exv10w2



 





EXHIBIT 10.2




EXECUTION COPY



 


 

 






AMENDED AND RESTATED

CREDIT AGREEMENT




Dated as of October 27, 2005




between




HERITAGE-CRYSTAL CLEAN, LLC,




as Borrower,




and




BANK OF AMERICA, N.A.,



as Lender



 

 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I.
	 	 	 	 
	DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	16	 
	1.03 Accounting Terms
	 	 	16	 
	1.04 Rounding
	 	 	17	 
	1.05 Times of Day
	 	 	17	 
	1.06 Letter of Credit Amounts
	 	 	17	 
	 
	 	 	 	 
	ARTICLE II.
	 	 	 	 
	THE COMMITMENT AND CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 
	2.01 Loans
	 	 	17	 
	2.02 Loan Borrowings, Conversions and Continuations of Loans
	 	 	18	 
	2.03 Letters of Credit
	 	 	19	 
	2.04 Prepayments
	 	 	24	 
	2.05 Termination or Reduction of Commitment
	 	 	25	 
	2.06 Repayment of Loans
	 	 	25	 
	2.07 Interest
	 	 	25	 
	2.08 Fees
	 	 	26	 
	2.09 Computation of Interest and Fees
	 	 	26	 
	2.10 Evidence of Debt
	 	 	26	 
	2.11 Payments Generally
	 	 	27	 
	 
	 	 	 	 
	ARTICLE III.
	 	 	 	 
	TAXES
	 	 	 	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	27	 
	3.02 Illegality
	 	 	28	 
	3.03 Inability to Determine Rates
	 	 	29	 
	3.04 Compensation for Losses
	 	 	29	 
	3.05 Mitigation Obligations
	 	 	29	 
	3.06 Survival
	 	 	30	 
	 
	 	 	 	 
	ARTICLE IV.
	 	 	 	 
	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	30	 
	4.02 Conditions to all Credit Extensions
	 	 	31	 






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	 	 	Page	 
	ARTICLE V.
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	31	 
	5.02 Authorization; No Contravention
	 	 	32	 
	5.03 Governmental Authorization; Other Consents
	 	 	32	 
	5.04 Binding Effect
	 	 	32	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	32	 
	5.06 Litigation
	 	 	33	 
	5.07 No Default
	 	 	33	 
	5.08 Ownership of Property; Liens
	 	 	33	 
	5.09 Environmental Compliance
	 	 	33	 
	5.10 Insurance
	 	 	33	 
	5.11 Taxes
	 	 	34	 
	5.12 ERISA Compliance
	 	 	34	 
	5.13 Subsidiaries
	 	 	34	 
	5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act
	 	 	34	 
	5.15 Disclosure
	 	 	35	 
	5.16 Compliance with Laws
	 	 	35	 
	5.17 Intellectual Property; Licenses, Etc
	 	 	35	 
	5.18 Rights in Collateral; Priority of Liens
	 	 	35	 
	 
	 	 	 	 
	ARTICLE VI.
	 	 	 	 
	AFFIRMATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	36	 
	6.02 Certificates; Other Information
	 	 	37	 
	6.03 Notices
	 	 	37	 
	6.04 Payment of Obligations
	 	 	38	 
	6.05 Preservation of Existence, Etc
	 	 	38	 
	6.06 Maintenance of Properties
	 	 	38	 
	6.07 Maintenance of Insurance
	 	 	38	 
	6.08 Compliance with Laws
	 	 	39	 
	6.09 Books and Records
	 	 	39	 
	6.10 Inspection Rights
	 	 	39	 
	6.11 Use of Proceeds
	 	 	39	 
	6.12 Financial Covenants
	 	 	39	 
	6.13 Guarantors
	 	 	41	 
	6.14 Collateral Records
	 	 	41	 
	6.15 Security Interests
	 	 	41	 
	6.16 Environmental Compliance and Reports
	 	 	41	 
	6.17 Motor Vehicle Collateral
	 	 	42	 






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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VII.
	 	 	 	 
	NEGATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	7.01 Liens
	 	 	42	 
	7.02 Investments
	 	 	43	 
	7.03 Indebtedness
	 	 	43	 
	7.04 Fundamental Changes
	 	 	44	 
	7.05 Dispositions
	 	 	45	 
	7.06 Restricted Payments
	 	 	45	 
	7.07 Change in Nature of Business
	 	 	46	 
	7.08 Transactions with Affiliates
	 	 	46	 
	7.09 Burdensome Agreements
	 	 	46	 
	7.10 Use of Proceeds
	 	 	46	 
	7.11 Prepayment of Subordinated Indebtedness.
	 	 	46	 
	 
	 	 	 	 
	ARTICLE VIII.
	 	 	 	 
	EVENTS OF DEFAULT AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	47	 
	8.02 Remedies Upon Event of Default
	 	 	49	 
	8.03 Application of Funds
	 	 	49	 
	 
	 	 	 	 
	ARTICLE IX.
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	9.01 Amendments, Etc
	 	 	50	 
	9.02 Notices; Effectiveness; Electronic Communications.
	 	 	50	 
	9.03 No Waiver; Cumulative Remedies
	 	 	51	 
	9.04 Expenses; Indemnity; Damage Waiver
	 	 	51	 
	9.05 Successors and Assigns
	 	 	53	 
	9.06 Treatment of Certain Information; Confidentiality
	 	 	54	 
	9.07 Right of Setoff
	 	 	54	 
	9.08 Interest Rate Limitation
	 	 	54	 
	9.09 Counterparts; Integration; Effectiveness
	 	 	55	 
	9.10 Survival of Representations and Warranties
	 	 	55	 
	9.11 Severability
	 	 	55	 
	9.12 Governing Law; Jurisdiction; Etc
	 	 	55	 
	9.13 Waiver of Right to Trial by Jury
	 	 	56	 
	9.14 USA PATRIOT Act Notice
	 	 	57	 
	9.15 Time of the Essence
	 	 	57	 






iii 









 






SCHEDULES



2.03 Letters of Credit

4.01 List of Closing Documents

5.06 Litigation

5.09 Environmental Matters

5.13 Subsidiaries and Other Equity Investments

7.01 Existing Liens

7.03 Existing Indebtedness

9.02 Addresses for Notices




EXHIBITS



A Form of Loan Notice

B Form of Note

C Form of Compliance Certificate

D Form of Aging Report





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AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into as of
October 27, 2005, between HERITAGE-CRYSTAL CLEAN, LLC, an Indiana limited liability company
(“Borrower”), and BANK OF AMERICA, N.A., a national banking association (“Lender”).



     WHEREAS, the Borrower and the Lender are parties to the Credit Agreement dated as of February
16, 2005 (the “Original Credit Agreement”) pursuant to which, among other things, the
Lender agreed to provide, subject to the terms and conditions set forth therein, certain loans and
other financial accommodations to or for the benefit of the Borrower;



     WHEREAS, the Borrower has requested certain modifications to the Original Credit Agreement
(collectively, the “Modifications”), including, without limitation, modifications necessary to
allow the Borrower the ability to borrow at the at a rate of interest derived based upon the
Eurodollar Rate then in effect, an increase in the Commitment and certain other accommodations and
modifications, in each case as set forth in this Agreement;



     WHEREAS, the Lender has agreed to amend and restate the Original Credit Agreement pursuant to
the terms and conditions of this Agreement to effect the Modifications; and



     WHEREAS, the amendment and restatement of the Original Credit Agreement pursuant to this
Agreement shall have the effect of a substitution of terms of the Original Credit Agreement, but
will not have the effect of causing a novation, refinancing or other repayment of the “Obligations”
under and as defined in the Original Credit Agreement (hereinafter, the “Original Obligations”) or
a termination or extinguishment of the Liens securing such Original Obligations, which Original
Obligations shall remain outstanding and repayable pursuant to the terms of this Agreement and
which Liens shall remain attached, enforceable and perfected securing such Original Obligations and
all additional Obligations arising under this Agreement;



     NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
Borrower and the Lender covenant and agree as follows:



ARTICLE I.




DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Acquisition” means the acquisition, by purchase or otherwise, of all or substantially
all of the assets (or any part of the assets constituting all or substantially all of a business or
line of business) of any Person, whether such acquisition is direct or indirect, including through
the acquisition of the business of, or more than 50% of the outstanding voting stock of, such
Person, and whether such acquisition is effected in a single transaction or in a series of related
transactions.



 









 





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



     “Agreement” means this Amended and Restated Credit Agreement.



     “Applicable Rate” means a per annum rate equal to:



          (a) with respect to Base Rate Loans, 0.50%; and




          (b) with respect to Letters of Credit and Eurodollar Rate Loans, 3.00%.




     “Audited Financial Statements” means the audited consolidated balance sheet of
Borrower dated as of January 1, 2005 and the related consolidated statements of income or
operations, members’ equity and cash flows dated as of January 1, 2005, including the notes
thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Commitment pursuant to
Section 2.05, and (c) the date of termination of the commitment of Lender to make Loans and
L/C Credit Extensions pursuant to Section 8.02.



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by Lender as its “prime rate.” The “prime rate” is a rate set
by Lender based upon various factors including Lender’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in such rate announced by Lender shall
take effect at the opening of business on the day specified in the public announcement of such
change.



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



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of
Illinois and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings
in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.



     “Capitalized Software Costs” means, on any date, in respect of any Person, the
capitalized amount of expenditures and costs related to software that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP.



     “Cash Collateralize” has the meaning specified in Section 2.03(f).



     “Change of Control” means any event or series of events by which:



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          (a) THG and the Fehsenfeld Family shall cease to own and control, beneficially and of record,
at least 20% of all of the units of the Borrower; or




          (b) any Person or any two or more Persons (in each case other than a Person that is a member
of the Borrower as of the date of the Closing Date) acting in concert acquires beneficial
ownership, directly or indirectly, of units of the Borrower (or other securities convertible into
such units) representing more than 50% of the combined voting power of all units of the Borrower to
vote in the election of directors.




     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 9.01.



     “Code” means the Internal Revenue Code of 1986.



     “Collateral” shall mean any and all assets and rights and interests in or to property
of Borrower and each of the other Loan Parties, whether real or personal, tangible or intangible,
in which a Lien is granted or purported to be granted pursuant hereto or any of the Collateral
Documents.



     “Collateral Documents” means all agreements, instruments and documents now or
hereafter executed and delivered in connection with this Agreement pursuant to which Liens are
granted or purported to be granted to Lender in Collateral securing all or part of the Obligations
each in form and substance satisfactory to Lender.



     “Commitment” means Lender’s obligation to make Loans to Borrower pursuant to
Section 2.01 and to make L/C Credit Extensions, in an aggregate principal amount at any one
time outstanding not to exceed $12,000,000.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
C.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



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



     “Credit Extension” means each of the following: (a) a Loan Borrowing and (b) a L/C
Credit Extension.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



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     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than L/C Fees, an
interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base
Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurodollar
Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with
respect to L/C Fees, a rate equal to (i) the Applicable Rate plus (ii) 2% per annum.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



     “Dollar” and “$” mean lawful money of the United States.



     “EBITDA” means net income, less income or plus loss from discontinued operations and
extraordinary items, plus income taxes, plus interest expense, plus depreciation, depletion, and
amortization.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



4









 





     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by Borrower or any ERISA Affiliate from a Pension 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) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA
Affiliate.



     “Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar Rate.



     “Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate
Loan, a rate per annum determined by the Lender pursuant to the following formula:



	 	 	 	 	 	 	 
	 

	 	Eurodollar Rate =
	 	Eurodollar Base Rate
 

	 	 
	 

	 	 	 	1.00 – Eurodollar Reserve Percentage	 	 






     Where,



     “Eurodollar Base Rate” means, for such Interest Period (rounded upwards, as necessary,
to the nearest 1/100 of 1%) the rate per annum equal to the British Bankers Association LIBOR Rate
(“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations
of BBA LIBOR as designated by the Lender from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.
If such rate is not available at such time for any reason, then the “Eurodollar Base Rate”
for such Interest Period shall be the rate per annum determined by the Lender to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by the
Lender and with a term equivalent to such Interest Period would be offered by the Lender’s London
Branch to major banks in the London interbank eurodollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.



     “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the



5









 







Board of Governors of the Federal Reserve System of the United States for determining the
maximum reserve requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve Percentage.



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to Lender or any other recipient of any payment
to be made by or on account of any obligation of Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the
laws of which such recipient is organized or in which its principal office is located or, in the
case of Lender, where the Lender’s Office is located, and (b) any branch profits taxes imposed by
the United States or any similar tax imposed by any other jurisdiction in which Borrower is
located.



