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    $5,000,000
      CREDIT FACILITY

     

    AMENDED
      AND RESTATED CREDIT AGREEMENT

     

    Dated
      as of July 5, 2006

     

    by
      and among

     

    BOO
      KOO BEVERAGES, INC.,

    as
      Borrower, 

     

    ORIX
      VENTURE FINANCE LLC,

    as
      Agent,

     

    and

     

    ORIX
      FINANCE CORP.,

    as
      Lender

     

     

    
      

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

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    TABLE
      OF CONTENTS

     

    
      
        	ARTICLE
                I THE CREDITS	
                1

              
	 	 	 	 
	 	
                1.1.

              	
                Amounts
                  and Terms of Commitments.

              	
                1

              
	 	
                1.2.

              	
                Notes

              	
                2

              
	 	
                1.3.

              	
                Interest

              	
                2

              
	 	
                1.4.

              	
                Loan
                  Accounts

              	
                4

              
	 	
                1.5.

              	
                Procedure
                  for Revolving Credit Borrowing

              	
                4
                  

              
	 	
                1.6.

              	
                Conversion
                  and Continuation Elections

              	
                5

              
	 	
                1.7.

              	
                Optional
                  Prepayments.

              	
                6
                  

              
	 	
                1.8.

              	
                Mandatory
                  Prepayments of Loans and Commitment Reductions.

              	
                6

              
	 	
                1.9.

              	
                Fees.

              	
                7

              
	 	
                1.10.

              	
                Payments
                  by Borrower.

              	
                7

              
	 	
                 

              
	ARTICLE
                II CONDITIONS PRECEDENT	
                10

              
	 	 	 	
                 

              
	
                 

              	
                2.1.

              	
                Conditions
                  of Initial Loans

              	
                10

              
	 	
                2.2.

              	
                Conditions
                  to All Borrowings

              	
                14

              
	 	 
	ARTICLE
                III REPRESENTATIONS AND WARRANTIES	
                14

              
	 	 	 	 
	 	
                3.1.

              	
                Corporate
                  Existence and Power

              	
                14

              
	 	
                3.2.

              	
                Corporate
                  Authorization; No Contravention

              	
                15

              
	 	
                3.3.

              	
                Governmental
                  Authorization

              	
                15

              
	 	
                3.4.

              	
                Binding
                  Effect

              	
                15

              
	 	
                3.5.

              	
                Litigation

              	
                16

              
	 	
                3.6.

              	
                No
                  Default

              	
                16
                  

              
	 	
                3.7.

              	
                ERISA
                  Compliance

              	
                16

              
	 	
                3.8.

              	
                Use
                  of Proceeds; Margin Regulations

              	
                16

              
	 	
                3.9.

              	
                Title
                  to Properties

              	
                17

              
	 	
                3.10.

              	
                Taxes

              	
                17

              
	 	
                3.11.

              	
                Financial
                  Condition

              	
                17

              
	 	
                3.12.

              	
                Environmental
                  Matters

              	
                17

              
	 	
                3.13.

              	
                Collateral
                  Documents

              	
                18

              
	 	
                3.14.

              	
                Regulated
                  Entities

              	
                18

              
	 	
                3.15.

              	
                Solvency

              	
                18

              
	 	
                3.16.

              	
                Labor
                  Relations

              	
                18

              
	 	
                3.17.

              	
                Copyrights,
                  Patents, Trademarks and Licenses, etc.

              	
                18

              
	 	
                3.18.

              	
                Subsidiaries

              	
                19

              
	 	
                3.19.

              	
                Brokers’
                  Fees; Transaction Fees

              	
                19

              
	 	
                3.20.

              	
                Insurance

              	
                19

              
	 	
                3.21.

              	
                Full
                  Disclosure

              	
                19

              
	 	
                3.22.

              	
                Foreign
                  Assets Control Regulations and Anti-Money Laundering.

              	
                19

              
	 	
                 

              
	ARTICLE
                IV AFFIRMATIVE COVENANTS	
                20

              
	 	 	 	
                 

              
	 	
                4.1.

              	
                Financial
                  Statements

              	
                20

              
	 	
                4.2.

              	
                Certificates;
                  Borrowing Base Certificates; Other Information

              	
                21

              
	 	
                4.3.

              	
                Notices

              	
                22

              


      

    

     

    
      
        
        

      

      
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                4.4.

              	
                Preservation
                  of Corporate Existence, Etc.

              	
                24

              
	 	
                4.5.

              	
                Maintenance
                  of Property

              	
                24

              
	 	
                4.6.

              	
                Insurance

              	
                25

              
	
                 

              	
                4.7.

              	
                Payment
                  of Obligations

              	
                25

              
	 	
                4.8.

              	
                Compliance
                  with Laws

              	
                25

              
	 	
                4.9.

              	
                Inspection
                  of Property and Books and Records

              	
                26

              
	 	
                4.10.

              	
                Use
                  of Proceeds

              	
                26

              
	 	
                4.11.

              	
                Solvency

              	
                26

              
	 	
                4.12.

              	
                Further
                  Assurances

              	
                26

              
	 	
                4.13.

              	
                Reserved

              	
                27

              
	 	
                4.14.

              	
                Subsidiaries

              	
                27

              
	 	
                4.15.

              	
                Reserved

              	
                27

              
	 	
                4.16.

              	
                Reserved

              	
                27

              
	 	
                4.17.

              	
                Lockbox

              	
                27

              
	 	 
	ARTICLE
                V NEGATIVE COVENANTS	
                28

              
	 	 	 	 
	 	
                5.1.

              	
                Limitation
                  on Liens

              	
                28

              
	 	
                5.2.

              	
                Disposition
                  of Assets

              	
                30

              
	 	
                5.3.

              	
                Consolidations
                  and Mergers

              	
                30

              
	 	
                5.4.

              	
                Loans
                  and Investments

              	
                30

              
	 	
                5.5.

              	
                Limitation
                  on Indebtedness

              	
                31

              
	 	
                5.6.

              	
                Transactions
                  with Affiliates

              	
                31

              
	 	
                5.7.

              	
                Management
                  and Director Compensation

              	
                32

              
	 	
                5.8.

              	
                Use
                  of Proceeds

              	
                32

              
	 	
                5.9.

              	
                Contingent
                  Obligations

              	
                32

              
	 	
                5.10.

              	
                Compliance
                  with ERISA

              	
                32

              
	 	
                5.11.

              	
                Restricted
                  Payments

              	
                33

              
	 	
                5.12.

              	
                Change
                  in Business

              	
                33

              
	 	
                5.13.

              	
                Change
                  in Structure

              	
                33

              
	 	
                5.14.

              	
                Accounting
                  Changes

              	
                33

              
	 	
                5.15.

              	
                Amendments
                  to Subordinated Indebtedness

              	
                33

              
	 	
                5.16.

              	
                No
                  Negative Pledges

              	
                34

              
	 	
                5.17.

              	
                OFAC

              	
                34

              
	 	 
	ARTICLE
                VI FINANCIAL COVENANTS	
                34

              
	 	 	 	 
	 	
                6.1.

              	
                Minimum
                  Liquidity

              	
                34

              
	 	
                6.2.

              	
                Fixed
                  Charge Coverage Ratio.

              	
                34

              
	 	 
	ARTICLE
                VII EVENTS OF DEFAULT	
                35

              
	 	 	 	 
	 	
                7.1.

              	
                Event
                  of Default

              	
                35

              
	 	
                7.2.

              	
                Remedies

              	
                37

              
	 	
                7.3.

              	
                Rights
                  Not Exclusive

              	
                37

              
	 	 
	ARTICLE
                VIII THE AGENT	
                38

              
	 	 	 	 
	 	
                8.1.

              	
                Appointment
                  and Authorization

              	
                38

              
	 	8.2.	Delegation
                of Duties 	
                38

              
	 	
                8.3.

              	
                Liability
                  of Agent

              	
                38

              


      

    

     

    
      
        
        

      

      
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                8.4.

              	
                Reliance
                  by Agent

              	
                39

              
	 	
                8.5.

              	
                Notice
                  of Default

              	
                39

              
	 	
                8.6.

              	
                Credit
                  Decision

              	
                39

              
	 	
                8.7.

              	
                Indemnification

              	
                40

              
	 	
                8.8.

              	
                Agent
                  in Individual Capacity

              	
                40

              
	 	
                8.9.

              	
                Successor
                  Agent

              	
                40

              
	 	
                8.10.

              	
                Collateral
                  Matters.

              	
                41

              
	 	 
	ARTICLE
                IX MISCELLANEOUS	
                42

              
	 	 	 	 
	 	
                9.1.

              	
                Amendments
                  and Waivers

              	
                42

              
	 	
                9.2.

              	
                Notices

              	
                42

              
	 	
                9.3.

              	
                No
                  Waiver; Cumulative Remedies

              	
                43

              
	 	
                9.4.

              	
                Costs
                  and Expenses

              	
                43

              
	 	
                9.5.

              	
                Indemnity

              	
                44

              
	 	
                9.6.

              	
                Marshaling;
                  Payments Set Aside

              	
                45

              
	 	
                9.7.

              	
                Successors
                  and Assigns

              	
                45

              
	 	
                9.8.

              	
                Assignments,
                  Participations, etc.

              	
                45

              
	 	
                9.9.

              	
                Confidentiality

              	
                48

              
	 	
                9.10.

              	
                Set-off;
                  Sharing of Payments

              	
                49

              
	 	
                9.11.

              	
                Notification
                  of Addresses, Lending Offices, Etc.

              	
                49

              
	 	
                9.12.

              	
                Counterparts

              	
                49

              
	 	
                9.13.

              	
                Severability

              	
                49

              
	 	
                9.14.

              	
                Captions

              	
                50

              
	 	
                9.15.

              	
                Independence
                  of Provisions

              	
                50

              
	 	
                9.16.

              	
                Interpretation

              	
                50

              
	 	
                9.17.

              	
                No
                  Third Parties Benefited

              	
                50

              
	 	
                9.18.

              	
                Governing
                  Law and Jurisdiction.

              	
                50

              
	 	
                9.19.

              	
                WAIVER
                  OF JURY TRIAL

              	
                51

              
	 	
                9.20.

              	
                Entire
                  Agreement; Release

              	
                51

              
	 	 
	ARTICLE
                X TAXES, YIELD PROTECTION AND ILLEGALITY	
                52

              
	 	 	 	 
	 	
                10.1.

              	
                Taxes.

              	
                52

              
	 	
                10.2.

              	
                Illegality

              	
                54

              
	 	
                10.3.

              	
                Increased
                  Costs and Reduction of Return.

              	
                55

              
	 	
                10.4.

              	
                Funding
                  Losses

              	
                55

              
	 	
                10.5.

              	
                Inability
                  to Determine Rates

              	
                56

              
	 	
                10.6.

              	
                Reserves
                  on LIBOR Rate Loans

              	
                56

              
	 	
                10.7.

              	
                Certificates
                  of Lender

              	
                57

              
	 	
                10.8.

              	
                Survival

              	
                57

              
	 	 
	ARTICLE
                XI DEFINITIONS	
                57

              
	 	 	 	 
	 	
                11.1.

              	
                Defined
                  Terms

              	
                57

              
	 	
                11.2.

              	
                Other
                  Interpretive Provisions.

              	
                74

              
	 	
                11.3.

              	
                Accounting
                  Principles.

              	
                75

              
	 	
                11.4.

              	
                Amendment
                  and Restatement.

              	
                76

              


      

    

     

    
      
        
        

      

      
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    SCHEDULES

     

    EXHIBITS

     

    
      	
              Exhibit
                3.8

            	 	
              Certificate
                Regarding Sources and Uses

            
	
              Exhibit
                4.2(b)

            	 	
              Compliance
                Certificate

            
	
              Exhibit
                11.1(a)

            	 	
              Borrowing
                Base Certificate

            
	
              Exhibit
                11.1(b)

            	 	
              Notice
                of Borrowing

            
	
              Exhibit
                11.1(c)

            	 	
              Notice
                of Continuation/Conversion

            
	
              Exhibit
                11.1(d)

            	 	
              Revolving
                Note

            


    

     

    
      
        
        

      

      
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    CREDIT
      AGREEMENT

     

    This
      AMENDED AND RESTATED CREDIT AGREEMENT (including all exhibits and schedules
      hereto, as the same may be amended, modified and/or restated from time to time,
      this “Agreement”)
      is
      entered into as of July 5, 2006, by and among Boo Koo Beverages, Inc., a Texas
      corporation (“Borrower”),
      ORIX
      Venture Finance LLC, a Delaware limited liability company, as agent (in such
      capacity, “Agent”)
      for
      ORIX Finance Corp. (“ORIX”),
      a
      Delaware corporation, as a lender, and each other financial institution from
      time to time party to this Agreement as a lender (collectively, the
“Lenders”
and,
      individually, a “Lender).

     

    W
      I T N E
      S S E T H:

     

    WHEREAS,
      Agent, Lenders and Borrower entered into a Credit Agreement dated as of
      September 23, 2005 (the “Existing
      Credit Agreement”)
      to
      provide a term loan in the initial aggregate amount of $3,000,000.00, of
which
      3,255,981.70 remains
      outstanding as of the date hereof and includes all accrued but unpaid Interest
      and PIK Interest (each as defined in the Existing Credit Agreement)(the
“Existing
      Term Loan”),
      and a
      revolving line of credit in the aggregate amount of $2,500,000.00 (the
“Existing
      Revolving Credit Facility”);
      and


     

    WHEREAS,
      Agent, Lenders and Borrower desire to amend and restate the Existing Credit
      Agreement in order to amend and increase the Existing Revolving Credit Facility
      to provide a $5,000,000 revolving line of credit to Borrower and to make certain
      other changes to the Existing Credit Agreement, all as set forth
      below.

     

    NOW,
      THEREFORE, in consideration of the mutual agreements, provisions and covenants
      contained herein, the parties hereto agree as follows:

     

    ARTICLE
      I

     

    THE
      CREDITS

     

    1.1. Amounts
      and Terms of Commitments.

     

    (a) Reserved.

     

    (b) The
      Revolving Credit.
      Each
      Lender with a Revolving Loan Commitment severally and not jointly agrees, on
      the
      terms and conditions hereinafter set forth, to make Loans to Borrower (each
      such
      Loan, a “Revolving
      Loan”)
      from
      time to time on any Business Day during the period from the Closing Date to
      the
      Revolving Termination Date, in an aggregate amount not to exceed at any time
      outstanding the amount set forth opposite such Lender’s name in
      Schedule 1.1(b) under the heading “Revolving Loan Commitment” the aggregate
      principal amount of $5,000,000.00 unless increased by the mutual agreement
      of
      the Borrower and Lenders from time to time (such amount as the same may be
      reduced from time to time pursuant to subsection 1.8(g) hereof or as a result
      of
      one or more assignments pursuant to Section 9.8, being referred to herein
      as such Lender’s “Revolving
      Loan Commitment”);
      provided,
      however,
      after
      giving effect to any Borrowing of Revolving Loans, the aggregate principal
      amount of all outstanding

     

    
      
        
        

      

      
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    Revolving
      Loans shall not exceed the Maximum Revolving Loan Balance. Subject to the other
      terms and conditions hereof, amounts borrowed under this subsection 1.1(b)
      may
      be repaid and reborrowed from time to time. The “Maximum
      Revolving Loan Balance”
from
      time to time will be the lesser of:

     

    (i) the
      “Borrowing Base” (as calculated pursuant to the Borrowing Base Certificate) in
      effect from time to time. For the avoidance of doubt, the definition and
      calculation of “Borrowing Base” is subject to modifications from time to time by
      the Agent in its sole discretion, which modifications may include, but shall
      not
      be limited to, amendments to the advance rates set forth in the Borrowing Base
      Certificate, amendments to the definitions of “Eligible Accounts” and “Eligible
      Inventory”, and the establishment of Reserves against Unused Borrowing
      Availability; or

     

    (ii) the
      Aggregate Revolving Loan Commitment then in effect.

     

    If
      at any
      time the Revolving Loans exceed the Maximum Revolving Loan Balance, then
      Borrower shall immediately prepay Revolving Loans in an amount sufficient to
      eliminate such excess.

     

    1.2. Notes.
      The
      Revolving Loans made by each Lender with a Revolving Loan Commitment shall
      be
      evidenced by a Revolving Note payable to the order of Lender in an amount equal
      to Lender’s Revolving Loan Commitment.

     

    1.3. Interest.

     

    (a) Subject
      to subsections 1.3(c) and 1.3(d), each Loan shall bear interest on the
      outstanding principal amount thereof from the date when made at a rate per
      annum
      equal to the LIBOR or the Base Rate, as the case may be, plus
      the
      Applicable Margin. Each determination of an interest rate by Agent shall be
      conclusive and binding on Borrower and the Lenders in the absence of
      demonstrable
      error.
      All computations of fees and interest payable under this Agreement shall be
      made
      on the basis of a 360-day year and actual days elapsed. Interest and fees shall
      accrue during each period during which interest or such fees are computed from
      the first day thereof to the last day thereof.

     

    (b) Interest
      on each Loan shall be paid in arrears on each Interest Payment Date. Interest
      shall also be paid on the date of any payment or prepayment of Loans in
      full.

     

    (c) At
      the
      election of Agent or the Required Lenders while any Event of Default exists
      (or
      automatically while any Event of Default under subsection 7.1(f), or 7.1(g)
      exists), Borrower shall pay interest (after as well as before entry of judgment
      thereon to the extent permitted by law) on the Obligations from and after the
      date of occurrence of such Event of Default, at a rate per annum which is
      determined by adding two percent (2.0%) per annum to the Applicable Margin
      then
      in effect for such Loans (plus the LIBOR or Base Rate, as the case may be)
      and,
      in the case of Obligations not subject to an Applicable Margin (other than
      the
      fees described in subsection 1.9(c)), at a rate per annum equal to the rate
      per
      annum applicable to Revolving Loans which are

     

    
      
        
        

      

      
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    Base
      Rate
      Loans (including the Applicable Margin with respect thereto) plus two percent
      (2.0%); provided,
      however,
      on and
      after the expiration of any Interest Period applicable to any LIBOR Rate Loan
      outstanding during the continuance of such Event of Default, the principal
      amount of such Loan shall, during the continuation of such Event of Default,
      bear interest at a rate per annum equal to the Base Rate plus the Applicable
      Margin plus two percent (2.0%). All such interest shall be payable on demand
      of
      Agent or the Required Lenders.

     

    (d) No
      agreements, conditions, provisions or stipulations contained in this Agreement
      or any other instrument, document or agreement between Borrower and Agent or
      any
      Lender or default of Borrower, or the exercise by Agent or any Lender of the
      right to accelerate the payment of the maturity of principal and interest,
      or to
      exercise any option whatsoever contained in this Agreement or any other Loan
      Document, or the arising of any contingency whatsoever, shall entitle Lender
      to
      contract for, charge, or receive, in any event, consideration for the use,
      forbearance or detention of money (“interest”) at a rate exceeding the maximum
      rate of interest permitted by applicable state or federal law in effect from
      time to time (hereinafter “Maximum
      Legal Rate”).
      In no
      event shall Borrower be obligated to pay interest at any rate exceeding such
      Maximum Legal Rate and all agreements, conditions or stipulations, if any,
      which
      may in any event or contingency whatsoever operate to bind, obligate or compel
      Borrower to pay a rate of interest exceeding the Maximum Legal Rate, shall
      be
      without binding force or effect, at law or in equity, to the extent only of
      the
      excess of interest determined at a rate over such Maximum Legal Rate. In the
      event any interest is contracted for, charged or received at any rate in excess
      of the Maximum Legal Rate (“Excess”),
      Borrower acknowledges and stipulates that any such contract, charge, or receipt
      shall be the result of an accident and bona fide error, and that any Excess
      received by Lender shall be applied, first, to reduce the principal then unpaid
      hereunder; second, to reduce the other Obligations; and third, returned to
      Borrower, it being the intention of the parties hereto not to enter at any
      time
      into a usurious or otherwise illegal relationship. Borrower recognizes that,
      with fluctuations in the Maximum Legal Rate, such a result could inadvertently
      occur. By the execution of this Agreement, Borrower covenants that (i) the
      credit or return of any Excess shall constitute the acceptance by Borrower
      of
      such Excess, and (ii) Borrower shall not seek or pursue any other remedy,
      legal or equitable, against Agent or any Lender, based in whole or in part
      upon
      contracting for, charging or receiving of any interest in excess of the maximum
      authorized or receiving of any interest in excess of the maximum authorized
      by
      applicable law. For the purpose of determining whether or not any Excess has
      been contracted for, charged or received by Agent or any Lender, all interest
      at
      any time contracted for, charged or received by Agent or any Lender in
      connection with this Agreement shall be amortized, prorated, allocated and
      spread in equal parts during the full stated term of this Agreement and
      otherwise as provided in the applicable laws of the State of New York (or the
      successor(s) thereof). If, as a result of any circumstances whatsoever,
      fulfillment of any provision hereof or of any related agreement, at the time
      performance of such provision shall be due, shall involve transcending the
      limit
      of validity prescribed by applicable usury law, then, ipso facto, the obligation
      to be fulfilled shall be reduced to the limit of such validity.

     

    
      
        
        

      

      
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    1.4. Loan
      Accounts.
      The
      Agent, on behalf of the Lenders,
      shall
      record on its books and records the amount of each Loan made, the interest
      rate
      applicable, all payments of principal and interest thereon and the principal
      balance thereof from time to time outstanding. The
      Agent
shall
      deliver to Borrower on a monthly basis a loan statement setting forth such
      record for the immediately preceding month. Such record shall, absent
      demonstrable error, be conclusive evidence of the amount of the Loans made
      by
      the Lenders to Borrower and the interest and payments thereon. Any failure
      to so
      record or any error in doing so, or any failure to deliver such loan statement
      shall not, however, limit or otherwise affect the obligation of Borrower
      hereunder (and under any Note) to pay any amount owing with respect to the
      Loans
      or provide the basis for any claim against Agent.

     

    1.5. Procedure
      for Revolving Credit Borrowing.
      a) Each
      Borrowing under the Revolving Loan shall be made upon Borrower’s irrevocable
      (subject to Section 10.5 hereof) written notice delivered to Agent in the form
      of a Notice of Borrowing, which notice must be received by Agent prior
      to
      11:30
      a.m. (New York, New York time) (i) on the requested Borrowing date in the case
      of each Base Rate Loan equal to or less than $1,000,000 and in the case of
      the
      initial Loans to be made on the Closing Date, (ii) on the date which is one
      (1)
      Business Day prior to the requested Borrowing date of each Base Rate Loan in
      excess of $1,000,000 but equal to or less than $3,000,000 and (iii) on the
      day
      which is three (3) Business Days prior to the requested Borrowing date in the
      case of each LIBOR Rate Loan and each Base Rate Loan in excess of $3,000,000;
      provided, that with respect to Loans subsequent to the initial Loans, Borrower
      may give notice of the requested Borrowing to Agent by telephone call, with
      such
      notice confirmed not later than the following Business Day by delivery to Agent
      of a signed Notice of Borrowing. Such Notice of Borrowing shall
      specify:

     

    (I) the
      amount of the Borrowing (which shall be in an aggregate minimum principal amount
      of $100,000
      and multiples of $100,000
      in excess thereof);

     

    (II) the
      requested Borrowing date, which shall be a Business Day;

     

    (III) whether
      the Borrowing is to be comprised of LIBOR Rate Loans or Base Rate Loans;
      and

     

    (IV) if
      the
      Borrowing is to be LIBOR Rate Loans, the Interest Period applicable to such
      Loans;

     

    provided,
      however,
      with
      respect to the Borrowing to be made on the Closing Date, such Borrowing will
      consist of Base Rate Loans only and shall remain so for not less than three
      (3)
      Business Days. Thereafter, Borrower may request that Revolving Loans be made
      as
      LIBOR Rate Loans and that Loans be converted to or continued as LIBOR Rate
      Loans
      provided only LIBOR Rate Loans having an Interest Period of one (1) month shall
      be permitted during the first sixty
      (60)
      days
      after the Closing Date.

     

    (b) Upon
      receipt of the Notice of Borrowing, Agent will promptly notify each Lender
      with
      a Revolving Loan Commitment affected thereby of such Notice of Borrowing
      and of the amount of such Lender’s Commitment Percentage of the
      Borrowing.

     

    
      
        
        

      

      
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    Unless
      Agent is otherwise directed in writing by Borrower, the proceeds of each
      requested Borrowing after the Closing Date will be made available to Borrower
      by
      Agent by wire transfer (or ACH transfer) of such amount to Borrower pursuant
      to
      the wire transfer instructions specified on the signature page
      hereto.

     

    1.6. Conversion
      and Continuation Elections.
      a)
      Borrower may upon irrevocable (subject to subsection 10.2(c) and Section 10.5)
      written notice to Agent in accordance with subsection 1.6(b) elect to convert
      on
      any Business Day, any Base Rate Loans into LIBOR Rate Loans or elect to continue
      on the last day of the applicable Interest Period any LIBOR Rate Loans having
      Interest Periods maturing on such day, in each instance, in whole or in part
      in
      an amount not less than $100,000, or that is in an integral multiple of $50,000
      in excess thereof.

     

    (b) Borrower
      shall deliver a Notice of Continuation/ Conversion to be received by Agent
      not
      later than 11:30 a.m.
      (New
      York, New York time) at least three (3) Business Days in advance of the
      requested Conversion Date or continuation date, specifying:

     

    (i) the
      proposed Conversion Date or continuation date;

     

    (ii) the
      aggregate amount of Loans to be converted or continued; and

     

    (iii) the
      duration of the requested Interest Period with respect to the Loans to be
      converted or continued as LIBOR Rate Loans.

     

    (c) If
      upon
      the expiration of any Interest Period applicable to LIBOR Rate Loans, Borrower
      has failed to select timely a new Interest Period to be applicable to such
      LIBOR
      Rate Loans or if any Event of Default shall then exist, Borrower shall be deemed
      to have elected to convert such LIBOR Rate Loans into Base Rate Loans effective
      as of the expiration date of such current Interest Period.

     

    (d) Upon
      receipt of a Notice of Continuation/Conversion, Agent will promptly notify
      each
      Lender thereof. In addition, Agent will, with reasonable promptness, notify
      Borrower and the Lenders of each determination of LIBOR; provided
      that any
      failure to do so shall not relieve Borrower of any liability hereunder or
      provide the basis for any claim against Agent. All conversions and continuations
      shall be made pro rata according to the respective outstanding principal amounts
      of the Loans held by each Lender with respect to which the notice was
      given.

     

    (e) Unless
      the Required Lenders shall otherwise agree, during the existence of an Event
      of
      Default, Borrower may not elect to have a Loan converted into or continued
      as a
      LIBOR Rate Loan.

     

    (f) Notwithstanding
      any other provision contained in this Agreement, after giving effect to any
      Borrowing, or to any continuation or conversion of any Loans, there shall not
      be
      more than seven (7) different Interest Periods in effect.

     

    
      
        
        

      

      
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    1.7. Optional
      Prepayments.

     

    (a) Borrower
      may at any time prepay
      the Revolving Loans without
      penalty or premium except as provided in Section 10.4 and the applicable
      Termination Fee, if any.

     

    (b) The
      notice of any prepayment shall not thereafter be revocable by Borrower and
      Agent
      will promptly notify each Lender thereof and of such Lender’s Commitment
      Percentage of such prepayment. The payment amount specified in such notice
      shall
      be due and payable on the date specified therein. Together with each prepayment
      under this Section 1.7, Borrower shall pay any amounts required pursuant to
      Section 10.4.

     

    1.8. Mandatory
      Prepayments of Loans and Commitment Reductions.

     

    (a) Reserved.

     

    (b) Revolving
      Loan.
      Borrower shall repay to Lenders in full on the date specified in clause (a)
      of
      the definition of “Revolving Termination Date” the aggregate principal amount of
      the Revolving Loans outstanding on the Revolving Termination Date.

