that is evidenced by the Convertible Junior PIK
Notes. 


        "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. 


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        "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). 


        "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 $1,350,546.70, (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 for each month from May 31, 2006 through May 31, 2007 shall be deemed to be the amounts set forth on the
"EBITDA Schedule," attached hereto as Schedule 1.1 for each such month. 


        "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 Original Closing
Date, (iv) an Affiliate of a Lender holding all or a portion of any Loan on the Original 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 Original 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). 



        "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 


6







 

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, 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. 


7







 



        "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. 


        "Federal Funds Rate" means, for any day, a rate per annum (rounded upward to the nearest 1/100th of one percent (1%)) equal to the rate
published by the Federal Reserve Bank of New York on the preceding Business Day or, if no such rate is so published, the average rate per annum, as determined by the Agent, quoted for overnight
Federal Funds transactions last arranged prior to such day. 



        "Fee Letter" means that certain amended and restated fee letter dated as of the Closing Date, 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. 



        "First Tranche of Term Loans" has the meaning assigned to such term in Section 3.3(a)(i) 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, 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. 


        "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. 


8







 



        "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 (including the Guaranty of Parent executed on the Original Closing Date in favor of the Agent, for the benefit of the Lenders, in form and substance as
set forth on Exhibit D attached hereto, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof). 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 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 Election Notification" has the meaning assigned to such term in Section 3.1(d)(vi). 



        "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" means that certain IP Security Agreement, executed by the Loan Parties, in favor of the Agent, for the benefit of
the Lenders, on the Original Closing Date, in form and 


9







 



substance
as set forth on Exhibit C attached hereto, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof. 


        "Issuing Lender" means such financial institution approved by the Agent and the Borrower to issue Letters of Credit. 


        "Junior Lenders" means, collectively the Junior Term C Lenders and the Junior Term D Lenders. 


        "Junior Loan Payment Default" has the meaning assigned to such term in Section 10.2(a). 



        "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 PIK Interest" has the meaning assigned to such term in Section 3.1(a)(vi) 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(c) 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. 



        "Junior Term D Notes" has the meaning assigned to such term in Section 2.1(d) hereof. 


        "Key Management" means Elisabeth DeMarse. 


        "Knowledge" shall mean the actual knowledge of Elisabeth DeMarse, Chris Speltz, Philip Siegel and/or Craig Milius after due inquiry,  provided, that, after a Public Offering by Parent, the definition of "Knowledge" shall also include the
chief executive officer and the chief financial officer of Borrower and any representative of Sponsor that is a member of the Board of Directors of the Borrower or Parent. 


        "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. 



        "Letter of Credit" has the meaning set forth in Section 2.7(a) hereof. 


        "Letter of Credit Liabilities" means the sum of (a) the amount then available for drawing under all outstanding Letters of Credit,
in each case without regard to whether any conditions to drawing thereunder can then be met, plus (b) without duplication, the aggregate unpaid
amount of all reimbursement obligations in respect of previous drawings made under all Letters of Credit, but in any event shall not include Advances. 



        "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. 


10









  





        "Life Insurance" means that certain paid life insurance policy issued by a carrier reasonably acceptable to the Agent (it being understood
that MetLife Investors USA is deemed acceptable to 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 Original Closing Date. 


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


        "Management Fee Subordination Agreement" means that certain management fee subordination agreement executed on the Original Closing Date
by and among Agent, Borrower and Sponsor in form and substance as set forth in Exhibit E hereto, as the same may be amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof. 


        "Mandatory Excess Cash Payment" has the meaning assigned to it in Section 3.5(a)(iv). 


        "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 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 



11







 

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(c), and proceeds from the issuance of equity securities that are used to consummate a Permitted Acquisition), the aggregate cash proceeds received, directly or 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 (provided that the portion of this clause (a) attributable to Advances under the Revolving Facility Commitment shall
be based upon the average daily principal amount of such Advances for the one (1) month period ending on the Measurement Date instead of the outstanding principal balance thereof as of the
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 Original 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, the Junior Term D Notes and the Convertible Junior PIK Notes. 


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



        "Optional Junior PIK Excess Cash Payment" has the meaning assigned to such term in Section 3.3(b) hereof. 


12







 



        "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. 


        "Original Closing Date" means October 30, 2006. 


        "Original Credit Agreement" means that certain Credit Agreement, dated as of October 30, 2006, by and among the Loan Parties, Agent
and the Lenders, as amended by that certain Amendment and Consent Agreement, dated as of December 13, 2006, by and among the Loan Parties, Agent and the Lenders. 


        "Original Junior Term C Loan" has the meaning assigned to such term in Section 2.1(c) hereof. 



        "Original Junior Term D Loan" has the meaning assigned to such term in Section 2.1(d) hereof. 


        "Original Senior Term A Loan" has the meaning assigned to such term in Section 2.1(a) hereof. 


        "Original Senior Term B Loan" has the meaning assigned to such term in Section 2.1(b) hereof. 


        "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. 


        "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. 


        "PIK Note Conversion Amount" means, on any date of determination, an amount equal to the sum of (a) the product of (i) the
lesser of (A) Senior Net Debt to Adjusted EBITDA Ratio of the Loan Parties for the twelve-month period ending on the last day of the fiscal quarter, multiplied by 0.9 and (B) 5.5;
multiplied by (ii) Adjusted EBITDA of the Loan Parties for the twelve month period ending on the last day of such fiscal quarter; less (b) the difference of (i) all Indebtedness
of the Loan Parties on a consolidated basis (other than Indebtedness evidenced by the Convertible Junior PIK Notes) on the last day of such fiscal quarter minus (ii) all unencumbered cash and
Cash Equivalents of the Loan Parties on the last day of such fiscal quarter. 


        "PIK Note Conversion Amount Calculation" shall mean the calculation by Borrower of the PIK Note Conversion Amount for any fiscal quarter
in which Borrower elects to convert the Convertible Junior PIK Notes to Term Notes pursuant to Section 2.8 hereof, in form and substance acceptable to Agent. 



        "PIK Note Conversion Amount Calculation Certificate" shall mean the certificate from time to time executed by the Borrower and delivered
to Agent in accordance with Section 2.8 hereof, in form and substance as set forth on Exhibit I attached hereto. 


        "PIK Standstill Period" has the meaning assigned to such term in Section 10.4(e) hereof. 


13







 



        "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" means that certain Pledge Agreement, executed by the Loan Parties, in favor of the Agent, for the benefit of the
Lenders, on the Original Closing Date, granting a Lien and security interest on all outstanding Capital Stock of the Borrower and each direct and indirect Subsidiary of the Borrower in form and
substance as set forth on Exhibit B-1 attached hereto, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof. 


        "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. 


        "Preferred Stock" means (i) the Series A Convertible Redeemable Preferred Stock of Parent, par value $0.001 per share (the
"Series A Convertible Redeemable Preferred Stock")and (ii) the Series A-1 Convertible
Redeemable Preferred Stock of Parent, par value $0.001 per share (the "Series A-1 Convertible Redeemable Preferred Stock"). 


        "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. 


        "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. 


        "Qualified Public Offering" means an initial Public Offering of Capital Stock by any Loan Party resulting in gross cash proceeds of at
least $75,000,000 other than an offering of Capital Stock for an employee benefit plan on SEC Form S-8 or a successor form. 


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        "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. 


        "Recapitalization Documents" means that certain Redemption Agreement dated on or about June 18, 2007 by and among the Parent, the
holders of the Parent's Series A Convertible Redeemable Preferred Stock and the holders of the Parent's Series A-1 Convertible Redeemable Preferred Stock and any other
documents executed in connection therewith. 


        "Recapitalization Transactions" means the Closing Date Dividend and the transactions contemplated by the Recapitalization Documents. 


        "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 Convertible Junior PIK Notes that, in the case of debt securities, are subordinate and junior in right of payment to the Junior Term D Loans, the
Junior Term C Loans, the Senior Term B Loans, the Senior Term A Loans and the Revolving Facility Notes (or subordinate and junior in right of payment to any debt securities issued in substitution of
all or any portion of the Junior Term D Loans, the Junior Term C Loans, the Senior Term B Loans, the Senior Term A Loans and the Revolving Facility Notes) to at least the same extent as the
Convertible Junior PIK Notes are subordinated to the Junior Term D Loans, the Junior Term C Loans, the Senior Term B Loans, the Senior Term A Loans and the Revolving Facility Notes under this
Agreement, (ii) 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, the Senior Term
A Loans and the Revolving Facility Notes (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, the Senior Term A Loans and the Revolving Facility Notes) to at least the same extent as the Junior Term D Loans are subordinated to the Junior Term C Loans, the Senior Term B Loans, the
Senior Term A Loans and the Revolving Facility Notes under this Agreement, (iii) 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, the Senior Term A Loans and the Revolving Facility Notes (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, the Senior Term A Loans and the Revolving Facility Notes) to at least the same extent as the Junior Term C Loans are subordinated to the Senior Term B Loans, the Senior Term A
Loans and the Revolving Facility Notes under this Agreement or (iv) 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 


15







 



portion
of the Senior Term A Loans) to at least the same extent as the Senior Term B Loans are subordinated to the Senior Term A Loans under this Agreement. 



        "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, plus all Letter of Credit Liabilities) 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-T%), at such time. 


        "Required PIK Note Lenders" means, at any time, the outstanding principal amount of the Convertible Junior PIK Notes aggregating at least
sixty-six and two-thirds percent (66-?%), 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) June 30, 2013,
(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 and
(c) the repayment in full of the Term Loans and the Convertible Junior PIK Notes. 


        "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. 


        "Second Tranche of Term Loans" has the meaning assigned to such term in Section 3.3(a)(ii) hereof. 



        "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" means that certain Security Agreement, executed by the Loan Parties, in favor of the Agent, for the benefit of the
Lenders, on the Original Closing Date, granting a Lien and security interest on substantially all assets of the Loan Parties in form and substance as set forth on 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. 