     “Federal Funds Rate” means, for any day, the rate per annum 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 (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) 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 (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Lender on such day on such transactions as determined by Lender.



     “Fehsenfeld Family” means Fred M. Fehsenfeld, Jr. and Frank S. Fehsenfeld together
with their spouses, siblings, or lineal descendants and the Fehsenfeld Trusts.



     “Fehsenfeld Trusts” means any trust or partnership existing on the date hereof which
was organized or formed primarily for the benefit of Fred M. Fehsenfeld, Jr. or Frank S. Fehsenfeld
or any of their spouses, siblings, or lineal descendants.



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



     “Funded Debt” means all outstanding liabilities for borrowed money and other
interest-bearing liabilities, including current and long term liabilities.



     “GAAP” means generally accepted accounting principles in the United States set forth
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 such other principles as may be approved by a significant segment of the



6









 







accounting profession in the United States, that are applicable to the circumstances as of the
date of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Guarantor” means any Subsidiary of the Borrower that executes a Guaranty pursuant to
Section 6.13.



     “Guaranty” means a Guaranty made by a Guarantor in favor of Lender in form, substance
and scope satisfactory to Lender.



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



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:



7









 






     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and, in each
case, not past due for more than 60 days after the date on which such trade account payable
was created);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) capital leases;




     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; and




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 9.04(b).



     “Information” has the meaning specified in Section 9.06.



     “Interest Coverage Ratio” means the ratio of EBITDA to interest expense.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest



8









 







Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June,
September and December and the Maturity Date.



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by Borrower in its
Loan Notice; provided that:



     (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding Business Day;



     (ii) any Interest Period 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



     (iii) no Interest Period shall extend beyond the Maturity Date.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the L/C Application,
and any other document, agreement and instrument entered into by Lender and Borrower (or any
Subsidiary) or in favor of Lender and relating to any such Letter of Credit.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



9









 





     “L/C Advance” means, Lender’s funding of any L/C Borrowing.



     “L/C Application” means an application and agreement for the issuance or amendment of
a Letter of Credit in the form from time to time in use by Lender.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Loan Borrowing.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Expiration Date” means the day that is thirty (30) days prior to the Maturity
Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).



     “L/C Fee” has the meaning specified in Section 2.03(h).



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “L/C Sublimit” means an amount equal to $1,000,000. The L/C Sublimit is part of, and
not in addition to, the Commitment.



     “Lender” means Bank of America, N.A., and its successors and assigns.



     “Lender’s Office” means Lender’s address and, as appropriate, account set forth on
Schedule 9.02, or such other address or account as Lender may from time to time notify the
Borrower.



     “Letter of Credit” means (a) any standby letter of credit issued hereunder and (b) any
“Letter of Credit” outstanding on the Closing Date issued and as defined under the Original Credit
Agreement.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to Borrower pursuant to Section
2.01.



10









 





     “Loan Notice” means a notice of a Loan Borrowing pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.



     “Loan Borrowing” means a borrowing of Loans pursuant to Section 2.01.



     “Loan Documents” means this Agreement, each Note, the Original Credit Agreement, each
Issuer Document, each Collateral Document, each Guaranty and the Subordination Agreement.



     “Loan Parties” means, collectively, Borrower and each Person (other than Lender), if
any, executing a Loan Document, including, without limitation, each Guarantor and each Person
executing a Collateral Document; provided that each Person party to the Subordination
Agreement other than the Borrower shall not be a “Loan Party.”



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of Borrower or Borrower and its Subsidiaries taken
as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations
under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan Document to which it
is a party.



     “Maturity Date” means June 30, 2007.



     “Modifications” is defined in the recitals.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Note” means a promissory note made by Borrower in favor of Lender evidencing Loans
made by Lender, substantially in the form of Exhibit B.



     “Obligations” means all Original Obligations and all advances to, and debts,
liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document,
any Swap Contract between Borrower and Lender (or any Affiliate of Lender) or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect



11









 







to any partnership, joint venture, trust or other form of business entity, the partnership,
joint venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.



     “Original Credit Agreement” is defined in the recitals.



     “Original Obligations” is defined in the recitals.



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



     “Outstanding Amount” means (i) with respect to Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Loans occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by Borrower of
Unreimbursed Amounts.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.



     “Permitted Acquisition” means an Acquisition (whether pursuant to a merger or an
acquisition of capital stock, assets or otherwise) by the Borrower or Subsidiary from any Person in
which the following conditions are satisfied:




     (a) immediately before and after giving effect to such Acquisition, no Default shall
have occurred and be continuing or would result therefrom (without limiting the foregoing,
the business or assets which are the subject matter of such Acquisition shall be free and
clear of all Liens other than those permitted under Section 7.01);




     (b) the aggregate amount of consideration paid or payable for such Acquisition by the
Borrower or Subsidiary consisting of (collectively, the “Consideration”) (i) cash
payments, (ii) Indebtedness assumed in connection therewith and (iii) the reasonable
projected amount of any contingent future payments for such Acquisition, is equal to or less
than $250,000;



12









 






     (c) after giving effect to such Acquisition, the aggregate amount of Consideration paid
for all Acquisitions in cash since February 16, 2005 shall be equal to or less than
$1,000,000;




     (d) prior to, or concurrently with, the a consummation of any Acquisition, the Borrower
shall have delivered, or caused to be delivered, to Lender Collateral Documents with respect
to the assets, and any new Subsidiaries, which are the subject of such Acquisition or are
created as a result therefrom, in each case in accordance with the terms of the Collateral
Documents and Section 6.12, in each case in form and substance acceptable to Lender
and together with such opinions, certificates, lien search reports, title insurance policies
and endorsements, appraisals and surveys as may be reasonably requested by Lender;




     (e) for any Acquisition in which the Consideration shall be $100,000 or more, the
Borrower shall have delivered to Lender a Compliance Certificate giving pro forma effect to
the consummation of such Acquisition as if such Acquisition was consummated on the first day
of such period and evidencing compliance with the covenants set forth in Sections
6.12; and




     (f) the Person being acquired is in the same business or a substantially related
business of the Borrower or any of its Subsidiaries.



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by Borrower or, with respect to any such plan that is subject to Section 412 of
the Code or Title IV of ERISA, any ERISA Affiliate.



     “Pledge Agreement” means, collectively, (i) a Pledge Agreement made by a Borrower or a
Subsidiary in favor of Lender in form, substance and scope satisfactory to Lender and (ii) each of
the certificates, transfer certificates and other documents required to be delivered in connection
with such Pledge Agreement.



     “Register” has the meaning specified in Section 9.05(c).



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Loan Borrowing, conversion
or continuation of Loans, a Loan Notice and (b) with respect to a L/C Credit Extension, a L/C
Application.



13









 





     “Responsible Officer” means the chief executive officer, president, vice-president,
chief financial officer, treasurer or assistant treasurer of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other action on the part of
such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other Equity Interest or on
account of any return of capital to Borrower’s stockholders, partners or members (or the equivalent
Person thereof).



     “Senior Leverage Ratio” means the ratio of (i) (A) total consolidated Funded Debt as
of such date minus (B) total Subordinated Liabilities as of such date to (ii) EBITDA.



     “Subordinated Debt Documents” means, collectively, (a) that certain $3,250,000
Promissory Note dated December 15, 2004 issued by Borrower in favor of Don Brinckman, (b) that
certain $8,320,000 Promissory Note dated December 15, 2004 issued by Borrower in favor of Asphalt
Refining Company, (c) that certain $1,750,000 Promissory Note dated December 15, 2004 issued by
Borrower in favor of Bruckman, Rosser, Sherrill & Co., L.P. and (d) each of the loan agreements,
indentures, note purchase agreements, promissory notes, guarantees, and other instruments and
agreements evidencing the terms of Subordinated Liabilities and subject to a Subordination
Agreement.



     “Subordinated Liabilities” means liabilities subordinated to the Obligations in a
manner acceptable to Lender in its sole discretion.



     “Subordination Agreements” mean, collectively, those certain Subordination Agreements
entered into from time to time among Lender, Borrower and each holder of Subordinated Liabilities,
as the same may be amended, restated, supplemented or otherwise modified from time



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or



14









 







bond index swaps or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or liabilities under any Master
Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Tangible Net Worth” means the value of total assets (including leaseholds,
Capitalized Software Costs and leasehold improvements and reserves against assets but excluding
goodwill, patents, trademarks, trade names, organization expense, unamortized debt discount and
expense, capitalized or deferred research and development costs, deferred marketing expenses, and
other like intangibles) less Total Liabilities, including but not limited to accrued and deferred
income taxes.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



     “THG” means The Heritage Group, an Indiana partnership and its Affiliates.



     “Threshold Amount” means $250,000.



     “Total Leverage Ratio” means the ratio of (i) total consolidated Funded Debt as of
such date to (ii) EBITDA.



     “Total Liabilities” means the sum of current liabilities plus long term liabilities.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



15









 





     “UCC” has the meaning specified in Section 6.15.



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



     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



          (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.




          (b) 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.”




          (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.




     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this



16









 







Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either Borrower or Lender
shall so request, Lender and Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP;
provided that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide to
Lender financial statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.



     1.04 Rounding. Any financial ratios required to be maintained by Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



     1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Central time (daylight or standard, as applicable).



     1.06 Letter of Credit Amounts. Unless otherwise specified herein the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided, however, that with respect to any Letter of Credit that, by
its terms or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.



ARTICLE II.




THE COMMITMENT AND CREDIT EXTENSIONS




     2.01 Loans. Subject to the terms and conditions set forth herein, Lender agrees to make loans
(together with all “Loans” owing to the Lender on the Closing Date pursuant to and as defined under
the Original Credit Agreement, the “Loans”) to Borrower from time to time, on any Business
Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding
the amount of the Commitment; provided, however, that after giving effect to any
Loan Borrowing, the Total Outstandings shall not exceed the Commitment. Within the limits of the
Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this
Section 2.01, prepay under Section 2.04, and reborrow under this Section
2.01. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. Upon
the satisfaction of each of conditions set forth in Section 4.01, all “Loans” owing to the Lender
on the Closing Date under and as defined in the Original Credit Agreement shall thereupon
constitute Loans hereunder subject to the terms of this Agreement.



17









 





     2.02 Loan Borrowings, Conversions and Continuations of Loans. (a) Each Loan Borrowing, each
conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans
shall be made upon Borrower’s irrevocable notice to Lender, which may be given by telephone. Each
such notice must be received by Lender not later than 11:00 a.m. (i) three Business Days prior to
the requested date of any Loan Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of
any Loan Borrowing of Base Rate Committed Loans. Each telephonic notice by Borrower pursuant to
this Section 2.02(a) must be confirmed promptly by delivery to Lender of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of Borrower. Each Loan
Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount
of $1,000,000 or a whole multiple of $1,000,000. Except as provided in Sections 2.03(c),
each Loan Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $10,000
or a whole multiple of $10,000 in excess thereof. Each Loan Notice (whether telephonic or written)
shall specify (i) whether Borrower is requesting a Loan Borrowing, a conversion of Loans from one
Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Loan
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii)
the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the
Interest Period with respect thereto. If Borrower fails to specify a Type of Loan in a Loan Notice
or if Borrower fails to give a timely notice requesting a conversion or continuation, then the
applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion
to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurodollar Rate Loans. If Borrower requests a Loan Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest Period of one month..



          (b) Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Loan Borrowing is the initial Credit Extension, Section 4.01), Lender shall make funds
available to Borrower by (i) crediting the account of Borrower on the books of Lender with the
amount of such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) Lender by Borrower; provided,
however, that if, on the date the Loan Notice with respect to such Loan Borrowing is given
by Borrower, there are L/C Borrowings outstanding, then the proceeds of such Loan Borrowing
first, shall be applied, to the payment in full of any such L/C Borrowings, and
second, shall be made available to Borrower as provided above.




          (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Lender, and the Lender may demand that any or all of the then outstanding
Eurodollar Rate Loans be converted immediately to Base Rate Loans and Borrower agrees to pay all
amounts due under Section 3.04 in accordance with the terms thereof due to any such
conversion.




18









 








          (d) Lender shall promptly notify Borrower and Lenders of the interest rate applicable to any
Interest Period for Eurodollar Rate Loans upon determination of such interest rate.




          (e) After giving effect to all Loan Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than 10 Interest
Periods in effect with respect to Loans.