     

    (c) Asset
      Dispositions.
      If
      Borrower shall at any time or from time to time:

     

    (i) make
      or
      agree to make a Disposition; or

     

    (ii) suffer
      an
      Event of Loss;

     

    and
      the
      aggregate amount of the Net Proceeds received by Borrower in connection with
      such Disposition or Event of Loss and all other Dispositions and Events of
      Loss
      occurring during the fiscal year exceeds $200,000, then (A) Borrower shall
      promptly notify Agent of such proposed Disposition or Event of Loss (including
      the amount of the estimated Net Proceeds to be received by Borrower in respect
      thereof) and (B) promptly upon receipt by Borrower of the Net Proceeds of such
      Disposition or Event of Loss, Borrower shall deliver, or cause to be delivered,
      such Net Proceeds to Agent for distribution to the Lenders as a prepayment
      of
      the Loans, which prepayment shall be applied in accordance with subsection
      1.8(f) hereof. Notwithstanding the foregoing and provided no Default
      or
      Event of
      Default has occurred and is continuing,
      such
      prepayment shall not be required to the extent Borrower reinvests the Net
      Proceeds of such Disposition or Event of Loss, or a portion thereof, in
      productive assets of a kind then used or usable in the business of Borrower,
      within one hundred eighty (180) days after the date of such Disposition or
      Event
      of Loss or enters into a binding commitment thereof within said one hundred
      eighty (180) day period and subsequently makes such reinvestment. Pending such
      reinvestment, the Net Proceeds shall be delivered to Agent, for distribution
      to
      the Lenders, as a prepayment of the Revolving Loans, but not as a permanent
      reduction of the Revolving Loan Commitment.

     

    
      (d) Reserved.

    

     

    
      
        
        

      

      
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    (e) Reserved.

     

    (f) Reserved.

     

    (g) Application
      of Prepayments.
      Any
      prepayments pursuant to Section 1.7 (other than prepayments of Revolving Loans
      as set forth therein), 1.8(d) shall be applied in permanent reduction of the
      Revolving Loan, whereupon the Revolving Loan Commitment of each Lender shall
      automatically and permanently be reduced by an amount equal to such Lender’s
      ratable share of the aggregate of principal repaid, effective as of the earlier
      of the date that such prepayment is made or the date by which such prepayment
      is
      due and payable hereunder. Amounts prepaid shall be applied first to any Base
      Rate Loans then outstanding and then to outstanding LIBOR Rate Loans with the
      shortest Interest Periods remaining. Together with each prepayment under this
      Section 1.8, Borrower shall pay any amounts required pursuant to Section 10.4
      hereof.

     

    1.9. Fees.

     

    (a) Commitment
      Fee.
      Borrower
      shall pay to Agent, for Agent’s own account, a fee (the “Commitment
      Fee”)
      in an
      amount equal to
      $25,000.
      The Commitment Fee shall
      be
      due and payable on the Closing Date, and shall be deemed fully earned and
      nonrefundable as of the Closing Date.

     

    (b) Monitoring
      Fee.
      Borrowers shall pay Agent an a monitoring fee equal to $1,500.00 per month
      (the
“Monitoring
      Fee”)
      commencing on the first day of the month following the Closing Date and on
      the
      first day of each month until the termination of this Agreement. The Monitoring
      Fee shall be deemed earned in full on the date when same is due and payable
      hereunder and shall not be subject to rebate or proration upon termination
      of
      this Agreement for any reason.

     

    (c) Unused
      Line Fee.
      Borrower shall pay to Agent, for the ratable benefit of the Lenders having
      Revolving Loan Commitments, a fee (the “Unused
      Line Fee”)
      in an
      amount equal to

     

    (i) the
      Aggregate Revolving Loan Commitment, less

     

    (ii) the
      average daily balance of all Revolving Loans outstanding during the preceding
      quarter.

     

    multiplied
      by one-half percent (0.50%) per annum, such fee to be payable quarterly in
      arrears on the first day of the quarter following the date hereof and the first
      day of each quarter thereafter. The Unused Line Fee provided in this subsection
      1.9(c) shall accrue at all times from and after mutual execution and delivery
      of
      this Agreement.

     


    
      
        
        

      

      
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    1.10. Payments
      by Borrower.

     

    (a) All
      payments (including prepayments) to be made by Borrower on account of principal,
      interest, fees and other amounts required hereunder shall be made without
      set-off, recoupment, counterclaim or deduction of any kind, shall except as
      otherwise expressly provided herein, be made to Agent at the address for payment
      specified in the signature page hereof in relation to Agent (or such other
      address as Agent may from time to time specify in accordance with Section 9.2),
      and shall be made in dollars and in immediately available funds, no later than
      11:30 a.m.
      (New
      York, New York time) on the date due. Any payment which is received by Agent
      later than 11:30 a.m. (New York, New York time) shall be deemed to have been
      received on the immediately succeeding Business Day and any applicable interest
      or fee shall continue to accrue. Borrower hereby authorizes Agent and each
      Lender to make a Revolving Loan (which shall be a Base Rate Loan) to pay
      (i) interest, principal and any fees owing to Lender, in each instance, on
      the date due, or (ii) after five (5) days prior notice to Borrower, other fees,
      costs or expenses payable by Borrower hereunder or under the other Loan
      Documents.

     

    (b) Subject
      to the provisions set forth in the definition of “Interest Period” herein, if
      any payment hereunder shall be stated to be due on a day other than a Business
      Day, such payment shall be made on the next succeeding Business Day, and such
      extension of time shall in such case be included in the computation of interest
      or fees, as the case may be.

     

    (c) Except
      for payments collected or received prior to the occurrence of an Event of
      Default, all amounts collected or received by Agent
      shall
      be
      applied as follows:

     

    first,
      to
      payment of costs and expenses, including Attorney Costs, of Agent
      payable
      or reimbursable by Borrower under the this Agreement or any of the Loan
      Documents;

     

    second,
      to
      payment of all accrued unpaid interest on the Obligations and fees owed to
      Agent
      and Lenders;

     

    third,
      to
      payment of principal of the Obligations required hereunder;

     

    fourth,
      to
      payment of any other amounts owing constituting Obligations; and

     

    fifth,
      any
      remainder shall be for the account of and paid to whoever may be lawfully
      entitled thereto.

     

    In
      carrying out the foregoing, (i) amounts received shall be applied in the
      numerical order provided until exhausted prior to application to the next
      succeeding category; (ii) each of the Lenders shall receive an amount equal
      to its pro rata share of amounts available to be applied pursuant to clauses
      third, fourth and fifth above.

     

    
      
        
        

      

      
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    (d) As
      set
      forth in subsection 1.5(b), upon receipt of a Notice of Borrowing, Agent will
      promptly notify each Lender of such Lender’s Commitment Percentage of the
      Borrowing requested thereby. Each Lender with a Revolving Loan Commitment will
      fund its Commitment Percentage of Borrowings of Revolving Loans to Agent at
      Agent’s account specified on its signature page hereto, or to such other account
      as Agent may designate in writing, no later than 2:00 p.m. (New York, New York
      time) on the scheduled Borrowing date.

     

    (e) Unless
      Agent shall have received notice from a Lender on the Closing Date or, with
      respect to each Borrowing after the Closing Date, by 1:00 p.m.
      (New
      York, New York time) on the date of any proposed Borrowing, that such Lender
      will not make available to Agent as and when required hereunder for the account
      of Borrower the amount of such Lender’s Commitment Percentage of the proposed
      Borrowing, Agent may assume that each Lender has made such amount available
      to
      Agent in immediately available funds on the applicable Borrowing date and Agent
      may (but shall not be so required), in reliance upon such assumption, make
      available to Borrower on such date a corresponding amount. If and to the extent
      any Lender shall not have made its full amount available to Agent in immediately
      available funds and Agent in such circumstances has made available to Borrower
      such amount, that Lender shall on the next Business Day following the date
      of
      such Borrowing make such amount available to Agent, together with interest
      at
      the Federal Funds Rate for and determined as of each day during such period.
      A
      notice of Agent submitted to any Lender with respect to amounts owing under
      this
      subsection 1.11(b) shall be conclusive, absent manifest error. If such amount
      is
      so made available, such payment to Agent shall constitute such Lender’s Loan on
      the date of Borrowing for all purposes of this Agreement. If such amount is
      not
      made available to Agent on the next Business Day following the date of such
      Borrowing, Agent shall notify Borrower of such failure to fund and, upon demand
      by Agent, Borrower shall pay such amount to Agent for Agent’s account, together
      with interest thereon for each day elapsed since the date of such Borrowing,
      at
      a rate per annum equal to the interest rate applicable at the time to the Loans
      comprising such Borrowing.

     

    (f) On
      each
      Interest Payment Date and any other date on which a payment is made in respect
      of the Obligations, Borrower shall deliver to Agent a certificate, certified
      by
      a Responsible Officer, setting forth: (i) outstanding receivables;
      (ii) current inventory; (iii) the Borrowing Base calculation;
      (iv) interest due and paid in respect of the Revolving Loans;
      (v) principal due and paid in respect of the Revolving Loans; and
      (vi) the outstanding balance of the Revolving Loans taking into account the
      payment made on such date.

     

    (g) Provided
      that such Lender has made all payments required to be made by it under this
      Agreement, Agent will pay to such Lender, by wire transfer to such Lender’s
      account (as specified by such Lender on such Lender’s respective signature page
      to this Agreement or the applicable Assignment and Acceptance) such Lender’s
      Commitment Percentage of principal, interest, Commitment Fees and, in each
      instance, received by Agent, promptly after Agent’s receipt
      thereof.

     

    
      
        
        

      

      
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    (h) Unless
      Agent shall have received notice from Borrower prior to the date on which any
      payment is due to the Lenders hereunder that Borrower will not make such payment
      in full as and when required hereunder, Agent may assume that Borrower has
      made
      such payment in full to Agent on such date in immediately available funds and
      Agent may (but shall not be so required), in reliance upon such assumption,
      cause to be distributed to each Lender on such due date an amount equal to
      the
      amount then due such Lender. If Agent pays an amount to a Lender under this
      Agreement in the belief or expectation that a related payment has been or will
      be received by Agent from Borrower and such related payment is not received
      by
      Agent, Agent shall be entitled to recover such amount from such Lender, and
      such
      Lender shall repay to Agent on demand such amount, together with interest
      thereon for each day from the date such amount is distributed to such Lender
      until the date such Lender repays such amount to Agent, at the Federal Funds
      Rate, without setoff, recoupment, counterclaim or deduction of any kind. If
      Agent determines at any time that any amount received by Agent under this
      Agreement must be returned to Borrower or paid to any other Person pursuant
      to
      any solvency, fraudulent conveyance or similar law or otherwise, then,
      notwithstanding any other term or condition of this Agreement, Agent will not
      be
      required to distribute any portion of such payment to any Lender. In addition,
      each Lender will repay to Agent on demand any portion of such amount that Agent
      has distributed to such Lender, together with interest thereon at such rate,
      if
      any, as Agent is required to pay to Borrower or such other Person, without
      setoff, recoupment, counterclaim or deduction of any kind. 

     

    ARTICLE
      II

     

    CONDITIONS
      PRECEDENT

     

    2.1. Conditions
      of Initial Loans.
      The
      obligation of each Lender to make its initial Loan is subject to the condition
      that Agent shall have received on or before the Closing Date all of the
      following, in form and substance reasonably satisfactory to Agent, duly executed
      by all parties thereto:

     

    (a) Amended
      and Restated Credit Agreement and Amended and Restated Notes.
      This
      Agreement duly executed by Borrower and Agent, and each of the Lenders, and
      Amended and Restated Notes duly executed by Borrower;

     

    (b) Loan
      Documents.
      The
      Loan Documents duly executed by the parties signatory thereto, and the Shares
      issued by Borrower to Lender.

     

    (c) Secretary’s
      Certificates; Resolutions; Incumbency.
      A
      certificate of the Secretary or Assistant Secretary of Borrower,
      certifying:

     

    (i) the
      names
      and true signatures of the officers of Borrower authorized to execute, deliver
      and perform, as applicable, this Agreement, and all other Loan Documents to
      be
      delivered hereunder; and

     

    (ii) copies
      of
      the resolutions of the board of directors or other governing body of Borrower
      approving and authorizing the execution, delivery and performance, as
      applicable, by Borrower of this Agreement and the other Loan Documents to be
      executed or delivered by it hereunder;

     

    
      
        
        

      

      
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    (d) Organization
      Documents and Good Standing.
      Each of
      the following documents:

     

    (i) the
      Organization Documents of Borrower, as such Organization Documents are in effect
      on the Closing Date, certified by the Secretary of State (or similar, applicable
      Governmental Authority) of the state of incorporation or formation of Borrower
      as of a recent date, if and as applicable, all certified by the Secretary or
      Assistant Secretary of Borrower as of the Closing Date; and

     

    (ii) a
      good
      standing and, if available, tax good standing certificate for Borrower from
      the
      Secretary of State (or similar, applicable Governmental Authority) of its state
      of incorporation or formation, as applicable, and each state where Borrower
      is
      qualified to do business as a foreign entity as of a recent date;

     

    (e) Collateral
      Documents.
      The
      Collateral Documents, executed by the Borrower in appropriate form for
      recording, where necessary, together with:

     

    (i) copies
      of
      all uniform commercial code financing statements to be filed, registered or
      recorded to perfect the security interests of Agent, for the benefit of Agent
      and the Lenders, granted pursuant to the Collateral Documents, or other evidence
      reasonably satisfactory to Agent that there has been filed, registered or
      recorded all financing statements and other filings, registrations and
      recordings reasonably necessary and advisable to perfect the Liens of Agent,
      for
      the benefit of Agent and the Lenders, granted pursuant to the Collateral
      Documents, in accordance with applicable law;

     

    (ii) uniform
      commercial code financing statement, federal and state tax lien, pending
      litigation and judgment searches as Agent shall have reasonably requested of
      Borrower and such other Persons as Agent may request, and such termination
      statements, releases or other documents as may be reasonably necessary to
      confirm that the Collateral is subject to no other Liens in favor of any Persons
      (other than Permitted Liens);

     

    (iii) evidence
      that all other actions reasonably necessary or, in the reasonable opinion of
      Agent, desirable to perfect and protect the Liens created by the Collateral
      Documents have been taken;

     

    (iv) funds
      sufficient to pay any filing or recording tax or fee in connection with any
      and
      all uniform commercial code financing statements and, if applicable, the
      Mortgages, all title insurance premiums, documentary stamp or intangible taxes,
      recording fees and mortgage taxes payable in connection with the recording
      of
      any Mortgage or filing of any uniform commercial code financing statements
      or
      the issuance of the title insurance policies (whether due on the Closing Date
      or
      in the future) including sums due in connection with any future
      advances;

     

    
      
        
        

      

      
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    (v) with
      respect to each parcel of real Property in respect of which there is delivered
      a
      Mortgage, if any, an A.L.T.A. or equivalent mortgagee policy of title insurance
      or a binder issued by a title insurance company reasonably satisfactory to
      Agent
      insuring (or undertaking to insure, in the case of a binder) that the Mortgage
      creates and constitutes a valid first Lien against such real Property in favor
      of Agent, for the benefit of Agent and the Lenders, in an amount and subject
      only to exceptions reasonably acceptable to Agent, with such endorsements and
      affirmative insurance as Agent may reasonably request;

     

    (vi) if
      required by Agent,
      flood
      insurance and earthquake insurance on terms satisfactory to Agent;

     

    (vii) current
      A.L.T.A. or equivalent surveys and surveyor’s certifications as to all real
      Property in respect of which there is delivered a Mortgage, if any, each in
      form
      and substance reasonably satisfactory to Agent;
      and

     

    (viii) such
      consents, estoppels, subordination agreements and other documents and
      instruments executed by landlords, tenants and other Persons party to material
      contracts relating to any Collateral as to which Agent
      shall be
      granted a Lien for the benefit of Agent and the Lenders, as reasonably requested
      by Agent;

     

    (f) Legal
      Opinions.
      Such
      opinions of counsel to Borrower required by Lender, including an opinion of
      counsel addressing the enforceability of the choice of law provisions set forth
      in Section
      9.18
      of this
      Agreement, in each instance addressed to Agent and the Lenders, in form and
      substance reasonably satisfactory to Agent;

     

    (g) Payment
      of Fees.
      Borrower shall have paid all accrued and unpaid fees (including the Commitment
      Fee), costs and expenses to the extent then due and payable on the Closing
      Date,
      together with Attorney Costs of Agent;

     

    (h) Financial
      Statements, Projections and Management Letters.
      (i)
      Copies of all of the financial statements of Borrower together with a pro forma
      balance sheet giving effect to the transactions contemplated hereby, certified
      on behalf of Borrower by a Responsible Officer, (ii) monthly projections with
      respect to Borrower for the twelve (12) months after the month in which the
      Closing occurs and annual projections with respect to Borrower for the three
      (3)
      years following the year in which the Closing occurs,
      and
      (iii) management letters from Borrower’s auditors for the fiscal year ended
      December 31, 2005, if
      any,
      in each case, certified on behalf of Borrower by a Responsible
      Officer;

     

    (i) Audited
      Balance Sheet.
      The
      audited balance sheet of Boo Koo Beverages, Inc. dated December 31, 2005, and
      the related audited statements of income or operations, shareholders’ equity and
      cash flows for the fiscal year ended on that date in form and substance
      reasonably satisfactory to Agent. 

     

    (j) Insurance
      Policies.
      Standard lender’s or mortgagee’s (as applicable) loss payable endorsements in
      favor of Lender
      with
      respect to the insurance policies or other instruments or documents evidencing
      insurance coverage on the properties of Borrower in accordance with Section
      4.6
      and endorsements to all liability insurance policies naming Agent
      and the
      Lenders as additional insureds thereunder;

     

    
      
        
        

      

      
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    (k) Due
      Diligence.
      Evidence of completion to the satisfaction of Agent
      of such
      investigations, reviews and audits with respect to Borrower;

     

    (l) Insurance
      Review.
      A
      review of Borrower’s insurance coverages, prepared by a qualified firm
      reasonably acceptable to Agent,
      dated
      as of a recent date prior to the Closing Date and otherwise in form and
      substance reasonably satisfactory to Agent;

     

    (m) Borrowing
      Base Certificate.
      A duly
      completed Borrowing Base Certificate setting forth the Borrowing Base as of
      a
      date not more than thirty (30) days prior to the Closing Date;

     

    (n) Purchase
      Agreement and Related Transactions.
      A
      duly
      executed copy of the Purchase Agreement and all amendments thereto effected
      prior to the Closing Date, and evidence that all conditions set forth therein
      shall have either been satisfied or waived to the satisfaction of BK Beverages,
      LLC; provided, however, that the equity issuances of Borrower contemplated
      by
      the Purchase Agreement shall be satisfactory to Agent in its sole discretion;
      

     

    (o) Existing
      Term Loan.
      Proceeds from the equity issuances and transactions contemplated in the Purchase
      Agreement in an amount sufficient to cause the indefeasible payment, in full,
      in
      cash of all amounts due and owing under the Existing Term Loan. 

     

    (p) Appointment
      of Chief Executive Officer.
      Evidence that the Board of Directors of Borrower shall have duly appointed
      a
      Chief Executive Officer satisfactory to Agent in its sole discretion;


     

    (q) No
      Material Adverse Change.
      There
      shall not have occurred any material adverse change in the condition (financial
      or otherwise), business, performance, operations or properties of Borrower
      from
      that which has been disclosed to Agent
      by
      Borrower since September 23, 2005; 

     

    (r) Liquidity.
      Evidence that Borrower shall have available on the Closing Date, after giving
      effect to the transaction contemplated herein and in the other Loan Documents,
      Liquidity of $500,000.00;

     

    (s) Reserved.
      

     

    (t) Other
      Documents.
      Such
      other approvals, opinions, documents or materials as Agent
      or any
      Lender may reasonably request.

     

    
      
        
        

      

      
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    2.2. Conditions
      to All Borrowings. The obligation of each Lender to make any Loan is subject
      to the satisfaction of the following conditions precedent on the relevant
      Borrowing date:

     

    (a) Satisfaction
      of Post Closing Obligations.
      Agent
      shall have received evidence satisfactory to Agent that Borrower has satisfied
      all obligations set forth in that certain Post-Closing Agreement dated the
      date
      hereof between Agent and Borrower. 

     

    (b) Notice
      of Borrowing.
      The
      Agent shall have received a Notice of Borrowing in accordance with Section
      1.5;

     

    (c) Continuation
      of Representations and Warranties.
      The
      representations and warranties made by Borrower contained in this Agreement
      and
      other Loan Documents shall be true and correct on and as of such Borrowing
      date
      with the same effect as if made on and as of such Borrowing date (except to
      the
      extent such representations and warranties expressly refer to an earlier date,
      in which case they shall be true and correct as of such earlier date);


     

    (d) No
      Existing Default.
      No
      Default or Event of Default shall exist or shall result from such Borrowing;
      and

     

    (e) Borrowing
      Base Certificate.
      The
      Agent
      shall
      have received a duly completed Borrowing Base Certificate setting forth
      availability under the Revolving Loan as of a date not more than five (5) days
      prior to the date of Borrowing and, after giving effect to such Revolving Loan,
      the outstanding principal balance of the Revolving Loans does not exceed the
      Maximum Revolving Loan Balance.

     

    Each
      Notice of Borrowing submitted by Borrower hereunder shall constitute a
      representation and warranty by Borrower hereunder, as of the date of each such
      notice or application and as of the date of each Borrowing that the conditions
      in Section 2.2 are satisfied.

     

    ARTICLE
      III

     

    REPRESENTATIONS
      AND WARRANTIES

     

    Borrower
      represents and warrants to Agent
      and each
      Lender that the following are, and after giving effect to the transactions
      contemplated hereunder will be, true, correct and complete:

     

    3.1. Corporate
      Existence and Power.
      Borrower:

     

    (a) is
      a
      corporation, limited liability company or limited partnership, as applicable,
      duly organized, validly existing and in good standing under the laws of the
      jurisdiction of its incorporation or formation, as applicable;

     

    (b) has
      the
      power and authority and all governmental licenses, authorizations, consents
      and
      approvals to (i) own
      its
      assets
      and
      carry on
      its business and
      (ii) execute,
      deliver, and perform its obligations under, the Loan Documents to which it
      is a
      party;

     

    (c) is
      duly
      qualified as a foreign corporation, limited liability company or limited
      partnership, as applicable, and licensed and in good standing, under the laws
      of
      each jurisdiction where its ownership, lease or operation of property or the
      conduct of its business requires such qualification or license; and

     

    
      
        
        

      

      
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    (d) is
      in
      compliance with all Requirements of Law;

     

    except,
      in each case referred to in clause (c)
      or
      (d), to
      the extent that the failure to do so could not reasonably be expected to have,
      either individually or in the aggregate, a Material Adverse Effect.

     

    3.2. Corporate
      Authorization; No Contravention.
      a) The
      execution, delivery and performance by Borrower of this Agreement and any other
      Loan Document, have been duly authorized by all necessary action, and do not
      and
      will not:

     

    (i) contravene
      the terms of any of Borrower’s Organization Documents;

     

    (ii) conflict
      with or result in any material breach or contravention of, or result in the
      creation of any Lien under, any document evidencing any material Contractual
      Obligation to which Borrower is a party or any order, injunction, writ or decree
      of any Governmental Authority to which Borrower or its Property is subject;
      or

     

    (iii) violate
      any material Requirement of Law in any material respect.

     

    (b) Schedule
      3.2
      sets
      forth the authorized equity securities of Borrower. All issued and outstanding
      equity securities of Borrower are duly authorized and validly issued, fully
      paid, non-assessable, and free and clear of all Liens other than those in favor
      of Agent,
      for the
      benefit of Agent and Lenders, and such securities were issued in compliance
      with
      all applicable state and federal laws concerning the issuance of securities.
      All
      of the issued and outstanding equity securities of Borrower is owned by the
      Persons and in the amounts set forth on Schedule
      3.2.
      Except
      as set forth on Schedule
      3.2
      there
      are no pre-emptive or other outstanding rights, options, warrants, conversion
      rights or other similar agreements or understandings for the purchase or
      acquisition of any shares of capital stock or other securities of any such
      entity.

     

    3.3. Governmental
      Authorization.
      No
      approval, consent, exemption, authorization, or other action by, or notice
      to,
      or filing with, any Governmental Authority is necessary or required in
      connection with the execution, delivery or performance by, or enforcement
      against, Borrower of this Agreement, any other Loan Document except (a) for
      recordings and filings in connection with the Liens granted to Agent
      under
      the Collateral Documents and (b) those obtained or made on or prior to the
      Closing Date.

     

    3.4. Binding
      Effect.
      This
      Agreement and each other Loan Document to which Borrower is a party constitute
      the legal, valid and binding obligations of Borrower, enforceable against
      Borrower in accordance with their respective terms, except as enforceability
      may
      be limited by applicable bankruptcy, insolvency, or similar laws affecting
      the
      enforcement of creditors’ rights generally or by equitable principles relating
      to enforceability.

     

    
      
        
        

      

      
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      3.5. Litigation.
        Except
        as specifically disclosed in Schedule 3.5, there are no actions, suits,
        proceedings, claims or disputes pending, or to the
        knowledge of Borrower, threatened or contemplated, at law, in equity, in
        arbitration or before any Governmental Authority, against Borrower or any
        of its
        Properties which:

       

    

    (a) purport
      to affect or pertain to this Agreement or any other Loan Document or any of
      the
      transactions contemplated hereby or thereby; or

     

    (b) if
      determined adversely to Borrower, could reasonably be expected to result in
      equitable relief or monetary judgment(s), individually or in the aggregate,
      in
      excess of $100,000.

     

    No
      injunction, writ, temporary restraining order or any order of any nature has
      been issued by any court or other Governmental Authority purporting to enjoin
      or
      restrain the execution, delivery or performance of this Agreement, any other
      Loan Document, or directing that the transactions provided for herein or therein
      not be consummated as herein or therein provided.

     

    3.6. No
      Default.
      No
      Default or Event of Default exists or would result from the incurring of any
      Obligations by Borrower or the grant or perfection of Agent’s
      Liens
      on the Collateral. Borrower is not in default under or with respect to any
      Contractual Obligation in any respect which, individually or together with
      all
      such defaults, could
      reasonably be expected to have a Material Adverse Effect or that would, if
      such
      default had occurred after the Closing Date, create an Event of Default under
      subsection 7.1(e).

     

    3.7. ERISA
      Compliance.
      a)
      Schedule 3.7 lists all Qualified Plans and Multiemployer Plans. Borrower is
      in
      compliance in all material respects with all requirements of each Plan, and
      each
      Plan complies in all material respects, and is operated in compliance in all
      material respects, with all applicable provisions of law. Borrower is not aware,
      after due inquiry, of any item of non-compliance which could potentially result
      in the loss of Plan qualification or tax-exempt status, or give rise to a
      material excise tax or other penalty imposed by a Governmental Authority. No
      material proceeding, claim, lawsuit and/or investigation is pending concerning
      any Plan. All required contributions have been and will be made in accordance
      with the provisions of each Qualified Plan and Multiemployer Plan, and with
      respect to Borrower or any ERISA Affiliate, there are, have been and will be
      no
      material Unfunded Pension Liabilities or Withdrawal Liabilities.

     

    (b) No
      ERISA
      Event has occurred or is expected to occur with respect to any Qualified Plan,
      Multiemployer Plan or Plan.

     

    (c) Members
      of the Controlled Group currently comply and have complied in each
      case
      in all
      material respects with the notice and continuation coverage requirements of
      Section 4980B of the Code.

     

    3.8. Use
      of
      Proceeds; Margin Regulations.
      The
      proceeds of the Loans are intended to be and shall be used solely for the
      purposes set forth in the Certificate Regarding Sources and Uses in
      substantially the form of Exhibit
      3.8
      hereto
      and permitted by Section 4.10, and are intended to be and shall be used in
      compliance with Section 5.8. Borrower is not generally engaged in the business
      of purchasing or selling Margin Stock or extending credit for the purpose of
      purchasing or carrying Margin Stock. Proceeds of the Loans shall not be used
      for
      the purpose of purchasing or carrying Margin Stock.

     

    
      
        
        

      

      
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    3.9. Title
      to Properties.
      Borrower has good record and marketable title in fee simple to, or valid
      leasehold interests in, all real Property, and good and valid title to all
      owned
      personal property and valid leasehold interests in all leased personal property,
      in each instance, necessary or used in the ordinary conduct of its businesses.
      As of the Closing Date, the Property of Borrower is subject to no Liens, other
      than Permitted Liens.