        "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;  provided, however, the Revolving Facility Notes shall be considered Senior Loans for purposes of the
definition of Enforcement Action, Section 8.1(e) and Article X hereof. 


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 Net Debt to Adjusted EBITDA Ratio" means the ratio of (a) all Indebtedness of the Loan Parties on a consolidated basis
(other than Indebtedness evidenced by the Convertible Junior PIK Notes) as of a particular Measurement Date (provided that the portion of this
clause (a) attributable to Advances under the Revolving Facility Commitment shall be based upon the average daily principal amount of such Advances for the one (1) month period ending on
the Measurement Date instead of the outstanding principal balance thereof as of the 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. 


        "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 Original Closing Date. 


        "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). 


        "Standstill Period" has the meaning assigned to such term in Section 10.4(b) hereof. 


        "Stockholders Agreement" shall mean that certain investors' rights agreement and right of first refusal and co-sale agreement,
each by and among Parent and certain of its stockholders dated on or about the Original 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 which any such Person is a general partner or may exercise the powers of a 


17







 



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. 


        "Third Tranche of Term Loans" has the meaning assigned to such term in Section 3.3(a)(iii) hereof. 


        "Transaction Costs" means the one-time costs and expenses of the Loan Parties related to the Transactions and the
Recapitalization 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 issuance of any Letters of Credit, 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 (or the Convertible Junior PIK Notes, as applicable) to be due and payable or otherwise accelerating the maturity of the
principal or any other portion of the Junior Loans (or the Convertible Junior PIK Notes, as applicable), (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 (or the
Convertible Junior PIK Notes, as applicable. 


        "Website Host Waiver and Consent" shall mean that certain Website Host Waiver and Consent dated on or about the Original 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 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 


18







 



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; CONVERTIBLE JUNIOR PIK NOTES, REVOLVING
  FACILITY, CONVERSION OF THE CONVERTIBLE JUNIOR PIK NOTES    
    


2.1    Term Loans; Convertible Junior PIK Notes.    



        (a)    Senior Term A Loan.    Borrower hereby acknowledges that (i) on the Original Closing Date, the Lenders
made a "Senior Term A Loan" to Borrower in the original principal amount of $18,750,000 (the "Original Senior Term A Loan"), and (ii) as of the
Closing Date, the unpaid principal balance of the Original Senior Term A Loan is $17,832,805 and such amount is unconditionally owed by Borrower to Lenders, without offset, defense or counterclaim of
any kind, nature or description whatsoever. Subject to the terms and conditions set forth in this Agreement and in reliance upon the representations, warranties and agreements set forth herein,
(i) Lenders agree to make on the Closing Date to Borrower an additional "Senior Term A Loan" in an aggregate amount equal to $14,892,445 (the "Additional Senior Term A
Loan") and (ii) Lenders and Borrower agree that the outstanding principal amount of the Additional Senior Term A Loan shall be consolidated with the Original Senior Term
A Loan into a single "Senior Term A Loan" (collectively, the "Senior Term A Loans", as the same may be increased as a result of a conversion of the
Convertible Junior PIK Notes pursuant to Section 2.8 hereof) in the aggregate principal amount of $32,725,250. The Senior Term A Loans made by a Lender shall be 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 issued in
substitution therefor or upon conversion of any portion of the Convertible Junior PIK Notes, in each case, pursuant to the terms of this Agreement (the "Senior Term A
Notes"). The Additional Senior Term A Loan is available from each Lender to the Borrower in one draw on the Closing Date, in an amount equal to each Lender's pro rata share of
the Additional Senior Term A Loan as set forth on Annex A hereto. 


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        (b)    Senior Term B Loan.    Borrower hereby acknowledges that (i) on the Original Closing Date, the Lenders
made a "Senior Term B Loan" to Borrower in the original principal amount of $18,750,000 (the "Original Senior Term B Loan"), and (ii) as of the
Closing Date, the unpaid principal balance of the Original Senior Term B Loan is $17,832,805 and such amount is unconditionally owed by Borrower to Lenders, without offset, defense or counterclaim of
any kind, nature or description whatsoever. Subject to the terms and conditions set forth in this Agreement and in reliance upon the representations, warranties and agreements set forth herein,
(i) Lenders agree to make on the Closing Date to Borrower an additional "Senior Term B Loan" in an aggregate amount equal to $14,892,445 (the "Additional Senior Term B
Loan") and (ii) Lenders and Borrower agree that the outstanding principal amount of the Additional Senior Term B Loan shall be consolidated with the Original Senior Term
B Loan into a single "Senior Term B Loan" (collectively, the "Senior Term B Loans", as the same may be increased as a result of a conversion of the
Convertible Junior PIK Notes pursuant to Section 2.8 hereof)) in an aggregate principal amount of $32,725,250. The Senior Term B Loans made by a Lender shall be 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 or
upon conversion of any portion of the Convertible Junior PIK Notes, in each case, pursuant to the terms of this Agreement (the "Senior Term B Notes",
together with the Senior Term A Notes, the "Senior Notes"). The Additional Senior Term B Loan is available from each Lender to the Borrower in one draw
on the Closing Date, in an amount equal to each Lender's pro rata share of the Additional Senior Term B Loan as set forth on Annex A hereto. 



        (c)    Junior Term C Loan.    Borrower hereby acknowledges that (i) on the Original Closing Date, the Lenders
made a "Junior Term C Loan" to Borrower in the original principal amount of $18,750,000 (the "Original Junior Term C Loan"), and (ii) as of the
Closing Date, the unpaid principal balance of the Original Junior Term C Loan is $17,832,805 and such amount is unconditionally owed by Borrower to Lenders, without offset, defense or counterclaim of
any kind, nature or description whatsoever. Subject to the terms and conditions set forth in this Agreement and in reliance upon the representations, warranties and agreements set forth herein,
(i) Lenders agree to make on the Closing Date to Borrower an additional "Junior Term C Loan" in an aggregate amount equal to $14,892,445 (the "Additional Junior Term C
Loan") and (ii) Lenders and Borrower agree that the outstanding principal amount of the Additional Junior Term C Loan shall be consolidated with the Original Junior Term
C Loan into a single "Junior Term C Loan" (collectively, the "Junior Term C Loans", as the same may be increased as a result of a conversion of the
Convertible Junior PIK Notes pursuant to Section 2.8 hereof) in the aggregate principal amount of $32,725,250. The Junior Term C Loans made by a Lender shall be evidenced by the Borrower's
Junior 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 or upon
conversion of any portion of the Convertible Junior PIK Notes, in each case, pursuant to the terms of this Agreement (the "Junior Term C Notes"). The
Additional Junior Term C Loan is available from each Lender to the Borrower in one draw on the Closing Date, in an amount equal to each Lender's pro rata share of the Additional Junior Term C Loan as
set forth on Annex A hereto. 


        (d)    Junior Term D Loan.    Borrower hereby acknowledges that (i) on the Original Closing Date, the Lenders
made a "Junior Term D Loan" to Borrower in the original principal amount of $18,750,000 (the "Original Junior Term D Loan"), and (ii) as of the
Closing Date, the unpaid principal balance of the Original Junior Term D Loan is $17,832,805 and such amount is unconditionally owed by Borrower to Lenders, without offset, defense or counterclaim of
any kind, nature or description whatsoever. Subject to the terms and conditions set forth in this Agreement and in reliance upon the representations, warranties and agreements set forth herein,
(i) Lenders agree to make on the Closing Date to Borrower an additional "Junior Term D Loan" in an aggregate amount equal to $14,892,445 (the "Additional Junior Term D
Loan") and (ii) Lenders and Borrower agree that the outstanding principal amount of the Additional Junior Term D Loan shall be consolidated with the Original Junior 


20







 



Term
D Loan into a single "Junior Term D Loan" (collectively, the "Junior Term D Loans", as the same may be increased as a result of a conversion of the
Convertible Junior PIK Notes pursuant to Section 2.8 hereof) in the aggregate principal amount of $32,725,250. The Junior Term D Loans made by a Lender shall be evidenced by the Borrower's
Junior 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 or upon
conversion of any portion of the Convertible Junior PIK Notes, in each case, pursuant to the terms of this Agreement (the "Junior Term D Notes",
together with the Junior Term C Notes, the "Junior Notes"). The Additional Junior Term D Loan is available from each Lender to the Borrower in one draw on the
Closing Date, in an amount equal to each Lender's pro rata share of the Additional Junior Term D Loan as set forth on Annex A hereto. 


        (e)    Convertible Junior PIK Notes.    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 loans to the Borrower on the Closing Date in an aggregate amount equal to $23,900,000, which loans
made by a Lender shall be, if requested by such Lender, evidenced by the Borrower's Convertible Junior PIK Notes, to be substantially in the form of the promissory note attached hereto as
Exhibit A-6 (including any promissory notes issued in substitution therefor pursuant to the terms of this Agreement, the "Convertible Junior PIK
Notes", as the same may be decreased as a result of a conversion of the Convertible Junior PIK Notes pursuant to Section 2.8 hereof)). 


        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
additional 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 June 18, 2007 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(l) 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 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 and all Letter of Credit Liabilities at
any one time outstanding under the Revolving Facility shall not exceed $5,500,000 (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"). 


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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 and Letter of Credit Liabilities 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). 


        (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. 



2.7    Letters of Credit.    


        (a)    Commitment.    