          (f) Notwithstanding the foregoing, all Loans outstanding as of the Closing Date and originally
made pursuant to the Original Credit Agreement shall continue to be Base Rate Loans until converted
into a different Type pursuant to this Agreement or until such Loans are prepaid by the Borrower.




     2.03 Letters of Credit. (a) The Letter of Credit Commitment.



               (i) Subject to the terms and conditions set forth herein, Lender agrees (1) from time to time
on any Business Day during the period from the Closing Date until the L/C Expiration Date, to issue
Letters of Credit for the account of Borrower or its Subsidiaries, and to amend or extend Letters
of Credit previously issued by it in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (y) the Total Outstandings shall not exceed the
Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the L/C
Sublimit. Each request by Borrower for the issuance or amendment of a Letter of Credit shall be
deemed to be a representation by Borrower that the L/C Credit Extension so requested complies with
the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits,
and subject to the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit
shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed.



               (ii) Lender shall not issue any Letter of Credit, if:




     (A) subject to Section 2.03(b)(iv), the expiry date of such requested Letter of
Credit would occur more than twelve months after the date of issuance or last extension; or




     (B) the expiry date of such requested Letter of Credit would occur after the L/C
Expiration Date.



               (iii) Lender shall be under no obligation to issue any Letter of Credit if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain Lender from issuing such Letter of Credit, or any
Law applicable to Lender or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over Lender shall prohibit, or
request that Lender refrain from, the issuance of letters of credit generally or such Letter
of Credit in particular or shall impose upon Lender with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which Lender is not



19









 







otherwise compensated hereunder) not in effect on the Closing Date, or shall impose
upon Lender any unreimbursed loss, cost or expense which was not applicable on the Closing
Date and which Lender in good faith deems material to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of Lender;




     (C) such Letter of Credit is to be denominated in a currency other than Dollars; or




     (D) unless specifically provided for in this Agreement, such Letter of Credit contains
any provisions for automatic reinstatement of the stated amount after any drawing
thereunder.



               (iv) Lender shall not amend any Letter of Credit if Lender would not be permitted at such time
to issue such Letter of Credit in its amended form under the terms hereof.



               (v) Lender shall be under no obligation to amend any Letter of Credit if (A) Lender would have
no obligation at such time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to
such Letter of Credit.



          (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




               (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of
Borrower delivered to Lender in the form of a L/C Application, appropriately completed and signed
by a Responsible Officer of Borrower. Such L/C Application must be received by Lender not later
than 11:00 a.m. at least two (2) Business Days (or such later date and time as Lender may agree in
a particular instance in its sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial issuance of a Letter of
Credit, such L/C Application shall specify in form and detail satisfactory to Lender: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any drawing thereunder;
and (G) such other matters as Lender may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such L/C Application shall specify in form and detail satisfactory to
Lender (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which
shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as
Lender may require. Additionally, Borrower shall furnish to Lender such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as Lender may require.



               (ii) Unless Lender has received written notice from any Loan Party, at least one Business Day
prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions in Article IV shall not then be satisfied,



20









 







then, subject to the terms and conditions hereof, Lender shall, on the requested date, issue a
Letter of Credit for the account of Borrower (or the applicable Subsidiary) or enter into the
applicable amendment, as the case may be, in each case in accordance with Lender’s usual and
customary business practices.



               (iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, Lender will also
deliver to Borrower a true and complete copy of such Letter of Credit or amendment.



               (iv) If Borrower so requests in any applicable L/C Application, Lender may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions
(each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter
of Credit must permit Lender to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by Lender, Borrower shall not be required to make a specific request to Lender
for any such extension.



               (v) If Borrower so requests in any applicable Letter of Credit Application, Lender may, in
its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic
reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each,
an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by Lender, Borrower
shall not be required to make a specific request to Lender to permit such reinstatement.
Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits Lender to
decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by
giving notice of such non-reinstatement within a specified number of days after such drawing (the
“Non-Reinstatement Deadline”), Lender shall not permit such reinstatement if it has
received a notice (which may be by telephone or in writing) on or before the day that is five
Business Days before the Non-Reinstatement Deadline from Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied (treating such
reinstatement as a L/C Credit Extension for purposes of this clause) and, in each case, directing
Lender not to permit such reinstatement.



          (c) Drawings and Reimbursements.




               (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, Lender shall notify Borrower thereof. Not later than 11:00 a.m. on the date
of any payment by Lender under a Letter of Credit (each such date, an “Honor Date”),
Borrower shall reimburse Lender in an amount equal to the amount of such drawing. In such event,
Borrower shall be deemed to have requested a Loan Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the unreimbursed drawing (the “Unreimbursed Amount”),
without regard to the minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Commitment
and the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice).
Any notice given by Lender pursuant to this Section 2.03(c)(i) may



21









 







be given by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of such
notice.



               (ii) With respect to any Unreimbursed Amount that is not fully refinanced by a Loan Borrowing
of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or
for any other reason, Borrower shall be deemed to have incurred from Lender a L/C Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at the Default Rate.



               (iii) No making of a L/C Advance shall relieve or otherwise impair the obligation of Borrower
to reimburse Lender for the amount of any payment made by Lender under any Letter of Credit,
together with interest as provided herein.



          (d) Obligations Absolute. The obligation of Borrower to reimburse Lender for each
drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:




               (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any
other Loan Document;



               (ii) the existence of any claim, counterclaim, setoff, defense or other right that Borrower or
any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of
Credit (or any Person for whom any such beneficiary or any such transferee may be acting), Lender
or any other Person, whether in connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;



               (iii) any draft, demand, certificate or other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under such Letter of Credit;



               (iv) any payment by Lender under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of Credit; or any payment
made by Lender under such Letter of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law; or



               (v) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available to,
or a discharge of, Borrower or any Subsidiary.



22









 





     Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with Borrower’s
instructions or other irregularity, Borrower will immediately notify Lender. Borrower shall be
conclusively deemed to have waived any such claim against Lender and its correspondents unless such
notice is given as aforesaid.



          (e) Role of Lender. The Borrower agrees that, in paying any drawing under a Letter of
Credit, Lender shall not have any responsibility to obtain any document (other than any sight
draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not, preclude
Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee
at law or under any other agreement. None of Lender, any of its Related Parties or any
correspondent or assignee of Lender, shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(d); provided, however,
that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against
Lender, and Lender may be liable to Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were
caused by Lender’s willful misconduct or gross negligence or Lender’s willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, Lender may accept documents that appear on
their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and Lender shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.




          (f) Cash Collateral. Upon the request of Lender, (i) if Lender has honored any full
or partial drawing request under any Letter of Credit and such drawing has resulted in a L/C
Borrowing, or (ii) if, as of the L/C Expiration Date, any L/C Obligation for any reason remains
outstanding, Borrower shall , in each case, immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations. Sections 2.04 and 8.02(c) set forth certain
additional requirements to deliver Cash Collateral hereunder. For purposes hereof, “Cash
Collateralize” means to pledge and deposit with or deliver to Lender, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form and substance
satisfactory to Lender. Derivatives of such term have corresponding meanings. Borrower hereby
grants to Lender a security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash collateral shall be maintained in blocked, non-interest
bearing deposit accounts at Lender or an Affiliate of Lender.




          (g) Applicability of ISP. Unless otherwise expressly agreed by Lender and Borrower
when a Letter of Credit is issued, the rules of the ISP shall apply to each standby Letter of
Credit.




23









 








          (h) L/C Fees. Borrower shall pay to Lender a L/C fee (the “L/C Fee”) for each
Letter of Credit equal to the Applicable Rate times the daily amount available to be
drawn under such Letter of Credit. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. L/C Fees shall be (i) computed on a monthly basis in arrears
and (ii) due and payable on the last Business Day of each calendar month, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the L/C Expiration Date and
thereafter on demand. Notwithstanding anything to the contrary contained herein, upon the request
of Lender, while any Event of Default exists, all L/C Fees shall accrue at the Default Rate.




          (i) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Documents, the terms hereof shall control.




          (j) Processing Charges Payable to Lender. Borrower shall pay directly to Lender the
customary issuance, presentation, amendment and other processing fees, and other standard costs and
charges, of Lender relating to letters of credit as from time to time in effect. Such individual
customary fees and standard costs and charges are due and payable on demand and are nonrefundable.




          (k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, Borrower shall be obligated to reimburse Lender hereunder for any and all
drawings under such Letter of Credit. Borrower hereby acknowledges that the issuance of Letters of
Credit for the account of Subsidiaries inures to the benefit of Borrower, and that Borrower’s
business derives substantial benefits from the businesses of such Subsidiaries.




          (l) Outstanding Letters of Credit. The Letters of Credit set forth on Schedule
2.03 were issued prior to the Closing Date pursuant to the Original Credit Agreement and will
remain outstanding as of the Closing Date. The Borrower and the Lender hereby agrees that each
Letter of Credit listed on Schedule 2.03 shall, for all purposes under this Agreement,
shall be deemed to be a Letters of Credit governed by the terms and conditions of this Agreement.




     2.04 Prepayments. (a) Borrower may, upon notice to Lender, at any time or from time to time
voluntarily prepay Loans in whole or in part without premium or penalty (except as provided below
in this section with respect to amounts that may be owing in connection therewith pursuant to
Section 3.04); provided that (i) such notice must be received by the Lender not
later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $10,000 or a whole multiple of $10,000 in excess thereof
or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid. If
such notice is given by Borrower, Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any prepayment of
a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.04. If such notice is given by
Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein.



24









 





          (b) If for any reason the Total Outstandings at any time exceed the Commitment then in effect,
Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess; provided, however, that Borrower shall not
be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b)
unless after the prepayment in full of the Loans the Total Outstandings exceed the Commitment then
in effect.




     2.05 Termination or Reduction of Commitment. Borrower may, upon notice to Lender, terminate
the Commitment, or from time to time permanently reduce the Commitment; provided that (i)
any such notice shall be received by Lender not later than 11:00 a.m. five (5) Business Days prior
to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $10,000 or any whole multiple of $10,000 in excess thereof, (iii) Borrower shall not
terminate or reduce the Commitment if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Outstandings would exceed the Commitment, and (iv) if, after
giving effect to any reduction of the Commitment or the L/C Sublimit exceeds the amount of the
Commitment, the L/C Sublimit shall be automatically reduced by the amount of such excess. All fees
accrued until the effective date of any termination of the Commitment shall be paid on the
effective date of such termination.



     2.06 Repayment of Loans. Borrower shall repay to Lender on the Maturity Date the aggregate
principal amount of Loans outstanding on such date.



     2.07 Interest. (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period
at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the
Applicable Rate and (ii) each Base Rate Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate.



          (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




               (ii) If any amount (other than principal of any Loan) payable by Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.



               (iii) While any Event of Default exists, Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws.



               (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



25









 





          (c) Interest on each Loan shall be due and payable in arrears on the last Business Day of each
calendar month and on the Maturity Date. Without limiting the preceding sentence, all accrued and
unpaid interest payable under the Original Credit Agreement shall be due and payable on October 31,
2005. Interest hereunder shall be due and payable in accordance with the terms hereof before and
after judgment, and before and after the commencement of any proceeding under any Debtor Relief
Law.




     2.08 Fees. In addition to certain fees described in subsection (h) of Section 2.03:



          (a) Structuring Fee. On the Closing Date, Borrower shall pay to Lender a one-time
structuring fee of $11,250. The structuring fee is fully earned on the date paid and is
nonrefundable for any reason whatsoever.




          (b) Unused Line Fee. On the last Business Day of each calendar month, commencing with
the first such date to occur after the Closing Date, and on the Maturity Date, Borrower shall pay
to Lender an unused fee of 0.50% per annum times the difference between (1) the average
daily Commitment during such calendar month and (2) the average daily Total Outstandings during
such calendar month. The unused line fee shall be calculated monthly in arrears. The unused line
fee shall accrue at all times, including at any time during which one or more of the conditions in
Article IV is not met.




     2.09 Computation of Interest and Fees. All computations of interest for Loans when the Base
Rate is determined by Lender’s “prime rate” shall be made on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed. All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid, provided that
any Loan that is repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one day. Each determination by Lender of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest error.