     

    3.10. Taxes.
      Borrower has filed all Federal and other material tax returns and reports
      required to be filed, and have paid all Federal and other material taxes,
      assessments, fees and other governmental charges levied or imposed upon it
      or
      its Properties, income or assets otherwise due and payable, except those which
      are being contested in good faith by appropriate proceedings diligently
      prosecuted and for which adequate reserves have been provided in accordance
      with
      GAAP and no notice of Lien has been filed or recorded. There is no proposed
      tax
      assessment against Borrower which would, if the assessment were made, either
      individually or in the aggregate, have a Material Adverse Effect.

     

    3.11. Financial
      Condition.
      a) Each of (i)
      the
      audited balance sheet of Borrower dated December 31, 2005, and the related
      statements of income or operations, shareholders’ equity and cash flows or the
      fiscal year ended on that date and (ii)
      the
      unaudited interim balance sheet of Borrower dated May 31, 2006 and the related
      unaudited statements of income, shareholders’ equity and cash flows for the six
      (6) month then ended:

     

    (iii) were
      prepared in accordance with GAAP consistently applied throughout the respective
      periods covered thereby, except as otherwise expressly noted therein, subject
      to, in the case of the unaudited interim financial statements, normal year-end
      adjustments and the lack of footnote disclosures; and

     

    (iv) present
      fairly in all material respects the financial condition of Borrower as of the
      dates thereof and results of operations for the periods covered
      thereby.

     

    (b) Since
      the
      date of the last audited financial statements of Boo Koo Beverages, Inc.
      delivered pursuant to Section 4.1(a),
      there
      has been no Material Adverse Effect.

     

    (c) Borrower
      has no Indebtedness other than Indebtedness permitted pursuant to Section 5.5
      and have no Contingent Obligations other than Contingent Obligations permitted
      pursuant to Section 5.9.

     

    3.12. Environmental
      Matters.
      a) The
      on-going operations of Borrower comply in all respects with all Environmental
      Laws, except those for which non-compliance would not (if enforced in accordance
      with applicable law) reasonably be expected to result in, either individually
      or
      in the aggregate, a Material Adverse Effect.

     

    
      
        
        

      

      
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    (b) Borrower
      has obtained all licenses, permits, authorizations and registrations required
      under any Environmental Law (“Environmental
      Permits”)
      and
      necessary for its Ordinary Course of Business, all such Environmental Permits
      are in good standing and in full force and effect, and Borrower is in compliance
      with all material terms and conditions of such Environmental Permits, except
      where the failure to obtain, to maintain in good standing and in full force
      and
      effect, or to be in compliance with such Environmental Permits would not
      reasonably be expected to result in material liability to Borrower and could
      not
      reasonable be expected to result in, either
      individually or in the aggregate, a Material Adverse Effect.

     

    (c) None
      of
      Borrower or
      any of
      its present Property or operations, is subject to any outstanding written order
      from or agreement with any Governmental Authority, nor subject to any judicial
      or docketed administrative proceeding, respecting any Environmental Law,
      Environmental Claim or Hazardous Material.

     

    (d) There
      are
      no Hazardous Materials or other conditions or circumstances existing with
      respect to any Property, or arising from operations prior to the Closing Date,
      of Borrower that would reasonably be expected to result, either individually
      or
      in the aggregate, in a Material Adverse Effect. In addition, Borrower has no
      underground storage tanks (i) that are not properly registered or permitted
      under applicable Environmental Laws, or (ii) that are leaking or disposing
      of
      Hazardous Materials.

     

    3.13. Collateral
      Documents.
      All
      representations and warranties of Borrower or any other party to any Collateral
      Document (other than Agent
      and/or
      any Lender) contained in the Collateral Documents are true and correct in all
      material respects.

     

    3.14. Regulated
      Entities.
      None of
      Borrower or any Person controlling Borrower is (a) an “investment company”
within the meaning of the Investment Company Act of 1940; or (b) subject to
      regulation under the Public Utility Holding Company Act of 1935, the Federal
      Power Act, the Interstate Commerce Act, any state public utilities code, or
      any
      other Federal or state statute or regulation limiting its ability to incur
      Indebtedness.

     

    3.15. Solvency.
      Borrower
      is
      Solvent.

     

    3.16. Labor
      Relations.
      There
      are no strikes, lockouts or other labor disputes against Borrower, or,
      to
      the best
      of Borrower’s knowledge, threatened against or affecting Borrower, in any case
      which would reasonably be expected to have, either individually or in the
      aggregate, a Material Adverse Effect and no significant unfair labor practice
      complaint is pending against Borrower or, to the
      best
      knowledge of Borrower, threatened against Borrower before any Governmental
      Authority in any case which would reasonably be expected to have, either
      individually or in the aggregate, a Material Adverse Effect.

     

    
      
        
        

      

      
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    3.17. Copyrights,
      Patents, Trademarks and Licenses, etc.
      Schedule
      3.17 identifies all United States and foreign patents, trademarks, service
      marks, trade names and copyrights, and all registrations and applications for
      registration thereof and all licenses thereof, owned or held by Borrower on
      the
      Closing Date, and identifies the jurisdictions in which such registrations
      and
      applications have been filed. Except as otherwise disclosed in Schedule 3.17,
      as
      of the Closing Date, Borrower is the sole beneficial owner of, or have the
      right
      to use, free from any restrictions, claims, rights encumbrances or burdens,
      the
      intellectual property identified on Schedule 3.17 and all other processes,
      designs, formulas, computer programs, computer software packages, trade secrets,
      inventions, product manufacturing instructions, technology, research and
      development, know-how and all other intellectual property that are necessary
      for
      the operation of Borrower’s businesses as being operated on the Closing Date.
      Each patent, trademark, service mark, trade name, copyright and license listed
      on Schedule 3.17 is in full force and effect except to the extent the failure
      to
      be in effect will not and would not reasonably be expected to have, either
      individually or in the aggregate, a Material Adverse Effect. Except as set
      forth
      in Schedule 3.17, to the best
      knowledge
      of Borrower, as of the Closing Date (a) none of the present or contemplated
      products or operations of Borrower infringes any patent, trademark, service
      mark, trade name, copyright, license of intellectual property or other right
      owned by any other Person, and (b) there is no pending or,
      to
      Borrower’s knowledge,
      threatened claim or litigation against or affecting Borrower or contesting
      the
      right of Borrower to manufacture, process, sell or use any such product or
      to
      engage in any such operation except for claims and/or litigation which will
      not
      and could
      not
      reasonably be expected to have a Material Adverse Effect. None of the trademark
      registrations set forth on Schedule
      3.17 is an “intent-to-use” registration.

     

    3.18. Subsidiaries.
      Borrower has no Subsidiaries or equity investments in any other corporation
      or
      entity other than those specifically disclosed in Schedule 3.2.

     

    3.19. Brokers’
      Fees; Transaction Fees.
      Borrower has no obligation to any Person in respect of any finder’s, broker’s or
      investment banker’s fee in connection with the transactions contemplated
      hereby.
      

     

    3.20. Insurance.
      Borrower and its Properties are insured with financially sound and reputable
      insurance companies which are not Affiliates of Borrower, in such amounts,
      with
      such deductibles and covering such risks as are customarily carried by companies
      engaged in similar businesses and owning similar Properties in localities where
      Borrower operates. A true and complete listing of such insurance, including
      issuers, coverages and deductibles, is
      set
      forth on Schedule 3.20.

     

    3.21. Full
      Disclosure.
      None of
      the representations or warranties made by Borrower in the Loan Documents as
      of
      the date such representations and warranties are made or deemed made, and none
      of the statements contained in each exhibit, report, statement or certificate
      furnished by or on behalf of Borrower in connection with the Loan Documents
      (including the offering and disclosure materials, if any, delivered by or on
      behalf of Borrower to the Lenders prior to the Closing Date), contains any
      untrue statement of a material fact or omits any material fact required to
      be
      stated therein or necessary to make the statements made therein, in light of
      the
      circumstances under which they are made, not misleading as of the time when
      made
      or delivered.

     

    3.22. Foreign
      Assets Control Regulations and Anti-Money Laundering.

     

    (a) OFAC.
      Borrower (i) is not a person whose property or interest in property is
      blocked or subject to blocking pursuant to Section 1 of Executive Order 13224
      of
      September 23, 2001 Blocking Property and Prohibiting Transactions With Persons
      Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001),
      (ii) does not engage in any dealings or transactions prohibited by Section
      2 of such executive order, or is otherwise associated with any such person
      in
      any manner violative of Section 2, or (iii) is not a person on the list of
      Specially Designated Nationals and Blocked Persons, as amended, supplemented
      and
      modified from time to time, or subject to the limitations or prohibitions under
      any other U.S. Department of Treasury’s Office of Foreign Assets Control
      regulation or executive order.

     

    
      
        
        

      

      
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    (b) Patriot
      Act.
      Borrower is in compliance, in all material respects, with the Patriot Act.
      No
      part of the proceeds of the Loans will be used, directly or indirectly, for
      any
      payments to any governmental official or employee, political party, official
      of
      a political party, candidate for political office, or anyone else acting in
      an
      official capacity, in order to obtain, retain or direct business or obtain
      any
      improper advantage, in violation of the United States Foreign Corrupt Practices
      Act of 1977, as amended.

     

    ARTICLE
      IV

     

    AFFIRMATIVE
      COVENANTS

     

    Borrower
      covenants and agrees that, so long as Lender shall have any Revolving Loan
      Commitment hereunder, or any Loan or other Obligation (other than contingent
      indemnification Obligations to the extent no claim giving rise thereto has
      been
      asserted) shall remain unpaid or unsatisfied, unless the Required Lenders waive
      compliance in writing:

     

    4.1. Financial
      Statements.
      Borrower shall maintain a system of accounting established and administered
      in
      accordance with sound business practices to permit the preparation of financial
      statements in conformity with GAAP (provided that monthly financial statements
      shall not be required to have footnote disclosure and are subject to normal
      year-end adjustments). Borrower shall deliver to Agent
      and each
      Lender in form and detail reasonably satisfactory to Agent
      and the
      Required Lenders:

     

    (a) as
      soon
      as available, but not later than one hundred twenty (120) days after the end
      of
      each fiscal year, a copy of the audited balance sheets of Borrower
      as at
      the end of such year and the related statements of income or operations,
      shareholders’ equity and cash flows for such fiscal year, setting forth in each
      case in comparative form the figures for the previous fiscal year, and
      accompanied by the unqualified opinion of any independent public accounting
      firm
      reasonably acceptable to Agent
      which
      report shall state that such financial statements present fairly in all material
      respects the financial position for the periods indicated in conformity with
      GAAP applied on a basis consistent with prior years. Such opinion shall be
      unqualified;

     

    (b) as
      soon
      as available, but not later than fifteen (15) days after the end of each fiscal
      month of each year, a copy of the unaudited balance sheets of Borrower,
      and the
      related statements of income, shareholders’ equity
      and cash
      flows as of the end of such month and for the portion of the fiscal year then
      ended, setting forth, in each case, comparative figures (i) for the related
      periods in the prior fiscal year and (ii) for Borrower’s budget, all certified
      on behalf of Borrower by an appropriate Responsible Officer as being complete
      and correct in all material respects
      and
      fairly presenting, in accordance with GAAP, the financial position and the
      results of operations of Borrower, subject to normal year-end adjustments and
      absence of footnote disclosure.

     

    
      
        
        

      

      
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    4.2. Certificates;
      Borrowing Base Certificates; Other Information.
      Borrower shall furnish to Lender:

     

    (a) concurrently
      with the delivery of the annual financial statements referred to in subsection
      4.1(a) above, a certificate of the independent certified public accountants
      reporting on such financial statements stating that in making the examination
      necessary therefor no knowledge was obtained of any Default or Event of Default,
      except as specified in such certificate;

     

    (b) concurrently
      with the delivery of the financial statements referred to in subsections 4.1(a)
      and 4.1(b) above, a fully and properly completed Compliance Certificate in
      the
      form of Exhibit 4.2(b) and a fully and properly completed Borrowing Base
      Certificate certified on behalf of Borrower by a Responsible
      Officer;

     

    (c) promptly
      after the same are sent, copies of all financial statements and reports which
      Borrower sends to its shareholders or other equity holders, as applicable,
      generally; and promptly after the same are filed, copies of all financial
      statements and regular, periodic or special reports which Borrower may make
      to,
      or file with, any Governmental Authority, including, without limitation, the
      Securities and Exchange Commission or any successor or similar Governmental
      Authority;

     

    (d) as
      soon
      as available and in any event within ten (10) days after the end of each
      calendar month, and at such other times as Agent
      may
      reasonably require, a Borrowing Base Certificate, certified on behalf of
      Borrower by a Responsible Officer, setting forth the Borrowing Base of Borrower
      as at the end of the most-recently ended fiscal month or as at such other date
      as Agent
      may
      reasonably require;

     

    (e) together
      with each delivery of financial statements pursuant to subsection 4.1(a) and
      (b)
for
      each
      March, June, September and December (i)
      a
      management report, in reasonable detail, signed by the chief financial officer
      of Borrower, describing the operations and financial condition of Borrower
      for
      the month and the portion of the fiscal year then ended (or for the fiscal
      year
      then ended in the case of annual financial statements), and (ii) a report
      setting forth in comparative form the corresponding figures for the
      corresponding periods of the previous fiscal year and the corresponding figures
      from the most recent projections for the current fiscal year delivered pursuant
      to subsection 4.2(g) and discussing the reasons for any significant
      variations;

     

    (f) upon
      the
      request of Agent,
      at any
      time if an Event of Default shall have occurred and be continuing but otherwise
      not more often than once a year, Borrower will obtain and deliver to
Agent
      a report
      of an independent collateral auditor satisfactory to Agent
      with
      respect to the Accounts and Inventory, which report shall indicate whether
      or
      not the information set forth in the Borrowing Base Certificate most recently
      delivered is accurate and complete in all material respects;

     

    
      
        
        

      

      
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    (g) as
      soon
      as available and in any event no later than the last day of each fiscal year
      of
      Borrower, projections of Borrower’s financial performance for the forthcoming
      three fiscal years on a year by year basis, and for the forthcoming fiscal
      year
      on a month-by-month basis, in each case, including for each such period balance
      sheets of Borrower and the related statements of income or operations,
      shareholders’ equity and cash flows;

     

    (h) annually,
      concurrently with Borrower’s delivery of the projections under subsection
      4.2(g), Borrower shall supplement in writing and deliver to Agent
      revisions of and supplements
      to the
      Schedules hereto related to Article III hereof to the extent necessary to
      disclose new or changed facts or circumstances after the Closing Date;
provided
      that
      delivery or receipt of such subsequent disclosure shall not constitute a waiver
      by Agent
      or any
      Lender or a cure of any Default or Event
      of
      Default resulting in connection with the matters disclosed;

     

    (i) promptly
      upon receipt thereof, copies of any reports submitted by Borrower’s certified
      public accountants in connection with each annual, interim or special audit
      or
      review of any type of the financial statements or internal control systems
      of
      Borrower made by such accountants, including any comment letters submitted
      by
      such accountants to management of Borrower in connection with its
      services;

     

    (j) from
      time
      to time, if Agent
      determines that obtaining appraisals is necessary in order for Agent
      or any
      Lender to comply with applicable laws or regulations, and at any time if a
      Default or an Event of Default shall have occurred and be continuing,
Agent
      may, or
      may require Borrower to, in either case at Borrower’s expense, obtain appraisals
      in form and substance and from appraisers reasonably satisfactory to
Agent
      stating
      the then current fair market value of all or any portion of the real or personal
      property of Borrower; and

     

    (k) promptly,
      such additional business, financial, regulatory, corporate affairs, perfection
      certificates and other information as Agent
      may from
      time to time reasonably request.

     

    4.3. Notices.
      Borrower shall notify promptly Agent
      and each
      Lender of each of the following (and in no event later than three
      (3)
      Business
      Days after a Responsible Officer becoming aware thereof):

     

    (a) the
      occurrence or existence of any Default or Event of Default, or any event or
      circumstance that foreseeably will become a Default or Event of
      Default;

     

    (b) any
      breach or non-performance of, or any default under, any material
      Contractual
      Obligation of Borrower or any violation of, or non-compliance with, any
material
      Requirement
      of Law, including a description of such breach, non-performance, default,
      violation or non-compliance and the steps, if any, Borrower has taken, is taking
      or proposes to take in respect thereof;

     

    (c) any
      dispute, litigation, investigation, proceeding or suspension which may exist
      at
      any time between Borrower and any Governmental Authority which could
      reasonably be expected to result, either individually or in the aggregate,
      in a
      Material Adverse Effect;

     

    
      
        
        

      

      
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    (d) the
      commencement of, or any material development in, any litigation or proceeding
      affecting Borrower (i) in which the amount of damages claimed is
      $100,000
      (or its
      equivalent in another currency or currencies) or more, (ii) in which injunctive
      or similar relief is sought and which, if adversely determined, would reasonably
      be expected to have a Material Adverse Effect, or (iii) in which the relief
      sought is an injunction or other stay of the performance of this Agreement
      or
      any Loan Document;

     

    (e) any
      of
      the following if the same would reasonably be expected to have, either
      individually or in the aggregate, a Material Adverse Effect: (i) any
      enforcement, cleanup, removal or other governmental or regulatory actions
      instituted, completed or,
      to the
      knowledge of Borrower,
      threatened against Borrower or any of its Properties pursuant to any applicable
      Environmental Laws, (ii) any other Environmental Claims, and (iii) any
      environmental or similar condition on any real property adjoining the Property
      of Borrower that could reasonably be anticipated to cause Borrower’s Property or
      any part thereof to be subject to any material restrictions on the ownership,
      occupancy, transferability or use of such Property under any Environmental
      Laws;

     

    (f) any
      of
      the following if the same would reasonably be expected to have, either
      individually or in the aggregate, a Material Adverse Effect, together with
      a
      copy of any notice with respect to such event that may be required to be filed
      with a Governmental Authority and any notice delivered by a Governmental
      Authority to Borrower or any member or its Controlled Group with respect to
      such
      event:

     

    (i) an
      ERISA
      Event;

     

    (ii) the
      adoption of any new Qualified Plan that is subject to Title IV of ERISA or
      Section 412 of the Code by any member of the Controlled Group;

     

    (iii) the
      adoption of any amendment to a Qualified Plan that is subject to Title IV of
      ERISA or Section 412 of the Code, if such amendment results in a material
      increase in benefits or unfunded liabilities; or

     

    (iv) the
      commencement of contributions by any member of the Controlled Group to any
      Multiemployer Plan or any Qualified Plan that is subject to Title IV of ERISA
      or
      Section 412 of the Code;

     

    (g) any
      Material Adverse Effect subsequent to the date of the most recent audited
      financial statements of Borrower delivered to Agent
      and
      Lenders pursuant to this Agreement;

     

    (h) any
      material change in accounting policies or financial reporting practices by
      Borrower;

     

    (i) any
      labor
      controversy resulting in or,
      to the
      knowledge of Borrower,
      threatening to result in any strike, work stoppage, boycott, shutdown or other
      labor disruption against or involving Borrower if the same would reasonably
      be
      expected to have, either individually or in the aggregate, a Material Adverse
      Effect; and

     

    
      
        
        

      

      
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    (j) the
      creation, establishment or acquisition of any Subsidiary or the issuance by
      Borrower of any capital stock or warrant option or similar agreement in respect
      thereof.

     

    Each
      notice pursuant to this Section shall be accompanied by a written statement
      by a
      Responsible Officer on behalf of Borrower setting forth details of the
      occurrence referred to therein, and stating what action Borrower proposes to
      take with respect thereto and at what time. Each notice under subsection 4.3(a)
      shall describe with particularity any and all clauses or provisions of this
      Agreement or other Loan Document that have been breached or
      violated.

     

    4.4. Preservation
      of Corporate Existence, Etc.
      Borrower
      shall:

     

    (a) preserve
      and maintain in full force and effect its organizational existence and good
      standing under the laws of its state or jurisdiction of incorporation,
      organization or formation as applicable;

     

    (b) preserve
      and maintain in full force and effect all rights, privileges, qualifications,
      permits, licenses and franchises necessary in the normal conduct of its business
      except in connection with transactions permitted by Section 5.3 and sales of
      assets permitted by Section 5.2 and except as would not reasonably be expected
      to have, either individually or in the aggregate, a Material Adverse
      Effect;

     

    (c) use
      its
      reasonable efforts, in the Ordinary Course of Business, to preserve its business
      organization and preserve the goodwill and business of the customers, suppliers
      and others having material business relations with it; and

     

    (d) preserve
      or renew all of its registered trademarks, trade names and service marks, the
      non-preservation of which would reasonably be expected to have, either
      individually or in the aggregate, a Material Adverse Effect.

     

    4.5. Maintenance
      of Property.
      Borrower shall maintain, and preserve all its Property which is used or useful
      in its business in good working order and condition, ordinary wear and tear
      excepted and shall make all necessary repairs thereto and renewals and
      replacements thereof except where the failure to do so would not reasonably
      be
      expected to have, either individually or in the aggregate, a Material Adverse
      Effect.

     

    
      
        
        

      

      
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    4.6. Insurance.
      Borrower shall maintain with financially sound and reputable independent
      insurers, insurance with respect to its Properties and business against loss
      or
      damage of the kinds customarily insured against by Persons engaged in the same
      or similar business, of such types and in such amounts as are customarily
      carried under similar circumstances by such other Persons, including workers’
compensation insurance, public liability and Property and casualty insurance,
      which amounts shall not be reduced by Borrower in the absence of thirty (30)
      days’ prior notice to Agent.
      All
      Property damage and casualty insurance shall name Agent
      as loss
      payee/mortgagee, all liability insurance shall name Agent
      and the
      Lenders as additional insureds and all business interruption insurance shall
      name Agent
      as
      assignee. Upon request of Agent
      or
      any Lender,
      Borrower shall furnish Agent,
      with sufficient copies for each Lender,
      at
      reasonable intervals (but not more than once per calendar year) a certificate
      of
      a Responsible Officer on behalf of Borrower (and, if requested by Agent,
      any
      insurance broker of Borrower) setting forth the nature and extent of all
      insurance maintained by Borrower in accordance with this Section 4.6. Unless
      Borrower provides Agent
      with
      evidence of the insurance coverage required by this Agreement, Agent
      may
      purchase insurance at Borrower’s expense to protect Agent
      and
      Lenders’
      interests in Borrower’s properties. This insurance may, but need not, protect
      Borrower’s interests. The coverage that Agent
      purchases may not pay any claim that Borrower makes or any claim that is made
      against Borrower in connection with said Property. Borrower
      may later cancel any insurance purchased by Agent,
      but
      only after providing Agent
      with
      evidence that Borrower has obtained insurance as required by this Agreement.
      If
Agent
      purchases insurance, Borrower will be responsible for the costs of that
      insurance, including interest and any other charges Agent
      may
      impose in connection with the placement of insurance, until the effective date
      of the cancellation or expiration of the insurance. The costs of the insurance
      shall be added to the Obligations. The costs of the insurance may be more than
      the cost of insurance Borrower may be able to obtain on its own.

     

    4.7. Payment
      of Obligations.
      Borrower shall pay, discharge and perform as the same shall become due and
      payable or required to be performed, all its obligations and liabilities,
      including:

     

    (a) all
      tax
      liabilities, assessments and governmental charges or levies upon it or its
      properties or assets, unless the same are being contested in good faith by
      appropriate proceedings diligently prosecuted which stay the enforcement of
      any
      Lien and for which adequate reserves in accordance with GAAP are being
      maintained by Borrower;

     

    (b) all
      lawful claims which, if unpaid, would by law become a Lien upon its Property
      unless the same are being contested in good faith by appropriate proceedings
      diligently prosecuted which stay the imposition or enforcement of the Lien
      and
      for which adequate reserves in accordance with GAAP are being maintained by
      Borrower;

     

    (c) all
      Indebtedness, as and when due and payable, but subject to any subordination
      provisions contained herein and/or in any instrument or agreement evidencing
      such Indebtedness;
      and

     

    (d) the
      performance of all obligations under any Contractual Obligation to which
      Borrower is bound, or to which it or any of its properties is subject, except
      where the failure to perform would not reasonably be expected to have, either
      individually or in the aggregate, a Material Adverse Effect.

     

    4.8. Compliance
      with Laws.
      Borrower shall comply, in all material respects, with all Requirements of Law
      of
      any Governmental Authority having jurisdiction over it or its business, except
      (a)(i) such as may be contested in good faith by appropriate proceedings
      diligently prosecuted without risk of loss of any Collateral, (ii) as to which
      a
      bona fide dispute exists, and (iii) for which appropriate reserves have been
      established on Borrower’s financial statements, or (b) where the failure to
      comply could
      not
      reasonably be expected to have, either individually or in the aggregate, a
      Material Adverse Effect.

     

    
      
        
        

      

      
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    4.9. Inspection
      of Property and Books and Records.
      Borrower shall maintain proper books of record and account, in which full,
      true
      and correct entries in conformity with GAAP consistently applied shall be made
      of all financial transactions and matters involving the assets and business
      of
      Borrower.  Borrower
      shall permit representatives and independent contractors of Agent
      (at the
      expense of Borrower),
      to
      visit and inspect any of its Properties, to examine its corporate, financial
      and
      operating records, and make copies thereof or abstracts therefrom, and to
      discuss its affairs, finances and accounts with its directors, officers, and
      independent public accountants, at such reasonable times during normal business
      hours and as often as may be reasonably desired, upon reasonable advance notice
      to Borrower; provided, however, when an Event of Default exists Lender may
      do
      any of the foregoing at any time during normal business hours and without
      advance notice.

     

    4.10. Use
      of
      Proceeds.
      Borrower shall use the proceeds of the Loans solely as follows (a) for the
      payment of fees and expenses related to the execution and delivery of this
      Agreement, as approved by Agent
      (such approval not to be unreasonably withheld),
      and
      (b) for working capital and other general corporate purposes not in
      contravention of any Requirement of Law and not in violation of this
      Agreement.

     

    4.11. Solvency.
      Borrower shall at all times be Solvent.

     

    4.12. Further
      Assurances.
      (a) Borrower shall ensure that all written information, exhibits and
      reports furnished to Agent
      or the
      Lenders do not and will not contain any untrue statement of a material fact
      and
      do not and will not omit to state any material fact or any fact necessary to
      make the statements contained therein not misleading in light of the
      circumstances in which made, and will promptly disclose to Agent
      and the
      Lenders and correct any defect or error that may be discovered therein or in
      any
      Loan Document or in the execution, acknowledgement or recordation
      thereof.

     

    (b) Promptly
      upon request by Agent,
      Borrower shall take such additional actions as Agent
      may
      reasonably require from time to time in order (i) to carry out more
      effectively the purposes of this Agreement or any other Loan Document,
      (ii) to subject to the Liens created by any of the Collateral Documents any
      of the Properties, rights or interests covered by any of the Collateral
      Documents, (iii) to perfect and maintain the validity, effectiveness and
      priority of any of the Collateral Documents and the Liens intended to be created
      thereby, and (iv) to better assure, convey, grant, assign, transfer,
      preserve, protect and confirm to Agent
      and
      Lenders
      the
      rights granted or now or hereafter intended to be granted to Agent
      and
      the Lenders
      under
      any Loan Document or under any other document executed in connection therewith.
      Subsequent to the Closing Date, without limiting the generality of the foregoing
      and except as otherwise approved in writing by Required Lenders, Borrower shall
      cause each of its Subsidiaries to guaranty the Obligations and to cause each
      such Subsidiary to grant to Agent, for the benefit of Agent and Lenders,
      a
      security interest in all of such Subsidiary’s Property to secure such guaranty.
      Furthermore and except as otherwise approved in writing by the Required Lenders,
      Borrower shall pledge the stock or other equity interests of each of its
      Subsidiaries to Agent, for the benefit of Agent and Lenders,
      to
      secure the Obligations. In connection with each pledge of stock or other equity
      interests, Borrower shall deliver, or cause to be delivered, to Agent,
      the
      items described in subsection 2.1(e)(iii), if applicable. In the event Borrower
      or any of its Subsidiaries acquires any real Property, simultaneously with
      such
      acquisition, Borrower or such Subsidiary shall execute and/or deliver, or cause
      to be executed and/or delivered, to Agent,
      (x) a fully executed Mortgage, in form and substance reasonably
      satisfactory to Agent
      together
      with an A.L.T.A. lender’s title insurance policy issued by a title insurer
      reasonably satisfactory to Agent,
      in form
      and substance and in an amount reasonably satisfactory to Agent
      insuring
      that the Mortgage is a valid and enforceable first priority Lien on the
      property, free and clear of all defects, encumbrances and Liens, (y) then
      current A.L.T.A. surveys, certified to Agent and the Lenders by a licensed
      surveyor sufficient to allow the issuer of the lender’s title insurance policy
      to issue such policy without a survey exception and (z) an environmental
      site assessment prepared by a qualified firm reasonably acceptable to
Agent,
      in form
      and substance satisfactory to Agent.