        At
the request of the Borrower, the Issuing Lender will issue from time to time before the date which is thirty (30) days prior to the end of the Revolving Facility Term either
(at the Issuing Lender's election) (i) standby letters of credit and/or (ii) participation agreements confirming payment to issuers (reasonably acceptable to the Issuing Lender) of
standby letters of credit, in each case for the account of the Borrower and containing terms and conditions which are consistent with this Agreement and reasonably satisfactory to the Issuing Lender
(each such letter of credit or participation agreement, a "Letter of Credit"); provided,  however,
such Letters of Credit may only be requested by Borrower to 


22







 



(and
may only be used by Borrower to) provide collateral for the obligations of Borrower owing to any credit card issuer pursuant to the Card Issuer Agreements. After giving effect to each such
issuance, (y) the aggregate of all Letter of Credit Liabilities shall not exceed $2,500,000 and (z) the aggregate amount of all Advances and all Letter of Credit Liabilities shall not
exceed the Revolving Facility Commitment. 


        (b)    Application.    


        The
Borrower shall give notice to the Agent and the Issuing Lender of the proposed issuance of each Letter of Credit on a Business Day which is at least ten (10) Business Days (or
such lesser number of days as the Agent and the Issuing Lender shall agree) prior to the proposed date of issuance of such Letter of Credit. Each such notice shall be accompanied by a Letter of Credit
application in the Issuing Lender's form (or, as the case may be, in the form of application of the underlying letter of credit), duly executed by the Borrower and in all respects satisfactory to the
Agent and the Issuing Lender, together with such other documentation as the Agent or the Issuing Lender may request in support thereof, it being understood that each Letter of Credit application (or,
as the case may be, form of application of underlying letter of credit) shall specify, among other things, the date on which the proposed Letter of Credit is to be issued, and the expiration date of
such Letter of Credit (which shall not be later than the earlier to occur of (i) one year after the date of issuance thereof and (ii) thirty (30) days prior to the end of the
Revolving Facility Term); provided that such Letters of Credit may be automatically renewed for additional one-year periods but may not be
extended beyond thirty (30) days prior to the end of the Revolving Facility Term. So long as the Issuing Lender has not received written notice that the conditions precedent set forth in
Section 4.2 with respect to the issuance of such Letter of Credit have not been satisfied, the Issuing Lender shall issue such Letter of Credit on the requested issuance date. The Issuing
Lender shall promptly advise the Agent of the issuance of each Letter of Credit and of any amendment thereto, extension thereof or event or circumstance changing the amount available for drawing
thereunder. In the event of any inconsistency between the terms of any Letter of Credit application and the terms of this Agreement, the terms of this Agreement shall control. The Issuing Lender shall
deliver to the Agent upon its request a list of all outstanding Letters of Credit issued by the Issuing Lender, together with such information related thereto as the Agent may reasonably request. 



        (c)    Reimbursement Obligations.    




	(i)
	The
Borrower hereby unconditionally and irrevocably agrees to reimburse the Issuing Lender for each payment or disbursement made by the Issuing Lender under any Letter
of Credit honoring any demand for payment made thereunder, in each case on the date that such payment or disbursement is made. The Issuing Lender shall promptly notify the Borrower and the Agent
whenever any demand for payment is made under any Letter of Credit; provided, that the failure of the Issuing Lender to so notify the Borrower shall not affect the rights of the Issuing Lender or the
Lenders in any manner whatsoever. Any amount not reimbursed on the date of such payment or disbursement shall bear interest from the date of such payment or disbursement to the date that the Issuing
Lender is reimbursed by the Borrower therefor, payable on demand, at the interest rate per annum from time to time in effect for Advances.



	(ii)
	The
Borrower's reimbursement obligations hereunder shall be irrevocable and unconditional under all circumstances, including (w) any lack of validity or
enforceability of any Letter of Credit, this Agreement or any other Transaction Document, (x) the existence of any claim, set-off, defense or other right which any Loan Party may
have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Issuing Lender,
any Lender or any other Person, whether in connection with any Letter of Credit, this Agreement, any other Transaction Document, the Transactions or any 




23







 



related
or unrelated transactions (including any underlying transaction between any Loan Party and the beneficiary named in any Letter of Credit), (y) the validity, sufficiency or genuineness
of any document which the Issuing Lender (or, as applicable, the issuer of any underlying letter of credit) has determined complies on its face with the terms of the applicable Letter of Credit (or,
if applicable, underlying letter of credit), even if such document should later prove to have been forged, fraudulent, invalid or insufficient in any respect or any statement therein shall have been
untrue or inaccurate in any respect, or (z) the surrender or impairment of any security for the performance or observance of any of the terms hereof. 






        (d)    Participations in Letters of Credit.    




	(i)
	Concurrently
with the issuance of each Letter of Credit, the Issuing Lender shall be deemed to have sold and transferred to each other Lender with a commitment under the
Revolving Facility, and each Lender with a commitment under the Revolving Facility shall be deemed irrevocably and unconditionally to have purchased and received from the Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent of such Lender's pro rata share of the Revolving Facility Commitment, in such Letter of Credit and the Borrower's
reimbursement obligations with respect thereto. If the Borrower does not pay any reimbursement obligation when due, then the Borrower shall be deemed to have immediately requested that the Lenders
with a commitment under the Revolving Facility make an Advance in a principal amount equal to such reimbursement obligation. The Agent shall promptly notify the Lenders that have a commitment under
the Revolving Facility of such deemed request and each such Lender shall make available to the Agent its pro rata share of such Advance. The proceeds of such Advance shall be paid over by the Agent to
the Issuing Lender for the account of the Borrower in satisfaction of such reimbursement obligations.



	(ii)
	If
the Issuing Lender makes any payment or disbursement under any Letter of Credit and (x) the Borrower has not reimbursed the Issuing Lender in full for such
payment or disbursement in accordance with Section 2.7(c), (y) an Advance may not be made pursuant to Section 2.7(d), or (z) any reimbursement received by the Issuing
Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of any Loan Party or otherwise, then each other Lender with a commitment under the
Revolving Facility shall be irrevocably and unconditionally obligated to pay to the Agent for the account of the Issuing Lender its pro rata share of such payment or disbursement (but no such payment
shall diminish the obligations of the Borrower under Section 2.7(c)). Upon notice from the Issuing Lender to the Agent that it has not received any such amount, the Agent shall promptly notify
each such other Lender thereof. To the extent any such Lender shall not have made such amount available to the Agent by 2:00 p.m. Eastern Standard Time on the Business Day on which such Lender
receives notice from the Agent of such payment or disbursement (it being understood that any such notice received after 12:00 noon Eastern Standard Time on any Business Day shall be deemed to have
been received on the next following Business Day), such Lender agrees to pay interest on such amount to the Agent for the Issuing Lender's account forthwith on demand, for each day from the date such
amount was to have been delivered to the Agent to the date such amount is paid, at a rate per annum equal to (A) for the first three (3) days after demand, the Federal Funds Rate from
time to time in effect and (B) thereafter, the LIBOR Rate from time to time in effect for Advances. Any such Lender's failure to make available to the Agent its pro rata share of any such
payment or disbursement shall not relieve any other Lender of its obligation hereunder to make available to the Agent such other Lender's pro rata share of such payment, but no 




24







 



Lender
shall be responsible for the failure of any other Lender to make available to the Agent such other Lender's pro rata share of any such payment or disbursement. 






2.8    Conversion of the Convertible Junior PIK Notes.    


        Optional Conversion.    So long as no Event of Default has occurred and is continuing and Borrower is in pro forma compliance
with Section 7.3 hereof (immediately prior to and after giving effect to any conversion under this Section 2.8 and any incremental cash interest resulting from such conversion), the
Borrower, may, at its election by sending written notice to the Agent, at the end of each fiscal quarter, commencing June 30, 2007, convert all or a portion of the outstanding principal amount
of, and the accrued but unpaid interest on, the Convertible Junior PIK Notes up to the PIK Note Conversion Amount into Term Loans, on a pro rata basis. All accrued but unpaid interest on the
Convertible Junior PIK Notes shall be converted prior to the conversion of any principal outstanding on the Convertible Junior PIK Notes. Such notice shall be accompanied by the PIK Note Conversion
Amount Calculation Certificate executed by the chief financial officer of Borrower. Within five (5) days of Agent's receipt of such PIK Note Conversion Amount Calculation Certificate, such PIK
Note Conversion Amount shall be deemed approved by Agent unless Agent does not agree with the calculation of the PIK Note Conversion Amount by Borrower as set forth therein, in which case, such PIK
Note Conversion Amount shall be deemed approved by Agent on the date that the Agent and the Borrower mutually agree as to the PIK Note Conversion Amount. Upon the Borrower's delivery to Agent of
amended and restated term notes(s) increased by the amount of such conversion or a new term note(s) in the amount of such conversion under this Section 2.8 and duly executed by Borrower, such
conversion shall be deemed effective. Any amounts so converted shall be allocated to the Term Loans on a pro rata basis. If Agent has not received such notice at the expiration of thirty
(30) days after the end of such fiscal quarter, Borrower will not be able to elect to convert the Convertible Junior PIK Notes into Term Loans for such quarter. 


 
 

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


3.1    Interest Rates and Interest Payments.    


        (a)    Interest Rates.    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 11.0% 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 10.25% 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 10.75% 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 11.25% 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 11.75% per annum.



	(vi)
	The
Convertible Junior PIK Notes will bear interest on the outstanding principal amount thereof at a fixed rate of interest equal to 15% per annum. 




25







 





        (b)    Interest Payment Dates; PIK Interest Payment Dates.    




	(i)
	Accrued
interest on the Notes (other than the Convertible Junior PIK Notes) shall be payable in cash on the first (1st) Business Day of each calendar
month, commencing on July 1, 2007 and at maturity.



	(ii)
	Subject
to the provisions of Section 3.1(b)(iii) and 3.1(d), accrued and unpaid interest on the Convertible Junior PIK Notes shall be payable at maturity
and shall be payable in-kind on (and thereby increase) the outstanding principal amount of the Convertible Junior PIK Notes (as such principal is increased from time to time) (the
"Junior PIK Interest") and be compounded on an annual basis, commencing June 18, 2008 without any further action on the part of Agent or the
Borrower. Such increased principal amount of the Convertible Junior PIK Notes shall be paid in full in connection with the repayment of the Convertible Junior PIK Notes. Agent's determination of the
principal amount of Convertible Junior PIK Notes outstanding at any time shall be conclusive and binding, absent manifest error.