     2.10 Evidence of Debt. The Credit Extensions made by Lender shall be evidenced by one or more
accounts or records maintained by Lender in the ordinary course of business. The accounts or
records maintained by Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by Lender to Borrower and the interest and payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect the obligation of
Borrower hereunder to pay any amount owing with respect to the Obligations. Borrower shall execute
and deliver to Lender a Note, which shall evidence Lender’s Loans in addition to such accounts or
records. Lender may attach schedules to the Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto. The Note issued as
of the Closing Date shall be issued in substitution for, and shall amend and restate, the “Note”
issued to the Lender pursuant to and defined in the Original Credit Agreement. No such
substitutions, amendments and restatements shall constitute or effect a repayment, refinancing or
novation of the amounts evidenced by such original “Note,” but rather a modification and
substitution of such original “Note.”



26









 





     2.11 Payments Generally. (a) (i) General. All payments to be made by Borrower
shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to
Lender, at the Lender’s Office in Dollars and in immediately available funds not later than 12:00
noon on the date specified herein. All payments received by Lender after 12:00 noon shall be
deemed received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.



               (ii) On each date when the payment of any principal, interest or fees are due hereunder or
under any Note, Borrower agrees to maintain on deposit in an ordinary checking account maintained
by Borrower with Lender (as such account shall be designated by Borrower in a written notice to
Lender from time to time, the “Borrower Account”) an amount sufficient to pay such
principal, interest or fees in full on such date. Borrower hereby authorizes Lender (A) to deduct
automatically all principal, interest or fees when due hereunder or under any Note from the
Borrower Account, and (B) if and to the extent any payment of principal, interest or fees under
this Agreement or any Note is not made when due to deduct any such amount from any or all of the
accounts of Borrower maintained at Lender. Lender agrees to provide written notice to Borrower of
any automatic deduction made pursuant to this Section 2.12(a)(ii) showing in reasonable
detail the amounts of such deduction. Lender agrees to reimburse Borrower for any amounts deducted
from such accounts in excess of amount due hereunder and under any other Loan Documents.



          (b) Funding Source. Nothing herein shall be deemed to obligate Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a representation by Lender
that it has obtained or will obtain the funds for any Loan in any particular place or manner.




ARTICLE III.




TAXES




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



          (b) Payment of Other Taxes by Borrower. Without limiting the provisions of subsection
(a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.




27









 








          (c) Indemnification by Borrower. Borrower shall indemnify Lender, within ten (10)
days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) paid Lender and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to Borrower by Lender shall be conclusive absent manifest
error.




          (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, Borrower shall deliver to Lender
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to Lender.




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




     3.02 Illegality. If the Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of the Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by the Lender to Borrower, any obligation of the Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until the Lender notifies Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, Borrower shall, upon demand from the
Lender, prepay or, if applicable, convert all Eurodollar Rate Loans of the Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if the Lender may lawfully continue
to maintain such Eurodollar Rate Loans to such day, or immediately, if the Lender may not lawfully
continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, Borrower
shall also pay accrued interest on the amount so prepaid or converted and all amounts due under
Section 3.04 in accordance with the terms thereof due to such prepayment or conversion.



28









 





     3.03 Inability to Determine Rates. If the Lender determines in connection with any request
for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are
not being offered to banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Loan, the Lender will promptly so notify Borrower and each Lender.
Thereafter, the obligation of Lenders to make or maintain Eurodollar Rate Loans shall be suspended
until the Lender revokes such notice. Upon receipt of such notice, Borrower may revoke any pending
request for a Loan Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing
that, will be deemed to have converted such request into a request for a Loan Borrowing of Base
Rate Loans in the amount specified therein.



     3.04 Compensation for Losses. Upon demand of Lender from time to time, Borrower shall
promptly compensate the Lender for and hold the Lender harmless from any loss, cost or expense
incurred by it as a result of:



          (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise); or




          (b) any failure by Borrower (for a reason other than the failure of the Lender to make a Loan)
to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the
amount notified by Borrower;



including any loss of anticipated profits and any loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing. For purposes of calculating amounts
payable by Borrower to Lenders under this Section 3.04, the Lender shall be deemed to have
funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.




     3.05 Mitigation Obligations. If Borrower is required to pay any additional amount to Lender
or any Governmental Authority for the account of Lender pursuant to Section 3.01, of if the
Lender gives a notice pursuant to Section 3.02, then Lender shall use reasonable efforts to
designate a different Lender’s Office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of Lender, such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 3.01 in the future, or eliminate the need for the notice pursuant to
Section 3.02, as applicable, and (ii) in each case would not subject Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to Lender. Borrower hereby
agrees to pay all reasonable costs and expenses incurred by Lender in connection with any such
designation or assignment.



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     3.06 Survival. All of Borrower’s obligations under this Article III shall survive
termination of the Commitment and repayment of all Obligations.



ARTICLE IV.




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The effectiveness of the amendment and
restatement of the Original Credit Agreement pursuant to this Agreement and the obligation of
Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:



          (a) Lender’s receipt of the following, each of which shall be originals or telecopies
(followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date) and each in form and
substance satisfactory to Lender:




               (i) executed counterparts of this Agreement, sufficient in number for distribution to Lender
and Borrower;



               (ii) a Note executed by Borrower in favor Lender;



               (iii) such certificates of resolutions or other action, incumbency certificates and/or other
certificates of Responsible Officers of the Borrower as Lender may reasonably require evidencing
the identity, authority and capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party;



               (iv) such documents and certifications as Lender may reasonably require to evidence that the
Borrower is duly formed, and that the Borrower is validly existing, in good standing and qualified
to engage in business in each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect;



               (v) a favorable opinion letter of counsel to the Borrower acceptable to Lender addressed to
Lender, as to the matters set forth concerning the Borrower and the Loan Documents in form and
substance satisfactory to Lender;



               (vi) evidence that all insurance required to be maintained pursuant to the Loan Documents has
been obtained and is in effect;



               (vii) the assurances, certificates, documents, consents and opinion letters (A) listed on
Schedule 4.01 hereto and (B) otherwise reasonably required by Lender.



          (b) All fees required to be paid on or before the Closing Date shall have been paid.




30









 








          (c) Unless waived by Lender, Borrower shall have paid all reasonable fees, charges and
disbursements of counsel to Lender to the extent invoiced prior to or on the Closing Date, plus
such additional amounts of such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a final settling of
accounts between Borrower and Lender).




     4.02 Conditions to all Credit Extensions. The obligation of Lender to honor any Request for
Credit Extension is subject to the following conditions precedent:



          (a) The representations and warranties of Borrower and each other Loan Party, if any,
contained in Article V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be true and correct on
and as of the date of such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and correct as
of such earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and (b) of Section 5.05 shall
be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01.




          (b) No Default shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.




          (c) Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof.




          (d) Lender shall have received, in form and substance satisfactory to it, such other
assurances, certificates, documents or consents related to the foregoing as Lender reasonably may
require.




     Each Request for Credit Extension submitted by Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.



ARTICLE V.




REPRESENTATIONS AND WARRANTIES



Borrower represents and warrants to Lender that:




     5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each
Subsidiary thereof (a) is duly organized or formed, validly existing and in good standing under the
Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and
authority and all requisite 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 and is licensed and in good
standing under the Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license, and



31









 




(d) is in compliance with all Laws; except in each case referred to in clause (b)(i), (c) or
(d), to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.




     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any Contractual Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree
of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in compliance with
all Contractual Obligations referred to in clause (b)(i), except to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms.



     5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements
(i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition
of Borrower as of the date thereof and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of Borrower as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness.



          (b) The unaudited consolidated balance sheet of Borrower dated September 10, 2005, and the
related consolidated statements of income or operations, members’ equity and cash flows for the
reporting period ended on that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly
present the financial condition of Borrower as of the date thereof and their results of operations
for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments.




32









 








          (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.




          (d) The consolidated forecasted balance sheet and statements of income and cash flows of
Borrower and its Subsidiaries delivered pursuant to Section 6.01(d) were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented, at the time of
delivery, the Borrower’s best estimate of its future financial performance.




     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of Borrower after due and diligent investigation, threatened or contemplated, at law,
in equity, in arbitration or before any Governmental Authority, by or against Borrower or any of
its Subsidiaries or against any of their properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) except as specifically disclosed in Schedule 5.06, either individually or in
the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse
Effect, and there has been no adverse change in the status, or financial effect on any Loan Party
or any Subsidiary thereof, of the matters described on Schedule 5.06.



     5.07 No Default. Neither Borrower nor any Subsidiary is in default under or with respect to
any Contractual Obligation that could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement or any other Loan
Document.



     5.08 Ownership of Property; Liens. Each of Borrower and each Subsidiary has good record and
marketable title in fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09 Environmental Compliance. Borrower and its Subsidiaries conduct in the ordinary course
of business a review of the effect of existing Environmental Laws and claims alleging potential
liability or responsibility for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof Borrower has reasonably concluded that, except
as specifically disclosed in Schedule 5.09, such Environmental Laws and claims could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of Borrower, in such amounts (after giving
effect to any self-insurance compatible with the following standards), 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 or the applicable Subsidiary operates.



33









 





     5.11 Taxes. Borrower and its Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been provided in accordance with GAAP. There is no proposed tax assessment against Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect.



     5.12 ERISA Compliance. (a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable determination letter
from the IRS or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of Borrower, nothing has occurred which would prevent,
or cause the loss of, such qualification. Borrower and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.



          (b) There are no pending or, to the best knowledge of Borrower, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could be
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.




          (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.




     5.13 Subsidiaries. As of the Closing Date, Borrower has no Subsidiaries. All of the
outstanding Equity Interests in Borrower have been validly issued and are fully paid and
nonassessable and are owned by the Person’s specified on Part (c) of Schedule 5.13 in the
amounts specified on Part (c) of Schedule 5.13 free and clear of all Liens.



     5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act. (a)
Borrower is not engaged and will not engage, principally or as one of its important activities, in
the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by
the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following
the application of the proceeds of each Loan Borrowing or drawing under each Letter of Credit, not
more than 25% of the value of the assets (either of Borrower only or of Borrower and its
Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or
Section 7.05 or subject to any restriction contained in any



34









 







agreement or instrument between Borrower and Lender or any Affiliate of Lender relating to
Indebtedness and within the scope of Section 8.01(e) will be margin stock.



          (b) None of Borrower, any Person Controlling Borrower, or any Subsidiary (i) is a “holding
company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public
Utility Holding Company Act of 1935, or (ii) is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.




     5.15 Disclosure. Borrower has disclosed to Lender all agreements, instruments and corporate
or other restrictions to which it or any of its Subsidiaries is subject, and all other matters
known to it, that, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other information
furnished (whether in writing or orally) by or on behalf of any Loan Party to Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement or delivered
hereunder or under any other Loan Document (in each case, as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial information,
Borrower represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.



     5.16 Compliance with Laws. Each of Borrower and each Subsidiary is in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



     5.17 Intellectual Property; Licenses, Etc. Borrower and its Subsidiaries own, or possess the
right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights that are reasonably necessary
for the operation of their respective businesses, without conflict with the rights of any other
Person. To the best knowledge of Borrower, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now contemplated to be
employed, by Borrower or any Subsidiary infringes upon any rights held by any other Person. No
claim or litigation regarding any of the foregoing is pending or, to the best knowledge of
Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.



     5.18 Rights in Collateral; Priority of Liens. Borrower and each other Loan Party own the
property granted by it as Collateral under the Collateral Documents, free and clear of any and all
Liens in favor of third parties. Upon the proper filing of UCC financing statements, and the
taking of the other actions required by Lender, the Liens granted pursuant to the Collateral
Documents will constitute valid and enforceable first, prior and perfected (to the



35









 







extent that Liens on the Collateral can be perfected by the filing of UCC financing
statements) Liens on the Collateral in favor of Lender.



ARTICLE VI.