    
      
        
        

      

      
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    4.13. Reserved.
      

     

    4.14. Subsidiaries.
      On any
      date Borrower acquires or creates any Subsidiary, Borrower shall pledge the
      stock or other equity interests of such Subsidiary as of such date to
Agent,
      for the benefit of Agent and the Lenders,
      and
      shall deliver, or cause to be delivered, to Agent
      the
      items described in subsection 2.1(e)(iii) and, to the extent not previously
      delivered, the items described in subsections 2.1(b) and 2.1 (c), with respect
      to each such Subsidiary. In addition, such Subsidiary shall guarantee the
      Obligations and shall grant to Agent,
      for the benefit of Agent and the Lenders,
      a
      security interest in all of such Subsidiary’s Property to secure such
      guaranty.

     

    4.15. Reserved.

     

    4.16. Reserved.

     

    4.17. Lockbox.
      Borrower shall maintain a lockbox account (the “Lockbox
      Account”)
      with a
      bank acceptable to Agent (the “Lockbox
      Bank”),
      and
      shall execute with the Lockbox Bank an agreement acceptable to Agent in its
      sole
      discretion (the “Lockbox
      Agreement”),
      and
      such other agreements related thereto as Agent may require. Borrower shall
      ensure that all collections of Accounts and receivables of Borrower, its
      Subsidiaries and/or Guarantors and proceeds of all other Collateral are paid
      and
      delivered directly from Account Debtors and other Persons into the Lockbox
      Account. The Lockbox Agreement shall provide that, at all times prior to the
      delivery of an Activation Notice (as hereinafter defined), the Lockbox Bank
      shall disburse funds as the Borrower may direct. The Lockbox Agreement shall
      require that, upon Lockbox Bank’s receipt of written notice (an “Activation
      Notice”)
      from
      Agent at any time after the occurrence of an Event of Default, the Lockbox
      Bank
      will immediately, and on a daily basis thereafter, transfer all funds paid
      into
      the Lockbox Account into a depository account maintained by Agent at such bank
      as Agent may communicate to Borrower from time to time (the “Concentration
      Account”).
      To
      the extent that any such Accounts and receivables collections or other proceeds
      of Collateral are not sent directly to the Lockbox Account but are received
      by
      Borrower or any Guarantor or Affiliate of Borrower, such collections and
      proceeds (“Trust
      Collections”)
      shall
      be held in trust for the benefit of Agent and Lenders and immediately remitted
      (and in any event within two (2) Business Days), in the form received, to the
      Lockbox Bank for immediate transfer to the Lockbox Account; provided, however,
      upon written request of Agent after the occurrence and during the continuance
      of
      an Event of Default, such collections and proceeds will be immediately remitted
      (and in any event within two (2) Business Days) in the form received to the
      Concentration Account. Borrower acknowledges and agrees that compliance with
      the
      terms of this Section 4.17 is an essential term of this Agreement, and that,
      in
      addition to and notwithstanding any other rights Agent may have hereunder,
      under
      any other Loan Document, under applicable law, at equity or otherwise, upon
      each
      and every such failure Agent shall be entitled to assess a non-compliance fee
      which shall operate to increase the Base Rate or LIBOR for purposes of interest
      calculation hereunder by two percent (2%) per annum during any period of
      non-compliance; provided,
      however,
      that to
      the extent Agent wishes to institute such non-compliance fee solely in
      connection with Borrower’s failure to remit Trust Collections to the
      Concentration Account within the timeframe established by this Section 4.17,
      Agent shall only be entitled to institute such non-compliance fee if the
      aggregate amount of the Trust Collections exceeds $100,000. Agent shall be
      entitled to assess such fee whether or not a Default or an Event of Default
      occurs or is declared, provided that nothing in this Agreement shall prevent
      Agent from considering any failure to comply with the terms of this Section
      4.17
      to be a Default or an Event of Default. If applicable, at any time prior to
      the
      execution of the Lockbox Agreement and operation of the Lockbox Account,
      Borrower, its Subsidiaries and Guarantors shall direct all collections or
      proceeds it receives on Accounts or receivables or from Collateral to the
      account(s) and in the manner specified by Agent in its sole discretion.



    
      
        
        

      

      
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    ARTICLE
      V

     

    NEGATIVE
      COVENANTS

     

    Borrower
      covenants and agrees that, so long as any Lender shall have any Revolving Loan
      Commitment hereunder, or any Loan or other Obligation (other than contingent
      indemnification Obligations to the extent no claim giving rise thereto has
      been
      asserted) shall remain unpaid or unsatisfied, unless the Required Lenders waive
      compliance in writing:

     

    5.1. Limitation
      on Liens.
      Borrower shall not, directly or indirectly, make, create, incur, assume or
      suffer to exist any Lien upon or with respect to any part of its Property,
      whether now owned or hereafter acquired, other than the following (“Permitted
      Liens”):

     

    (a) any
      Lien
      existing on the Property of Borrower on the Closing Date and set forth in
Schedule
      5.1
      securing
      Indebtedness outstanding on such date and permitted by subsection 5.5(c),
      including replacement Liens on the Property currently subject to such Liens
      securing Indebtedness permitted by Section 5.5(c);

     

    (b) any
      Lien
      created under any Loan Document;

     

    (c) Liens
      for
      taxes, fees, assessments or other governmental charges (i) which are not
      delinquent or remain payable without penalty, or (ii) the non-payment of which
      is permitted by Section 4.7, provided
      that, in
      respect of this clause (ii), all such Liens secure claims in the aggregate
      at
      any time outstanding for Borrower not exceeding $100,000;


    
      
        
        

      

      
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    (d) carriers’,
      warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
      similar Liens arising in the Ordinary Course of Business which are not
      delinquent for more than ninety (90) days or remain payable without penalty
      or
      which are being contested in good faith and by appropriate proceedings
      diligently prosecuted, which proceedings have the effect of preventing the
      forfeiture or sale of the Property subject thereto and for which adequate
      reserves in accordance with GAAP are being maintained;

     

    (e) Liens
      (other than any Lien imposed by ERISA) consisting of pledges or deposits
      required in the Ordinary Course of Business in connection with workers’
compensation, unemployment insurance and other social security legislation
      or to
      secure the performance of tenders, statutory obligations, surety, stay, customs
      and appeals bonds, bids, leases, governmental contract, trade contracts,
      performance and return of money bonds and other similar obligations (exclusive
      of obligations for the payment of borrowed money) or to secure liability to
      insurance carriers;

     

    (f) Liens
      consisting of judgment or judicial attachment liens, provided that the
      enforcement of such Liens is effectively stayed and all such Liens secure claims
      in the aggregate at any time outstanding for Borrower not exceeding
      $100,000;

     

    (g) easements,
      rights-of-way, zoning and other restrictions, minor defects or other
      irregularities in title, and other similar encumbrances incurred in the Ordinary
      Course of Business which, either individually or in the aggregate, are not
      substantial in amount, and
      which do
      not in any case materially detract from the value of the Property subject
      thereto or interfere in any material respect with the ordinary conduct of the
      businesses of Borrower;

     

    (h) Liens
      on
      any Property acquired or held by Borrower in the Ordinary Course of Business,
      securing Indebtedness incurred or assumed for the purpose of financing (or
      refinancing) all or any part of the cost of acquiring such Property and
      permitted under subsection 5.5(d); provided that
      (i) any
      such Lien attaches to such Property concurrently with or within twenty (20)
      days
      after the acquisition thereof, (ii) such Lien attaches solely to the Property
      so
      acquired in such transaction, and (iii) the principal amount of the debt secured
      thereby does not exceed 100% of the cost of such Property;

     

    (i) Liens
      securing Capital Lease Obligations permitted under subsection
      5.5(d);

     

    (j) any
      interest or title of a lessor or sublessor under any lease permitted by this
      Agreement;

     

    (k) Liens
      arising from precautionary uniform commercial code financing statements filed
      under any lease permitted
      by this
      Agreement;

     

    (l) Liens
      in
      favor of collecting banks arising under Section 4-210 of the
      UCC.


    
      
        
        

      

      
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    5.2. Disposition
      of Assets.
      Borrower shall not, directly or indirectly, sell, assign, lease, convey,
      transfer or otherwise dispose of (whether in one or a series of transactions)
      any Property (including accounts and notes receivable, with or without recourse)
      or enter into any agreement to do any of the foregoing, except:

     

    (a) dispositions
      of inventory, or used, worn-out or surplus equipment, all in the Ordinary Course
      of Business;

     

    (b) dispositions
      not otherwise permitted hereunder which are made for fair market value and
      the
      mandatory prepayment in the amount of the Net Proceeds of such disposition
      is
      made as provided in Section 1.8; provided,
      that
      (i) at the time of any disposition, no Event of Default shall exist or shall
      result from such disposition, (ii) the aggregate sales price from such
      disposition shall be paid in cash, and (iii) the aggregate fair market value
      of
      all assets so sold by Borrower shall not exceed in any fiscal year
      $200,000
      and (iv)
      after giving effect to such disposition, Borrower is in compliance on a pro
      forma basis with the covenants set forth in Article VI, recomputed for the
      most
      recent month for which financial statements have been delivered;
      and

     

    (c) dispositions
      by any Subsidiary of Borrower to Borrower;

     

    (d) dispositions
      permitted under Section 5.3; and

     

    (e) the
      granting of Permitted Liens.

     

    5.3. Consolidations
      and Mergers.
      Borrower shall not merge, consolidate with or into, or convey, transfer, lease
      or otherwise dispose of (whether in one transaction or in a series of
      transactions) all or substantially all of its assets (whether now owned or
      hereafter acquired) to or in favor of any Person without the prior written
      consent (such consent not to be unreasonably withheld) of Agent.

     

    5.4. Loans
      and Investments.
      Borrower shall not (i) purchase or acquire, or make
      any
      commitment to purchase or acquire any capital stock, equity interest, or any
      obligations or other securities of, or any interest in, any Person, other than
      the establishment or creation of a Subsidiary in accordance with the terms
      of
      this Agreement, or (ii) make or commit to make any Acquisitions, or any other
      acquisition of all or substantially all of the assets of another Person, or
      of
      any business or division of any Person, including without limitation, by way
      of
      merger, consolidation or other combination or (iii) make or commit to make
      any
      advance, loan, extension of credit or capital contribution to or any other
      investment in, any Person including any Affiliate of Borrower (the items
      described in clauses (i), (ii) and (iii) are referred to as “Investments”),
      except for:

     

    (a) Investments
      in cash and Cash Equivalents;

     

    (b) extensions
      of credit by Borrower to any of its Wholly-Owned Subsidiaries provided the
      obligations of each obligor shall be evidenced by notes, which notes shall
      be
      pledged to Agent,
      for the benefit of Agent and Lenders,
      and have such other terms as Agent
      may
      reasonably require; and


    
      
        
        

      

      
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    (c) loans
      and
      advances to employees in the Ordinary Course of Business not to exceed $100,000
      in the aggregate at any time outstanding.

     

    5.5. Limitation
      on Indebtedness.
      Borrower shall not create, incur, assume, suffer to exist, or otherwise become
      or remain directly or indirectly liable with respect to, any Indebtedness,
      except:

     

    (a) Indebtedness
      incurred pursuant to this Agreement;

     

    (b) Indebtedness
      consisting of Contingent Obligations described in clause (i) of the definition
      thereof and permitted pursuant to Section 5.9;

     

    (c) Indebtedness
      existing on the Closing Date and set forth in Schedule
      5.5
      including extensions and refinancings thereof which do not increase the
      principal amount of such Indebtedness as of the date of such extension or
      refinancing;

     

    (d) Indebtedness
      not to exceed $500,000 in the aggregate at any time outstanding, consisting
      of
      Capital Lease Obligations or secured by Liens permitted by subsection
      5.1(h);

     

    (e) Indebtedness
      not to exceed $1,000,000 in the aggregate at any time outstanding related to
      auto fleet leasing arrangements;

     

    (f) unsecured
      intercompany Indebtedness permitted pursuant to subsection 5.4(b);

     

    (g) Subordinated
      Indebtedness not to exceed $550,000
      in the aggregate at any time outstanding (together with capitalized interest
      thereon and accrued fees and expenses due in connection therewith);

     

    (h) other
      unsecured Indebtedness not exceeding in the aggregate at any time outstanding
      $250,000.

     

    5.6. Transactions
      with Affiliates.
      Borrower shall not enter into any transaction with any Affiliate of Borrower,
      except:

     

    (a) as
      expressly permitted by this Agreement or as contemplated in the Purchase
      Agreement; or

     

    (b) in
      the
      Ordinary Course of Business and pursuant to the reasonable requirements of
      the
      business of Borrower provided that in the case of this clause (b), upon fair
      and
      reasonable terms no less favorable to Borrower than would be obtained in a
      comparable arm’s-length transaction with a Person not an Affiliate of Borrower
      and which are disclosed in writing to Agent.
      


    
      
        
        

      

      
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    5.7. Management
      and Director Compensation.
      Borrower shall not pay any management, consulting or similar fees to any
      Affiliate of Borrower or to any officer, director or employee of Borrower or
      any
      Affiliate of Borrower except (a) payment of reasonable compensation
      to
      officers and employees for actual services rendered to Borrower in the Ordinary
      Course of Business,
      (b)
      payment of directors’ fees of $250,000 in cash in any fiscal year of Borrower,
      payment of directors’ fees in equity issuances reasonably satisfactory to Agent,
      and reimbursement of the reasonable, in the sole discretion of Agent,
      out-of-pocket expenses of directors incurred in connection with attending board
      of director meetings and (c) as contemplated in the Purchase
      Agreement.

     

    5.8. Use
      of
      Proceeds.
      Borrower shall not use any portion of the Loan proceeds, directly or indirectly,
      to purchase or carry Margin Stock or repay or otherwise refinance Indebtedness
      of Borrower or others incurred to purchase or carry Margin Stock, or otherwise
      in any manner which is in contravention of any Requirement of Law or in
      violation of this Agreement.

     

    5.9. Contingent
      Obligations.
      Borrower shall not create, incur, assume or suffer to exist any Contingent
      Obligations except in respect of the Obligations and except:

     

    (a) endorsements
      for collection or deposit in the Ordinary Course of Business;

     

    (b) Contingent
      Obligations of Borrower existing as of the Closing Date and listed in
Schedule
      5.9,
      including extension and renewals thereof which do not increase the amount of
      such Contingent Obligations as of the date of such extension or
      renewal;

     

    (c) Contingent
      Obligations incurred in the Ordinary Course of Business with respect to surety
      and appeal bonds, performance bonds and other similar obligations;

     

    (d) Contingent
      Obligations arising under indemnity agreements to title insurers to cause such
      title insurers to issue to Agent
      title
      insurance policies;

     

    (e) Contingent
      Obligations arising with respect to customary indemnification obligations in
      favor of purchasers in connection with dispositions permitted under subsection
      5.2(b);

     

    (f) Contingent
      Obligations in respect of Indebtedness permitted under Section 5.5.

     

    5.10. Compliance
      with ERISA.
      Borrower shall not:

     

    (a) terminate
      any Plan subject to Title IV of ERISA so as to result in any material liability
      to Borrower;

     

    (b) permit
      to
      exist any ERISA Event or any other event or condition, which would reasonably
      be
      expected to have a Material Adverse Effect;

     

    (c) make
      a
      complete or partial withdrawal (within the meaning of ERISA Section 4201) from
      any Multiemployer Plan so as to result in any material liability to
      Borrower;


    
      
        
        

      

      
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    (d) enter
      into any new Plan or modify any existing Plan so as to increase its obligations
      thereunder which would reasonably be expected to have a Material Adverse Effect;
      or

     

    (e) permit
      the present value of all nonforfeitable accrued benefits under any Plan (using
      the actuarial assumptions utilized by the PBGC upon termination of a Plan)
      materially to exceed the fair market value of Plan assets allocable to such
      benefits, all determined as of the most recent valuation date for each such
      Plan.

     

    5.11. Restricted
      Payments.
      Borrower shall not (i) declare or make any dividend payment or other
      distribution of assets, properties, cash, rights, obligations or securities
      on
      account of any shares of any class of its capital stock, partnership interests,
      membership interests or other equity securities; provided,
      however,
      that so
      long as no Event of Default exists, Borrower may declare and make preferred
      stock dividends, (ii) purchase, redeem or otherwise acquire for value any
      shares of its capital stock, partnership interests, membership interests or
      other equity securities or any warrants, rights or options to acquire such
      shares, interests or securities now or hereafter outstanding or (iii) make
      any payment or prepayment of principal of, premium, if any, interest, fees,
      redemption, exchange, purchase, retirement, defeasance, sinking fund or similar
      payment with respect to any Subordinated Indebtedness (the items described
      in
      clauses (i), (ii) and (iii) above are referred to as “Restricted Payments”);
      except that any Wholly-Owned Subsidiary of Borrower may declare and pay
      dividends to Borrower or any Wholly-Owned Subsidiary of Borrower, and except
      that Borrower may:

     

    (a) make
      distributions payable solely in respect of the Warrants or other equity
      securities of Borrower held by Lender; and

     

    (b) pay,
      as
      and when due and payable, regularly scheduled payments of interest only on
      the
      Subordinated Indebtedness to the extent permitted by Agent.

     

    5.12. Change
      in Business.
      Borrower shall not engage in any material line of business substantially
      different from those lines of business carried on by it on the date
      hereof.

     

    5.13. Change
      in Structure.
      Except
      as expressly permitted under Section 5.3, Borrower shall not make any material
      changes in its equity capital structure (including in the terms of its
      outstanding stock), or amend any of its Organization Documents without the
      prior
      written consent of Agent.

     

    5.14. Accounting
      Changes.
      Borrower shall not make any significant change in accounting treatment or
      reporting practices, except as required by GAAP, or change the fiscal year
      of
      Borrower.

     

    5.15. Amendments
      to Subordinated Indebtedness.
      Borrower shall not, directly or indirectly to, change or amend the terms of
      any
      Subordinated Indebtedness if the effect of such amendment is to: (i) increase
      the interest rate on such Indebtedness; (ii) shorten the dates upon which
      payments of principal or interest are due on such Indebtedness; (iii) add or
      change in a manner adverse to Borrower any event of default or add or make
      more
      restrictive any covenant with respect to such Indebtedness; (iv) change in
      a
      manner adverse to Borrower the prepayment provisions of such Indebtedness;
      (v)
      change the subordination provisions thereof (or the subordination terms of
      any
      guaranty thereof); or (vi) change or amend any other term if such change or
      amendment would materially increase the obligations of the obligor or confer
      additional material rights on the holder of such Indebtedness in a manner
      adverse to Borrower, Agent
      or
      Lenders.

     

    
      
        
        

      

      
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    5.16. No
      Negative Pledges.
      Borrower will not, directly or indirectly, create or otherwise cause or suffer
      to exist or become effective any consensual restriction or encumbrance of any
      kind on the ability of any Subsidiary to pay dividends or make any other
      distribution on any of such Subsidiary’s equity securities or to pay fees,
      including management fees, or make other payments and distributions to Borrower
      or any of its Subsidiaries. Borrower will not enter into, assume or become
      subject to any Contractual Obligation prohibiting or otherwise restricting
      the
      existence of any Lien upon any of its assets in favor of Agent,
      whether
      now owned or hereafter acquired except in connection with any document or
      instrument governing Liens permitted pursuant to subsections 5.1(h) and (i)
      provided that any such restriction contained therein relates only to the asset
      or assets subject to such permitted Liens.

     

    5.17. OFAC.
      Borrower will not (i) become a person whose property or interests in
      property are blocked or subject to blocking pursuant to Section 1 of Executive
      Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions
      With Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg.
      49079(2001), or (ii) engage in any dealings or transactions prohibited by
      Section 2 of such executive order, or be otherwise associated with any such
      person in any manner violative of Section 2, or (iii) otherwise become a
      person on the list of Specially Designated Nationals and Blocked Persons or
      subject to the limitations or prohibitions under any other OFAC regulation
      or
      executive order.

     

    ARTICLE
      VI

     

    FINANCIAL
      COVENANTS

     

    Borrower
      covenants and agrees that, so long as Lender shall have any Revolving Loan
      Commitment hereunder, or any Loan or other Obligation (other than contingent
      indemnification Obligations to the extent no claim giving rise thereto has
      been
      asserted) shall remain unpaid or unsatisfied, unless the Required Lenders waive
      compliance in writing:

     

    6.1. Minimum
      Liquidity.
      Borrower
      shall
      maintain Liquidity of not less than $500,000.00.

     

    6.2. Fixed
      Charge Coverage Ratio. Borrower
      shall have, at the end of each calendar month ending during the periods set
      forth below, a Fixed Charge Coverage Ratio that is not less than:

     

    
      	
              1.00:1

            	
              for
                each quarter from March 31, 2007 and
                thereafter

            


    

    


    “Fixed
      Charge Coverage Ratio” shall be calculated in the manner set forth in Exhibit
      4.2(b).


    
      
        
        

      

      
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    ARTICLE
      VII

     

    EVENTS
      OF DEFAULT

     

    7.1. Event
      of Default.
      Any of
      the following shall constitute an “Event of Default”:

     

    (a) Non-Payment.
      Borrower fails to pay, (i) when and as required to be paid herein, any amount
      of
      principal on any Loan, including after maturity of the Loans, whether by
      acceleration or otherwise, (ii) within three (3) days after the same shall
      be
      due when and as required to be paid herein, any amount of interest on any Loan,
      including after maturity of the Loans, whether by acceleration or otherwise,
      or
      (iii) any fee or any other amount payable hereunder or pursuant to any other
      Loan Document; or

     

    (b) Representation
      or Warranty.
      Any
      representation, warranty or certification by or on behalf of Borrower made
      or
      deemed made herein, in any other Loan Document, or which is contained in any
      certificate, document or financial or other statement by Borrower or its
      Responsible Officers, furnished at any time under this Agreement, or in or
      under
      any other Loan Document, shall prove to have been incorrect in any material
      respect on or as of the date made or deemed made; or

     

    (c) Specific
      Defaults.
      Borrower fails to perform or observe any term, covenant or agreement contained
      in Section
      4.1,
      4.2(b),
      4.2(d), 4.6, 4.9 or 4.14
      or
      Article V or Article VI hereof; or

     

    (d) Other
      Defaults.
      Borrower fails to perform or observe any other term, covenant or agreement
      contained in this Agreement or any other Loan Document, and such default shall
      continue unremedied for a period of thirty (30) days after the earlier to occur
      of (i) the date upon which a Responsible Officer becomes aware of such default
      and (ii) the date upon which written notice thereof is given to Borrower by
      Agent
      or
      Required Lenders;
      or

     

    (e) Cross-Default.
      Borrower (i) fails to make any payment in respect of any Indebtedness (other
      than the Obligations) or Contingent Obligation having an aggregate principal
      amount (including undrawn committed or available amounts and including amounts
      owing to all creditors under any combined or syndicated credit arrangement)
      of
      more than $100,000
      when due
      (whether by scheduled maturity, required prepayment, acceleration, demand,
      or
      otherwise) and such failure continues after the applicable grace or notice
      period, if any, specified in the document relating thereto on the date of such
      failure; or (ii) fails to perform or observe any other condition or covenant,
      or
      any other event shall occur or condition exist, under any agreement or
      instrument relating to any such Indebtedness or Contingent Obligation, if the
      effect of such failure, event or condition is to cause, or to permit the holder
      or holders of such Indebtedness or beneficiary or beneficiaries of such
      Indebtedness (or a trustee or agent on behalf of such holder or holders or
      beneficiary or beneficiaries) to cause such Indebtedness to be declared to
      be
      due and payable prior to its stated maturity (without regard to any
      subordination terms with respect thereto), or such Contingent Obligation to
      become payable or cash collateral in respect thereof to be demanded;
      or


    
      
        
        

      

      
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    (f) Insolvency;
      Voluntary Proceedings.
      Borrower (i) ceases or fails to be Solvent, (ii) generally fails to pay, or
      admits in writing its inability to pay, its debts as they become due, subject
      to
      applicable grace periods, if any, whether at stated maturity or otherwise;
      (iii)
      voluntarily ceases to conduct its business in the ordinary course; (iv)
      commences any Insolvency Proceeding with respect to itself; or (v) takes any
      action to effectuate or authorize any of the foregoing; or

     

    (g) Involuntary
      Proceedings.
      (i) Any
      involuntary Insolvency Proceeding is commenced or filed against Borrower, or
      any
      writ, judgment, warrant of attachment, execution or similar process, is issued
      or levied against a substantial part of Borrower’s Properties, and any such
      proceeding or petition shall not be dismissed, or such writ, judgment, warrant
      of attachment, execution or similar process shall not be released, vacated
      or
      fully bonded within sixty (60) days after commencement, filing or levy; (ii)
      Borrower admits the material allegations of a petition against it in any
      Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
      law) is ordered in any Insolvency Proceeding; or (iii) Borrower acquiesces
      in
      the appointment of a receiver, trustee, custodian, conservator, liquidator,
      mortgagee in possession (or agent therefor), or other similar Person for itself
      or a substantial portion of its Property or business; or

     

    (h) ERISA.
      (i) A
      member of the Controlled Group shall fail to pay when due, after the expiration
      of any applicable grace period, any installment payment with respect to its
      Withdrawal Liability under a Multiemployer Plan; (ii) a member of the Controlled
      Group shall fail to satisfy its contribution requirements under Section
      412(c)(11) of the Code, whether or not it has sought a waiver under Section
      412(d) of the Code; (iii) the occurrence of an ERISA Event; (iv) a Plan that
      is
      intended to be qualified under Section 401(a) of the Code shall lose its
      qualification; (v) any member of the Controlled Group engages in or otherwise
      becomes liable for a non-exempt prohibited transaction; (vi) a violation of
      Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a)
      of the Code; (vii) any member of the Controlled Group is assessed a tax under
      Section 4980B of the Code or incurs a liability under Section 601 et seq of
      ERISA; and, the occurrence of any such event listed in clauses (i) through
      (vii), or the occurrence of any combination of events listed in clauses (i)
      through (vii) results in, or could reasonably be expected to result in, a
      Material Adverse Effect or result in exposure to Borrower in an amount in excess
      of $100,000;
      or

     

    (i) Litigation.
      Any
      action, suit, proceeding or investigation shall be threatened against Borrower
      which could be expected to have a Material Adverse Effect.

     

    (j) Monetary
      Judgments.
      One or
      more judgments, non-interlocutory orders, decrees or arbitration awards shall
      be
      entered against Borrower involving in the aggregate a liability (to the extent
      not covered by independent third-party insurance) as to any single or related
      series of transactions, incidents or conditions, of $100,000
      or more,
      and the same shall remain unsatisfied, unvacated and unstayed pending appeal
      for
      a period of thirty (30) days after the entry thereof; or


    
      
        
        

      

      
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    (k) Non-Monetary
      Judgments.
      One or
      more non-monetary judgments, orders or decrees shall be rendered against
      Borrower which does or would reasonably be expected to have, either individually
      or in the aggregate, a Material Adverse Effect, and there shall be any period
      of
      ten (10) consecutive days during which a stay of enforcement of such judgment
      or
      order, by reason of a pending appeal or otherwise, shall not be in effect;
      or

     

    (l) Collateral.
      Any
      material provision of any Collateral Document shall for any reason cease to
      be
      valid and binding on or enforceable against Borrower or Borrower shall so state
      in writing or bring an action to limit its obligations or liabilities
      thereunder; or any Collateral Document shall for any reason (other than pursuant
      to the terms thereof) cease to create a valid security interest in the
      Collateral purported to be covered thereby or such security interest shall
      for
      any reason (other than the failure of Agent
      to take
      any action within its control) cease to be a perfected and first priority
      security interest subject only to Permitted Liens; or

     

    (m) Management.
      Any Key
      Person shall cease to be employed by the Borrower in the capacity in which
      such
      Person served as of the Closing Date or in a more Senior Capacity and is not
      replaced within 90 days by a person satisfactory to Agent; or

     

    (n) Material
      Exception in Audit.
      The
      occurrence of a material exception in any audit of Borrower by Borrower’s
      independent auditors or in any collateral audit, as determined by Lender, which
      could be expected to have a Material Adverse Effect, in the reasonable opinion
      of Agent.