	(iii)
	At
the Borrower's option, accrued and unpaid interest on the Convertible Junior PIK Notes may be paid in cash on the first (1st) Business Day of each
calendar month. The election of Borrower to pay cash interest on the Convertible Junior PIK Notes shall be sent to Agent in writing five (5) days prior to the first (1st)
Business Day of each calendar month (the "Interest Election Notification"). If the Borrower fails to send the Interest Election Notification by the time
period required above, then the Borrower shall be deemed to have elected to pay Junior PIK Interest in-kind as provided in Section 3.1(a)(iii).



	(iv)
	After
maturity and at any time an Event of Default exists, all accrued and unpaid interest on all Loans shall be payable in cash on demand at the rates specified in
Section 8.2(c). 





        (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. 


        (d)    Cash Payments in Lieu of Junior PIK Interest.    Notwithstanding Section 3.1(a)(vi) hereof,
commencing with the first "accrual period" (as defined for purposes of the Code) ending after the fifth anniversary of the Closing Date, the Borrower shall, in respect of the Convertible Junior PIK
Notes, pay in cash, on or before the end of such accrual period, both the annual Junior PIK Interest and the accrued and unpaid Junior PIK Interest with respect to the Convertible Junior PIK Notes if,
but only to the extent that, the aggregate amount of the sum of (i) the Junior PIK Interest and (ii) the original issue discount (other than Junior PIK Interest), in each case that has
accrued and not been paid in cash from the Closing Date through the end of such accrual period on such Convertible Junior PIK Notes, exceeds the product of the "issue price" (as defined for purposes
of the Code) for such Convertible Junior PIK Notes and the "yield to maturity" (as defined for purposes of the Code) on such Convertible Junior PIK Notes. 


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 June 30, 2013. 


        (b)   The
Term Loans shall be repaid in quarterly payments payable on the first (1st) Business Day of each January, April, July and October, commencing on July 1, 2007
and ending on and including 


26







 



April 1,
2013 in the aggregate amounts for each such quarterly payment set forth opposite the applicable period as follows: 



	Periods
 
	 	Aggregate

Quarterly

Payment

	July 1, 2007 and each quarter thereafter	 	$	327,250






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
June 30, 2013. 


        (c)   The
principal amount of the Convertible Junior PIK Notes, together with all accrued and unpaid interest thereon, and other Indebtedness owing to any Lender, shall be
repaid on June 30, 2014. 


3.3    Optional Prepayment of Loans.    



        (a)    Term 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 and the Convertible Junior PIK Notes, 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 and the Convertible Junior PIK Notes, as set forth below: 




	(i)
	Prepayment on the First Tranche of Term Loans. No prepayment fee shall be due or payable on the aggregate principal
amount of the Term Loans repaid up to $72,000,000 (whether paid pursuant to Sections 3.2, 3.3 or  3.5 hereof)
(the "First Tranche of Term Loans")



	(ii)
	Prepayment on the Second Tranche of Term Loans. A prepayment fee shall be due and payable on the aggregate principal
amount of the Term Loans prepaid in excess of the amount of the First Tranche of Term Loans, but only in respect of the amount of such excess equal to or less $30,000,000 (the
"Second Tranche of Term Loans"), multiplied by the following percentage (if applicable) as set forth below: 








	If Prepaid on or prior to

October 30 of the Following Years:
 
	 	Percentage
	 
	2007	 	2	%
	2008	 	1	%







	(iii)
	Prepayment on the Third Tranche of the Term Loans. A prepayment fee shall be due and payable on the aggregate principal
amount of the Term Loans prepaid in excess of the sum of (x) the First Tranche of Term Loans, plus (y) the Second Tranche of Term Loans (the "Third Tranche of
Term Loans") multiplied by the following percentage: 








	If Prepaid on or prior to

June 18 of the Following Years:
 
	 	Percentage
	 
	2008	 	2	%
	2009	 	1	%







	

	provided,
that no prepayment fee shall be due and payable under this subsection (iii) if such prepayment is made with the proceeds of a
Qualified Public Offering. 




27







 


	(iv)
	Prepayment on the Convertible Junior PIK Notes. A prepayment fee shall be due and payable on the aggregate principal
amount of the Convertible Junior PIK Notes equal to the principal amount so prepaid multiplied by the following percentage: 








	If Prepaid on or prior to

June 18 of the Following Years:
 
	 	Percentage
	 
	2008	 	2	%
	2009	 	1	%







	

	provided,
that no prepayment fee shall be due or payable under this subsection (iv) if such prepayment is made (A) with the
proceeds if a Qualified Public Offering or pursuant to (B) (1) Section 3.5(a)(iv) or (2) Section 2.8; 





provided,
further, that, the Borrower shall have the option, upon one occasion only, to prepay the outstanding principal amount of the Third Tranche of Term Loans while the Second Tranche of Term
Loans is outstanding and all other prepayments shall first reduce the aggregate principal amount of the First Tranche of Term Loans in full before being applied to the Second Tranche of Term Loans or
the Third Tranche of Term Loans, as the case may be. 


        Any
amounts converted from Convertible PIK Notes to Term Loans and prepaid pursuant to this Section 3.3 shall be considered in the Third Tranche of Term Loans and such prepayment
shall be subject to the prepayment fee as set forth in this Section 3.3(a)(iii). 


        All
such prepayments shall be applied by the Agent in the manner set forth in Section 3.9. Notwithstanding Sections 3.5(a) and  (b) below, 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. 


        (b)    Optional Junior PIK Excess Cash Payment.    


        The
Borrower may elect to prepay to Agent, for the ratable benefit of the respective Lenders, the outstanding principal amount of the Convertible Junior PIK Notes, in whole or in part in
multiples of $100,000, from the proceeds of all or a portion of the Mandatory Excess Cash Payment within the time period required by Section 3.5(a)(iv) hereof, so long as (i) no
Event of Default has occurred and is continuing and (ii) such prepayment is made prior to the earlier of (A) June 18, 2008 and (B) consummation of a Qualified Public
Offering (the "Optional Junior PIK Excess Cash Payment") and such prepayment shall be applied by the Agent in the manner set forth in
Section 3.9(b). 


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 (such prepayments to be applied on a pro rata basis to the remaining scheduled installments thereof) and/or any Convertible Junior
PIK Notes to be prepaid on such date, (c) the prepayment premium, if any, and accrued interest applicable to the prepayment, and (d) if applicable, Borrower's election to prepay the
Convertible Junior PIK Note with the proceeds of the Mandatory Excess Cash Payment. 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. 


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3.5    Mandatory Prepayment.    


        (a)   The
Borrower shall (x) prepay the Term Loans and the Convertible Junior PIK Notes 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 (other than as a result of any
Qualified Public Offering), 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 2007), in an amount equal to (A) seventy-five percent (75%) of Excess Cash Flow for such Fiscal Year
(the "Mandatory Excess Cash Payment") minus (B) the aggregate Optional PIK Excess Cash Payments, if any, made pursuant to Section 3.3(b)
for such period, minus (C) the proceeds of a Public Offering by Parent. 





        (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 the sum of (x) Advances plus (y) Letter of Credit Liabilities 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 3.9 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. 


29









  





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 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 


30







 



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. 


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.    



        (a)   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; 




31







 





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



Sixth,
to all principal outstanding under the Convertible Junior PIK Notes pro rata; and 


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





        (b)   Notwithstanding
the foregoing, if Borrower elects to prepay the Convertible Junior PIK Notes as set forth in Section 3.3(b) hereof, such payments shall be applied
by the Agent in the following manner: 




First,
to all accrued and unpaid interest on the Convertible Junior PIK Notes due and owing to the Lenders; and 



Second,
to principal outstanding under the Convertible Junior PIK Notes. 





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 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. 


32







 



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. 


3.14    Letter of Credit Fees.    


        The
Borrower shall pay to the Agent, for the ratable benefit of the respective Lenders with commitments to make Advances, a Letter of Credit participation fee monthly in arrears on the
first (1st) Business Day of each month, commencing July 1, 2007, in an amount equal to one and three-quarters percent (1.75%) hereof, applied on a per annum basis to the average outstanding
Letter of Credit Liabilities during the immediately preceding month (or part thereof). Such Letter of Credit participation fee shall be computed for the actual number of days elapsed on the basis of a
year of three hundred sixty (360) days. In addition, with respect to each Letter of Credit, the Borrower agrees to pay to the Issuing Lender, for its own account, such fees and expenses as the
Issuing Lender customarily requires (or, as the case may be, is required to pay to the issuer of any letter of credit) in connection with the issuance, negotiation, processing and/or administration of
letters of credit in similar situations. 


 
 

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)    Amended and Restated 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 December 31, 2006 which has had a Material Adverse Effect. 


        (d)    Completion of the Recapitalization.    The Loan Parties shall have executed definitive documentation with
regard to the Recapitalization Transaction, including the Recapitalization Documents and the related documents contemplated therein, each in form and substance satisfactory to the Agent, and all
conditions precedent to the consummation of the Recapitalization Transaction shall have been satisfied. 



        (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 Recapitalization Transaction and shall have received a summary pro forma capitalization table or other evidence detailing the equity
ownership of the Borrower following the Recapitalization Transaction 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 Recapitalization 


33







 



Transaction
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 Recapitalization
Transaction. 


        (f)    Security Agreements.    The Loan Parties and the Agent, for the benefit of the Lenders, shall have entered into
an (i) amendment to the Pledge Agreement, in form and substance satisfactory to Agent and (ii) an amendment to the Security Agreement, in form and substance satisfactory to Agent. 



        (g)    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. 