AFFIRMATIVE COVENANTS




     So long as Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, Borrower
shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02, and 6.03) cause each Subsidiary, if any, to:



     6.01 Financial Statements. Deliver to Lender, in form and detail satisfactory to Lender:



          (a) as soon as available, but in any event within one hundred thirty-five (135) days after the
end of each fiscal year of Borrower, a consolidated and, if applicable, consolidating balance sheet
of Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated
and, if applicable, consolidating statements of income or operations, members’ equity and cash
flows for such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such
consolidated statements to be audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing reasonably acceptable to Lender,
which report and opinion shall be prepared in accordance with generally accepted auditing standards
and shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit and, if applicable, such consolidating
statements to be certified by a Responsible Officer of Borrower to the effect that such statements
are fairly stated in all material respects when considered in relation to the consolidated
financial statements of Borrower and its Subsidiaries;




          (b) as soon as available, but in any event within forty-five (45) days after the end of each
four week reporting period of the Borrower, a consolidated and, if applicable, consolidating
balance sheet of Borrower and its Subsidiaries as at the end of such reporting period, and the
related consolidated and, if applicable, consolidating statements of income or operations for such
reporting period, the portion of Borrower’s fiscal year then ended and the trailing thirteen four
week reporting periods then ended, all in reasonable detail, such consolidated statements to be
certified by a Responsible Officer of Borrower as fairly presenting the financial condition,
results of operations of Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes and, if applicable, such
consolidating statements to be certified by a Responsible Officer of Borrower to the effect that
such statements are fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Borrower and its Subsidiaries;




          (c) as soon as available, but in any event within forty-five (45) days after the end of each
four week reporting period of the Borrower, a summary of aging of accounts payable and accounts
receivable of the Borrower and its Subsidiaries substantially in the form of Exhibit D
hereto; and




36









 








          (d) as soon as available, but in any event within sixty (60) days after the end of each fiscal
year of Borrower, forecasts prepared by management of Borrower, in form satisfactory to Lender, of
consolidated balance sheets and statements of income or operations and cash flows of Borrower and
its Subsidiaries on a four week reporting period basis for the new fiscal year (including the
fiscal year in which the Maturity Date occurs).




     6.02 Certificates; Other Information. Deliver to Lender, in form and detail satisfactory to
Lender:



          (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible
Officer of Borrower;




          (b) promptly after any request by Lender, copies of any detailed audit reports, management
letters or recommendations submitted to the board of directors (or the audit committee of the board
of directors) of Borrower by independent accountants in connection with the accounts or books of
Borrower or any Subsidiary, or any audit of any of them;




          (c) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any
Subordinated Debt Document or any indenture, loan or credit or similar agreement relating to
Indebtedness in an aggregate amount greater than $100,000 and not otherwise required to be
furnished to Lender pursuant to Section 6.01 or any other clause of this Section 6.02; and




          (d) promptly, such additional information regarding the business, financial or corporate
affairs of Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as
Lender may from time to time reasonably request.




     6.03 Notices. Promptly notify Lender:



          (a) of the occurrence of any Default;




          (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding
or suspension between Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding affecting Borrower or
any Subsidiary, including pursuant to any applicable Environmental Laws;




          (c) of the occurrence of any ERISA Event; and




          (d) of any material change in accounting policies or financial reporting practices by Borrower
or any Subsidiary.




     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of Borrower setting forth details of the occurrence referred to therein and stating what
action Borrower has taken and proposes to take with respect thereto. Each notice



37









 







pursuant to Section 6.03(a) shall describe with particularity any and all provisions
of this Agreement and any other Loan Document that have been breached.



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, 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 conducted and adequate reserves in accordance with GAAP
are being maintained by Borrower or such Subsidiary; (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 conducted and adequate reserves in accordance with GAAP are
being maintained by Borrower or such Subsidiary; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by Borrower or such Subsidiary.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.



     6.07 Maintenance of Insurance. (a) Maintain with financially sound and reputable insurance
companies not Affiliates of Borrower, 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 (after giving effect to any self-insurance compatible
with the following standards) as are customarily carried under similar circumstances by such other
Persons and providing for not less than thirty (30) days’ prior notice to Lender of termination,
lapse or cancellation of such insurance.



          (b) Upon the request of Lender, to deliver to Lender a copy of each insurance policy, or, if
permitted by Lender, a certificate of insurance listing all insurance in force. Unless the
Borrower provides Lender with satisfactory evidence of the insurance coverage required hereby,
Lender may purchase insurance at the Borrower’s expense to protect Lender’s interest in the
Collateral. This insurance may, but need not, protect the interests of the Borrower. The coverage
that Lender purchases may not pay any claim that the Borrower makes or any claim that is made
against the Borrower in connection with the Collateral. The Borrower may later

38









 








cancel any insurance purchased by Lender, but only after providing Lender with satisfactory
evidence that the Borrower has obtained insurance as required hereby. If Lender purchases
insurance of the collateral, the Borrower will be responsible for the costs of that insurance,
including interest thereon at the Default Rate and any other charges which Lender may impose in
connection with the placement of the insurance until the effective date of the cancellation or
expiration of the insurance. The costs of the insurance may be added to the outstanding principal
balance of the advances, shall bear interest at the Default Rate as provided above, and shall be
payable upon demand. The costs of the insurance may be more than the cost of insurance the
Borrower may be able to obtain on its own.




     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, write, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     6.09 Books and Records. (a) 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 or such Subsidiary, as the
case may be; and (b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over Borrower
or such Subsidiary, as the case may be. Borrower shall maintain at all times books and records
pertaining to the Collateral in such detail, form and scope as Lender shall reasonably require.



     6.10 Inspection Rights. Permit representatives and independent contractors of Lender 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, all at the expense of Borrower and at
such reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to Borrower; provided, however, that when an Event of
Default exists, Lender (or any of its representatives or independent contractors) may do any of the
foregoing at the expense of Borrower at any time during normal business hours and without advance
notice.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate
purposes not in contravention of any Law or of any Loan Document.



     6.12 Financial Covenants.



          (a) Tangible Net Worth. Maintain on a consolidated basis Tangible Net Worth equal to
at least the sum of the following:




               (i) six hundred fifty thousand Dollars ($650,000); plus



39









 





               (ii) the sum of 75% of net income after income taxes (without subtracting losses) earned in
each four week reporting period commencing after October 4, 2003; plus



               (iii) the net proceeds from any equity securities issued after October 4, 2003; plus



               (iv) any increase in stockholders’ equity resulting from the conversion of debt securities to
equity securities after February 16, 2005 minus



               (v) the amount of distributions permitted under (i) Section 7.06(d) that are made after
February 16, 2005 and (ii) Section 7.06(e) that are made after the Closing Date:



          (b) Senior Leverage Ratio. Maintain on a consolidated basis a Senior Leverage Ratio
not exceeding 3.00:1:00 as of the last day of any reporting period for which this Agreement
requires Borrower to deliver financial statements, calculated based upon the amount of Funded Debt
and Subordinated Liabilities as of such day and EBITDA for the trailing thirteen four week
reporting periods ending on such day.




          (c) Interest Coverage Ratio. Maintain on a consolidated basis an Interest Coverage
Ratio of at least 2.50:1.00 as of the last day of any reporting period for which this Agreement
requires Borrower to deliver financial statements, calculated based upon interest expense and
EBITDA for the trailing thirteen four week reporting periods ending on such day.




          (d) Capital Expenditures. In any fiscal year, not make expenditures or accrue
obligations (including, without limitation, expenditures made and obligations accrued with respect
to capital leases but excluding expenditures made and obligations accrued as consideration for
Permitted Acquisitions), with respect to fixed assets in an amount exceeding the corresponding
amount set forth below opposite such fiscal year.




	 	 	 	 	 
	Fiscal Year	 	Amount
	Fiscal Year 2005
	 	$	4,350,000	 
	Fiscal Year 2006 and thereafter
	 	$	4,500,000	 






          (e) Total Leverage Ratio. Maintain on a consolidated basis a Total Leverage Ratio, as
of the last day of any reporting period for which this Agreement requires Borrower to deliver
financial statements, calculated based upon the amount of Funded Debt as of such day and EBITDA for
the trailing thirteen four week reporting periods ending on such day, not exceeding the ratio set
forth below opposite such period:




	 	 	 
	Date of Determination	 	Ratio
	Closing Date through December 30, 2006

	 	4.0 : 1.0
	 
	December 31, 2006 and thereafter

	 	3.5 : 1.0






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     6.13 Guarantors. Notify Lender at the time that any Person becomes a Subsidiary, and promptly
thereafter (and in any event within thirty (30) days), (a) cause such Person to (a) become a
Guarantor by executing and delivering to Lender a Guaranty and such other document as Lender shall
deem appropriate for such purpose, and (b) deliver to Lender an executed Pledge Agreement and the
documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and
favorable opinion letters of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation referred to in clause
(a)), all in form, content and scope reasonably satisfactory to Lender.



     6.14 Collateral Records. To execute and deliver promptly, and to cause each other Loan Party
to execute and deliver promptly, to Lender, from time to time, solely for Lender’s convenience in
maintaining a record of the Collateral, such written statements and schedules as Lender may
reasonably require designating, identifying or describing the Collateral. The failure by Borrower
or any other Loan Party, however, to promptly give Lender such statements or schedules shall not
affect, diminish, modify or otherwise limit the Liens on the Collateral granted pursuant to the
Collateral Documents.



     6.15 Security Interests. To, and to cause each other Loan Party to, (a) defend the Collateral
against all claims and demands of all Persons at any time claiming the same or any interest
therein, (b) comply with the requirements of all state and federal laws in order to grant to Lender
valid and perfected first priority security interests in the Collateral, with perfection, in the
case of any investment property, deposit account or letter of credit, being effected by giving
Lender control of such investment property or deposit account or letter of credit, rather than by
the filing of a Uniform Commercial Code (“UCC”) financing statement with respect to such
investment property, and (c) do whatever Lender may reasonably request, from time to time, to
effect the purposes of this Agreement and the other Loan Documents, including filing notices of
liens, UCC financing statements, fixture filings and amendments, renewals and continuations
thereof; cooperating with Lender’s representatives; keeping stock records; obtaining waivers from
landlords and mortgagees and from warehousemen and their landlords and mortgages; and, paying
claims which might, if unpaid, become a Lien on the Collateral. Lender is hereby authorized by
Borrower to file any UCC financing statements covering the Collateral whether or not Borrower’s
signatures appear thereon.



     6.16 Environmental Compliance and Reports. Borrower shall comply in all respects with any and
all Environmental Laws; not cause or permit to exists as a result of an intentional or
unintentional action or omission on Borrower’s part or on the part of any third party, on property
owned and/or occupied by Borrower, any environmental activity where damage may result to the
environment, unless such environmental activity is pursuant to and in compliance with the
conditions of a permit issued by the appropriate federal, state or local governmental authorities;
shall furnish to Lender promptly and in any event within thirty (30) days after receipt thereof a
copy of any notice, summons, lien, citation, directive, letter or other communication from any
governmental agency or instrumentality concerning any intentional or unintentional action or
omission on Borrower’s part in connection with any environmental activity whether or not there is
damage to the environment and/or other natural resources; provided that such notices shall be
required only for such notices or claims that would require expenditures and/or payment of fines by
the Borrower in excess of $100,000, individually or in the aggregate, in any fiscal year.



41









 





     6.17 Motor Vehicle Collateral. Upon the request of Lender, the Borrower shall execute and
deliver, and cause each Subsidiary to execute and deliver, certificates of title and other
documents necessary or desirable for Lender to obtain a first priority perfected security interest
in the motor vehicles owned by the Borrower or such Subsidiary.



ARTICLE VII.




NEGATIVE COVENANTS




     So long as Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, Borrower
shall not, nor shall it permit any Subsidiary to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



          (a) Liens pursuant to any Loan Document;




          (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor
with respect thereto is not changed, and (iv) and any renewal or extension of the obligations
secured or benefited thereby is permitted by Section 7.03(b);




          (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;




          (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;




          (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;




          (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred in the ordinary
course of business;




          (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, 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 materially interfere with the
ordinary conduct of the business of the applicable Person;




42









 








          (h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;
and




          (i) Liens securing Indebtedness permitted under Section 7.03(e); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition.




     7.02 Investments. Make any Investments, except:



          (a) Investments held by Borrower or such Subsidiary in the form of cash equivalents or
short-term marketable debt securities;




          (b) advances to officers, directors and employees of Borrower and Subsidiaries in an aggregate
amount not to exceed $500,000 at any time outstanding; provided that, if the aggregate
amount of advances to any officer, director or employee exceed $125,000, such advances shall be
evidenced by a promissory note which shall be delivered to Lender and pledged to Lender to secure
the Obligations;




          (c) Investments of Borrower in any wholly-owned Subsidiary and Investments of any wholly-owned
Subsidiary in Borrower or in another wholly-owned Subsidiary;




          (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;




          (e) Guarantees permitted by Section 7.03;




          (f) Investments with regard to Permitted Acquisitions; and




          (g) other Investments not exceeding $100,000 in the aggregate at any time after February 16,
2005.