     

    7.2. Remedies.
      Upon
      the occurrence and during the continuance of any Event of Default, Agent may,
      and shall at the request of the Required Lenders:

     

    (a) declare
      all or any portion of the Revolving Loan Commitment of each Lender to make
      Loans
      to be terminated, whereupon such Revolving Loan Commitment shall forthwith
      be
      terminated;

     

    (b) declare
      all or any portion of the unpaid principal amount of all outstanding Loans,
      all
      interest accrued and unpaid thereon, and all other amounts owing or payable
      hereunder or under any other Loan Document to be immediately due and payable;
      without presentment, demand, protest or other notice of any kind, all of which
      are hereby expressly waived by Borrower; and

     

    (c) exercise
      on behalf of itself and the Lenders, all rights and remedies available to it
      and
      the Lenders under the Loan Documents or applicable law;

     

    provided,
      however,
      upon
      the occurrence of any event specified in subsections 7.1(f) or 7.1(g) above
      (in
      the case of clause (i) of subsection 7.1(g) upon the expiration of the sixty
      (60) day period mentioned therein), the obligation of each Lender to make Loans
      shall automatically terminate and the unpaid principal amount of all outstanding
      Loans and all interest and other amounts as aforesaid shall automatically become
      due and payable without further act of Agent or any Lender.

     

    7.3. Rights
      Not Exclusive.
      The
      rights provided for in this Agreement and the other Loan Documents are
      cumulative and are not exclusive of any other rights, powers, privileges or
      remedies provided by law or in equity, or under any other instrument, document
      or agreement now existing or hereafter arising.


    
      
        
        

      

      
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    ARTICLE
      VIII

     

    THE
      AGENT

     

    8.1. Appointment
      and Authorization.
      Each
      Lender hereby irrevocably appoints, designates and authorizes Agent to take
      such
      action on its behalf under the provisions of this Agreement and each other
      Loan
      Document and to exercise such powers and perform such duties as are expressly
      delegated to it by the terms of this Agreement or any other Loan Document,
      together with such powers as are reasonably incidental thereto. Notwithstanding
      any provision to the contrary contained elsewhere in this Agreement or in any
      other Loan Document, Agent shall not have any duties or responsibilities, except
      those expressly set forth herein, nor shall Agent have or be deemed to have
      any
      fiduciary relationship with any Lender, and no implied covenants, functions,
      responsibilities, duties, obligations or liabilities shall be read into this
      Agreement or any other Loan Document or otherwise exist against
      Agent.

     

    8.2. Delegation
      of Duties.
      The
      Agent may execute any of its duties under this Agreement or any other Loan
      Document by or through agents, employees 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 for the negligence or misconduct of any
      agent
      or attorney-in-fact that it selects with reasonable care.

     

    8.3. Liability
      of Agent.
      None of
      the Agent-Related Persons shall (i) be liable for any action taken or omitted
      to
      be taken by any of them under or in connection with this Agreement or any other
      Loan Document (except for its own gross negligence or willful misconduct),
      or
      (ii) be responsible in any manner to any of the Lenders for any recital,
      statement, representation or warranty made by Borrower or any officer thereof,
      contained in this Agreement or in any other Loan Document, or in any
      certificate, report, statement or other document referred to or provided for
      in,
      or received by Agent under or in connection with, this Agreement or any other
      Loan Document, or for the value of any Collateral or the validity,
      effectiveness, genuineness, enforceability or sufficiency of this Agreement
      or
      any other Loan Document, or for any failure of Borrower or any other party
      to
      any Loan Document to perform its obligations hereunder or thereunder. No
      Agent-Related Person shall be under any obligation to any Lender to ascertain
      or
      to inquire as to the observance or performance of any of the agreements
      contained in, or conditions of, this Agreement or any other Loan Document,
      or to
      inspect the Properties, books or records of Borrower. Agent shall have no
      obligation whatsoever to any Lender or any other Person to assure that the
      property covered by the Collateral Documents exists or is owned by Borrower
      or
      any other Credit Party or is cared for, protected or insured or has been
      encumbered or that the Liens granted to Agent have been properly or sufficiently
      or lawfully created, perfected, protected or enforced or are entitled to any
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    8.4. Reliance
      by Agent.
      The
      Agent shall be entitled to rely, and shall be fully protected in relying, upon
      any writing, resolution, notice, consent, certificate, affidavit, letter,
      telegram, facsimile or telephone message, statement or other document or
      conversation believed by it to be genuine 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 Borrower), independent accountants and other experts
      selected by Agent. The Agent shall be fully justified in failing or refusing
      to
      take any action under this Agreement or any other Loan Document unless it shall
      first receive such advice or concurrence of the Lenders (or, where an action
      or
      waiver need only be approved by the Required Lenders, by the Required Lenders)
      as it deems appropriate and, if it so requests, it shall first be indemnified
      to
      its satisfaction by the Lenders against any and all liability and expense which
      may be incurred by it by reason of taking or continuing to take any such action.
      The Agent shall in all cases be fully protected in acting, or in refraining
      from
      acting, under this Agreement or any other Loan Document in accordance with
      a
      request or consent of the Lenders (or, where an action or waiver need only
      be
      approved by the Required Lenders, by the Required Lenders) and such request
      and
      any action taken or failure to act pursuant thereto shall be binding upon all
      of
      the Lenders.

     

    8.5. Notice
      of Default.
      The
      Agent shall not be deemed to have knowledge or notice of the occurrence of
      any
      Default or Event of Default, except with respect to defaults in the payment
      of
      principal, interest and fees required to be paid to Agent for the account of
      the
      Lenders, unless Agent shall have received written notice from a Lender or
      Borrower referring to this Agreement, describing such Default or Event of
      Default and stating that such notice is a “notice of default”. In the event that
      Agent receives such a notice, Agent shall give notice thereof to the Lenders.
      The Agent shall take such action with respect to such Default or Event of
      Default as shall be requested by the Required Lenders in accordance with Article
      VII; provided, however, unless and until Agent shall have received any such
      request, Agent may (but shall not be obligated to) take such action, or refrain
      from taking such action, with respect to such Default or Event of Default as
      it
      shall deem advisable or in the best interest of the Lenders.

     

    8.6. Credit
      Decision.
      Each
      Lender expressly acknowledges that none of the Agent-Related Persons has made
      any representation or warranty to it and that no act by Agent hereinafter taken,
      including any review of the affairs of Borrower and its Subsidiaries shall
      be
      deemed to constitute any representation or warranty by Agent to any Lender.
      Each
      Lender represents to Agent that it has, independently and without reliance
      upon
      Agent and based on such documents and information as it has deemed appropriate,
      made its own appraisal of and investigation into the business, prospects,
      operations, property, financial and other condition and creditworthiness of
      Borrower and its Subsidiaries, and all applicable bank regulatory laws relating
      to the transactions contemplated thereby, and made its own decision to enter
      into this Agreement and extend credit to Borrower hereunder. Each Lender also
      represents that it will, independently and without reliance upon Agent and
      based
      on such documents and information as it shall deem appropriate at the time,
      continue to make its own credit analysis, appraisals and decisions in taking
      or
      not taking action under this Agreement and the other Loan Documents, and to
      make
      such investigations as it deems necessary to inform itself as to the business,
      prospects, operations, property, financial and other condition and
      creditworthiness of Borrower. Except for notices, reports and other documents
      expressly herein required to be furnished to the Lenders by Agent, Agent shall
      not have any duty or responsibility to provide any Lender with any credit or
      other information concerning the business, prospects, operations, property,
      financial and other condition or creditworthiness of Borrower which may come
      into the possession of Agent.


    
      
        
        

      

      
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    8.7. Indemnification.
      Whether
      or not the transactions contemplated hereby shall be consummated, upon demand
      therefor the Lenders shall indemnify Agent (to the extent not reimbursed by
      or
      on behalf of Borrower and without limiting the obligation of Borrower to do
      so),
      ratably from and against any and all liabilities, obligations, losses, damages,
      penalties, actions, judgments, suits, costs, expenses and disbursements of
      any
      kind whatsoever which may at any time (including at any time following the
      repayment of the Loans and the termination or resignation of Agent) be imposed
      on, incurred by or asserted against Agent in any way relating to or arising
      out
      of this Agreement or any document contemplated by or referred to herein or
      the
      transactions contemplated hereby or thereby or any action taken or omitted
      by
      Agent under or in connection with any of the foregoing,
      INCLUDING THOSE RELATING TO OR ARISING OUT OF AGENT’S OWN
      NEGLIGENCE;
      provided, however, no Lender shall be liable for the payment to Agent of any
      portion of such liabilities, obligations, losses, damages, penalties, actions,
      judgments, suits, costs, expenses or disbursements to the extent resulting
      from
      Agent’s gross negligence or willful misconduct. In addition, each Lender shall
      reimburse Agent upon demand for its ratable share of any costs or out-of-pocket
      expenses (including Attorney Costs) incurred by 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 Loan Document, or any document contemplated by or referred to herein
      to the extent that Agent is not reimbursed for such expenses by or on behalf
      of
      Borrower. Without limiting the generality of the foregoing, if the Internal
      Revenue Service or any other Governmental Authority of the United States or
      other jurisdiction asserts a claim that Agent did not properly withhold tax
      from
      amounts paid to or for the account of any Lender (because the appropriate form
      was not delivered, was not properly executed, or because such Lender failed
      to
      notify Agent of a change in circumstances which rendered the exemption from,
      or
      reduction of, withholding tax ineffective, or for any other reason) such Lender
      shall indemnify Agent fully for all amounts paid, directly or indirectly, by
      Agent as tax or otherwise, including penalties and interest, and including
      any
      taxes imposed by any jurisdiction on the amounts payable to Agent under this
      Section 8.7, together with all related costs and expenses (including Attorney
      Costs). The obligation of the Lenders in this Section 8.7 shall survive the
      payment of all Obligations hereunder.

     

    8.8. Agent
      in Individual Capacity.
      ORIX
      and its Affiliates may make loans to, issue letters of credit for the account
      of, accept deposits from, acquire equity interests in and generally engage
      in
      any kind of banking, trust, financial advisory or other business with Borrower
      and its Subsidiaries and Affiliates as though ORIX were not Agent hereunder
      and
      without notice to or consent of the Lenders. With respect to its Loans, ORIX
      shall have the same rights and powers under this Agreement as any other Lender
      and may exercise the same as though it were not Agent, and the terms “Lender”
and “Lenders” shall include ORIX in its individual capacity.

     

    8.9. Successor
      Agent.
      The
      Agent may resign as Agent upon thirty (30) days’ prior notice to the Lenders and
      to Borrower. If Agent shall resign as Agent under this Agreement, the Required
      Lenders shall appoint from among the Lenders a successor agent for the Lenders.
      If no successor agent is appointed prior to the effective date of the
      resignation of Agent, Agent may thereupon appoint a successor agent from among
      the Lenders reasonably acceptable to Borrower. Upon the acceptance of its
      appointment as successor agent hereunder, such successor agent shall succeed
      to
      all the rights, powers and duties of the retiring Agent and the term “Agent”
shall mean such successor agent and the retiring Agent’s appointment, powers and
      duties as Agent shall be terminated. After any retiring Agent’s resignation
      hereunder as Agent, the provisions of this Article VIII and Sections 9.4 and
      9.5
      shall inure to its benefit as to any actions taken or omitted to be taken by
      it
      while it was Agent under this Agreement. If no successor agent has accepted
      appointment as Agent by the date which is thirty (30) days following a retiring
      Agent’s notice of resignation (or, if later, ten (10) days after the date upon
      which Agent designates a successor agent), the retiring Agent’s resignation
      shall nevertheless thereupon become effective and the Lenders shall perform
      all
      of the duties of Agent hereunder until such time, if any, as the Required
      Lenders appoint a successor agent as provided for above.


    
      
        
        

      

      
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    8.10. Collateral
      Matters.

     

    (a) The
      Agent
      is authorized (but not required) on behalf of all the Lenders, without the
      necessity of any notice to or further consent from the Lenders, from time to
      time to take any action with respect to any Collateral or the Collateral
      Documents which may be necessary to perfect and maintain perfected the security
      interest in and Liens upon the Collateral granted pursuant to the Collateral
      Documents.

     

    (b) The
      Lenders irrevocably authorize Agent, at its option and in its discretion, to
      release any Lien granted to or held by Agent upon any Collateral:

     

    (i) upon
      termination of the Revolving Loan Commitments and payment in full of all Loans
      and all other Obligations then payable under this Agreement and under any other
      Loan Document;

     

    (ii) constituting
      Property sold or to be sold or disposed of as part of or in connection with
      any
      disposition permitted hereunder;

     

    (iii) consisting
      of an instrument evidencing Indebtedness or of any other debt instrument, if
      the
      Indebtedness evidenced thereby has been paid in full; or

     

    (iv) if
      approved, authorized or ratified in writing by the Required Lenders or all
      the
      Lenders, as the case may be, as provided in subsection 9.1(f).

     

    Upon
      request by Agent at any time, the Lenders will confirm in writing Agent’s
      authority to release particular types or items of Collateral pursuant to this
      subsection 8.10(b).

     

    (c) Each
      Lender agrees with and in favor of each other Lender (which agreement shall
      not
      be for the benefit of Borrower or any of its Subsidiaries) that Borrower’s
      obligation to such Lender under this Agreement and the other Loan Documents
      shall be equally and ratably secured by any real property and/or other
      collateral now or hereafter securing any obligations of Borrower or any of
      its
      Subsidiaries to such Lender, whether or not the same constitutes Collateral
      hereunder.


    
      
        
        

      

      
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    ARTICLE
      IX


     

    MISCELLANEOUS

     

    9.1. Amendments
      and Waivers.
      No
      amendment or waiver of any provision of this Agreement or any other Loan
      Document, and no consent with respect to any departure by Borrower therefrom,
      shall be effective unless the same shall be in writing and signed by the
      Required Lenders, Borrower and acknowledged by Agent, then such waiver shall
      be
      effective only in the specific instance and for the specific purpose for which
      given;
      provided, however, that no such waiver, amendment, or consent shall, unless
      in
      writing and signed by all the Lenders, Borrower and acknowledged by Agent,
      do
      any of the following:

     

    (a) increase
      or extend the Revolving Loan Commitment of any Lender (or reinstate any
      Revolving Loan Commitment terminated pursuant to subsection
      7.2(a));

     

    (b) postpone
      or delay any date fixed for, or waive, any payment of principal, interest,
      fees
      or other amounts due to the Lenders (or any of them) hereunder or under any
      other Loan Document;

     

    (c) reduce
      the principal of, or the rate of interest specified herein or the amount of
      interest payable in cash specified herein on any Loan, or of any fees or other
      amounts payable hereunder or under any other Loan Document;

     

    (d) change
      the percentage of the Revolving Loan Commitments or of the aggregate unpaid
      principal amount of the Loans which shall be required for the Lenders or any
      of
      them to take any action hereunder;

     

    (e) amend
      this Section 9.1 or the definition of Required Lenders or any provision
      providing for consent or other action by all Lenders; or

     

    (f) discharge
      Holdings or any Subsidiary of Borrower from their respective Obligations under
      the Loan Documents, or release all or substantially all of the Collateral except
      as otherwise may be provided in this Agreement or the other Loan
      Documents;

     

    and,
      provided further,
      that no
      amendment, waiver or consent shall, unless in writing and signed by Agent in
      addition to the Required Lenders or all the Lenders, as the case may be, affect
      the rights or duties of Agent under this Agreement or any other Loan
      Document.

     

    9.2. Notices.
      viii) All notices, requests and other communications provided for hereunder
      shall be in writing (including, unless the context expressly otherwise provides,
      by facsimile transmission) and mailed by certified or registered mail, faxed
      or
      delivered by personal or overnight delivery, to the address or facsimile number
      specified for notices on the applicable signature page hereof; or, if directed
      to Borrower or Agent, to such other address as shall be designated by such
      party
      in a written notice to each of the other parties hereto given in compliance
      herewith, or, if directed to any other party hereto, to such other address
      as
      shall be designated by such party in a written notice given in compliance
      herewith to Borrower and Agent.


    
      
        
        

      

      
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    (b) All
      such
      notices, requests and communications shall be effective (i) if delivered in
      person, when delivered, (ii) if delivered by facsimile transmission, on the
      date of transmission if transmitted on a Business Day before 4:00 p.m. New
      York
      time, otherwise on the next Business Day, (iii) if delivered by overnight
      courier, one (1) Business Day after delivery to the courier properly addressed
      and (iv) if mailed, upon the third (3rd) Business Day after the date
      deposited into the U.S. Mail, certified or registered; except that notices
      pursuant to Article I shall not be effective until actually received by
      Agent.

     

    (c) Borrower
      acknowledges and agrees that any agreement of Agent and the Lenders
      in
      Article I hereof to receive certain notices by telephone and facsimile
      transmission is solely for the convenience and at the request of Borrower.
      The
      Agent and the Lenders
      shall be
      entitled to rely on the authority of any Person purporting to be a Person
      authorized by Borrower to give such notice and Agent and the Lenders
      shall
      not have any liability to Borrower or other Person on account of any action
      taken or not taken by Agent or the Lenders
      in
      reliance upon such telephonic or facsimile notice. The obligation of Borrower
      to
      repay the Loans shall not be affected in any way or to any extent by any failure
      by Agent and the Lenders
      to
      receive written confirmation of any telephonic or facsimile notice or the
      receipt by Agent and the Lenders
      of a
      confirmation which is at variance with the terms understood by Agent and the
      Lenders
      to be
      contained in the telephonic or facsimile notice.

     

    9.3. No
      Waiver; Cumulative Remedies.
      No
      failure to exercise and no delay in exercising, on the part of Agent or any
      Lender, any right, remedy, power or privilege hereunder, shall operate as a
      waiver thereof; nor shall any single or partial exercise of any right, remedy,
      power or privilege hereunder preclude any other or further exercise thereof
      or
      the exercise of any other right, remedy, power or privilege. No course of
      dealing between Borrower, any Affiliate of Borrower, Agent or any Lender shall
      be effective to amend, modify or discharge any provision of this Agreement
      or
      any of the other Loan Documents.

     

    9.4. Costs
      and Expenses.
      Whether
      or not the transactions contemplated hereby shall be consummated, Borrower
      shall
      pay or reimburse:

     

    (a) Agent,
      within
      five (5) Business Days after demand (except as otherwise provided in subsection
      2.1(f)) for all reasonable out-of-pocket costs, fees and expenses paid or
      incurred by Agent
      in
      connection with the development, preparation, delivery, administration and
      execution of, and any amendment, supplement, waiver or modification to (in
      each
      case, whether or not consummated), this Agreement, any other Loan Document
      and
      any other documents prepared in connection herewith or therewith, and the
      consummation of the transactions contemplated hereby and thereby, including
      out-of pocket costs, fees and expenses paid or incurred by Agent to third-party
      auditors, the Attorney Costs incurred by Agent
      with
      respect thereto and for all out-of-pocket costs and expenses incurred by it
      in
      connection with the enforcement, attempted enforcement, or preservation of
      any
      rights or remedies during the existence of an Event of Default (including in
      connection with any “workout” or restructuring regarding the Loans, and
      including any Insolvency Proceeding or appellate proceeding) under this
      Agreement, any other Loan Document, and any such other documents, and including,
      but not limited to, all UCC search fees, filing and recording fees, rating
      agency fees, costs, fees and expenses related to financial and operational
      examinations and collateral appraisals.


    
      
        
        

      

      
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    (b) Agent,
      within
      five (5) Business Days after demand for all out-of-pocket appraisal, audit,
      industry specialists, consultants, underwriting advisors, environmental
      inspection and review (including the allocated cost of such internal services),
      search and filing costs, fees and expenses, incurred or sustained by
Agent
      in
      connection with the matters referred to under clause (a) of this Section
      9.4.

     

    The
      obligations of this Section 9.4 shall survive payment of all other
      obligations.

     

    9.5. Indemnity.
      Whether
      or not the transactions contemplated hereby shall be consummated, Borrower
      shall
      indemnify, defend and hold harmless each Lender, Agent and each of their
      respective officers, directors, employees, counsel, agents and attorneys-in-fact
      (each, an “Indemnified Person”) from and against any and all liabilities,
      obligations, losses, damages, penalties, actions, judgments, suits, costs,
      charges, expenses or disbursements (including Attorney Costs):

     

    (a) of
      any
      kind or nature whatsoever with respect to the execution, delivery, enforcement,
      performance and administration of this Agreement and any other Loan Documents
      (including all amendments and waivers with respect thereto), or the transactions
      contemplated hereby and thereby, and with respect to any investigation,
      litigation or proceeding (including any Insolvency Proceeding or appellate
      proceeding) related to this Agreement or the Loans or the transactions
      contemplated hereby or the use of the proceeds thereof, whether or not any
      Indemnified Person is a party thereto (and including, but not limited to, all
      UCC search fees, filing and recording fees, rating agency fees, costs, fees
      and
      expenses related to financial and operational examinations and collateral
      appraisals); and

     

    (b) which
      may
      be incurred by or asserted against such Indemnified Person in connection with
      or
      arising out of any pending or threatened investigation, litigation or
      proceeding, or any action taken by any Person, with respect to any Environmental
      Claim arising out of or related to any Property of Borrower;

     

    INCLUDING
      THOSE WHICH RELATE TO OR ARISE OUT OF THE INDEMNIFIED PARTY’S OWN
      NEGLIGENCE
      (all the
      foregoing, collectively, the “Indemnified
      Liabilities”);
      provided,
      that
      Borrower shall have no obligation hereunder to any Indemnified Person with
      respect to Indemnified Liabilities to the extent arising from the gross
      negligence or willful misconduct of such Indemnified Person as determined by
      a
      court of competent jurisdiction.

     

    No
      action
      taken by legal counsel chosen by Agent or any Lender in defending against any
      investigation, litigation or proceeding or requested remedial, removal or
      response action shall vitiate or any way impair Borrower’s obligation and duty
      hereunder to indemnify and hold harmless Agent and each Lender. In no event
      shall any site visit, observation, or testing by Agent or any Lender (or any
      contractee of Agent or any Lender) be deemed a representation or warranty that
      Hazardous Materials are or are not present in, on, or under, the site, or that
      there has been or shall be compliance with any Environmental Law. Neither
      Borrower nor any other Person is entitled to rely on any site visit,
      observation, or testing by Agent or any Lender. Neither Agent nor any Lender
      owes any duty of care to protect Borrower or any other Person against, or to
      inform Borrower or any other Person of, any Hazardous Materials or any other
      adverse condition affecting any site or Property. Neither Agent nor any Lender
      shall be obligated to disclose to Borrower or any other Person any report or
      findings made as a result of, or in connection with, any site visit,
      observation, or testing by Agent or any Lender.


    
      
        
        

      

      
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    The
      obligations in this Section 9.5 shall survive payment of all other Obligations.
      At the election of any Indemnified Person, Borrower shall defend such
      Indemnified Person using legal counsel satisfactory to such Indemnified Person
      in such Person’s sole discretion, at the sole cost and expense of Borrower. All
      amounts owing under this Section 9.5 shall be paid within thirty (30) days
      after
      demand.

     

    9.6. Marshaling;
      Payments Set Aside.
      Neither
      Agent nor any Lender shall be under any obligation to marshal any assets in
      favor of Borrower or any other Person or against or in payment of any or all
      of
      the Obligations. To the extent that Borrower makes a payment or payments to
      Agent or any Lender, or Agent or any Lender enforces its Liens or exercises
      its
      rights of setoff, and such payment or payments or the proceeds of such
      enforcement or setoff 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 Agent in its discretion) to be repaid to a
      trustee, receiver or any other party in connection with any Insolvency
      Proceeding, or otherwise, then to
      the
      extent of such recovery the Obligations 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.

     

    (a) each
      lender severally agrees to pay to Agent upon demand its ratable share of the
      total amount so recovered from or repaid by Agent.

     

    9.7. Successors
      and Assigns.
      The
      provisions of this Agreement shall be binding upon and inure to the benefit
      of
      the parties hereto and their respective successors and assigns; provided that
      any assignment by any Lender shall be subject to the provisions of Section
      9.8
      hereof, and provided further that Borrower may not assign or transfer any of
      its
      rights or obligations under this Agreement without the prior written consent
      of
      Agent and each Lender.

     

    9.8. Assignments,
      Participations, etc.
      (a) Any Lender may, with the written consent of Agent, at any time assign
      and delegate to one or more Eligible Assignees (provided that such consent
      of
      Agent shall not be required in connection with any assignment and delegation
      by
      a Lender to an Eligible Assignee that is an Affiliate of such Lender)(each
      an
“Assignee”) all, or any part of, the Loans, the Revolving Loan Commitments and
      the other rights and obligations of such Lender hereunder, in a minimum amount
      of $250,000 or, if less, the entire Revolving Loan Commitment or Loan(s) of
      such
      Lender; provided, however, Borrower and Agent may continue to deal solely and
      directly with such Lender in connection with the interest so assigned to an
      Assignee until:


    
      
        
        

      

      
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    (i) written
      notice of such assignment, together with payment instructions, addresses and
      related information with respect to the Assignee, shall have been given to
      Borrower and Agent by such Lender and the Assignee; and

     

    (ii) Lender
      and its Assignee shall have delivered to Borrower and Agent an Assignment and
      Acceptance in form and substance reasonably satisfactory to Agent, such Lender
      and its Assignee (an “Assignment
      and Acceptance”).

     

    (b) From
      and
      after the date that Agent notifies the assignor that Agent has received and
      provided its consent with respect to an executed Assignment and
      Acceptance:

     

    (i) the
      Assignee thereunder shall be a party hereto and, to the extent that rights
      and
      obligations hereunder have been assigned to it pursuant to such Assignment
      and
      Acceptance, shall have the rights and obligations of a Lender under this
      Agreement and the other Loan Documents; and

     

    (ii) the
      assignor Lender shall, to the extent that rights and obligations hereunder
      and
      under the other Loan Documents have been assigned by it pursuant to such
      Assignment and Acceptance, relinquish its rights and be released from its
      obligations under the Loan Documents.

     

    (c) Borrower
      shall execute and deliver new Notes evidencing such Assignee’s assigned Loans
      and Revolving Loan Commitment portion and, if the assignor Lender has retained
      a
      portion of its Loans and Revolving Loan Commitment, replacement Notes in the
      principal amount of the Loans and Revolving Loan Commitment portion retained
      by
      the assignor Lender (such Notes to be in exchange for, but not in payment or
      satisfaction of, the Notes held by Lender). This Agreement shall be deemed
      to be
      amended to the extent, but only to the extent, necessary to reflect the addition
      of the Assignee and the resulting adjustment of the Revolving Loan Commitments
      arising therefrom. The Revolving Loan Commitment allocated to each Assignee
      shall reduce such Revolving Loan Commitment of the assigning Lender to the
      same
      extent.

     

    (d) Any
      Lender may at any time sell to one or more commercial banks or other Persons
      not
      Affiliates of Borrower (a “Participant”)
      participating interests in any Loans, the Revolving Loan Commitment of that
      Lender and the other interests of that Lender (the “Originating
      Lender”)
      hereunder and under the other Loan Documents; provided,
      however,:

     

    (i) the
      Originating Lender’s obligations under this Agreement shall remain
      unchanged;

     

    (ii) the
      Originating Lender shall remain solely responsible for the performance of such
      obligations;


    
      
        
        

      

      
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    (iii) Borrower
      and Agent shall continue to deal solely and directly with the Originating Lender
      in connection with the Originating Lender’s rights and obligations under this
      Agreement and the other Loan Documents; and

     

    (iv) No
      Lender
      shall transfer or grant any participating interest under which the Participant
      shall have rights to approve any amendment to, or any consent or waiver with
      respect to, this Agreement or any other Loan Document, except to the extent
      such
      amendment, consent or waiver would require unanimous consent of the Lenders
      as
      described in the first proviso
      to
      Section 9.1.