        (h)    Consent and Ratification of Guaranty.    Parent shall have executed and delivered a consent and ratification
with respect to its Guaranty in favor of the Agent and the Lenders in respect of the obligations under this Agreement, in form and substance satisfactory to Agent. 


        (i)    [Intentionally Deleted.]    


        (j)    Required Leverage.    After giving effect to all of the Loans on the Closing Date, the ratio of (i) Net
Debt to Adjusted EBITDA of the Loan Parties shall not be greater than 6.5:1.00 and (ii) Senior Net Debt to Adjusted EBITDA of the Loan Parties shall not be greater than 5.5:1.00. 


        (k)    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 Ahereof) 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;



	(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 Recapitalization Transactions) to which the respective Loan Party is a party, and the consummation of all of the other 




34







 



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)
	an
opinion of DLA Piper US, LLP, counsel to the Loan Parties, regarding the Transactions and the Transaction Documents;



	(ix)
	all
material leases to which any of the Loan Parties is a party; and



	(x)
	a
summary sources and uses of cash received in the Recapitalization Transactions and the Transactions, including all fees and expenses to be paid related thereto. 





        (l)    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). 


        (m)    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. 


        (n)    Proceedings.    All proceedings taken or required to be taken in connection with the Transactions and the
Recapitalization Transactions 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 and the obligation of any Issuing Lender to issue Letters of Credit
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 respect to such
representations and warranties that expressly relate only to a specific earlier date). 


35







 



        (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 Recapitalization Transactions): 



        (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"). 



        (c)    Financial Statements and Financial Projections.    




	(i)
	Financial Statements. The Borrower has delivered to the Agent copies of the Loan Parties' audited consolidated
year-end financial statements for and as of the end of the three fiscal years ended December 31, 2004, 2005 and 2006 (the "Annual
Statements") and copies of their unaudited consolidated monthly financial statements for and as of the four months ended April 30, 2007 (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 Loan Parties 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 




36







 



December 31,
2009 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 Loan Parties, 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, the Acquisition Agreement and the Recapitalization Documents 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. 


        (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 Recapitalization Transactions have been duly authorized by each of the Loan Parties. 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 Recapitalization Transactions 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 


37







 



Authority
is or will be required in connection with the consummation of the Transactions, the Recapitalization Transactions 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 December 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 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 


38







 



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 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 make the
Closing Date Dividend, to refinance certain Indebtedness of the Loan Parties under the Original Credit Agreement owing to the Agent and the Lenders, and to finance the working capital expenses and
general corporate requirements of the Loan Parties. The Borrower will use any Letter of Credit issued hereunder solely as collateral, directly or indirectly, for the obligations of Borrower owing to
any credit card issuer pursuant to the Card Issuer Agreements. 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). 


39







 



        (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 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 and the Recapitalization 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 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 


40







 



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. 


41








  



 
 

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, 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 Revolving Facility
Commitment and the principal amount of the 


42







 



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 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


43







 



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 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 


44







 

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 thirty
(30) 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 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 (except with respect to
fiscal year ending December 31, 2006, by July 15, 2007), 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. 




45







 


	(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 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. 




46







 


	(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 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 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 


47







 



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. 


        (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;
 




48







 


	(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, 


        (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)
	[Intentionally
deleted.]



	(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 




49







 



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 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. 




50













  





        (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. 


        (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.    Except for the Closing Date Dividend, 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 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 





51







 



        (B)  payments
to BPO Newco II, Inc. pursuant to the terms of the Management Agreement (as in effect on the Original 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;



	(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;




52







 


	(x)
	Capital
Stock issued by other Loan Parties in existence on the Original 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)(vi);



	(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 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 


53







 



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.    


        (a)   Each
of Parent and the Borrower covenant that, so long as all or any part of the principal amount of the Loans (other than the Loans evidenced by the Convertible Junior
PIK Notes) 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,
the Loan Parties shall maintain, on a consolidated basis, at the end of each fiscal quarter for the previous trailing twelve month period (each such date being a "Measurement
Date"), beginning June 30, 2007: 



	(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: 







	For the Quarter Ended on the Measurement Date
 
	 	Ratio

	June 30, 2007	 	1.25 to 1.0
	September 30, 2007	 	1.25 to 1.0
	December 31, 2007	 	1.25 to 1.0
	March 31, 2008	 	1.25 to 1.0
	June 30, 2008	 	1.25 to 1.0
	September 30, 2008	 	1.25 to 1.0
	December 31, 2008	 	1.25 to 1.0
	March 31, 2009	 	1.25 to 1.0
	June 30, 2009	 	1.25 to 1.0
	September 30, 2009	 	1.50 to 1.0
	December 31, 2009	 	1.50 to 1.0
	March 31, 2010	 	1.50 to 1.0
	June 30, 2010 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 Quarter Ended on the Measurement Date
 
	 	Ratio

	June 30, 2007	 	7.05 to 1.0
	September 30, 2007	 	7.05 to 1.0
	December 31, 2007	 	6.70 to 1.0
	March 31, 2008	 	6.30 to 1.0
	June 30, 2008	 	6.00 to 1.0
	September 30, 2008	 	5.65 to 1.0
	December 31, 2008	 	5.35 to 1.0
	March 31, 2009	 	4.85 to 1.0
	June 30, 2009	 	4.60 to 1.0
	September 30, 2009	 	4.60 to 1.0
	December 31, 2009	 	4.25 to 1.0
	March 31, 2010	 	4.00 to 1.0
	June 30, 2010	 	3.75 to 1.0
	September 30, 2010	 	3.50 to 1.0
	December 31, 2010	 	3.15 to 1.0
	March 31, 2011	 	3.15 to 1.0
	June 30, 2011	 	2.90 to 1.0





54







 


	For the Quarter Ended on the Measurement Date
 
	 	Ratio

	September 30, 2011	 	2.65 to 1.0
	December 31, 2011	 	2.30 to 1.0
	March 31, 2012	 	2.30 to 1.0
	June 30, 2012	 	2.05 to 1.0
	September 30, 2012	 	1.80 to 1.0
	December 31, 2012 and each fiscal quarter thereafter	 	1.50 to 1.0






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







	For the Quarter Ended on the Measurement Date
 
	 	Ratio

	June 30, 2007	 	6.00 to 1.0
	September 30, 2007	 	6.00 to 1.0
	December 31, 2007	 	5.75 to 1.0
	March 31, 2008	 	5.25 to 1.0
	June 30, 2008	 	5.00 to 1.0
	September 30, 2008	 	4.75 to 1.0
	December 31, 2008	 	4.50 to 1.0
	March 31, 2009	 	4.00 to 1.0
	June 30, 2009	 	3.75 to 1.0
	September 30, 2009	 	3.75 to 1.0
	December 31, 2009	 	3.75 to 1.0
	March 31, 2010	 	3.50 to 1.0
	June 30, 2010	 	3.25 to 1.0
	September 30, 2010	 	3.00 to 1.0
	December 31, 2010	 	2.75 to 1.0
	March 31, 2011	 	2.75 to 1.0
	June 30, 2011	 	2.50 to 1.0
	September 30, 2011	 	2.25 to 1.0
	December 31, 2011	 	2.00 to 1.0
	March 31, 2012	 	2.00 to 1.0
	June 30, 2012	 	1.75 to 1.0
	September 30, 2012	 	1.50 to 1.0
	December 31, 2012 and each fiscal quarter thereafter	 	1.25 to 1.0





55







 

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







	For the Quarter Ended on the Measurement Date
 
	 	EBITDA

	June 30, 2007	 	$	22,000,000
	September 30, 2007	 	$	22,000,000
	December 31, 2007	 	$	22,500,000
	March 31, 2008	 	$	22,500,000
	June 30, 2008	 	$	23,000,000
	September 30, 2008	 	$	23,500,000
	December 31, 2008	 	$	24,000,000
	March 31, 2009	 	$	24,500,000
	June 30, 2009	 	$	25,000,000
	September 30, 2009	 	$	25,500,000
	December 31, 2009	 	$	26,000,000
	March 31, 2010	 	$	26,500,000
	June 30, 2010	 	$	27,000,000
	September 30, 2010	 	$	27,500,000
	December 31, 2010	 	$	28,000,000
	March 31, 2011	 	$	28,500,000
	June 30, 2011	 	$	29,000,000
	September 30, 2011	 	$	29,500,000
	December 31, 2011	 	$	30,000,000
	March 31, 2012	 	$	30,500,000
	June 30, 2012	 	$	31,000,000
	September 30, 2012	 	$	31,500,000
	December 31, 2012	 	$	32,000,000
	March 31, 2013	 	$	32,500,000
	June 30, 2013	 	$	32,500,000







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)   Each
of Parent and the Borrower covenant that, so long as all or any part of the principal amount of the Convertible Junior PIK Notes or any interest or other amount
thereon shall remain 


56







 

outstanding
(other than indemnity obligations which are not yet due and payable), the Loan Parties shall maintain, on a consolidated basis on each Measurement Date, beginning June 30, 2007: 



	(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: 







	For the Quarter Ended on the Measurement Date
 
	 	Ratio

	June 30, 2007	 	1.125 to 1.0
	September 30, 2007	 	1.125 to 1.0
	December 31, 2007	 	1.125 to 1.0
	March 31, 2008	 	1.125 to 1.0
	June 30, 2008	 	1.125 to 1.0
	September 30, 2008	 	1.125 to 1.0
	December 31, 2008	 	1.125 to 1.0
	March 31, 2009	 	1.125 to 1.0
	June 30, 2009	 	1.125 to 1.0
	September 30, 2009	 	1.35 to 1.0
	December 31, 2009	 	1.35 to 1.0
	March 31, 2010	 	1.35 to 1.0
	June 30, 2010 and each fiscal quarter thereafter	 	1.35 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 Quarter Ended on the Measurement Date
 