     7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



          (a) Indebtedness under the Loan Documents;




          (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof (other than Subordinated Liabilities);
provided that (i) the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or
other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the
terms relating to principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing,

43









 








refunding, renewing or extending Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any material respect to the
Loan Parties or Lender than the terms of any agreement or instrument governing the Indebtedness
being refinanced, refunded, renewed or extended and the interest rate applicable to any such
refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable
market interest rate;




          (c) Guarantees of Borrower or any Subsidiary in respect of Indebtedness otherwise permitted
hereunder of Borrower or any wholly-owned Subsidiary;




          (d) obligations (contingent or otherwise) of Borrower or any Subsidiary existing or arising
under any Swap Contract, provided that (i) such obligations are (or were) entered into by
such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain
any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;




          (e) Indebtedness constituting Subordinated Liabilities repayable pursuant to any Subordinated
Debt Document;




          (f) Indebtedness in respect of capital leases and purchase money obligations for fixed or
capital assets within the limitations set forth in Section 7.01(i); provided,
however, that the aggregate amount of all such Indebtedness at any one time outstanding
shall not exceed $250,000; and




          (g) obligations (contingent or otherwise) of Borrower or any Subsidiary as a surety or
guarantor arising in the ordinary course of business; provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $100,000.




     7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or 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, except that, so long as no Default exists or would result therefrom:



          (a) any Subsidiary may merge with (i) Borrower, provided that Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that
when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary
shall be the continuing or surviving Person; and




          (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a wholly-owned Subsidiary, then the transferee must either be
Borrower or a wholly-owned Subsidiary.




44









 








     7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:



          (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;




          (b) Dispositions of inventory in the ordinary course of business;




          (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement equipment or real property
or (ii) the proceeds of such Disposition are applied to the purchase price of replacement equipment
or real property within 90 days of such Disposition;




          (d) Dispositions of property by any Subsidiary to Borrower or to a wholly-owned Subsidiary;
and




          (e) Dispositions permitted by Section 7.04;



provided, however, that any Disposition pursuant to clauses (a) through (e) shall
be for fair market value.




     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests,
except that, so long as no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom:



          (a) each Subsidiary may make Restricted Payments to Borrower, Guarantors and any other Person
that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of
the type of Equity Interest in respect of which such Restricted Payment is being made;




          (b) Borrower and each Subsidiary may declare and make dividend payments or other distributions
payable solely in the common stock or other common Equity Interests of such Person;




          (c) Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests
issued by it with the proceeds received from the substantially concurrent issue of new shares of
its common stock or other common Equity Interests;




          (d) so long as no Default or Event of Default exists, the Borrower may make distributions to
each member of the Borrower in an amount sufficient to pay the federal, state, provincial and
local income tax liability of such Member (or, in the event a member is a S corporation or a
partnership, the tax liability of its shareholders or partners) in respect of any profits of the
Borrower allocated to such member, determined in accordance with the maximum marginal federal
income tax rate applicable to individuals and the maximum marginal state income tax applicable to
individuals for the state in which any member is domiciled for state tax purposes which has the
highest such maximum marginal rate;




45









 








          (e) Borrower may declare and make dividend payments or other distributions to its members
during the period beginning on the Closing Date and ending on December 31, 2005 in an aggregate
amount not to exceed $200,000, and




          (f) any other Restricted Payments from time to time agreed to in writing by Lender.




     7.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by Borrower and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.



     7.08 Transactions with Affiliates. Other than with respect to Subordinated Liabilities
subject to a Subordination Agreement, enter into any transaction of any kind with any Affiliate of
Borrower, whether or not in the ordinary course of business, other than on fair and reasonable
terms substantially as favorable to Borrower or such Subsidiary as would be obtainable by Borrower
or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an
Affiliate, provided that the foregoing restriction shall not apply to transactions between or among
Borrower and any Guarantor or between and among Guarantors.



     7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to Borrower or any Guarantor or to otherwise transfer property to Borrower or any
Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of Borrower or (iii) of Borrower or
any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that this clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under Section 7.03(e)
solely to the extent any such negative pledge relates to the property financed by or the subject of
such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a
Lien is granted to secure another obligation of such Person.



     7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.11 Prepayment of Subordinated Indebtedness.



          (a) Make any payment or prepayment of principal of, or premium or interest on, any
Subordinated Liabilities, other than as permitted under any Subordination Agreement;




          (b) amend any Subordinated Debt document without the written consent of Lender;




          (c) redeem, retire, purchase, defease or otherwise acquire any Subordinated Liabilities except
as permitted under a Subordination Agreement; or




46









 








          (d) make any deposit (including the payment of amounts into a sinking fund or other similar
fund) for any of the foregoing purposes.




ARTICLE VIII.




EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



          (a) Non-Payment. Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii)
within three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or
any fee due hereunder, or (iii) within five (5) days after the same becomes due, any other amount
payable hereunder or under any other Loan Document; or




          (b) Specific Covenants. Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section 6.01, 6.02, 6.03, 6.05,
6.10, 6.11 or 6.12 or Article VII; or




          (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for thirty (30) days or any default or Event
of Default occurs under any other Loan Document; or




          (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of Borrower or any other Loan Party herein,
in any other Loan Document, or in any document delivered in connection herewith or therewith shall
be incorrect or misleading when made or deemed made; or




          (e) Cross-Default. (i) Borrower or any Subsidiary (A) fails to make any payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under
Swap Contracts) 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 $500,000, or (B) fails to observe or perform any other agreement or
condition relating to any such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which Borrower or any Subsidiary is the Defaulting Party (as defined in
such Swap Contract) or (B)

47









 








any Termination Event (as so defined) under such Swap Contract as to which Borrower or any
Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount, and
(iii) any Loan Party or any holder of Subordinated Liabilities fails to perform or observe any
term, covenant or agreement contained in any Subordination Agreement to which it is a party; or




          (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or
any proceeding under any Debtor Relief Law relating to any such Person or to all or any material
part of its property is instituted without the consent of such Person and continues undismissed or
unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or




          (g) Inability to Pay Debts; Attachment. (i) Borrower or any Subsidiary becomes unable
or admits in writing its inability or fails generally to pay its debts as they become due, or (ii)
any writ or warrant of attachment or execution or similar process is issued or levied against all
or any material part of the property of any such Person and is not released, vacated or fully
bonded within thirty (30) days after its issue or levy; or




          (h) Judgments. There is entered against Borrower or any Subsidiary (i) a final
judgment or order for the payment of money in an aggregate amount exceeding $500,000 (to the extent
not covered by independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case,
(A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there
is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or




          (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of Borrower under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) Borrower or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of the Threshold Amount; or




          (j) Invalidity of Loan Documents. Any Loan Document or any provision thereof, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party or any other Person contests in any manner the validity or
enforceability of any Loan Document or any provision thereof; or any Loan Party denies that it has
any or further liability or obligation under any Loan Document, or purports to revoke, terminate or
rescind any Loan Document or any provision thereof; or




48









 








          (k) Change of Control. There occurs any Change of Control with respect to Borrower or
any Guarantor; or




          (l) Material Adverse Effect. There occurs any event or circumstance that has a
Material Adverse Effect.




     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, Lender
may take any or all of the following actions:



          (a) declare the commitment of Lender to make Loans and any obligation of Lender to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;




          (b) declare 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;




          (c) require that Borrower Cash Collateralize the L/C Obligations (in an amount equal to the
then Outstanding Amount thereof); and




          (d) exercise all rights and remedies available to it under the Loan Documents;




     provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to Borrower under the Bankruptcy Code of the United States, the
obligation of Lender to make Loans and L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, and the obligation of Borrower to Cash Collateralize
the L/C Obligations as aforesaid shall automatically become effective, in each case without further
act of Lender.



     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall be applied by
Lender in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to Lender (including fees, charges
and disbursements of counsel to Lender (including fees and time charges for attorneys who may be
employees of Lender) and amounts payable under Article III);



     Second, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans, L/C Borrowings and other Obligations;



     Third, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings;



49









 





     Fourth, to payment of that portion of the Obligations constituting amounts owing to
Lender or any Affiliate of Lender under a Swap Contract or indemnities under any Loan Agreement;



     Fifth, to Cash Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit; and



     Sixth, the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to Borrower or as otherwise required by Law.



     Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set forth above.



ARTICLE IX.




MISCELLANEOUS




     9.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by Borrower or any other Loan Party therefrom, shall
be effective unless in writing signed by Lender and Borrower or the applicable Loan Party, as the
case may be.



     9.02 Notices; Effectiveness; Electronic Communications.



          (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows, if to Borrower or Lender,
to the address, telecopier number, electronic mail address or telephone number specified for such
Person on Schedule 9.02.




     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).



          (b) Electronic Communications. Notices and other communications to Lender hereunder
may be delivered or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by Lender. Lender or Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such

50









 








procedures may be limited to particular notices or communications. Unless Lender otherwise
prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgement),
provided that if such notice or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website address therefor.




          (c) Change of Address, Etc. Each of the Borrower and Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by notice to the
other parties hereto.




          (d) Reliance by Lender. Lender shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. Borrower shall indemnify Lender and the
Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of Borrower. All
telephonic notices to and other telephonic communications with Lender may be recorded by Lender,
and Borrower hereby consents to such recording.




     9.03 No Waiver; Cumulative Remedies. No failure by Lender to exercise, and no delay by any
such Person in exercising, 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. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



     9.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. Borrower shall pay
(i) all reasonable out-of-pocket expenses incurred by Lender and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for Lender), in connection with the
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by Lender in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by Lender (including the fees, charges and disbursements of any
counsel for Lender), and shall pay all fees and time charges for attorneys who may be employees of
Lender, in connection with the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued



51









 







hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.



          (b) Indemnification by the Borrower. Borrower shall indemnify Lender (and any
sub-agent thereof) and each Related Party of Lender (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and disbursements of any
counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees
and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred
by any Indemnitee or asserted against any Indemnitee by any third party or by Borrower or any other
Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by
Lender to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any
way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto, in all cases,
whether or not caused by or arising, in whole or in part, out of the comparative, contributory or
sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a
claim brought by Borrower or any other Loan Party against an Indemnitee for breach in bad faith of
such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Loan
Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.




          (c) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.




          (d) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.




52









 








          (e) Survival. The agreements in this Section shall survive the assignment by Lender
of its rights and obligations hereunder, the termination of the Commitment and the repayment,
satisfaction or discharge of all the other Obligations.




     9.05 Successors and Assigns. (a) Successors and Assigns Generally.



               (i) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns hereby, except that neither Borrower nor
any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of Lender.



               (ii) Lender may at any time assign to one or more financial institutions all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitment and
the Loans (including participations in L/C Obligations) at the time owing to it); provided that (i)
except in the case of an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the assignment consummated, shall not be less than $2,500,000 unless, so
long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as
an assignment of a proportionate part of all Lender’s rights and obligations under this Agreement
with respect to the Loans or the Commitment assigned; and (iii) the parties to each assignment
shall execute and deliver to Lender an assignment and assumption agreement in form and substance
acceptable to Lender to evidence such assignment, together with a processing and recordation fee of
$3,500. Upon request of Lender, Borrower agrees to enter into such documentation necessary or
desirable to Lender to permit Lender’s assignees hereunder to become direct co-lenders under this
Agreement pursuant to provisions and terms customary in multi-lender syndicated credit agreements.



          (b) Certain Pledges. Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note, if any) to secure
obligations of Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for Lender as a party hereto.




          (c) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.




53









 








     9.06 Treatment of Certain Information; Confidentiality. Lender agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any regulatory authority,
purporting to have jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to Borrower and its obligations, (g) with the consent of
Borrower or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to Lender or any of its Affiliates on
a nonconfidential basis from a source other than Borrower. For purposes of this Section,
“Information” means all information received from Borrower or any Subsidiary relating to
Borrower or any Subsidiary or any of their respective businesses, other than any such information
that is available to Lender on a nonconfidential basis prior to disclosure by Borrower or any
Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



     9.07 Right of Setoff. If an Event of Default shall have occurred and be continuing, Lender
and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and other obligations
(in whatever currency) at any time owing by Lender or any such Affiliate to or for the credit or
the account of Borrower or any other Loan Party against any and all of the obligations of Borrower
or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to
Lender or any such Affiliate, irrespective of whether or not Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations of Borrower or such
Loan Party may be contingent or unmatured or are owed to a branch or office of Lender different
from the branch or office holding such deposit or obligated on such indebtedness. The rights of
Lender and its respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that Lender or its Affiliates may have. Lender agrees
to notify Borrower promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.



     9.08 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid principal,



54









 







refunded to Borrower. In determining whether the interest contracted for, charged, or
received by Lender exceeds the Maximum Rate, Lender may, to the extent permitted by applicable Law,
(a) characterize any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.