     

    In
      the
      case of any such participation, the Participant shall not have any rights under
      this Agreement, or any of the other Loan Documents, and all amounts payable
      by
      Borrower hereunder shall be determined as if Lender had not sold such
      participation.

     

    (e) Notwithstanding
      any other provision contained in this Agreement or any other Loan Document
      to
      the contrary, any Lender may (i) assign all or any portion of the Loans
      held by it to any Federal Reserve Bank or the United States Treasury as
      collateral security pursuant to Regulation A of the Federal Reserve Board and
      any Operating Circular issued by such Federal Reserve Bank or (ii) pledge
      all or any portion of the Loans held by it (and Notes evidencing such Loans)
      to
      its lenders for collateral security purposes, provided
      that any
      payment in respect of such assigned Loans made by Borrower to or for the account
      of the assigning or pledging Lender in accordance with the terms of this
      Agreement shall satisfy Borrower’s obligations hereunder in respect to such
      assigned or pledged Loans to the extent of such payment. No such assignment
      or
      pledge shall release the assigning Lender from its obligations
      hereunder.

     

    (f) The
      Agent
      shall, on behalf of Borrower, maintain at its address referred to in Section
      9.2
      a copy of each Assignment and Acceptance delivered to it and a register (the
      “Register”)
      for
      the recordation of the names and addresses of the Lenders and the Revolving
      Loan
      Commitment of, and principal amount of the Loans owing to, each Lender from
      time
      to time. The entries in the Register shall be conclusive, in the absence of
      demonstrable error, and Borrower, Agent and the Lenders shall treat each Person
      whose name is recorded in the Register as the owner of the Revolving Loan
      Commitments, Loans and any Notes evidencing such Loans recorded therein for
      all
      purposes of this Agreement. Any assignment of any Revolving Loan Commitment
      and/or Loan, whether or not evidenced by a Note, shall be effective only upon
      appropriate entries with respect thereto being made in the Register. Any
      assignment or transfer of all or part of a Revolving Loan Commitment and/or
      Loan
      evidenced by a Note shall be registered on the Register only upon a surrender
      or
      registration of assignment or transfer of the Note evidencing such Loan,
      accompanied by a duly executed Assignment and Acceptance; thereupon one or
      more
      new Notes in the same aggregate principal amount shall be issued to the
      designated assignee and, if applicable, assignor, and the old Notes shall be
      returned by Agent to Borrower marked “cancelled”. The Register shall be
      available for inspection by Borrower or any Lender (with respect to any entry
      relating to such Lender’s Revolving Loan Commitments and Loans) at any
      reasonable time and from time to time upon reasonable prior notice.



    
      
        
        

      

      
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    9.9. Confidentiality.
      Each of
      Agent and the Lenders shall maintain in confidence in accordance with its
      customary procedures for handling confidential information, all written
      information that Borrower, or any of its authorized representatives, furnishes
      to Agent or any Lender on a confidential basis clearly marked as such
      (“Confidential Information”), other than any such Confidential Information that
      becomes generally available to the public other than as a result of a breach
      by
      Agent or any Lender of its obligations hereunder or that is or becomes available
      to Agent or such Lender from a source other than Borrower, or any of its
      authorized representatives, and that is not, to the actual knowledge of the
      recipient thereof, subject to obligations of confidentiality with respect
      thereto; provided, however, Agent and each Lender shall in any event have the
      right to deliver copies of any such documents, and to disclose any such
      information, to:

     

    (a) its
      directors, officers, trustees, partners, employees, agents, attorneys,
      professional consultants, portfolio management services and rating
      agencies;

     

    (b) any
      other
      Lender and any successor Agent; 

     

    (c) any
      Person to which such Lender offers to sell any Loan or any part thereof or
      interest or participation therein (provided,
      such
      Person agrees to keep such information confidential on the terms set forth
      in
      this Section 9.9);

     

    (d) any
      federal or state regulatory authority or examiner, or any insurance industry
      association, regulating or having jurisdiction over Agent or such Lender;
      and

     

    (e) any
      other
      Person to which such delivery or disclosure may be necessary or appropriate
      (i) in compliance with any applicable law, rule, regulation or order,
      (ii) in response to any subpoena or other legal process or informal
      investigative demand, (iii) in connection with any litigation to which
      Agent or such Lender is a party, or (iv) in connection with the enforcement
      of the rights and remedies of Agent or the Lenders under this Agreement and
      the
      other Loan Documents at any time when an Event of Default shall have occurred
      and be continuing.

     

    Notwithstanding
      anything herein to the contrary, the information subject to this Section 9.9
      shall not include, and Agent and each Lender may disclose without limitation
      of
      any kind, any information with respect to the “tax treatment” and “tax
      structure” (in each case, within the meaning of Treasury Regulation Section
      1.6011-4) of the transactions contemplated herein or in any of the other Loan
      Documents and all materials of any kind (including opinions or other tax
      analyses) that are provided to Agent or such Lender relating to such tax
      treatment and tax structure (it being understood that this authorization is
      retroactively effective to the commencement of the first discussions between
      or
      among any of the parties regarding the transactions contemplated hereby or
      by
      any of the other Loan Documents); provided that with respect to any document
      or
      similar item that in either case contains information concerning the “tax
      treatment” or “tax structure” of the transactions as well as other information,
      this sentence shall only apply to such portions of the document or similar
      item
      that relate to the “tax treatment” or “tax structure” of the transactions
      contemplated herein or in any of the other Loan Documents.


    
      
        
        

      

      
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    9.10. Set-off;
      Sharing of Payments.
      In
      addition to any rights and remedies now or hereafter granted under applicable
      law, and not by way of limitation of any such rights or remedies at any time
      and
      from time to time, upon the occurrence and during the continuance of any Event
      of Default, each Lender is hereby authorized by Borrower, with reasonably prompt
      subsequent notice to Borrower or to any other Person (any prior or
      contemporaneous notice being hereby expressly waived by Borrower) to set off
      and
      to appropriate and to apply any and all

     

    (a) balances
      held by such Lender at any of its offices for the account of Borrower
      (regardless of whether such balances are then due to Borrower); and

     

    (b) other
      Property at any time held or owing by such Lender to or for the credit or for
      the account of Borrower;

     

    against
      and on account of any and all Obligations which are not paid when due; except
      that no Lender shall exercise such right without the prior written consent
      of
      Agent. Any Lender having a right to set off shall purchase for cash (and the
      other Lenders shall sell) participations in each such other Lender’s pro rata
      share of the Obligations as would be necessary to cause such Lender to share
      the
      benefit of such right of set-off with each other Lender in accordance with
      their
      respective pro rata shares of the Obligations. Borrower agrees, to the fullest
      extent permitted by law, that (i) any Lender may exercise its right to set
      off with respect to amounts in excess of its pro rata share of the Obligations
      and may sell participations to other Lenders, and (ii) any Lender so
      purchasing a participation in the Obligations held by other Lenders may exercise
      all rights of setoff, bankers’ lien, counterclaim or similar rights with respect
      to such participation as fully as if such Lender were a direct holder of
      Obligations in the amount of such participation; provided,
      however, that the failure to give such notice shall not affect the validity
      of
      such set-off and application. Borrower hereby grants to Lender a security
      interest in all such deposits and other Property, whether now existing or
      hereafter arising, held by Lender for the purposes set forth
      herein.

     

    9.11. Notification
      of Addresses, Lending Offices, Etc.
      Each
      Lender shall notify Agent in writing of any changes in the address to which
      notices to such Lender should be directed, of addresses of its Lending Office,
      of payment instructions in respect of all payments to be made to it hereunder
      and of such other administrative information as Agent shall reasonably
      request.

     

    9.12. Counterparts.
      This
      Agreement may be executed by one or more of the parties to this Agreement in
      any
      number of separate counterparts, each of which, when so executed, shall be
      deemed an original, and all of said counterparts taken together shall be deemed
      to constitute but one and the same instrument. A set of the copies of this
      Agreement signed by all the parties shall be lodged with each of Borrower and
      Agent.

     

    9.13. Severability.
      The
      illegality or unenforceability of any provision of this Agreement or any
      instrument or agreement required hereunder shall not in any way affect or impair
      the legality or enforceability of the remaining provisions of this Agreement
      or
      any instrument or agreement required hereunder. Any Loan Document, or other
      agreement, document or instrument, delivered by facsimile transmission shall
      have the same force and effect as if the original thereof has been
      delivered.


    
      
        
        

      

      
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    9.14. Captions.
      The
      captions and headings of this Agreement are for convenience of reference only
      and shall not affect the interpretation of this Agreement.

     

    9.15. Independence
      of Provisions.
      The
      parties hereto acknowledge that this Agreement and other Loan Documents may
      use
      several different limitations, tests or measurements to regulate the same or
      similar matters, and that such limitations, tests and measurements are
      cumulative and must each be performed, except as expressly stated to the
      contrary in this Agreement.

     

    9.16. Interpretation.
      This
      Agreement is the result of negotiations among and has been reviewed by counsel
      to Agent and other parties hereto, and is the product of all parties hereto.
      Accordingly, this Agreement and the other Loan Documents shall not be construed
      against the Lenders or Agent merely because of Agent’s or Lenders’ involvement
      in the preparation of such documents and agreements.

     

    9.17. No
      Third Parties Benefited.
      This
      Agreement is made and entered into for the sole protection and legal benefit
      of
      Borrower, the Lenders and Agent, and their permitted successors and assigns,
      and
      no other Person shall be a direct or indirect legal beneficiary of, or have
      any
      direct or indirect cause of action or claim in connection with, this Agreement
      or any of the other Loan Documents. Neither Agent nor any Lender shall have
      any
      obligation to any Person not a party to this Agreement or the other Loan
      Documents.

     

    9.18. Governing
      Law and Jurisdiction.

     

    (A) THIS
      AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
      THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
      CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
      OBLIGATION LAW); PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS
      ARISING UNDER FEDERAL LAW.

     

    (B) BORROWER
      HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
      STATES FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK IN ANY ACTION OR
      PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND BORROWER HEREBY
      IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
      MAY
      BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
      IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
      PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
      NOTHING HEREIN SHALL LIMIT THE RIGHT OF AGENT OR ANY LENDER TO BRING PROCEEDINGS
      AGAINST BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
      PROCEEDING BY BORROWER AGAINST AGENT OR ANY LENDER OR ANY AFFILIATE THEREOF
      INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
      TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT LOCATED
      IN THE STATE OF NEW YORK.


    
      
        
        

      

      
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    (C) BORROWER
      DESIGNATES AND APPOINTS CT CORPORATION SYSTEM AND SUCH OTHER PERSONS AS MAY
      HEREAFTER BE SELECTED BY BORROWER WHICH IRREVOCABLY AGREE IN WRITING TO SO
      SERVE
      AS ITS AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH
      PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY
      BORROWER TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF ANY
      SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO BORROWER AT ITS
      ADDRESS PROVIDED IN SECTION 9.2 EXCEPT THAT UNLESS OTHERWISE PROVIDED BY
      APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY
      OF
      SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY BORROWER REFUSES TO ACCEPT
      SERVICE, BORROWER HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE
      SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN
      ANY
      OTHER MANNER PERMITTED BY LAW.

     

    9.19. WAIVER
      OF JURY TRIAL.
      BORROWER, THE LENDERS AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A
      TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
      OR
      RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
      CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION
      OF
      ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES,
      WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. BORROWER,
      THE LENDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION
      SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
      THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS
      WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
      PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
      ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
      HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
      RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
      DOCUMENTS.

     

    9.20. Entire
      Agreement; Release.
      This
      Agreement, together with the other Loan Documents, embodies the entire agreement
      and understanding among Borrower, the Lenders and Agent, and supersedes all
      prior or contemporaneous Agreements and understandings of such Persons, oral
      or
      written, relating to the subject matter hereof and thereof, and any prior
      arrangements made with respect to the payment by Borrower of (or any
      indemnification for) any fees, costs or expenses payable to or incurred (or
      to
      be incurred) by or on behalf of Agent or the Lenders. Borrower has relied
      exclusively on the terms and provisions contained in this Agreement and the
      other Loan Documents in its execution and delivery hereof and thereof and
      entering into the transactions which are the subject hereof and thereof.
      Execution of this Agreement by Borrower constitutes a full, complete and
      irrevocable release of any and all claims which Borrower 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 Loan Documents.
      Neither Agent nor any Lender shall be liable to Borrower or any other Person
      on
      any theory of liability for any special, indirect, consequential or punitive
      damages.


    
      
        
        

      

      
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    ARTICLE
      X

     

    TAXES,
      YIELD PROTECTION AND ILLEGALITY

     

    10.1. Taxes.

     

    (a) Subject
      to subsection 10.1(g), any and all payments by Borrower to each Lender or Agent
      under this Agreement shall be made free and clear of, and without deduction
      or
      withholding for, any and all present or future taxes, levies, imposts,
      deductions, charges or withholdings, and all liabilities with respect thereto,
      excluding, in the case of each Lender and Agent, such taxes (including income
      taxes or franchise taxes) as are imposed on or measured by each Lender’s net
      income by the jurisdiction under the laws of which such Lender or Agent, as
      the
      case may be, is organized or maintains a Lending Office or any political
      subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
      charges, withholdings and liabilities being hereinafter referred to as
“Taxes”).

     

    (b) In
      addition, Borrower shall pay any present or future stamp or documentary taxes
      or
      any other excise or property taxes, charges or similar levies which arise from
      any payment made hereunder or from the execution, delivery or registration
      of,
      or otherwise with respect to, this Agreement or any other Loan Document
      (hereinafter referred to as “Other
      Taxes”).

     

    (c) Subject
      to subsection 10.1(g), Borrower shall indemnify and hold harmless each Lender
      and Agent for the full amount of Taxes or Other Taxes (including any Taxes
      or
      Other Taxes imposed by any jurisdiction on amounts payable under this Section
      10.1) paid by such Lender or Agent and any liability (including penalties,
      interest, additions to tax and expenses) arising therefrom or with respect
      thereto, whether or not such Taxes or Other Taxes were correctly or legally
      asserted. Payment under this indemnification shall be made within thirty (30)
      days from the date any Lender or Agent makes written demand
      therefor.

     

    (d) If
      Borrower shall be required by law to deduct or withhold any Taxes or Other
      Taxes
      from or in respect of any sum payable hereunder to any Lender or Agent, then,
      subject to subsection 10.1(g):

     

    (i) the
      sum
      payable shall be increased as necessary so that after making all required
      deductions (including deductions applicable to additional sums payable under
      this Section 10.1), such Lender or Agent, as the case may be, receives an amount
      equal to the sum it would have received had no such deductions been
      made;

     

    (ii) Borrower
      shall make such deductions; and


    
      
        
        

      

      
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    (iii) Borrower
      shall pay the full amount deducted to the relevant taxation authority or other
      authority in accordance with applicable law.

     

    (e) Within
      thirty (30) days after the date of any payment by Borrower of Taxes or Other
      Taxes, Borrower shall furnish to Agent (and the applicable Lender) the original
      or a certified copy of a receipt evidencing payment thereof, or other evidence
      of payment satisfactory to Agent (and the applicable Lender).

     

    (f) Each
      Lender that is not a citizen or resident of the United States of America, a
      corporation, partnership or other entity created or organized in or under the
      laws of the United States (or any jurisdiction thereof), or any estate or trust
      that is subject to federal income taxation regardless of the source of its
      income (a “Non-U.S.
      Lender”)
      shall
      deliver to Borrower and Agent two copies of each U.S. Internal Revenue Service
      Form W-8BEN or Form W-8ECI, or any subsequent versions thereof or successors
      thereto, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
      federal withholding tax under Section 871(h) or 881(c) of the Code with respect
      to payments of “portfolio interest”, a Form W-8, or any subsequent versions
      thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form
      W-8,
      a certificate representing that such Non-U.S. Lender is not a “bank” for
      purposes of Section 881(c) of the Code, is not a ten percent (10%) shareholder
      (within the meaning of Section 871(h)(3)(B) of the Code) of Borrower and is
      not
      a controlled foreign corporation related to Borrower (within the meaning of
      Section 864(d)(4) of the Code)), properly completed and duly executed by such
      Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.
      federal withholding tax on all payments by Borrower under this Agreement and
      the
      other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender
      on
      or before the date it becomes a party to this Agreement. In addition, each
      Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
      invalidity of any form previously delivered by such Non-U.S. Lender. Each
      Non-U.S. Lender shall promptly notify Borrower at any time it determines that
      it
      is no longer in a position to provide any previously delivered certificate
      to
      Borrower (or any other form of certification adopted by the U.S. taxing
      authorities for such purpose). Notwithstanding any other provision of this
      subsection, a Non-U.S. Lender shall not be required to deliver any form pursuant
      to this subsection that such Non-U.S. Lender is not legally able to
      deliver.

     

    (g) Borrower
      will not be required to pay any additional amounts in respect of United States
      Federal income tax pursuant to subsection 10.1(d) to any Lender for the account
      of any Lending Office of such Lender:

     

    (i) if
      the
      obligation to pay such additional amounts would not have arisen but for a
      failure by such Lender to comply with its obligations under subsection 10.1(f)
      in respect of such Lending Office;

     

    (ii) if
      such
      Lender shall have delivered to Borrower a Form W-8BEN and/or Form W-8ECI (or
      any
      subsequent versions thereof or successors thereto) in respect of such Lending
      Office pursuant to subsection 10.1(f), and such Lender shall not at any time
      be
      entitled to exemption from deduction or withholding of United States Federal
      income tax in respect of payments by Borrower hereunder for the account of
      such
      Lending Office for any reason other than a change in United States law, treaty
      or regulations or in the official interpretation of such law or regulations
      by
      any Governmental Authority charged with the interpretation or administration
      thereof (whether or not having the force of law) after the date of delivery
      of
      such Form W-8BEN and/or Form W-8ECI (or any subsequent versions thereof or
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    (iii) if
      such
      Lender shall have delivered to Borrower a Form W-8 (or any subsequent versions
      thereof or successors thereto) in respect of such Lending Office pursuant to
      subsection 10.1(f), and such Lender shall not at any time be entitled to
      exemption from deduction or withholding of United States Federal income tax
      in
      respect of payments by Borrower hereunder for the account of such Lending Office
      for any reason other than a change in the United States law or regulations
      or
      any applicable tax treaty or regulations or in the official interpretation
      of
      any such law, treaty or regulations by any Governmental Authority charged with
      the interpretation or administration thereof (whether or not having the force
      of
      law) after the date of delivery of such Form W-8 (or subsequent versions thereof
      or successors thereto).

     

    (h) If,
      at
      any time, Borrower requests Lender to deliver any forms or other documentation
      pursuant to subsection 10.1(f), then Borrower shall, on demand of such Lender
      through Agent, reimburse such Lender for any costs and expenses (including
      Attorney Costs) reasonably incurred by such Lender in the preparation or
      delivery of such forms or other documentation.

     

    (i) If
      Borrower is required to pay additional amounts to any Lender or Agent pursuant
      to subsection 10.1(d), then such Lender shall use its reasonable best efforts
      (consistent with legal and regulatory restrictions) to change the jurisdiction
      of its Lending Office so as to eliminate any such additional payment by Borrower
      which may thereafter accrue if such change in the judgment of such Lender is
      not
      otherwise disadvantageous to such Lender.

     

    10.2. Illegality.
      a) If
      after the date hereof any Lender shall determine that the introduction of any
      Requirement of Law, or any change in any Requirement of Law or in the
      interpretation or administration thereof, has made it unlawful, or that any
      central bank or other Governmental Authority has asserted that it is unlawful,
      for any Lender or its Lending Office to make LIBOR Rate Loans, then, on notice
      thereof by such Lender to Borrower through Agent, the obligation of that Lender
      to make LIBOR Rate Loans shall be suspended until such Lender shall have
      notified Agent and Borrower that the circumstances giving rise to such
      determination no longer exists.

     

    (b) Subject
      to clause (c) below, if any Lender shall determine that it is unlawful to
      maintain any LIBOR Rate Loan, Borrower shall prepay in full all LIBOR Rate
      Loans
      of such Lender then outstanding, together with interest accrued thereon, either
      on the last day of the Interest Period thereof if such Lender may lawfully
      continue to maintain such LIBOR Rate Loans to such day, or immediately, if
      such
      Lender may not lawfully continue to maintain such LIBOR Rate Loans, together
      with any amounts required to be paid in connection therewith pursuant to Section
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    (c) If
      the
      obligation of any Lender to make or maintain LIBOR Rate Loans has been
      terminated, Borrower may elect, by giving notice to such Lender through Agent
      that all Loans which would otherwise be made by any such Lender as LIBOR Rate
      Loans shall be instead Base Rate Loans.

     

    (d) Before
      giving any notice to Agent pursuant to this Section 10.2, the affected Lender
      shall designate a different Lending Office with respect to its LIBOR Rate Loans
      if such designation will avoid the need for giving such notice or making such
      demand and will not, in the judgment of the Lender, be illegal or otherwise
      disadvantageous to the Lender.

     

    10.3. Increased
      Costs and Reduction of Return.

     

    (a) If
      any
      Lender shall have determined that:

     

    (i) the
      introduction of any Capital Adequacy Regulation;

     

    (ii) any
      change in any Capital Adequacy Regulation;

     

    (iii) any
      change in the interpretation or administration of any Capital Adequacy
      Regulation by any central bank or other Governmental Authority charged with
      the
      interpretation or administration thereof; or

     

    (iv) compliance
      by such Lender (or its Lending Office) or any corporation controlling such
      Lender, with any Capital Adequacy Regulation;

     

    affects
      the amount of capital required or expected to be maintained by such Lender
      or
      any entity controlling such Lender and (taking into consideration such Lender’s
      or such entities’ policies with respect to capital adequacy and such Lender’s
      desired return on capital) determines that the amount of such capital is
      increased as a consequence of its Revolving
      Loan Commitment(s),
      loans, credits or obligations under this Agreement, then, within thirty (30)
      days of demand of such Lender, (with a copy to Agent), Borrower shall upon
      demand pay to such Lender, from time to time as specified by such Lender,
      additional amounts sufficient to compensate such Lender (or the entity
      controlling Lender) for such increase.

     

    10.4. Funding
      Losses.
      Borrower agrees to reimburse each Lender and to hold each Lender harmless from
      any loss or expense which each Lender may sustain or incur as a consequence
      of:
      

     

    (a) the
      failure of Borrower to make any payment or mandatory prepayment of principal
      of
      any LIBOR Rate Loan (including payments made after any acceleration
      thereof);


    
      
        
        

      

      
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    (b) the
      failure of Borrower to borrow, continue or convert a Loan after Borrower has
      given (or is deemed to have given) a Notice of Borrowing or a Notice of
      Continuation/Conversion;

     

    (c) the
      failure of Borrower to make any prepayment after Borrower has given a notice
      in
      accordance with Section 1.7;

     

    (d) the
      prepayment (including pursuant to Section 1.8) of a LIBOR Rate Loan on a
      day which is not the last day of the Interest Period with respect thereto;
      or

     

    (e) the
      conversion pursuant to Section 1.6 of any LIBOR Rate Loan to a Base Rate Loan
      on
      a day that is not the last day of the applicable Interest Period;

     

    including
      any such loss or expense arising from the liquidation or reemployment of funds
      obtained by it to maintain its LIBOR Rate Loans hereunder or from fees payable
      to terminate the deposits from which such funds were obtained. Solely for
      purposes of calculating amounts payable by Borrower to the Lenders under this
      Section 10.4 and under subsection 10.3(a): each LIBOR Rate Loan made by a Lender
      (and each related reserve, special deposit or similar requirement) shall be
      conclusively deemed to have been funded at the LIBOR used in determining the
      interest rate for such LIBOR Rate Loan by a matching deposit or other borrowing
      in the interbank eurodollar market for a comparable amount and for a comparable
      period, whether or not such LIBOR Rate Loan is in fact so funded.

     

    10.5. Inability
      to Determine Rates.
      If
      Agent shall have determined in good faith that for any reason adequate and
      reasonable means do not exist for ascertaining the LIBOR for any requested
      Interest Period with respect to a proposed LIBOR Rate Loan or that the LIBOR
      applicable pursuant to subsection 1.3(a) for any requested Interest Period
      with
      respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect
      the
      cost to the Lenders of funding such Loan, Agent will forthwith give notice
      of
      such determination to Borrower and each Lender. Thereafter, the obligation
      of
      the Lenders to make or maintain LIBOR Rate Loans hereunder shall be suspended
      until Agent revokes such notice in writing. Upon receipt of such notice,
      Borrower may revoke any Notice of Borrowing or Notice of Continuation/Conversion
      then submitted by it. If Borrower does not revoke such notice, the Lenders
      shall
      make, convert or continue the Loans, as proposed by Borrower, in the amount
      specified in the applicable notice submitted by Borrower, but such Loans shall
      be made, converted or continued as Base Rate Loans.

     

    10.6. Reserves
      on LIBOR Rate Loans.
      Borrower shall pay to each Lender, as long as such Lender shall be required
      under regulations of the Federal Reserve Board to maintain reserves with respect
      to liabilities or assets consisting of or including Eurocurrency funds or
      deposits (currently known as “Eurocurrency liabilities”), additional costs on
      the unpaid principal amount of each LIBOR Rate Loan equal to actual costs of
      such reserves allocated to such Loan by such Lender (as determined by such
      Lender in good faith, which determination shall be conclusive absent
      demonstrable error), payable on each date on which interest is payable on such
      Loan provided Borrower shall have received at least fifteen (15) days prior
      written notice (with a copy to Agent) of such additional interest from the
      Lender. If a Lender fails to give notice fifteen (15) days
      prior to
      the relevant Interest Payment Date, such additional interest shall be payable
      fifteen (15) days
      from
      receipt of such notice.


    
      
        
        

      

      
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    10.7. Certificates
      of Lender.
      If any
      Lender claims a right of reimbursement or compensation pursuant to this Article
      X, each Lender shall deliver to Borrower (with a copy to Agent) a certificate
      setting forth in reasonable detail the amount payable to each Lender hereunder
      and such certificate shall be conclusive and binding on Borrower in the absence
      of manifest error.

     

    10.8. Survival.
      The
      agreements and obligations of Borrower in this Article X shall survive the
      payment of all other Obligations.

     

    ARTICLE
      XI

     

    DEFINITIONS

     

    11.1. Defined
      Terms.
      The
      following terms are defined in the Sections or subsections referenced opposite
      such terms:

     

    
      	
              “Activation
                Notice”

            	 	
              4.17

            
	
              “Assignee”

            	 	
              9.8(a)

            
	
              “Assignment
                and Acceptance”

            	 	
              9.8(a)(ii)

            
	
              “Borrower”

            	 	
              Preamble

            
	
              “Borrowing
                Base”

            	 	
              1.1(b)

            
	
              “Commitment
                Fee”

            	 	
              1.9(a)

            
	
              “Concentration
                Account”

            	 	
              4.17

            
	
              “Confidential
                Information”

            	 	
              9.9

            
	
              “EBITDA”

            	 	
              Exhibit
                4.2(b)

            
	
              “Event
                of Default”

            	 	
              7.1

            
	
              “Existing
                Credit Agreement”

            	 	
              Recitals

            
	
              “Existing
                Revolving Credit Facility”

            	 	
              Recitals

            
	
              “Existing
                Term Loan”

            	 	
              Recitals

            
	
              “Fixed
                Charge Coverage Ratio”

            	 	
              Exhibit
                4.2(b)

            
	
              “Indemnified
                Person”

            	 	
              9.5

            
	
              “Indemnified
                Liabilities”

            	 	
              9.5

            
	
              “Lender”

            	 	
              Preamble

            
	
              “Lockbox
                Account”

            	 	
              4.17

            
	
              “Lockbox
                Agreement”

            	 	
              4.17

            
	
              “Lockbox
                Bank”

            	 	
              4.17

            
	
              “Maximum
                Revolving Loan Balance”

            	 	
              1.1(b)

            
	
              “Monitoring
                Fee”

            	 	
              1.9(b)

            
	
              “Originating
                Lender”

            	 	
              9.8

            
	
              “Other
                Taxes”

            	 	
              10.1(b)

            
	
              “Participant”

            	 	
              9.8(d)

            
	
              “Permitted
                Liens”

            	 	
              5.1

            
	
              “Restricted
                Payments”

            	 	
              5.11

            
	
              “Revenue”

            	 	
              Exhibit
                4.1(b)

            
	
              “Revolving
                Loan Commitment”

            	 	
              1.1(b)

            
	
              “Revolving
                Loan”

            	 	
              1.1(b)

            
	
              “Taxes”

            	 	
              10.1(a)

            
	
              “Trust
                Collections”

            	 	
              4.17

            
	
              “Unused
                Borrowing Availability”

            	 	
              Exhibit
                11.1(a)

            
	
              “Unused
                Line Fee”

            	 	
              1.9(c)

            


    

     

    
      
        
        

      

      
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    In
      addition to the terms defined elsewhere in this Agreement, the following terms
      have the following meanings:

     

    “Account”
means,
      as at any date of determination, all “accounts” (as such term is defined in the
      UCC) of Borrower, including, without limitation, the unpaid portion of the
      obligation of a customer of Borrower in respect of Inventory purchased by and
      shipped to such customer and/or the rendition of services by Borrower, as stated
      on the invoice of Borrower, net of any credits, rebates or offsets owed to
      such
      customer. 