	 	Ratio

	June 30, 2007	 	7.755 to 1.0
	September 30, 2007	 	7.755 to 1.0
	December 31, 2007	 	7.37 to 1.0
	March 31, 2008	 	6.93 to 1.0
	June 30, 2008	 	6.60 to 1.0
	September 30, 2008	 	6.215 to 1.0
	December 31, 2008	 	5.885 to 1.0
	March 31, 2009	 	5.335 to 1.0
	June 30, 2009	 	5.060 to 1.0
	September 30, 2009	 	5.060 to 1.0
	December 31, 2009	 	4.675 to 1.0
	March 31, 2010	 	4.40 to 1.0
	June 30, 2010	 	4.125 to 1.0
	September 30, 2010	 	3.850 to 1.0
	December 31, 2010	 	3.465 to 1.0
	March 31, 2011	 	3.465 to 1.0
	June 30, 2011	 	3.190 to 1.0
	September 30, 2011	 	2.915 to 1.0
	December 31, 2011	 	2.530 to 1.0
	 	 	 






	For the Quarter Ended on the Measurement Date
 
	 	Ratio

	March 31, 2012	 	2.530 to 1.0
	June 30, 2012	 	2.255 to 1.0
	September 30, 2012	 	1.980 to 1.0
	December 31, 2012 and each fiscal quarter thereafter	 	1.650 to 1.0





57







 

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







	For the Quarter Ended on the Measurement Date
 
	 	Ratio

	June 30, 2007	 	6.6 to 1.0
	September 30, 2007	 	6.6 to 1.0
	December 31, 2007	 	6.325 to 1.0
	March 31, 2008	 	5.775 to 1.0
	June 30, 2008	 	5.50 to 1.0
	September 30, 2008	 	5.225 to 1.0
	December 31, 2008	 	4.95 to 1.0
	March 31, 2009	 	4.4 to 1.0
	June 30, 2009	 	4.125 to 1.0
	September 30, 2009	 	4.125 to 1.0
	December 31, 2009	 	4.125 to 1.0
	March 31, 2010	 	3.850 to 1.0
	June 30, 2010	 	3.575 to 1.0
	September 30, 2010	 	3.300 to 1.0
	December 31, 2010	 	3.025 to 1.0
	March 31, 2011	 	3.025 to 1.0
	June 30, 2011	 	2.750 to 1.0
	September 30, 2011	 	2.475 to 1.0
	December 31, 2011	 	2.20 to 1.0
	March 31, 2012	 	2.20 to 1.0
	June 30, 2012	 	1.925 to 1.0
	September 30, 2012	 	1.650 to 1.0
	December 31, 2012 and each fiscal quarter thereafter until June 30, 2013	 	1.375 to 1.0





58







 

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







	For the Quarter Ended on the Measurement Date
 
	 	EBITDA

	June 30, 2007	 	$	19,800,000
	September 30, 2007	 	$	19,800,000
	December 31, 2007	 	$	20,250,000
	March 31, 2008	 	$	20,250,000
	June 30, 2008	 	$	20,700,000
	September 30, 2008	 	$	21,150,000
	December 31, 2008	 	$	21,600,000
	March 31, 2009	 	$	22,050,000
	June 30, 2009	 	$	22,500,000
	September 30, 2009	 	$	22,950,000
	December 31, 2009	 	$	23,400,000
	March 31, 2010	 	$	23,850,000
	June 30, 2010	 	$	24,300,000
	September 30, 2010	 	$	24,750,000
	December 31, 2010	 	$	25,200,000
	March 31, 2011	 	$	25,650,000
	June 30, 2011	 	$	26,100,000
	September 30, 2011	 	$	26,550,000
	December 31, 2011	 	$	27,000,000
	March 31, 2012	 	$	27,450,000
	June 30, 2012	 	$	27,900,000
	September 30, 2012	 	$	28,350,000
	December 31, 2012	 	$	28,800,000
	March 31, 2013	 	$	29,250,000
	June 30, 2013	 	$	29,250,000







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. 





        (c)    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) $750,000 for the Fiscal Year ending December 31,
2007 and (ii) $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. 


59







 
 
 

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: 


        (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; 


        (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 


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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 Original Closing Date or the Closing Date, as applicable, 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, the Acquisition Agreement or the Recapitalization Documents 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 (or the Required PIK Note
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. 



        (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 and Letter of Credit fees at a rate per annum equal to the rate
specified in Section 3.14 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. 


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        (e)    Priority of Payment.    Subject to Section 10.3 hereof, 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 and cash collateralization to the satisfaction of Agent of all Letter of Credit
Liabilities; 


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; 


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 principal outstanding under the Convertible Junior PIK Notes pro rata; 


eleventh, all accrued and unpaid interest due and owing to the Lenders holding Convertible Junior PIK Notes; 


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



thirteenth, 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 (other than the Convertible Junior PIK
Notes) and the other Transaction Documents are secured pursuant to the terms of the Security Documents. 


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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. 


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 the Required PIK Note 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, 


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advice
or concurrence of the Required Lenders (or the Required PIK Note Lenders, as applicable), 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, the Required PIK Note 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 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 


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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. 


        (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 obligations hereunder: 


65







 



(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, 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 


66







 



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
Convertible Junior PIK Notes are subordinate and junior in right of payment to the Junior Loans and the Senior Loans to the extent provided in this Article 10. 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 Loans and Junior Loans.    



        (a)    Payment Default.    Upon the occurrence of an Event of Default pursuant to Section 8.1(a) hereof with
respect to any Senior Loans (the "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 Reorganization
Subordination 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 and the Convertible Junior PIK Notes)
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 the Convertible Junior PIK Notes, or as a
sinking fund for any Junior Loans or the Convertible Junior PIK Notes, or in respect of any redemption, retirement, purchase or other acquisition of any Junior Loans asset forth in (b) (i)
below or the Convertible Junior PIK Notes, during any period as set forth below: 




	(i)
	with
respect to the Junior Loans and the Convertible Junior PIK Notes: 







        (A)  commencing
on the date of receipt by Junior Lenders and the Convertible Junior PIK 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 





67







 



        (B)  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)   Upon
the occurrence of an Event of Default pursuant to Section 8.1(a) hereof with respect to any Junior Loans (the "Junior Loan Payment
Default"), then, unless and until such Junior Loan Payment Default shall have been cured or waived in writing by Agent and the Junior 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 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 Convertible Junior PIK Notes) 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 Convertible Junior PIK Notes, or as a sinking fund for the Convertible Junior PIK Notes, or in respect of any redemption, retirement, purchase or other
acquisition of the Convertible Junior PIK Notes, during any period: 




	(ii)
	with
respect to the Convertible Junior PIK Notes: 







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



        (B)  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 Junior Loan Payment Default. 






        (c)    Notice by Agent.    Agent shall give written notice to each Junior Lender and each Convertible Junior PIK
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; 




68







 


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 principal outstanding under the Revolving Facility and all Senior Term A Loans 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 Loans, Junior Term C Loans, Junior Term D Loans or Convertible Junior PIK Notes; 


fifth, all Senior Term B Loans 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 Loans, Junior Term D Loans or Convertible Junior PIK Notes; 


sixth, all Junior Term C Loans 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 Loans or any Convertible Junior PIK Note; 


seventh, all Junior Term D Loans 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 Convertible Junior PIK Note; 


eighth, all Convertible Junior PIK 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); 


ninth, all obligations under Interest Rate Protection Agreements; and 


tenth, 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 and Convertible Junior PIK Lenders.    


        (a)   Except
as otherwise expressly set forth herein, so long as the Senior Loans remain outstanding, neither the Junior Lenders nor the Convertible Junior PIK Lenders will,
directly or indirectly, take any Enforcement Action during any Standstill Period or PIK Standstill Period, as applicable. 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



	(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 




69







 



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) (the "Standstill Period"). 






        (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. 


        (d)   So
long as the Senior Loans or the Junior Loans remain outstanding, the Convertible Junior PIK Lenders will not, directly or indirectly, take any Enforcement Action. 



        (e)   Solely
with respect to the Convertible Junior PIK Notes, no Convertible Junior PIK 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 Junior Loans; or



	(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 Convertible Junior PIK Lenders and 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) (the "PIK Standstill Period"). 





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


10.6    Acceleration of Junior Loans; Convertible Junior PIK Notes.    



        In
the event that any Junior Loans 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 


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terms
of Section 10.2 do not prohibit payment on Junior Loans, no payment shall be made in respect of any Junior Loans 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. In the event that any
Convertible Junior PIK 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 Convertible Junior PIK Notes, no payment shall be made in respect of any Convertible Junior PIK Notes unless and until all Senior Loans and Junior 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 or any Convertible Junior PIK 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 or the Junior Loans, as applicable. 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 the Junior Loans shall have been paid in full, then the Junior Lenders shall pay to Agent, on
behalf of the Convertible Junior PIK Lenders, any amount in excess thereof that the Convertible Junior PIK 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 Junior 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 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. If any
turnover pursuant to this Section 10.7 is required as a result of a reinstatement of any Junior Loans and an avoidance, disgorgement or turnover obligation of any Junior Lender by a court in
any Proceeding or otherwise, no Convertible Junior PIK Lender shall be obligated to make such turnover unless it has received written demand to do so by such Junior 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 and the Convertible Junior PIK 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. 


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Nothing
herein shall impair or prevent the Junior 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 Junior 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 Junior 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 Junior Lender may have or be otherwise charged with. Nothing herein shall impair, as
between each Loan Party and any Convertible Junior PIK Lender, the obligation of such Loan Party, which is unconditional and absolute, to pay to the Convertible Junior PIK Lenders the principal of and
interest on the Convertible Junior PIK Notes as and when the same shall become due in accordance with their terms, nor shall anything herein prevent any Convertible Junior PIK 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. From and after the indefeasible payment in full in cash of all Junior Loans, until the principal of, premium, if any, on, and interest on the
Convertible Junior PIK Notes shall be paid in full, the Convertible Junior PIK Lenders shall be subrogated to all rights of the Junior Lenders to receive any further payments or distributions
applicable to the Junior Loans to the extent any such payment or distribution is made to or for the account of the Junior 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. 