     9.09 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement
and the other Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by Lender and when Lender shall
have received counterparts hereof that, when taken together, bear the signatures of each of the
other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.



     9.10 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by Lender, regardless of any
investigation made by Lender or on their behalf and notwithstanding that Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



     9.11 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     9.12 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.



          (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF ILLINOIS SITTING IN COOK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF
THE NORTHERN DISTRICT OF ILLINOIS, AND

55









 








ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT,
AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT LENDER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.




          (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.



          (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



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



56









 





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



     9.15 Time of the Essence. Time is of the essence of the Loan Documents.



[signature page follows]




57









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	 	HERITAGE-CRYSTAL CLEAN, LLC,
	 	 	     as Borrower
	 
	 	 	 	 
	 

	 	By:	 	/s/ Gregory Ray
	 

	 	 	 	 
	 

	 	Name:	 	Gregory Ray
	 

	 	 	 	 
	 

	 	Title:	 	Vice President — Business Mgmt.
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Richard D. Hill, Jr.
	 

	 	 	 	 
	 

	 	Name:	 	Richard D. Hill, Jr.
	 

	 	 	 	 
	 

	 	Title:	 	Managing Director
	 

	 	 	 	 





Signature Page to Amended and Restated Credit Agreement




 









 








SCHEDULE 4.01




LIST OF CLOSING DOCUMENTS




(attached)




 









 





SCHEDULE 5.06




LITIGATION




None.





 









 








SCHEDULE 5.09




ENVIRONMENTAL MATTERS




None.





 









 








SCHEDULE 5.13




SUBSIDIARIES



AND OTHER EQUITY INVESTMENTS



AND EQUITY INTERESTS IN BORROWER




	 	 	 
	Part (a).

	 	Subsidiaries.
	 
	 	 
	None.
	 	 
	 
	 	 
	Part (b).

	 	Other Equity Investments.
	 
	 	 
	None.
	 	 
	 
	 	 
	Part (c).

	 	Owners of Equity Interests in Borrower.






Preferred Members

The Heritage Group

J. Chalhoub Holdings, Ltd.

Gregory Paul Ray Trust

Fred M. Fehsenfeld, Jr.

Maggie Fehsenfeld Trust

Frank S. Fehsenfeld Trust

Donald Brinckman

BRS-HCC Investment Co, Inc.




Common Units

The Heritage Group

J. Chalhoub Holdings, Ltd.

Frank Fehsenfeld

Mike DeAngelis

Gregory Paul Ray Trust – A

Gregory Paul Ray Trust – B

John Lucks

Fred M. Fehsenfeld, Jr.

Maggie Fehsenfeld Trust

Frank S. Fehsenfeld Trust

Glenn Jones

Heritage-Crystal Clean Key Employee

Membership Interest Trust

Donald Brinckman

BRS-HCC Investment Co, Inc.





 









 








SCHEDULE 7.01




EXISTING LIENS




	 	 	 	 	 	 	 	 	 	 	 
	Jurisdiction	 	Secured Party	 	File Number	 	File Date	 	Collateral Description
	Secy of State,
Indiana

	 	Bank of America,
N.A.
	 	 	200300011119028	 	 	12-02-2003
	 	All accounts; whether any
of the foregoing is owned
now or acquired later; all
accessions, additions,
replacements, and
substitutions relating to
any of the foregoing; all
records of any kind
relating to any of the
foregoing; all proceeds
relating to any of the
foregoing (including
insurance, general
intangibles and other
accounts proceeds)
	 
	 	 	 	 	 	 	 	 	 	 
	Secy of State,
Illinois

	 	CIT Technology
Financing Services,
Inc.
	 	 	6186726	 	 	11-26-2002
	 	Leased equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Secy of State,
Illinois

	 	US Bancorp
	 	 	8771928	 	 	06-07-2004
	 	1 Ricoh lease







 









 








SCHEDULE 7.03




EXISTING INDEBTEDNESS




None.





 









 





SCHEDULE 9.02




LENDER’S OFFICE,

CERTAIN ADDRESSES FOR NOTICES




Heritage-Crystal Clean, LLC

2250 Point Boulevard, Suite 250

Elgin, IL 60123

Attention: Greg Ray

Telephone: 847-783-5102

Telecopier: 847- 836-5677

Electronic Mail: Greg.Ray@Crystal-Clean.com




Lender:




For payments and Requests for Credit Extensions.

Bank of America, N.A.

Street Address: 9000 Southside Blvd. – Bldg 200

Mail Code: FL9-200-02-04

City, State ZIP Code: Jacksonville, Florida 32256

Attention: Allison Stamps

Telephone: 888 325-4196

Telecopier: 888 841-8160

Electronic Mail: Allison.L.Stamps@bankofamerica.com

Account No.: 1098230000591

Ref: Heritage-Crystal Clean

ABA#: 026009593




Other Notices as Lender:

Bank of America, N.A.

Street Address: 100 Federal Street

Mail Code: MA5-100-09-08

City, State ZIP Code: Boston, MA 02110

Attention: Richard D. Hill Jr.

Telephone: 617-434-4080

Telecopier: 617-434-2160

Electronic Mail: rick.hill@bankofamerica.com





1









 








EXHIBIT A




FORM OF LOAN NOTICE




Date:                     , _____




To:      Bank of America, N.A., as Lender




Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of October
27, 2005 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
between Heritage-Crystal Clean, LLC, an Indiana limited liability company (the “Borrower”)
and Bank of America, N.A., as Lender.



     The undersigned hereby requests a Loan Borrowing




	 	1.	 	On                                                             
(a Business Day).
	 
	 	2.	 	In the amount of $                                        .
	 
	 	3.	 	Comprised of                                          [Type of Loan requested].
	 
	 	4.	 	For Eurodollar Rate Loans: with an Interest Period of
___ months.






The Loan Borrowing, if any, requested herein complies with the proviso to the first sentence
of Section 2.01 of the Agreement.



	 	 	 	 	 	 	 
	 	 	HERITAGE-CRYSTAL CLEAN, LLC,
	 
	 	 	     as Borrower
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





A-1









 





EXHIBIT B




FORM OF AMENDED AND RESTATED NOTE




			
	 	 	 
	$12,000,000
	 	October 27, 2005





FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to Bank of
America, N.A. or assigns (“Lender”), in accordance with the provisions of the Agreement (as
hereinafter defined), the principal amount of each Loan from time to time made by Lender to
Borrower under that certain Amended and Restated Credit Agreement, dated as of October 27, 2005 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), between
Borrower and Lender.




     Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of
such Loan until such principal amount is paid in full, at such interest rates and at such times as
provided in the Agreement. All payments of principal and interest shall be made to Lender in
Dollars in immediately available funds at Lender’s Office. If any amount is not paid in full when
due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.



     This Amended and Restated Note (this “Note”) is one of the Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to
the terms and conditions provided therein. This Note is also entitled to the benefits of each
Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of
the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and payable all as provided in the
Agreement. Loans made by Lender shall be evidenced by one or more loan accounts or records
maintained by Lender in the ordinary course of business. Lender may also attach schedules to this
Note and endorse thereon the date, amount and maturity of its Loans and payments with respect
thereto.



     Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



     The principal amount of this Note includes the indebtedness heretofore evidenced by that
certain Note dated February 16, 2005 (the “Existing Note”) made by Borrower to the order of
the Lender in the stated amount of $7,500,000 and to the extent such indebtedness is included in
this Note, this Note (i) merely re-evidences the indebtedness heretofore evidenced by the Existing
Note, (ii) is given in substitution for, and not as payment of, the Existing Note and (iii) is in
no way intended to constitute a novation of the Borrower’s indebtedness which was evidenced by the
Existing Note.



     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS.



B-1









 





	 	 	 	 	 	 	 
	 	 	HERITAGE-CRYSTAL CLEAN, LLC
	 	 	     as Borrower
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





B-2









 





LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Principal or	 	Principal	 	 
	 	 	Type of Loan	 	Amount of	 	Interest	 	Interest Paid	 	Balance This	 	Notation
	Date	 	Made	 	Loan
Made	 	Period	 	This Date	 	Date	 	Made By
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 





B-3









 





EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:            ,




To:      Bank of America, N.A., as Lender




Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of October
27, 2005 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
between Heritage-Crystal Clean, LLC, an Indiana limited liability company (“Borrower”) and
Bank of America, N.A. (the “Lender”).



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                                            
of Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
Lender on the behalf of Borrower, and that:



          [Use following paragraph 1 for fiscal year-end financial statements]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of Borrower ended as of
the above date, together with the report and opinion of an independent certified public accountant
required by such section.



     [Use following paragraph 1 for four week reporting period financial statements]



     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the reporting period of Borrower ended as of the above
date. Such financial statements fairly present the financial condition, results of operations and
cash flows of Borrower in accordance with GAAP as at such date and for such period, subject only to
normal year-end audit adjustments and the absence of footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of Borrower during the accounting period covered by the attached
financial statements.



     3. A review of the activities of Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period
Borrower performed and observed all its Obligations under the Loan Documents, and



     [to the best knowledge of the undersigned during such fiscal period, Borrower performed and
observed each covenant and condition of the Loan Documents applicable to it.]



C-1









 





—or—




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



     4. The representations and warranties of Borrower contained in Article V of the
Agreement, and/or any representations and warranties of Borrower or any other Loan Party that are
contained in any document furnished at any time under or in connection with the Loan Documents, are
true and correct on and as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this Compliance Certificate, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall
be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the statements in connection with
which this Compliance Certificate is delivered.



     5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                                         ,
          .



	 	 	 	 	 	 	 
	 	 	HERITAGE-CRYSTAL CLEAN, LLC, as
	 	 	Borrower
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





C-2









 





     For the Four Week Accounting Period/Year ended                                         (“Statement Date”)



SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




I. Section 6.12(a) –Tangible Net Worth.




	 	 	 	 	 
	A. Tangible Net Worth at Statement Date:
	 	 	 	 
	 
	1. Total Tangible Assets:
	 	$	                    	 
	 
	2. Total Liabilities:
	 	$	                    	 
	 
	3. Tangible Net Worth (Line I.A.1 less Line I.A.2):
	 	$	                    	 
	 
	B. 1.  $650,000:
	 	$	650,000	 
	 
	2. plus the sum of 75% of net income after income taxes
(without subtracting losses) earned in each four week
reporting period commencing after October 4, 2003:
	 	$	                    	 
	 
	3. plus the net proceeds from any equity securities
issued after October 4, 2003:
	 	$	                    	 
	 
	4. plus any increase in stockholder’s equity resulting
from the conversion of debt securities to equity
security after February 16, 2005:
	 	$	                    	 
	 
	5. minus the amount of distributions permitted under
(i) Section 7.06(d) of the Agreement that are made
after February 16, 2005 and (ii) Section 7.06(e) of the
Agreement that are made after the Closing Date:
	 	$	                    	 
	 
	6. Minimum Required Tangible Net Worth (I.B.1 plus
I.B.2 plus I.B.3 plus I.B.4 minus I.B.5):
	 	$	                    	 
	 
	C. Excess (deficient) for covenant compliance (Line I.A.3
less I.B.6):
	 	$	                    	 






II. Section 6.12(b) – Senior Leverage Ratio.




	 	 	 	 	 
	A. Funded Debt
	 	 	 	 
	 
	1. all outstanding liabilities for borrowed money plus
 other interest-bearing liabilities, including current
and long-term liabilities:
	 	$	                    	 






C-3









 






	 	 	 	 	 
	2. Total Funded Debt:
	 	$	                    	 
	 
	B. Subordinated Liabilities:
	 	$	                    	 
	 
	C. EBITDA
	 	 	 	 
	 
	1. net income:
	 	$	                    	 
	 
	2.
less income or plus loss from discontinued
operations and extraordinary items:
	 	$	                    	 
	 
	3. plus income taxes:
	 	$	                    	 
	 
	4. plus interest expense:
	 	$	                    	 
	 
	5. plus depreciation, depletion and amortization:
	 	$	                    	 
	 
	6. Total EBITDA:
	 	$	                    	 
	 
	D. Senior Leverage Ratio ((Line II.A.2-Line II.B)  ̧
Line II.C.6):
	 	                to 1.0
	 
	Maximum Permitted Senior Leverage Ratio:
	 	 3:00 to 1.0






III. Section 6.12(c) – Interest Coverage Ratio.




	 	 	 	 	 
	A. EBITDA (Line II.C.6)
	 	$	                    	 
	 
	B. Interest expense:
	 	$	                    	 
	 
	C. Interest Coverage Ratio (Line III.A  ̧ Line III.B):
	 	                to 1.0
	 
	Minimum Required Interest Coverage Ratio:
	 	 2.50 to 1.0






IV. Section 6.12(d) — Capital Expenditures.




	 	 	 	 	 
	A. Expenditures made and obligations accrued (including,
without limitation, expenditures made and obligations
accrued with respect to capital leases but excluding
expenditures made and obligations accrued as
consideration for Permitted Acquisitions) with respect
to the acquisitions of fixed assets during the fiscal
year to date:
	 	 	 	 






C-4









 






	 	 	 	 	 
	B. Maximum permitted capital expenditures:
	 	 	 	 
	 
	Fiscal Year

 



	 	Amount
	Fiscal Year 2005
	 	 	 $4,350,000	 
	Fiscal Year 2006 and thereafter
	 	 	 $4,500,000	 
	 
	C. Excess (deficient) for covenant compliance (Line IV.A –
IV.B):
	 	$	                    	 
	 
	Description of Capital Expenditures during the most
recent accounting period:
	 	 	 	 
	 
 




	 	 	 	 






V. Section 6.12(e) – Total Leverage Ratio.




	 	 	 	 	 
	A. Funded Debt (Line II.A.2)
	 	$	                    	 
	 
	B. EBITDA (Line II.C.6)
	 	$	                    	 
	 
	C. Total Leverage Ratio (Line V.A  ̧ Line V.B):
	 	                to 1.0
	 
	Maximum Permitted Total Leverage Ratio:
	 	 	 	 
	 
	Date of Determination
	 	Ratio
	Closing Date through December 30, 2006
	 	 	 4.0 : 1.0	 
	 
	December 31, 2006 and thereafter
	 	 	 3.5 : 1.0.	 