     

    “Account
      Debtor”
means
      the customer of Borrower who is obligated on or under an Account. 

     

    “Acquisition”
means
      any transaction or series of related transactions for the purpose of or
      resulting, directly or indirectly, in (a) the acquisition of all or
      substantially all of the assets of a Person, or of any business or division
      of a
      Person, (b) the acquisition of in excess of fifty percent (50%) of the
      capital stock, partnership interests or equity of any Person or otherwise
      causing any Person to become a Subsidiary of Borrower, or (c) a merger or
      consolidation or any other combination with another Person.

     

    “Affiliate”
means,
      as to any Person, any other Person which, directly or indirectly, is in control
      of, is controlled by, or is under common control with, such Person. A Person
      shall be deemed to control another Person if the controlling Person possesses,
      directly or indirectly, the power to direct or cause the direction of the
      management and policies of the other Person, whether through the ownership
      of
      voting securities, by contract or otherwise. Without limitation, any director,
      executive officer or beneficial owner of five percent (5%) or more of the equity
      of a Person shall for the purposes of this Agreement, be deemed to control
      the
      other Person. Notwithstanding the foregoing, neither Agent nor any Lender shall
      be deemed an “Affiliate” of Borrower or of any Subsidiary of
      Borrower.

     

    “Agent”
means
      Venture Finance LLC in its capacity as agent for the Lenders hereunder, and
      any
      successor agent.

     

    “Agent-Related
      Persons”
means
      Venture Finance LLC and any successor agent arising under Section 8.9,
      together with their respective Affiliates, and the officers, directors,
      employees, agents and attorneys-in-fact of such Persons and
      Affiliates.

     

    “Aggregate
      Revolving Loan Commitment”
means
      the combined Revolving Loan Commitments of the Lenders, which shall initially
      be
      in the amount of $5,000,000, as such amount may be reduced from time to time
      pursuant to this Agreement.


    
      
        
        

      

      
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    “Applicable
      Margin”
means
      with respect to Revolving Loans that are Base Rate Loans, three and one-half
      percent (3.5%), and with respect to Revolving Loans that are LIBOR Rate Loans,
      six and one-half percent (6.5%).

     

    “Attorney
      Costs”
means
      and includes all reasonable fees and disbursements of any law firm or other
      external counsel, the allocated cost of internal legal services and all
      disbursements of internal counsel.

     

    “Availability”
means
      as of any date of determination, the amount by which (a) the Maximum Revolving
      Loan Balance, exceeds (b) the aggregate outstanding principal balance of
      Revolving Loans.

     

    “Bankruptcy
      Code”
means
      the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et
      seq.),
      as
      amended and in effect from time to time and the regulations issued from time
      to
      time thereunder.

     

    “Base
      Rate”
means,
      for any day, a rate of interest equal to the greater of (a) the rate of interest
      which is identified as the “Prime Rate” and normally published in the Money
      Rates section of The
      Wall Street Journal
      (or, if
      such rate ceases to be so published, as quoted from such other generally
      available and recognizable source as Agent may select) and (b) the sum of the
      Federal Funds Rate plus one half of one percent (0.5%). Any change in the Base
      Rate due to a change in the “Prime Rate” or the Federal Funds Rate shall be
      effective on the effective date of such change in the “Prime Rate” or the
      Federal Funds Rate.

     

    “Borrower
      Security Agreement”
means
      that Amended and Restated Security Agreement, dated as of the date hereof,
      in
      form and substance reasonably satisfactory to Agent and Borrower, made by
      Borrower in favor of Agent for the benefit of Lenders.

     

    “Borrowing”
means
      a
      borrowing hereunder consisting of Loans made to Borrower on the same day by
      the
      Lenders pursuant to Article I.

     

    “Borrowing
      Base Certificate”
means
      a
      certificate of Borrower, in substantially the form of Exhibit
      11.1(a)
      hereto,
      duly completed as of a date acceptable to Agent in its sole
      discretion.

     

    “Business
      Day”
means
      any day other than a Saturday, Sunday or other day on which commercial banks
      in
      New York, New York are authorized or required by law to close and,
      if the
      applicable Business Day relates to any LIBOR Rate Loan, a day on which dealings
      are carried on in the London interbank market.

     

    “Capital
      Adequacy Regulation”
means
      any guideline, request or directive of any central bank or other Governmental
      Authority, or any other law, rule or regulation, whether or not having the
      force
      of law, in each case, regarding capital adequacy of any Lender or of any
      corporation controlling a Lender.

     

    “Capital
      Expenditures”
means
      all expenditures which, in accordance with GAAP, would be required to be
      capitalized and shown on the consolidated balance sheet of Borrower, but
      excluding expenditures made in connection with the replacement, substitution
      or
      restoration of assets to the extent financed (a) from insurance proceeds (or
      other similar recoveries) paid on account of the loss of or damage to the assets
      being replaced or restored, (b) with awards of compensation arising from the
      taking by eminent domain or condemnation of the assets being replaced or (c)
      with proceeds of Dispositions that are reinvested, within ninety (90) days
      of
      receipt of such proceeds, in assets performing the same or a similar function
      as
      the assets subject to such Disposition.


    
      
        
        

      

      
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    “Capital
      Lease”
means
      any leasing or similar arrangement which, in accordance with GAAP, is classified
      as a capital lease.

     

    “Capital
      Lease Obligations”
means
      all monetary obligations of Borrower under any Capital Leases.

     

    “Cash
      Equivalents”
means:
      (a) securities issued or fully guaranteed or insured by the United States
      Government or any agency thereof having maturities of not more than six (6)
      months from the date of acquisition; (b) certificates of deposit, time deposits,
      repurchase agreements, reverse repurchase agreements, or bankers’ acceptances,
      having in each case a tenor of not more than six (6) months, issued by Lender,
      or by any U.S. commercial bank or any branch or agency of a non-U.S. bank
      licensed to conduct business in the U.S. having combined capital and surplus
      of
      not less than $250,000,000; (c) commercial paper of an issuer rated at least
      A-1
      by Standard & Poor’s Corporation or P-1 by Moody’s Investors Service Inc.
      and in either case having a tenor of not more than three (3) months and (d)
      money market mutual funds provided that substantially all of the assets of
      such
      fund are comprised of securities of the type described in clauses (a) through
      (c).

     

    “Change
      in Working Capital”
means,
      for any period, Working Capital as of the end of such period minus Working
      Capital as of the beginning of such period. 

     

    “Closing
      Date”
means
      the date on which all conditions precedent set forth in Section 2.1 are
      satisfied or waived by Agent and all Lenders.

     

    “Code”
means
      the Internal Revenue Code of 1986, and regulations promulgated
      thereunder.

     

    “Collateral”
means
      all Property and interests in Property and proceeds thereof now owned or
      hereafter acquired by Borrower or any other Person as debtor and their
      respective Subsidiaries and other Person who has granted a Lien to Agent, in
      or
      upon which a Lien now or hereafter exists in favor of any Lender or Agent for
      the benefit of Agent and Lenders, whether under this Agreement or under any
      other documents executed by any such Persons and delivered to
      Agent.

     

    “Collateral
      Documents”
means,
      collectively, the Borrower Security Agreement, the Mortgages, the Guarantees
      and
      all other security agreements, patent and trademark assignments, lease
      assignments, guarantees and other similar agreements, and all amendments,
      restatements, modifications or supplements thereof or thereto, by or between
      any
      one or more of Borrower or any other Person pledging or granting a lien on
      Collateral or pursuant to which any such Person guarantees the payment and
      performance of the Obligations, and any Lender or Agent for the benefit of
      Agent
      and the Lenders now or hereafter delivered to the Lenders or Agent pursuant
      to
      or in connection with the transactions contemplated hereby, and all financing
      statements (or comparable documents now or hereafter filed in accordance with
      the UCC or comparable law) against Borrower or any other Person pledging or
      granting a lien on Collateral as debtor in favor of any Lender or Agent for
      the
      benefit of Agent and the Lenders, as secured party.


    
      
        
        

      

      
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    “Commitment
      Percentage”
means,
      as to any Lender, the percentage equivalent of such Lender’s Revolving Loan
      Commitment. 

     

    “Consolidated
      Net Income”
means,
      for any period, the net income (or loss) of Borrower for such period determined
      on a consolidated basis in accordance with GAAP, excluding
      any
      gains or losses from Dispositions, any extraordinary gains or extraordinary
      losses and any gains or losses from discontinued operations.

     

    “Contingent
      Obligation”
means,
      as to any Person, any direct or indirect liability, contingent or otherwise,
      of
      that Person: (i) with respect to any Indebtedness, lease, dividend or other
      obligation of another Person if the primary purpose or intent of the Person
      incurring such liability, or the primary effect thereof, is to provide assurance
      to the obligee of such liability that such liability will be paid or discharged,
      or that any agreements relating thereto will be complied with, or that the
      holders of such liability will be protected (in whole or in part) against loss
      with respect thereto; (ii) with respect to any letter of credit issued for
      the
      account of that Person or as to which that Person is otherwise liable for
      reimbursement of drawings; (iii) to make take-or-pay or similar payments if
      required regardless of nonperformance by any other party or parties to an
      agreement; or (iv) for the obligations of another Person through any agreement
      to purchase, repurchase or otherwise acquire such obligation or any Property
      constituting security therefor, to provide funds for the payment or discharge
      of
      such obligation or to maintain the solvency, financial condition or any balance
      sheet item or level of income of another Person. The amount of any Contingent
      Obligation shall be equal to the amount of the obligation so guaranteed or
      otherwise supported or, if not a fixed and determined amount, the maximum amount
      so guaranteed or supported.

     

    “Contractual
      Obligations”
means,
      as to any Person, any provision of any security issued by such Person or of
      any
      agreement, undertaking, contract, indenture, mortgage, deed of trust or other
      instrument, document or agreement to which such Person is a party or by which
      it
      or any of its Property is bound.

     

    “Controlled
      Group”
means
      Borrower and all Persons (whether or not incorporated) under common control
      or
      treated as a single employer with Borrower pursuant to Section 414(b), (c),
      (m)
      or (o) of the Code or Section 4001 of ERISA.

     

    “Default”
means
      any event or circumstance which, with the giving of notice, the lapse of time,
      or both, would (if not cured or otherwise remedied during such time) constitute
      an Event of Default.

     

    “Disposition”
means
      (a) the sale, lease, conveyance or other disposition of Property, other than
      sales or other dispositions expressly permitted under subsection 5.2(a), and
      (b)
      the sale or transfer by Borrower of any equity securities issued by any
      Subsidiary of Borrower and held by such transferor Person.

     

    “Dollars”,
      “dollars”
and
      “$”
each
      mean lawful money of the United States of America.


    
      
        
        

      

      
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    “EBITDA”
means,
      for any period, Consolidated
      Net Income for such period plus, to the extent deducted in determining such
      Consolidated Net Income, Interest Expense, income tax expense, depreciation
      and
      amortization.

     

    “Eligible
      Accounts”
means,
      at any time, the Accounts of Borrower which the Agent determines in its sole
      discretion are eligible for the purposes of computing the Borrowing Base.
      Without limiting the Agent’s discretion provided herein, the Eligible Accounts
      shall not include any Account:

     

    
      	 	
              (a)

            	
              that
                does not arise from the sale, lease, or rental of Inventory or the
                performance of services by such Borrower in the ordinary course of
                its
                business;

            


    

     

    
      	 	
              (b)

            	
              (i)
                upon which such Borrower’s right to receive payment is not absolute or is
                contingent upon the fulfillment of any condition whatsoever or (ii)
                as to
                which such Borrower is not able to bring suit or otherwise enforce
                its
                remedies against the Account Debtor through judicial process or (iii)
                if
                the Account represents a progress billing consisting of an invoice
                for
                goods sold or used or services rendered pursuant to a contract under
                which
                the Account Debtor’s obligation to pay that invoice is subject to such
                Borrower’s completion of further performance under such contract or is
                subject to the equitable lien of a surety bond
                issuer;

            


    

     

    
      	 	
              (c)

            	
              in
                the event that any defense, counterclaim, setoff or dispute is asserted
                as
                to such Account;

            


    

     

    
      	 	
              (d)

            	
              that
                is not a true and correct statement of bona fide indebtedness incurred
                in
                the amount of the Account for merchandise sold to or services rendered
                and
                accepted by the applicable Account
                Debtor;

            


    

     

    
      	 	
              (e)

            	
              with
                respect to which an invoice, in a form reasonably acceptable to Agent
                in
                form and substance, has not been sent to the applicable Account
                Debtor;

            


    

     

    
      	 	
              (f)

            	
              that
                (i) is not owned by such Borrower or (ii) is subject to any right,
                claim,
                security interest or other interest of any other Person, other than
                Liens
                in favor of Agent, on behalf of itself and
                Lenders;

            


    

     

    
      	 	
              (g)

            	
              that
                arises from a sale to any director, officer, other employee or Affiliate
                of Holdings or Borrower, or to any entity that has any common officer
                or
                director with Holdings or Borrower, other than transactions permitted
                pursuant to Section 5.6 hereof;

            


    

     

    
      	 	
              (h)

            	
              that
                is the obligation of an Account Debtor that is the United States
                government or a political subdivision thereof, or any state or
                municipality or department, agency or instrumentality thereof unless
                Agent, in its sole discretion, has agreed to the contrary in writing
                and
                such Borrower, if necessary or desirable, has complied with the Federal
                Assignment of Claims Act of 1940, and any amendments thereto, or
                any
                applicable state statute or municipal ordinance of similar purpose
                and
                effect, with respect to such
                obligation;

            


    

     

    
      
        
        

      

      
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              (i)

            	
              that
                is the obligation of an Account Debtor located in a foreign country
                (other
                than Canada) unless payment thereof is assured by a letter of credit
                assigned and delivered to Agent, satisfactory to Agent as to form,
                amount
                and issuer;

            


    

     

    
      	 	
              (j)

            	
              to
                the extent Borrower or any Subsidiary thereof is liable for goods
                sold or
                services rendered by the applicable Account Debtor to Borrower or
                any
                Subsidiary thereof but only to the extent of the potential
                offset;

            


    

     

    
      	 	
              (k)

            	
              that
                arises with respect to goods that are delivered on a bill-and-hold,
                cash-on-delivery basis or placed on consignment, guaranteed sale
                or other
                terms by reason of which the payment by the Account Debtor is or
                may be
                conditional;

            


    

     

    
      	 	
              (l)

            	
              that
                is in default; provided,
                that, without limiting the generality of the foregoing, an Account
                shall
                be deemed in default upon the occurrence of any of the
                following:

            


    

     

    (i) it
      is not
      paid within the earlier of: ninety (90) days following its due date or one
      hundred and twenty (120) days following its original invoice date;

     

    (ii) if
      any
      Account Debtor obligated upon such Account suspends business, makes a general
      assignment for the benefit of creditors or fails to pay its debts generally
      as
      they come due; or

     

    (iii) if
      any
      petition is filed by or against any Account Debtor obligated upon such Account
      under any bankruptcy law or any other federal, state or foreign (including
      any
      provincial) receivership, insolvency relief or other law or laws for the relief
      of debtors;

     

    
      	 	
              (m)

            	
              that
                is the obligation of an Account Debtor if fifty percent (50%) or
                more of
                the dollar amount of all Accounts owing by that Account Debtor are
                ineligible under the other criteria set forth in herein (other than
                if
                deemed ineligible pursuant to subsection
                (a)
                above or subsection
                (o)
                below);

            


    

     

    
      	 	
              (n)

            	
              as
                to which Agent’s Lien thereon, on behalf of itself and Lenders, is not a
                first priority perfected Lien;

            


    

     

    
      	 	
              (o)

            	
              as
                to which any of the representations or warranties in the Loan Documents
                are untrue;

            


    

     

    
      	 	
              (p)

            	
              to
                the extent such Account is evidenced by a judgment, instrument or
                chattel
                paper;

            


    

     

    
      
        
        

      

      
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              (q)

            	
              to
                the extent that such Account, together with all other Accounts owing
                by
                such Account Debtor and its Affiliates as of any date of determination
                exceed fifty percent (50%) of all Eligible
                Accounts;

            


    

     

    
      	 	
              (r)

            	
              that
                is a contra account, an account established in lieu of a required
                customer
                deposit, an account in respect of a cash pay or COD customer, or
                an
                account in respect of incentive liability or territorial infringement
                liability;

            


    

     

    
      	 	
              (s)

            	
              that
                is payable in any currency other than Dollars; or
                

            


    

     

    
      	 	
              (t)

            	
              that
                is unacceptable to Agent in its reasonable and good faith credit
                judgment;
                

            


    

     

    for
      the
      avoidance of doubt, Agent may establish, modify or cancel Reserves in its sole
      discretion with respect to such Accounts and may otherwise establish, modify
      or
      amend any of eligibility criteria in its sole discretion with respect to
      Eligible Accounts. In the event that an Account which was previously an Eligible
      Account ceases to be an Eligible Account hereunder, the Borrower shall notify
      the Agent thereof on and at the time of submission to the Agent of the next
      Borrowing Base Certificate.

     

    “Eligible
      Assignee”
means
      any of: (a) a commercial bank organized under the laws of the United States,
      or
      any state thereof; (b) a commercial bank organized under the laws of any other
      country; (c) a finance company, insurance company or other financial institution
      or fund which is engaged in making, purchasing or otherwise investing in
      commercial loans for its own account in the Ordinary Course of Business; (d)
      a
      Related Fund.

     

    “Eligible
      Inventory”
means
      the Inventory of Borrower that is finished goods which the Agent determines
      in
      its sole discretion is eligible for the purposes of computing the Borrowing
      Base. Without limiting the Agent’s discretion provided herein, the Eligible
      Inventory shall not include any Inventory which:

     

    
      	 	
              (a)

            	
              is
                not owned by Borrower free and clear of all Liens and rights of any
                other
                Person (including the rights of a purchaser that has made progress
                payments and the rights of a surety that has issued a bond to assure
                such
                Borrower’s performance with respect to that Inventory), except the Liens
                in favor of Agent, on behalf of itself and Lenders, and Permitted
                Liens in
                favor of landlords and bailees to the extent permitted in this Agreement
                (subject to Reserves imposed by
                Agent);

            


    

     

    
      	 	
              (b)

            	
              is
                (i) not located on premises owned or leased by such Borrower or (ii)
                is
                stored with a bailee, warehouseman or similar Person, unless Agent
                has
                given its prior consent thereto and unless (x) a satisfactory bailee
                letter or landlord waiver has been delivered to Agent, or (y) Reserves
                satisfactory to Agent have been established with respect thereto,
                or (iii)
                located at any site if the aggregate book value of Inventory at any
                such
                location is less than $100,000; provided,
                however
                that this subsection
                (b)
                shall not apply to any Inventory of any Borrower which is located
                in the
                United States on premises not owned or leased by such Borrower while
                such
                Inventory is on rent to a customer;

            


    

     

    
      
        
        

      

      
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              (c)

            	
              is
                not raw materials, point of sale display or other sales materials
                or
                “Liquid Love” Inventory;

            


    

     

    
      	 	
              (d)

            	
              is
                placed on consignment or is in
                transit;

            


    

     

    
      	 	
              (e)

            	
              is
                covered by a negotiable document of title, unless such document has
                been
                delivered to Agent with all necessary endorsements, free and clear
                of all
                Liens except those in favor of Agent and
                Lenders;

            


    

     

    
      	 	
              (f)

            	
              in
                Agent’s good faith and reasonable credit determination, is unleasable,
                obsolete, unsalable, shopworn, seconds, damaged or unfit for
                sale;

            


    

     

    
      	 	
              (g)

            	
              consists
                of display items or packing or shipping materials, manufacturing
                supplies,
                work-in-process Inventory or replacement
                parts;

            


    

     

    
      	 	
              (h)

            	
              consists
                of goods which have been returned by the
                buyer;

            


    

     

    
      	 	
              (i)

            	
              is
                not of a type held for sale, lease or rental in the ordinary course
                of
                such Borrower’s business;

            


    

     

    
      	 	
              (j)

            	
              as
                to which Agent’s Lien, on behalf of itself and Lenders, therein is not a
                first priority perfected Lien;

            


    

     

    
      	 	
              (k)

            	
              as
                to which any of the representations or warranties pertaining to Inventory
                set forth in this Agreement or the Collateral Documents or other
                Loan
                Documents is untrue;

            


    

     

    
      	 	
              (l)

            	
              consists
                of any costs associated with “freight-in”
                charges;

            


    

     

    
      	 	
              (m)

            	
              consists
                of Hazardous Materials or goods that can be transported or sold only
                with
                licenses that are not readily available;


            


    

     

    
      	 	
              (n)

            	
              is
                not covered by casualty insurance acceptable to Agent;
                

            


    

     

    
      	 	
              (o)

            	
              is
                located outside the United States;
                or

            


    

     

    
      	 	
              (p)

            	
              
                is
                  otherwise unacceptable to Agent in its reasonable and good faith
                  credit
                  judgment;

              

            


    

     

    for
      the
      avoidance of doubt, Agent may establish, modify or cancel Reserves in its sole
      discretion with respect to such Inventory and may otherwise establish, modify
      or
      amend any of eligibility criteria in its sole discretion with respect to
      Eligible Inventory.

     

    
      
        
        

      

      
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    “Environmental
      Claims”
means
      all claims, however asserted, by any Governmental Authority or other Person
      alleging potential liability or responsibility for violation of any
      Environmental Law, or for release or injury to the environment or threat to
      public health, personal injury (including sickness, disease or death), property
      damage, natural resources damage, or otherwise alleging liability or
      responsibility for damages (punitive or otherwise), cleanup, removal, remedial
      or response costs, restitution, civil or criminal penalties, injunctive relief,
      or other type of relief, resulting from or based upon the presence, placement,
      discharge, emission or release (including intentional and unintentional,
      negligent and non-negligent, sudden or non-sudden, accidental or non-accidental,
      placement, spills, leaks, discharges, emissions or releases) of any Hazardous
      Material at, in, or from Property, whether or not owned by
      Borrower.

     

    “Environmental
      Laws”
means
      all foreign, federal, state or local laws, statutes, common law duties, rules,
      regulations, ordinances and codes, together with all administrative orders,
      directed duties, requests, licenses, authorizations and permits of, and
      agreements with, any Governmental Authorities, in each case relating to
      environmental, health, safety and land use matters; including, without
      limitation, the Comprehensive Environmental Response, Compensation and Liability
      Act of 1980, the Clean Air Act, the Federal Water Pollution Control Act of
      1972,
      the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
      Act, the Toxic Substances Control Act, the Emergency Planning and Community
      Right-to-Know Act.

     

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

     

    “ERISA
      Affiliate”
means
      any trade or business (whether or not incorporated) under common control with
      Borrower within the meaning of Section 414(b), 414(c), 414(m) or 414(o) of
      the Code or Section 4001 of ERISA.

     

    “ERISA
      Event”
means
      (a) a Reportable Event with respect to a Qualified Plan or a Multiemployer
      Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Qualified
      Plan subject to Section 4063 of ERISA during a plan year in which it was a
      substantial employer (as defined in Section 4001(a)(2) of ERISA); (c) a
      complete or partial withdrawal by Borrower or any ERISA Affiliate from a
      Multiemployer Plan; (d) the filing of a notice of intent to terminate, the
      treatment of a plan amendment as a termination under Section 4041 or 4041A
      of
      ERISA or the commencement of proceedings by the PBGC to terminate a Qualified
      Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a failure by
      Borrower or any member of the Controlled Group to make required contributions
      to
      a Qualified Plan or Multiemployer Plan; (f) an event or condition which
      might reasonably be expected to constitute grounds under Section 4042 of ERISA
      for the termination of, or the appointment of a trustee to administer, any
      Qualified Plan or Multiemployer Plan; (g) the imposition of any liability under
      Title IV of ERISA, other than PBGC premiums due but not delinquent under Section
      4007 of ERISA, upon Borrower or any ERISA Affiliate; (h) an application for
      a
      funding waiver or an extension of any amortization period pursuant to Section
      412 of the Code with respect to any Plan; (i) a non-exempt prohibited
      transaction occurs with respect to any Plan for which Borrower may be directly
      or indirectly liable; or (j) a violation of the applicable requirements of
      Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a)
      of the Code by any fiduciary or disqualified person with respect to any Plan
      for
      which Borrower or any member of the Controlled Group may be directly or
      indirectly liable.


    
      
        
        

      

      
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    “Event
      of Loss”
means,
      with respect to any Property, any of the following: (a) any loss,
      destruction or damage of such Property; (b) any pending or threatened
      institution of any proceedings for the condemnation or seizure of such Property
      or for the exercise of any right of eminent domain; or (c) any
      actual condemnation, seizure or taking, by exercise of the power of eminent
      domain or otherwise, of such Property, or confiscation of such Property or
      the
      requisition of the use of such Property.

     

    “Federal
      Funds Rate”
means,
      for any day, the rate per annum (rounded upward to the nearest 1/100th of 1%)
      equal to the weighted average of the rates on overnight Federal Funds
      transactions with members of the Federal Reserve System arranged by Federal
      Funds brokers on such day, as published by the Federal Reserve Bank of New
      York
      on the Business Day next succeeding such day, provided that if no such rate
      is
      so published on such next succeeding Business Day, the Federal Funds Rate for
      such day shall be the average rate quoted to Agent on such day on such
      transactions as determined by Agent in a commercially reasonable
      manner.

     

    “Federal
      Reserve Board”
means
      the Board of Governors of the Federal Reserve System, or any entity succeeding
      to any of its principal functions.

     

    “Fixed
      Charge Coverage Ratio”
      means,
      as of
      any date of determination, the ratio of (a) EBITDA plus proceeds of any equity
      issuances minus Change in Working Capital, in each case, for the six calendar
      months most recently ended as of such date of determination to (b) the sum
      for
      such period of (i) Interest Expense plus (ii) required payments of principal
      of
      Indebtedness (excluding the Revolving Loans) plus (iii) dividends or other
      payments made by Borrower in respect of any preferred stock plus (iv) Capital
      Expenditures plus (v) taxes (including any estimated taxes) paid in cash by
      Borrower.

     

    “GAAP”
means
      generally accepted accounting principles set forth from time to time in the
      opinions and pronouncements of the Accounting Principles Board and the American
      Institute of Certified Public Accountants and statements and pronouncements
      of
      the Financial Accounting Standards Board (or agencies with similar functions
      of
      comparable stature and authority within the accounting profession), which are
      applicable to the circumstances as of the date of determination.

     

    “Governmental
      Authority”
means
      any nation or government, any state or other political subdivision thereof,
      any
      central bank (or similar monetary or regulatory authority) thereof, any entity
      exercising executive, legislative, judicial, regulatory or administrative
      functions of or pertaining to government, and any corporation or other entity
      owned or controlled, through stock or capital ownership or otherwise, by any
      of
      the foregoing.