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 


72







 



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 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: 




CreditCards.com, Inc.

13809 Research Boulevard

Suite 906

Austin, Texas 78750

Attention: Elisabeth DeMarse and Chris Speltz

Facsimile No.: (512) 475-7001

E-mail: Elisabeth.demarse@creditcards.com and chris.speltz@creditcards.com 




73







 





        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 





        with
a copy to: 




Patton
Boggs LLP

2001 Ross Avenue, Suite 3000

Dallas, Texas 75201

Attn: Kate K. Moseley, Esq.

Facsimile: (214) 758-1550

E-mail: kmoseley@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 


74







 



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 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. 


75









  





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: (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 


76







 



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 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 


77







 



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 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. 


11.20    AMENDMENT AND RESTATEMENT.    


        THIS AGREEMENT IS AN AMENDMENT AND RESTATEMENT OF THE ORIGINAL CREDIT AGREEMENT. ALL OBLIGATIONS UNDER THE ORIGINAL CREDIT AGREEMENT AND ALL LIENS SECURING
PAYMENT OF SUCH OBLIGATIONS UNDER THE ORIGINAL CREDIT AGREEMENT SHALL IN ALL RESPECTS BE CONTINUING AND THIS AGREEMENT SHALL NOT BE DEEMED TO EVIDENCE OR RESULT IN A NOVATION OR REPAYMENT AND
RE-BORROWING OF SUCH OBLIGATIONS. THIS AGREEMENT SHALL SUPERSEDE THE  


78







 



 ORIGINAL CREDIT AGREEMENT. FROM AND AFTER THE CLOSING DATE, THIS AGREEMENT SHALL GOVERN THE TERMS OF THE OBLIGATIONS UNDER THE ORIGINAL CREDIT AGREEMENT. TO THE EXTENT NOT REPLACED BY LOAN DOCUMENTS
DATED AS OF THE CLOSING DATE, ANY "TRANSACTION DOCUMENTS" (AS DEFINED IN THE ORIGINAL CREDIT AGREEMENT) EXECUTED IN CONNECTION WITH THE ORIGINAL CREDIT AGREEMENT (OTHER THAN ANY SUCH TRANSACTION
DOCUMENT THAT IS SPECIFICALLY TERMINATED BY THE PARTIES THERETO) SHALL CONTINUE TO BE EFFECTIVE, AND ALL REFERENCES IN THOSE PRIOR TRANSACTION DOCUMENTS TO THE "CREDIT AGREEMENT", THE "LOAN AGREEMENT"
OR THE "AGREEMENT" SHALL BE DEEMED TO REFER TO THIS AGREEMENT WITHOUT FURTHER AMENDMENT THEREOF.


*
* * 


Signatures
Appear on Next Page 


79







 
 

SIGNATURE PAGE TO
  AMENDED AND RESTATED CREDIT AGREEMENT    
    


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



	 	 	CREDITCARDS.COM, INC.

(f/k/a DeMarseCo Holdings, Inc.), as Borrower
	

 	
 	

By:	

/s/  ELISABETH DEMARSE      
 Elisabeth DeMarse

President and Chief Executive Officer
	

 	
 	

CCCI HOLDINGS, INC.,

as Parent
	

 	
 	

By:	

/s/  ELISABETH DEMARSE      
 Elisabeth DeMarse

President and Chief Executive Officer




[Signature
pare to Credit Agreement] 









	 	 	AMERICAN CAPITAL FINANCIAL SERVICES, INC.,

as Agent
	

 	
 	

By:	

/s/  BOWEN DIEHL      
 Bowen Diehl

Senior Vice President
	

 	
 	

AMERICAN CAPITAL STRATEGIES, LTD.,

as Lender
	

 	
 	

By:	

/s/  BOWEN DIEHL      
 Bowen Diehl

Senior Vice President




[Signature
pare to Credit Agreement] 









 
 

ANNEX A    
    



	Lender
 
	 	Revolving Facility Commitment
	 	Pro Rata Share
	 
	American Capital Strategies, Ltd.	 	$	5,500,000	 	100.000	%
	 	 	
	 	
	 
	 	Total	 	$	5,500,000	 	100.000	%
	 	 	
	 	
	 





	Lender
 
	 	Senior Term A Loans
	 	Pro Rata Share
	 
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	3,000,000	 	9.167	%
	ACS Funding Trust I	 	$	2,832,805	 	8.656	%
	American Capital Strategies, Ltd.	 	$	1,892,445	 	5.782	%
	 	 	
	 	
	 
	 	Total	 	$	32,725,250	 	100.000	%
	 	 	
	 	
	 





	Lender
 
	 	Senior Term B Loans
	 	Pro Rata Share
	 
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	4,892,445	 	14.950	%
	ACS Funding Trust I	 	$	2,832,805	 	8.655	%
	 	 	
	 	
	 
	 	Total	 	$	32,725,250	 	100.000	%
	 	 	
	 	
	 





	Lender
 
	 	Junior Term C Loans
	 	Pro Rata Share
	 
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	4,892,445	 	14.950	%
	ACS Funding Trust I	 	$	2,832,805	 	8.655	%
	 	 	
	 	
	 
	 	Total	 	$	32,725,250	 	100.000	%
	 	 	
	 	
	 





	Lender
 
	 	Junior Term D Loans
	 	Pro Rata Share
	 
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	ACS Funding Trust I	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	5,000,000	 	15.279	%
	American Capital Strategies, Ltd.	 	$	4,892,445	 	14.950	%
	ACS Funding Trust I	 	$	2,832,805	 	8.655	%
	 	 	
	 	
	 
	 	Total	 	$	32,725,250	 	100.000	%
	 	 	
	 	
	 









 


	Lender
 
	 	Convertible Junior PIK Notes
	 	Pro Rata Share
	 
	American Capital Strategies, Ltd.	 	$	23,900,000	 	100	%
	 	 	
	 	
	 
	 	Total	 	$	23,900,000	 	100	%
	 	 	
	 	
	 





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 


The
Notes as identified above with the Lender indicated as ACS Funding Trust I were assigned from the initial Lender 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". 


A-2







 
	(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-3













 
 

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. 







 
 

SCHEDULES    
    
    Schedule 7.1(m)    
    
    Post-Closing Schedule    
    



	•
	Within
thirty (30) 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
sixty (60) days following the Closing Date, the Borrower shall have (a) made commercially reasonable efforts to obtain and deliver to Agent a landlord
waiver, in form and substance satisfactory to Agent in its sole discretion, with respect to the property located at 1790 Broadway, Suite 705, New York, New York 10019, and (b) obtained
and delivered to Agent an amendment, in form and substance satisfactory to the Agent in its sole discretion, to the landlord waiver with respect to Suite 910 at the property located at 13809 Research
Blvd., Austin, Texas 78750.



	•
	Within
thirty (30) days following the Closing Date, the Borrower shall have delivered to Agent an amendment, in form and substance satisfactory to the Agent in its
sole discretion, to the deposit account control agreement with Comerica Bank with respect to account number 1881143661. 








 




 
 

EXHIBITS    
    


B-2









 
 

AMENDMENT    
    


        This AMENDMENT (this "Amendment"), is effective as of September 29, 2007 (the "Effective
Date"), by CREDITCARDS.COM, INC. (f/k/a CCCI HOLDINGS, INC.), a Delaware corporation ("Parent"), and CCRD OPERATING COMPANY,
INC. (f/k/a CREDITCARDS.COM, INC.), a Delaware corporation ("Borrower", together with Parent, the "Loan
Parties"), in favor of AMERICAN CAPITAL FINANCIAL SERVICES, INC., as administrative and collateral agent for the Lenders (as defined in the Credit Agreement)
("Agent"), and the Lenders. 


 
 

RECITALS    
    


        A.    Parent,
Borrower, Agent and the Lenders have entered into that certain Amended and Restated Credit Agreement, dated as of June 18, 2007 (as it may be amended,
restated, amended and restated or otherwise modified to date or hereafter, the "Credit Agreement"). 



        B.    Agent,
the Lenders and the Loan Parties desire to amend the Credit Agreement as set forth herein. 


        NOW,
THEREFORE, in consideration of the promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows: 


 
 

ARTICLE 1    
    
    Definitions    
    



        Section
1.1    Definitions.    Capitalized terms used in this Agreement, to the extent not otherwise defined herein,
shall have the same meanings as in the Credit Agreement as amended hereby. 


 
 

ARTICLE 2    
    
    Amendments    
    


        Section
2.1    Amendment to Section 1.1 of the Credit Agreement.    Effective as of the Effective Date, the definition
of "EBITDA" and "Fixed Charges" contained in Section 1.1 of the Credit Agreement are hereby amended and restated in their entirety to read as follows: 


        "EBITDA" means for any period, the Loan Parties' Net Income for such period (adjusted for and specifically excluding extraordinary gains
or extraordinary loses 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 $1,350,546.70, (vi) all non-recurring charges and expenses of Parent unrelated to the Acquisition
incurred and paid prior to the Closing Date, (vii) non-cash compensation expense, (viii) the accrual of the non-recurring payment of $1,600,000 to BPO Newco II, Inc. related to the termination of the
Management Agreement, and (ix) other non-recurring charges and expenses to be mutually agreed upon by Agent in its sole discretion and Borrower, 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 for each month from May 31, 2006
through May 31, 2007 shall be deemed to be the amounts set forth on the "EBITDA Schedule," attached hereto as Schedule
1.1 for each such month. 


        "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 (excluding interest related to the Convertible Junior PIK Notes that the Loan Parties elect to pay in cash); 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, 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 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). 