     

    “Guarantees”
mean,
      collectively the individual Guarantee executed by each Guarantor in favor of
      Lenders, in form satisfactory to Lenders.

     

    “Guarantor”
means
      each subsidiary of Borrower that executes a guarantee or other similar agreement
      in favor of Lenders.

     

    “Hazardous
      Materials”
means
      all those substances which are regulated by, or which may form the basis of
      liability under, any Environmental Law.


    
      
        
        

      

      
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    “Indebtedness”
of
      any
      Person means, without duplication: (a) all indebtedness for borrowed money;
      (b)
      all obligations issued, undertaken or assumed as the deferred purchase price
      of
      Property or services (other than trade payables entered into in the Ordinary
      Course of Business); (c) the face amount of all letters of credit issued for
      the
      account of such Person and without duplication, all drafts drawn thereunder
      and
      all reimbursement or payment obligations with respect to letters of credit,
      surety bonds and other similar instruments issued by such Person; (d) all
      obligations evidenced by notes, bonds, debentures or similar instruments,
      including obligations so evidenced incurred in connection with the acquisition
      of Property, assets or businesses; (e) all indebtedness created or arising
      under
      any conditional sale or other title retention agreement, or incurred as
      financing, in either case with respect to Property acquired by the Person (even
      though the rights and remedies of the seller or bank under such agreement in
      the
      event of default are limited to repossession or sale of such Property); (f)
      all
      Capital Lease Obligations; (g) the principal balance outstanding under any
      synthetic lease, off-balance sheet loan or similar off balance sheet financing
      products; (h) all indebtedness referred to in clauses (a) through (g) above
      secured by (or for which the holder of such Indebtedness has an existing right,
      contingent or otherwise, to be secured by) any Lien upon or in Property
      (including accounts and contracts rights) owned by such Person, even though
      such
      Person has not assumed or become liable for the payment of such indebtedness;
      and (i) all Contingent Obligations described in clause (i) of the definition
      thereof in respect of indebtedness or obligations of others of the kinds
      referred to in clauses (a) through (h) above.

     

    “Ineligible
      Account”
means
      any Account which is not an Eligible Account.

     

    “Ineligible
      Inventory”
means
      any Inventory which does not constitute Eligible Inventory.

     

    “Insolvency
      Proceeding”
means
      (a) any case, action or proceeding before any court or other Governmental
      Authority relating to bankruptcy, reorganization, insolvency, liquidation,
      receivership, dissolution, winding-up or relief of debtors, or (b) any general
      assignment for the benefit of creditors, composition, marshaling of assets
      for
      creditors, or other, similar arrangement in respect of its creditors generally
      or any substantial portion of its creditors; in each case in (a) and (b) above,
      undertaken under U.S. federal, state or foreign law, including the Bankruptcy
      Code.

     

    “Interest
      Expense”
means,
      for any period, the consolidated interest expense of Borrower for such period
      (including all imputed interest on Capital Lease Obligations but excluding
      all
      interest paid in kind) as determined in accordance with GAAP.

     

    “Interest
      Payment Date”
means,
      (a) with respect to any LIBOR Rate Loan (other than a LIBOR Rate Loan having
      an
      Interest Period of six (6) months) the last day of each Interest Period
      applicable to such Loan, (b) with respect to any LIBOR Rate Loan having an
      Interest Period of six (6) months, the last day of each three (3) month interval
      and, without duplication, the last day of each Interest Period, and (c) with
      respect to Base Rate Loans, the twenty-fifth day of each calendar
      month.

     

    “Interest
      Period”
means,
      with respect to any LIBOR Rate Loan, the period commencing on the Business
      Day
      such Loan is disbursed or continued or on the Conversion Date on which a Base
      Rate Loan is converted to the LIBOR Rate Loan and ending on the date one, two,
      three or six months thereafter, as selected by Borrower in its Notice of
      Borrowing or Notice of Continuation/Conversion; provided
      that:


    
      
        
        

      

      
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    (b) if
      any
      Interest Period pertaining to a LIBOR Rate Loan would otherwise end on a day
      which is not a Business Day, that Interest Period shall be extended to the
      next
      succeeding Business Day unless the result of such extension would be to carry
      such Interest Period into another calendar month, in which event such Interest
      Period shall end on the immediately preceding Business Day;

     

    (c) any
      Interest Period pertaining to a LIBOR Rate Loan that begins on the last Business
      Day of a calendar month (or on a day for which there is no numerically
      corresponding day in the calendar month at the end of such Interest Period)
      shall end on the last Business Day of the calendar month at the end of such
      Interest Period; and

     

    (d) no
      Interest Period for any Revolving Loan shall extend beyond the Revolving
      Termination Date.

     

    “Inventory”
means
      all of the “inventory” (as such term is defined in the UCC) of Borrower,
      including, but not limited to, all merchandise, raw materials, parts, supplies,
      work-in-process and finished goods intended for sale, together with all the
      containers, packing, packaging, shipping and similar materials related thereto,
      and including such inventory as is temporarily out of Borrower’s custody or
      possession, including inventory on the premises of others and items in
      transit.

     

    “Key
      Person”
means
      the Chief Executive Officer of Borrower.

     

    “Lending
      Office”
means,
      with respect to any lender, the office or offices of such Lender specified
      as
      its “Lending Office” opposite its name on the applicable signature page hereto,
      or such other office or offices of such Lender as it may from time to time
      notify Borrower and Agent.

     

    “LIBOR”
means,
      for each Interest Period, the offered rate per annum for deposits of Dollars
      for
      the applicable Interest Period that appears on Telerate Page 3750 as of 11:00
      A.M. (London, England time) two (2) Business Days prior to the first day in
      such
      Interest Period. If no such offered rate exists, such rate will be the rate
      of
      interest per annum, as determined by Agent (rounded upwards, if necessary,
      to
      the nearest 1/16 of 1%) at which deposits of Dollars in immediately available
      funds are offered at 11:00 A.M. (London, England time) two (2) Business Days
      prior to the first day in such Interest Period by major financial institutions
      reasonably satisfactory to Agent in the London interbank market for such
      Interest Period for the applicable principal amount on such date of
      determination.

     

    “LIBOR
      Rate Loan”
means
      a
      Loan that bears interest based on LIBOR.

     

    “Lien”
means
      any mortgage, deed of trust, pledge, hypothecation, assignment, charge or
      deposit arrangement, encumbrance, lien (statutory or otherwise) or preference,
      priority or other security interest or preferential arrangement of any kind
      or
      nature whatsoever (including those created by, arising under or evidenced by
      any
      conditional sale or other title retention agreement, the interest of a lessor
      under a Capital Lease, any financing lease having substantially the same
      economic effect as any of the foregoing, or the filing of any financing
      statement naming the owner of the asset to which such lien relates as debtor,
      under the UCC or any comparable law) and any contingent or other agreement
      to
      provide any of the foregoing, but not including the interest of a lessor under
      a
      lease which is not a Capital Lease.


    
      
        
        

      

      
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    “Liquidity”
means,
      as of any date of determination, the amount equal to the sum of Unused Borrowing
      Availability and all cash and Cash Equivalents of Borrower, each as of such
      date. 

     

    “Loan”
means
      an extension of credit by a Lender to Borrower pursuant to Article I hereof,
      and
      may be a Base Rate Loan or a LIBOR Rate Loan.

     

    “Loan
      Documents”
means
      this Agreement, the Notes, the Collateral Documents and all documents delivered
      to Agent and/or any Lender in connection with any of the foregoing.

     

    “Margin
      Stock”
means
      “margin stock” as such term is defined in Regulation T, U or X of the Federal
      Reserve Board.

     

    “Material
      Adverse Effect”
means
      (a) a material adverse change in, or a material adverse effect upon, the
      operations, business, Properties, condition (financial or otherwise) or
      prospects of Borrower; (b) a material impairment of the ability of Borrower
      or any other Person (other than Agent or Lenders) to perform in any material
      respect its obligations under any Loan Document; or (c) a material adverse
      effect upon (i) the legality, validity, binding effect or enforceability of
      any
      Loan Document, or (ii) the perfection or priority of any Lien granted to the
      Lenders or to Agent for the benefit of the Lenders under any of the Collateral
      Documents.

     

    “Mortgage”
means
      any deed of trust, leasehold deed of trust, mortgage, leasehold mortgage, deed
      to secure debt, leasehold deed to secure debt or other document creating a
      Lien
      on real Property or any interest in real Property.

     

    “Multiemployer
      Plan”
means
      a
“multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA) and to
      which Borrower or any member of the Controlled Group may have any
      liability.

     

    “Net
      Issuance Proceeds”
means,
      in respect of any issuance of debt or equity, cash proceeds and Cash Equivalents
      received or receivable in connection therewith, net of underwriting discounts
      and reasonable out-of-pocket costs and expenses paid or incurred in connection
      therewith in favor of any Person not an Affiliate of Borrower.

     

    “Net
      Proceeds”
means
      proceeds in cash, checks or other cash equivalent financial instruments
      (including Cash Equivalents) as and when received by the Person making a
      Disposition and insurance proceeds received on account of an Event of Loss,
      net
      of: (a) in
      the
      event of a Disposition (i) the direct costs relating to such Disposition
      excluding amounts payable to Borrower
      or any
      Affiliate of Borrower, (ii)
      sale, use or other transaction taxes paid or payable as a result thereof, and
      (iii) amounts required to be applied to repay principal, interest and prepayment
      premiums and penalties on Indebtedness secured by a Lien on the asset which
      is
      the subject of such Disposition and (b) in the event of an Event of Loss, (i)
      all money actually applied to repair or reconstruct the damaged Property or
      Property affected by the condemnation or taking, (ii) all of the costs and
      expenses reasonably incurred in connection with the collection of such proceeds,
      award or other payments, and (iii) any amounts retained by or paid to
      parties having superior rights to such proceeds, awards or other
      payments.


    
      
        
        

      

      
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    “Note”
means
      any Amended and Restated Revolving Note other Revolving Note, issued pursuant
      to
      this agreement, and “Notes” means all such Notes.

     

    “Notice
      of Borrowing”
means
      a
      notice given by Borrower to Agent pursuant to Section 1.5, in substantially
      the
      form of Exhibit
      11.1(b)
      hereto.

     

    “Notice
      of Continuation/Conversion”
means
      a
      notice given by Borrower to Agent pursuant to Section 1.6, in substantially
      the
      form of Exhibit
      11.1(c)
      hereto.

     

    “Obligations”
means
      all Loans (including any Loans outstanding under the Existing Revolving Credit
      Facility), and other Indebtedness, advances, debts, liabilities, obligations,
      covenants and duties owing by Borrower to any Lender, Agent or any other Person
      required to be indemnified, that arises under any Loan Document, whether or
      not
      for the payment of money, whether arising by reason of an extension of credit,
      loan, guaranty, indemnification or in any other manner, whether direct or
      indirect (including those acquired by assignment), absolute or contingent,
      due
      or to become due, now existing or hereafter arising and however
      acquired.

     

    “Ordinary
      Course of Business”
means,
      in respect of any transaction involving Borrower, the ordinary course of such
      Person’s business, as conducted by any such Person in accordance with past
      practice and undertaken by such Person in good faith and not for purposes of
      evading any covenant or restriction in any Loan Document.

     

    “Organization
      Documents”
means,
      (a) for any corporation, the certificate or articles of incorporation, the
      bylaws, any certificate of determination or instrument relating to the rights
      of
      preferred shareholders of such corporation, any shareholder rights agreement,
      and all applicable resolutions of the board of directors (or any committee
      thereof) of such corporation, (b) for any partnership, the partnership agreement
      and, if applicable, certificate of limited partnership or (c) for any limited
      liability company, the operating agreement and articles or certificate of
      formation.

     

    “Patriot
      Act”
means
      the Uniting and Strengthening America by Providing Appropriate Tools Required
      to
      Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56, as
      amended.

     

    “PBGC”
means
      the Pension Benefit Guaranty Corporation or any entity succeeding to any of
      its
      principal functions under ERISA.

     

    “Person”
means
      an individual, partnership, corporation, limited liability company, business
      trust, joint stock company, trust, unincorporated association, joint venture
      or
      Governmental Authority.

     

    “Plan”
means
      an employee benefit plan (as defined in Section 3(3) of ERISA) which Borrower
      or
      any member of the Controlled Group sponsors or maintains or to which Borrower
      or
      any member of the Controlled Group may have liability.


    
      
        
        

      

      
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    “Prior
      Indebtedness”
means
      the Indebtedness and obligations specified on Schedule
      11.1
      hereto.

     

    “Property”
means
      any interest in any kind of property or asset, whether real, personal or mixed,
      and whether tangible or intangible.

     

    “Purchase
      Agreement”
means
      that certain Amended and Restated Agreement, dated July 5, 2006, among BK
      Beverages, LLC, Borrower and the shareholders of Borrower signatory thereto.
      

     

    “Qualified
      Plan”
means
      a
      pension plan (as defined in Section 3(2) of ERISA) intended to be tax-qualified
      under Section 401(a) of the Code and which any member of the Controlled Group
      sponsors, maintains, or to which it makes, is making or is obligated to make
      contributions, or in the case of a multiple employer plan (as described in
      Section 4064(a) of ERISA) has made contributions at any time during the
      immediately preceding period covering at least five (5) plan years, but
      excluding any Multiemployer Plan.

     

    “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 Lender, (iii) the same investment advisor that manages a Lender
      or
      (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.

     

    “Reportable
      Event”
means,
      as to any Plan, (a) any of the events set forth in Section 4043(b) of ERISA
      or
      the regulations thereunder, other than any such event for which the thirty
      (30)
      day notice requirement under ERISA has been waived in regulations issued by
      the
      PBGC, (b) a withdrawal from a Plan described in Section 4063 of ERISA, or (c)
      a
      cessation of operations described in Section 4062(e) of ERISA.

     

    “Required
      Lenders”
means
      at any time (a) Lenders then holding at least sixty six and two-thirds percent
      (66-2/3%) of the sum of the Aggregate Revolving Loan Commitment then in effect,
      or (b) if the Revolving Loan Commitments have been terminated, Lenders then
      having at least sixty six and two-thirds percent (66-2/3%) of the sum of the
      aggregate unpaid principal amount of Loans then outstanding plus outstanding
      Letter of Credit Participation Liability.

     

    “Requirement
      of Law”
means,
      as to any Person, any law (statutory or common), ordinance, treaty, rule,
      regulation, order, policy, other legal requirement or determination of an
      arbitrator or of a Governmental Authority, in each case applicable to or binding
      upon such Person or any of its Property or to which such Person or any of its
      Property is subject.

     

    “Responsible
      Officer”
means
      the chief executive officer or the president of Borrower, or any other officer
      having substantially the same authority and responsibility; or, with respect
      to
      compliance with financial covenants or delivery of financial information, the
      chief financial officer or the treasurer of Borrower, or any other officer
      having substantially the same authority and responsibility.


    
      
        
        

      

      
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    “Reserves”
means
      any and all reserves which the Agent deems necessary, in its sole discretion,
      to
      maintain (including, without limitation, reserves for accrued and unpaid
      interest on the Obligations, reserves for rent at locations leased by Borrower
      for which a landlord waiver acceptable to Agent in its sole discretion is not
      in
      effect and for consignee’s, warehousemen’s and bailee’s charges, reserves for
      contingent liabilities of Borrower, reserves for uninsured losses of Borrower
      and reserves for taxes, fees, assessments, and other governmental charges)
      with
      respect to the Collateral or Borrower.

     

    “Revenue”
means,
      for any period, the total gross beverage revenue of Borrower plus any additional
      revenue received by Borrower in the ordinary course of it business, in each
      case
      for such period.

     

    “Revolving
      Note”
means
      a
      promissory note of Borrower payable to the order of a Lender in substantially
      the form of Exhibit
      11.1(d)
      hereto,
      evidencing Indebtedness of Borrower under the Revolving Loan Commitment of
      Lender.

     

    “Revolving
      Termination Date”
means
      the earlier to occur of: (a) July 5, 2009; and (b) the date on which
      the Aggregate Revolving Loan Commitment shall terminate in accordance with
      the
      provisions of this Agreement.

     

    “Shares”
means
      ___ shares of the Common Stock of Borrower to be issued to ORIX Finance Corp.
      on
      the Closing Date. 

     

    “Solvent”
means,
      as to any Person at any time, that (a) the fair value of the Property of such
      Person is greater than the amount of such Person’s liabilities (including
      disputed, contingent and unliquidated liabilities) as such value is established
      and liabilities evaluated for purposes of Section 101(32)(A) of the Bankruptcy
      Code and, in the alternative, for purposes of the Uniform Fraudulent Transfer
      Act; (b) the present fair saleable value of the Property of such Person is
      not
      less than the amount that will be required to pay the probable liability of
      such
      Person on its debts as they become absolute and matured; (c) such Person is
      able
      to realize upon its Property and pay its debts and other liabilities (including
      disputed, contingent and unliquidated liabilities) as they mature in the normal
      course of business; (d) such Person does not intend to, and does not believe
      that it will, incur debts or liabilities beyond such Person’s ability to pay as
      such debts and liabilities mature; and (e) such Person is not engaged in
      business or a transaction, and is not about to engage in business or a
      transaction, for which such Person’s property would constitute unreasonably
      small capital.

     

    “Subordinated
      Indebtedness”
means
      unsecured Indebtedness of Borrower which has subordination terms, covenants,
      pricing and other terms which have been approved in writing by Required
      Lenders.

     

    “Subsidiary”
of
      a
      Person means any corporation, association, limited liability company,
      partnership, joint venture or other business entity of which more than fifty
      percent (50%) of the voting stock or other equity interests (in the case of
      Persons other than corporations), is owned or controlled directly or indirectly
      by the Person, or one or more of the Subsidiaries of the Person, or a
      combination thereof.


    
      
        
        

      

      
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    “Termination
      Fee”
means,
      if Borrower has notified Agent that it is terminating the Revolving facility
      prior to the Revolving Termination Date (a) from the Closing Date till July
      5, 2007, an amount equal to three percent (3%) of the Revolving Loan Commitment
      as of the Closing Date, (b) from July 5, 2007 till July 5, 2008, an amount
      equal to two percent (2%) of the Revolving Loan Commitment as of the Closing
      Date, or (c) all times after July 5, 2008, an amount equal to one percent (1%)
      of the Revolving Loan Commitment as of the Closing Date; provided,
      however,
      that
      Borrower shall not be required to pay any Termination Fee in connection with
      a
      refinancing of the Obligations by another financial institution if, following
      (A) modification by the Agent or Lenders of the Borrowing Base in any manner,
      including without limitation (i) the implementation by the Lenders of Reserves;
      (ii) modifications by the Lenders to the eligibility criteria set forth in
      the
      definitions of “Eligible Inventory” and “Eligible Receivables” in effect on of
      the Closing Date, or (iii) modifications by the Lenders to the advance rates
      in
      effect on of the Closing Date and set forth in the Borrowing Base Certificate
      attached hereto as Exhibit
      11.1(a),
      (B)
      Agent’s refusal to approve a subsequent transaction pursuant to which Borrower
      or its successors would engage in a public offering pursuant to the Securities
      Exchange Act of 1933, as amended, or become public reporting companies under
      the
      Securities Exchange Act of 1934, as amended or (C) imposition of reserve charges
      pursuant to Section 10.6, Borrower provides Agent with prior written notice
      of
      Borrower’s intent to refinance the Obligations within thirty (30) days of any
      event in (A), (B) or (C) and Borrower consummates such refinancing with
      one-hundred and twenty (120) days of such event.

     

    “UCC”
means
      the Uniform Commercial Code as in effect from time to time in the State of
      New
      York.

     

    “Unfunded
      Pension Liabilities”
means
      the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA,
      over the current value of that Plan’s assets, determined in accordance with the
      assumptions used by the Plan’s actuaries for funding the Plan pursuant to
      section 412 for the applicable plan year.

     

    “United
      States”
and
      “U.S.”
each
      means the United States of America.

     

    “Wholly-Owned
      Subsidiary”
means
      any Subsidiary in which (other than directors’ qualifying shares required by
      law) one hundred percent (100%) of the equity securities, at the time as of
      which any determination is being made, is owned, beneficially and of record,
      by
      Borrower, or by one or more of the other Wholly-Owned Subsidiaries, or
      both.

     

    “Withdrawal
      Liabilities”
means,
      as of any determination date, the aggregate amount of the liabilities, if any,
      pursuant to Section 4201 of ERISA if the Controlled Group made a complete
      withdrawal from all Multiemployer Plans and any increase in contributions
      pursuant to Section 4243 of ERISA.

     

    “Working
      Capital”
means,
      as of any date of determination, Accounts of Borrower plus Inventory of Borrower
      minus all accounts payable of Borrower as of such date. 

     

    11.2. Other
      Interpretive Provisions.

     

    (a) Defined
      Terms.
      Unless
      otherwise specified herein or therein, all terms defined in this Agreement
      shall
      have the defined meanings when used in any certificate or other document made
      or
      delivered pursuant hereto. The meanings of defined terms shall be equally
      applicable to the singular and plural forms of the defined terms. Terms
      (including uncapitalized terms) not otherwise defined herein and that are
      defined in the UCC shall have the meanings therein described.

     

    
      
        
        

      

      
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    (b) The
      Agreement.
      The
      words “hereof”, “herein”, “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 subsection, section, schedule and
      exhibit references are to this Agreement unless otherwise specified. All
      references herein to schedules shall mean such schedules as updated from time
      to
      time by written notice from Borrower to Lender.

     

    (c) Certain
      Common Terms.
      The
      term “documents” includes any and all instruments, documents, agreements,
      certificates, indentures, notices and other writings, however evidenced. The
      term “including” is not limiting and means “including without
      limitation.”

     

    (d) Performance;
      Time.
      Whenever any performance obligation hereunder (other than a payment obligation)
      shall be stated to be due or required to be satisfied on a day other than a
      Business Day, such performance shall be made or satisfied on the next succeeding
      Business Day. In the computation of periods of time from a specified date to
      a
      later specified date, the word “from” means “from and including”; the words “to”
and “until” each mean “to but excluding”, and the word “through” means “to and
      including.” If any provision of this Agreement refers to any action taken or to
      be taken by any Person, or which such Person is prohibited from taking, such
      provision shall be interpreted to encompass any and all means, direct or
      indirect, of taking, or not taking, such action.

     

    (e) Contracts.
      Unless
      otherwise expressly provided herein, references to agreements and other
      contractual instruments, including this Agreement and the other Loan Documents,
      shall be deemed to include all subsequent amendments, thereto, restatements
      and
      substitutions, thereof and other modifications and supplements thereto which
      are
      in effect from time to time, but only to the extent such amendments and other
      modifications are not prohibited by the terms of any Loan Document.

     

    (f) Laws.
      References to any statute or regulation are to be construed as including all
      statutory and regulatory provisions consolidating, amending, replacing,
      supplementing or interpreting the statute or regulation.

     

    11.3. Accounting
      Principles.

     

    (a)  Unless
      the context otherwise clearly requires, all accounting terms not expressly
      defined herein shall be construed, and all financial computations required
      under
      this Agreement shall be made, in accordance with GAAP, consistently
      applied.

     

    (b) References
      herein to “fiscal year”, “fiscal quarter” and “fiscal month” refer to such
      fiscal periods of Borrower.


    
      
        
        

      

      
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    (c) If
      any
      change in GAAP results in a change in the calculation of the financial covenants
      or interpretation of related provisions of this Agreement or any other Loan
      Document, then Borrower, Agent and the Lenders agree to amend such provisions
      of
      this Agreement so as to equitably reflect such changes in GAAP with the desired
      result that the criteria for evaluating Borrower’s financial condition shall be
      the same after such change in GAAP as if such change had not been made; provided
      that, notwithstanding any other provision of this Agreement, the Required
      Lenders’ agreement to any amendment of such provisions shall be sufficient to
      bind all Lenders; and, provided further, until such time as the financial
      covenants and the related provisions of this Agreement have been amended in
      accordance with the terms of this subsection 11.3(c), the calculations of
      financial covenants and the interpretation of any related provisions shall
      be
      calculated and interpreted in accordance with GAAP as in effect immediately
      prior to such change in GAAP.

     

    11.4. Amendment
      and Restatement.

     

    This
      Agreement is given in amendment, restatement, renewal and extension (but not
      in
      novation, extinguishment or satisfaction) of the Existing Credit Agreement.
      All
      liens and security interests securing payment of the obligations under the
      Existing Credit Agreement are hereby collectively renewed, extended, ratified
      and brought forward as security for the payment and performance of the
      Obligations. With respect to matters relating to the period prior to the date
      hereof, all of the provisions of the Existing Credit Agreement, and the security
      agreements and other documents, instruments or agreements executed in connection
      therewith, are each hereby ratified and confirmed and shall remain in force
      and
      effect. Agent and Lenders hereby waive any and all Defaults or Events of Default
      that may have occurred prior to the date hereof (but are not continuing as
      of
      the date hereof) under the Existing Credit Agreement. 

     

    [Balance
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      follows.]


    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed and
      delivered by its duly authorized officer as of the day and year first above
      written.

    


    
      	
              BOO
                KOO BEVERAGES, INC., 

            
	
              a
                Texas corporation

            
	 	 
	
              By:

            	
              /s/
                Victor J. Schmerbeck 

            
	Name: 	
               Victor
                J. Schmerbeck 

            
	Title: 	
               Vice
                President 

            
	
               

            
	
              Address
                for notices:

            
	 
	
              4951
                Airport Parkway, #660

            
	
              Addison,
                TX  75001

            
	
              Attn:
                  Chief Executive Officer

            
	
              Facsimile:
                

            	 
	 	 
	
              with
                copies to:

            
	 
	
              Glast,
                Phillips & Murray, P.C.

            
	
              2200
                One Galleria Tower

            
	
              13355
                Noel Road

            
	
              Dallas,
                TX  75240

            
	
              Attn: 
                Stanton P. Eigenbrodt

            
	Facsimile: 	
              (972)
                419-8329

            
	 	  
	
              Address
                for Wire Transfers:

            
	 
	 
	 
	 


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

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

     

    
      	
              ORIX
                VENTURE FINANCE LLC,

            
	
              as
                Agent

            
	 
	
              By:

            	
              /s/
                Christopher L. Smith

            
	
              Name:

            	
              Christopher
                L. Smith

            
	
              Title:
                

            	
              Authorized
                Representative

            
	 	 
	
              Address
                for notices:

            
	 
	
              ORIX
                USA Corporation

            
	
              245
                Park Avenue, 19th Floor

            
	
              New
                York, NY 10167

            
	
              Attn:
                SPG –
                Bob O’Donnell, Director

            
	
              Fax:  

            	 
	E-Mail:
              rodonnell@orix.com
	 
	
              ORIX
                Finance Corp.

            
	
              1717
                Main Street, Suite 900

            
	
              Dallas,
                Texas 75201

            
	
              Attention:
                

            	
              Robert
                Stobo, Director

            
	
              Fax:
                

            	
              (214)
                237-2347

            
	
              E-Mail:
                robert.stobo@orix.com

            
	 	 
	
              ORIX
                Finance Corp. 

            
	
              1717
                Main Street, Suite 900

            
	
              Dallas,
                Texas 75201

            
	
              Attention:
                Ann Erickson, Operations Manager

            
	
              Fax:     (214)
                237-2352

            
	
              E-Mail:
                ann.erickson@orix.com

            


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

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              Address
                for payments:

            
	 
	
              Deutsche
                Bank

            
	
              New
                York, New York

            
	
              ABA#:
                021 001 033

            
	
              BNF
                Name: OFC1 - Loan Receipts CFG

            
	
              A/C#:
                00399728

            
	
              REF:
                Love Factor/Boo Koo

            
	
              Please
                advise CFG Operations Manager at 

            
	
              (214)
                237-2366 (Backup: (214) 237-2102)) upon receipt

            
	 
	
              ORIX
                FINANCE CORP.,

            
	
              as
                Lender

            
	 	 
	
              By:

            	
              /s/
                Christopher L. Smith

            
	
              Name:

            	
              Christopher
                L. Smith

            
	
              Title:
                

            	
              Authorized
                Representative

            


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

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