 
 

ARTICLE 3    
    
    Conditions    
    


        Section
3.1    Conditions Precedent.    The effectiveness of this Amendment is subject to the satisfaction of each of
the following conditions precedent: 



        (a)   Agent
and the Lenders shall have received a fully executed copy of this Amendment. 


        (b)   The
representations and warranties contained herein, in the Credit Agreement, and in all other Transaction Documents, as amended hereby, shall be true and correct in all
material respects as of the Effective Date as if made on the Effective Date except for such representations and warranties limited by their terms to a specific date. 


        (c)   No
Default or Event of Default shall have occurred and be continuing and no Default or Event of Default shall be in existence after giving effect to this Amendment. 



 
 

ARTICLE 4    
    
    Miscellaneous    
    


        Section
4.1    Ratifications.    The terms and provisions set forth in this Amendment shall modify and supercede all
inconsistent terms and provisions set forth in the Credit Agreement and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement and the other
Transaction Documents are ratified and confirmed and shall continue in full force and effect. Each of the Loan Parties, Agent and the Lenders agrees that the Credit Agreement as amended hereby and the
other Transaction Documents shall continue to be legal, valid, binding, and enforceable in accordance with their respective terms. 


        Section
4.2    Representations and Warranties.    Each Loan Party hereby represents and warrants to Agent and the
Lenders that, as of the date of and after giving effect to this Amendment, (a) the execution, delivery, and performance of this Amendment has been authorized by all requisite action on the part of
such Loan Party and will not violate such Loan Party's organizational or governing document, (b) the representations and warranties contained in the Credit Agreement and in the other Transaction
Documents are true and correct on and as of the Effective Date, in all material respects, as if made again on and as of the Effective Date, except for such representations and warranties limited by
their terms to a specific date and (c) after giving effect to this Amendment, no Default or Event of Default exists. 


        Section
4.3    Survival of Representations and Warranties.    All representations and warranties made in this
Amendment, the Credit Agreement, or any other Transaction Document, including any other Transaction Document furnished in connection with this Amendment, shall survive the execution and delivery of
this Amendment, and no investigation by Agent or any Lender, or any closing, shall affect the representations and warranties or the right of Agent and the Lenders to rely upon them. 


        Section
4.4    Reference to Credit Agreement.    The Credit Agreement and each of the other Transaction Documents, and
any and all other agreements, documents, or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference in such agreements, documents, and 


2







 



instruments,
whether direct or indirect, shall mean a reference to the Credit Agreement as amended hereby. 


        Section
4.5    Severability.    Any provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable. 



        Section
4.6    No Consent.    No consent or waiver, express or implied, by Lender to or for any breach of or deviation
from any covenant, condition, or duty by any Loan Party shall be deemed a consent or waiver to or of any other breach of the same or any other covenant, condition, or duty. Each of the Loan
Parties (individually, a "subject Loan Party") hereby (a) consents to the execution and delivery of this Amendment by the other Loan Parties, (b) agrees that this Amendment shall not
limit or diminish the obligations of the subject Loan Party under its certain Transaction Documents delivered in connection with the Credit Agreement, executed or joined in by the subject Loan Party
and delivered to the Agent, (c) reaffirms the subject Loan Party's obligations under each of such Transaction Documents, and (d) agrees that each of such Transaction Documents remains in full force
and effect and is hereby ratified and confirmed. 


        Section
4.7    No Waiver.    Except as expressly stated herein, Agent's and the Lenders' failure to exercise any
right, privilege or remedy as a result of the matters set forth above shall not directly or indirectly in any way whatsoever: (a) impair, prejudice or otherwise adversely affect Agent's and the
Lenders' right at any time to exercise any right, privilege, or remedy in connection with the Credit Agreement, the other Transaction Documents, any other agreement, or any other contract or
instrument, or (b) amend or alter any provision of the Credit Agreement, the other Transaction Documents, any other agreement, or any other contract or instrument, or (c) constitute any course of
dealing or other basis for altering any obligation of Borrower or any Guarantor or any right, privilege, or remedy of Agent and the Lenders under the Credit Agreement, the other Transaction Documents,
any other agreement, or any other contract or instrument. 


        Except
as expressly set forth herein, all of the terms, provisions and conditions of the Credit Agreement, Transaction Documents and other agreements shall remain and continue in full
force and effect. Except as expressly set forth herein, Borrower and Parent are hereby notified that Borrower and Parent will be expected to comply strictly with their duties, obligations and
agreements under the Credit Agreement and the Transaction Documents. 


        Except
as expressly set forth herein, nothing contained in this Amendment or any other communication between Agent and/or the Lenders and Borrower shall be deemed to be a waiver of any
past, present or future violation, Default or Event of Default of Borrower under the Credit Agreement or any Transaction Documents. Except as expressly set forth herein, nothing in this Amendment
shall be construed to be a consent by Agent and/or the Lenders to any prior, existing or future violations of the Credit Agreement or any Transaction Document. 



        Section
4.8    Governing Law.    THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO
HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF [MARYLAND]. 


        Section
4.9    Successors and Assigns.    This Amendment is binding upon and shall inure to the benefit of the Loan
Parties, Agent and the Lenders and their respective successors and assigns, except no Loan Party may assign or transfer any of its respective rights or obligations hereunder without the prior written
consent of Agent. 


3







 



        Section
4.10    Counterparts.    This Amendment may be executed in one or more counterparts, and on telecopy
counterparts each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same agreement. 


        Section
4.11    Headings.    The headings, captions, and arrangements used in this Amendment are for convenience only
and shall not affect the interpretation of this Amendment. 


        Section
4.12    Release.    TO INDUCE AGENT AND THE LENDERS TO AGREE TO THE TERMS OF THIS AMENDMENT, EACH OF THE LOAN
PARTIES REPRESENTS AND WARRANTS THAT AS OF THE DATE OF THIS AMENDMENT, TO ITS KNOWLEDGE, THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO SUCH LOAN PARTY'S OBLIGATIONS UNDER THE
CREDIT AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, AND WAIVES ANY AND ALL SUCH KNOWN CLAIMS, OFFSETS, DEFENSES, OR COUNTERCLAIMS ARISING PRIOR TO THE DATE OF THIS AMENDMENT AND RELEASES AND
DISCHARGES AGENT AND THE LENDERS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, AFFILIATES, AND ATTORNEYS, (COLLECTIVELY, THE "RELEASED
PARTIES") FROM ANY AND ALL KNOWN OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES OF ACTION, OR DEMANDS WHATSOEVER, WHETHER IN LAW OR EQUITY, IN EACH CASE, EXCEPT
TO THE EXTENT SUCH AROSE AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE RELEASED PARTY, WHICH SUCH LOAN PARTY NOW HAS AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF IN
CONNECTION WITH THE CREDIT AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED THEREBY. 


        Section
4.13    General.    This Amendment, when signed by each signatory as provided hereinbelow (a) shall be deemed
effective prospectively as of the Effective Date and (b) shall constitute a Transaction Document. A telecopy or other electronic transmission of any executed counterpart shall be deemed valid as an
original. 


        Section
4.14    Entire Agreement.    THIS AMENDMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS, AND AGREEMENTS EXECUTED AND
DELIVERED IN CONNECTION WITH THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. 


[Remainder
of page intentionally left blank] 


4







 

        In
witness whereof as of the date first above written. 



	 	 	PARENT:
	

 	
 	

CREDITCARDS.COM, INC.
	

 	
 	

By:	

/s/  CHRISTOPHER SPELTZ      

	 	 	Name: Christopher Speltz

Title: CFO
	

 	
 	
BORROWER:
	

 	
 	

CCRD OPERATING COMPANY, INC.
	

 	
 	

By:	

/s/  CHRISTOPHER SPELTZ      

	 	 	Name: Christopher Speltz

Title: CFO




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	 	 	AGENT:
	

 	
 	

AMERICAN CAPITAL FINANCIAL SERVICES, INC.
	

 	
 	

By:	

/s/  DOUGLAS KELLEY      

	 	 	Name: Douglas Kelley

Title: Vice President
	

 	
 	
LENDER:
	

 	
 	

AMERICAN CAPITAL STRATEGIES, LTD.
	

 	
 	

By:	

/s/  DOUGLAS KELLEY      

	 	 	Name: Douglas Kelley

Title: Vice President




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QuickLinks


TABLE OF CONTENTS


AMENDED AND RESTATED CREDIT AGREEMENT $5,500,000 Revolving Loan Facility Maturing June 20, 2013 $32,725,250 Aggregate Principal Amount of Senior Secured Term A Loans Due June 30, 2013 $32,725,250 Aggregate
Principal Amount of Senior Secured Term B Loans Due June 30, 2013 $32,725,250 Aggregate Principal Amount of Junior Secured Term C Loans Due June 30, 2013 $32,725.250 Aggregate Principal Amount of Junior Secured Term D Loans Due June 30, 2013
$23,900,000 Aggregate Principal Amount of Unsecured Junior PIK Note Due June 30, 2014

RECITALS

ARTICLE I DEFINITIONS


ARTICLE II TERM LOANS; CONVERTIBLE JUNIOR PIK NOTES, REVOLVING FACILITY, CONVERSION OF THE CONVERTIBLE JUNIOR PIK NOTES


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


ARTICLE IV CONDITIONS

ARTICLE V REPRESENTATIONS AND WARRANTIES


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

ARTICLE VII COVENANTS


ARTICLE VIII EVENTS OF DEFAULT


ARTICLE IX AGENT

ARTICLE X SUBORDINATION OF NOTES

ARTICLE XI MISCELLANEOUS


SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT


ANNEX A


ANNEX B Conditions Precedent to Permitted Acquisitions

SCHEDULES Schedule 7.1(m) Post-Closing Schedule

EXHIBITS


AMENDMENT

RECITALS

ARTICLE 1 Definitions

ARTICLE 2 Amendments

ARTICLE 3 Conditions

ARTICLE 4 Miscellaneous