C-5









 








Exhibit D




FORM OF ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE AGING REPORT




(attached)




 









 





EXECUTION COPY




AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”),
dated as of April 28, 2006, is made between HERITAGE-CRYSTAL CLEAN, LLC, an Indiana limited
liability company (the “Borrower”) and BANK OF AMERICA, N.A. (the “Lender”).
Undefined capitalized terms used herein shall have the meanings ascribed to such terms in the
Credit Agreement referenced below.



W I T N
E S S E T H:



   WHEREAS, the Borrower and the Lender have entered into that certain Amended and Restated
Credit Agreement dated as of October 27, 2005 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”), pursuant to which, among other things, the Lender
has agreed to provide, subject to the terms and conditions contained therein, certain financial
accommodations to the Borrower; and



   WHEREAS, the Borrower has requested that the Lender amend the Credit Agreement and, subject to
the terms and conditions of this Agreement, the Lender hereby agrees to amend the Credit Agreement;



   NOW, THEREFORE, in consideration of the foregoing premises, the terms and conditions stated
herein and other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Borrower and the Lender, such parties hereby agree as follows:




          1. Amendments to Credit Agreement. Subject to the satisfaction of the conditions
precedent set forth in Section 3 of this Agreement, the Credit Agreement is hereby amended
as follows:




          (a) Section 1.01 to the Credit Agreement is hereby amended as follows:





     (i) The definition of “Closing Date” set forth therein is hereby amended and
restated in its entirety as follows:




          “Closing Date” means October 27, 2005.




     (ii) The definition of “Commitment” set forth therein is hereby amended to
delete the reference to the dollar amount “$12,000,000” set forth therein and to replace
such dollar amount with the dollar amount “$20,000,000.”





     (iii) The definition of “Maturity Date” set forth therein is hereby
amended to delete the reference to the date “June 30, 2007” set forth therein and to replace
such date with the date “June 30, 2008.”




     (iv) The following definition is hereby added to Section 1.01 in the appropriate
alphabetical location:



 









 




“First Amendment Effective Date” means April 28, 2006.




          (b) Section 6.12 of the Credit Agreement is hereby amended as follows:





     (i) Section 6.12(a)(v) of the Credit Agreement is hereby amended to delete the
reference to “the Closing Date” set forth therein and to replace such reference with “the
First Amendment Effective Date.”




     (ii) Section 6.12(b) of the Credit Agreement is hereby amended and restated in its
entirety as follows:




(b) Senior Leverage Ratio. Maintain on a consolidated basis a
Senior Leverage Ratio, as of the last day of any reporting period for which
this Agreement requires Borrower to deliver financial statements, calculated
based upon the amount of Funded Debt and Subordinated Liabilities as of such
day and EBITDA for the trailing thirteen four week reporting periods ending
on such day, not exceeding the ratio set forth below opposite such period:



	 	 	 
	Date of Determination	 	Ratio
	First Amendment Effective Date through December 30, 2007

	 	3.0 : 1.0
	 
	 	 
	December 31, 2007 and thereafter

	 	2.75 : 1.0







     (iii) Section 6.12(c) of the Credit Agreement is hereby amended and restated in its
entirety as follows:




     (c) Interest Coverage Ratio. Maintain on a consolidated basis an
Interest Coverage Ratio, as of the last day of any reporting period for which this
Agreement requires Borrower to deliver financial statements, calculated based upon
interest expense and EBITDA for the trailing thirteen four week reporting periods
ending on such day, of at least the ratio set forth below opposite such period:



	 	 	 
	Date of Determination	 	Ratio
	First Amendment Effective Date through December 30, 2006

	 	3.0 : 1.0
	 
	 	 
	December 31, 2006 and thereafter

	 	3.5 : 1.0






2









 






     (iv) Section 6.12(d) of the Credit Agreement is hereby amended to delete the reference
to the dollar amount “$4,500,000” set forth therein and to replace such dollar amount with
the dollar amount “$5,000,000.”




     (v) Section 6.12(e) of the Credit Agreement is hereby amended to amend and restate the
table set forth therein in its entirety as follows:



	 	 	 
	Date of Determination	 	Ratio
	First Amendment Effective Date through December 30, 2007

	 	3.5 : 1.0
	 
	 	 
	December 31, 2007 and thereafter

	 	3.25 : 1.0






          (c) Section 7.03(f) of the Credit Agreement is hereby amended to delete the reference to the
dollar amount “$250,000” set forth therein and to replace such dollar amount with the dollar amount
“$1,000,000.”




          (d) Section 7.06(e) of the Credit Agreement is hereby amended and restated in its entirety as
follows:





     (e) Borrower may declare and make dividend payments or other distributions to
its members (in addition to any payments or distributions otherwise permitted under
this Section 7.06) during the period beginning on the First Amendment Effective Date
and ending on December 31, 2006 in an aggregate amount not to exceed $1,000,000, and



          (e) Exhibit C to the Credit Agreement is hereby amended and restated in its entirety as
Annex I hereto.




          2. Consent. Subject to the satisfaction of the conditions precedent set forth in
Section 3 of this Agreement, the Lender hereby consents to the Borrower’s execution to the
amendment and restatement of that certain $3,250,000 Promissory Note dated December 15, 2004 issued
by Borrower in favor of Don Brinckman in connection with, among other things, an extension of the
maturity date thereunder to July 31, 2008. A true and correct copy of the such Amended and Restated
Promissory Note is attached hereto as Annex II.




          3. Effectiveness of this Agreement; Conditions Precedent. The provisions of
Section 1 and 2 of this Agreement shall be deemed to have become effective as of
the date first written above (the “Effective Date”), but such effectiveness shall be
expressly conditioned upon the Lender’s receipt of the following:




          (a) originally-executed counterparts of this Agreement executed by the Borrower and the
Lender;




3









 








          (b) an originally executed Second Amended and Restated Note executed by Borrower in favor of
Lender;




          (c) a good standing certificate for Borrower from the office of the Secretary of State of the
State of Indiana dated as of a recent date;




          (d) a certificate executed by the Secretary or Assistant Secretary of Borrower certifying (i)
the resolutions adopted by the Board of Members of Borrower authorizing or ratifying the execution,
delivery and performance of this Agreement and the performance of the Credit Agreement as amended
hereby, (ii) the names, signatures and incumbency of the officers of Borrower authorized to execute
this Agreement on behalf of Borrower and (iii) the Certificate of Formation certified as of a
recent date by the Secretary of State of the State of Indiana and Operating Agreement of Borrower
as in effect on the date of such certification;




          (e) an opinion letter of Borrower’s counsel, Pluymert, Piercey, MacDonald & Amato, Ltd. in
form and substance reasonably acceptable to the Lender;




          (f) amendments to each of the Subordination Agreement in form and substance reasonably
acceptable to the Lender providing for an increase in the dollar amount referenced in the final
sentence of paragraph 8 of each Subordination Agreement to a dollar amount not less than
$20,000,000; and




          (g) payment in full from the Borrower, in immediately available funds, of an amendment fee
payable to the Lender in an amount equal to $32,000 (the “Amendment Fee”).




          4. Representations, Warranties and Covenants.



   (a) The Borrower hereby represents and warrants that this Agreement and the Credit Agreement
as amended hereby constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with its terms.



   (b) The Borrower hereby represents and warrants that its execution, delivery and performance
of this Agreement has been duly authorized, does not violate any provision of its limited liability
company agreement, will not violate any law, regulation, court order or writ applicable to it, and
will not require the approval or consent of any governmental agency, or of any other third party
under the terms of any contract or agreement to which it is bound.



   (c) The Borrower hereby represents and warrants that, after giving effect to the provisions
of this Agreement, (i) no default or event of default shall have occurred and (ii) all of the
representations and warranties of the Borrower contained in the Credit Agreement (other than
representations and warranties which, in accordance with their express terms, are made only as of
an earlier specified date) are, and will be, true and correct as of the date of the Borrower’s
execution and delivery hereof or thereof in all material respects as though made on and as of such
date.



   (d) The Borrower hereby agrees to pay the Amendment Fee to the Lender upon the Borrower’s
execution and delivery hereof.




4









 








          5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF ILLINOIS.



   6. Lender’s Expenses. The Borrower hereby agrees to promptly reimburse the Lender
for all of the reasonable out-of-pocket expenses, including, without limitation, attorneys’ and
paralegals’ fees, it has heretofore or hereafter incurred or incurs in connection with the
preparation, negotiation and execution of this Agreement and the other documents, agreements and
instruments contemplated hereby.



   7. Counterparts. This Agreement may be executed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same agreement among the
parties.




* * * * *




5









 








          IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first above
written.




	 	 	 	 	 	 	 
	 	 	HERITAGE-CRYSTAL CLEAN, LLC, as Borrower
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gregory Ray	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Gregory Ray	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Secretary	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Lender
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Richard D. Hill, Jr.	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Richard D. Hill, Jr.	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Managing Director	 	 
	 

	 	 	 	 	 	 





Amendment No. 1 to Amended and Restated Credit Agreement




 









 








Annex I




Exhibit C to Amended and Restated Credit Agreement




(attached)




 









 





EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                      ,




To:      Bank of America, N.A., as Lender




Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of October
27, 2005 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
between Heritage-Crystal Clean, LLC, an Indiana limited liability company (“Borrower”) and
Bank of America, N.A. (the “Lender”).



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                                            
of Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
Lender on the behalf of Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of Borrower ended as of
the above date, together with the report and opinion of an independent certified public accountant
required by such section.



[Use following paragraph 1 for four week reporting period financial statements]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the reporting period of Borrower ended as of the above
date. Such financial statements fairly present the financial condition, results of operations and
cash flows of Borrower in accordance with GAAP as at such date and for such period, subject only to
normal year-end audit adjustments and the absence of footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of Borrower during the accounting period covered by the attached
financial statements.



     3. A review of the activities of Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period
Borrower performed and observed all its Obligations under the Loan Documents, and



     [to the best knowledge of the undersigned during such fiscal period, Borrower performed and
observed each covenant and condition of the Loan Documents applicable to it.]



2









 





—or—




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



     4. The representations and warranties of Borrower contained in Article V of the
Agreement, and/or any representations and warranties of Borrower or any other Loan Party that are
contained in any document furnished at any time under or in connection with the Loan Documents, are
true and correct on and as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this Compliance Certificate, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall
be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the statements in connection with
which this Compliance Certificate is delivered.



     5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                                         ,           .



	 	 	 	 	 	 	 
	 	 	HERITAGE-CRYSTAL CLEAN, LLC, as
	 	 	Borrower
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






3










 





For the Four Week Accounting Period/Year ended                                         (“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




I. Section 6.12(a) -Tangible Net Worth.




	 	 	 	 	 
	A. Tangible Net Worth at Statement Date:
	 	 	 	 
	 
	1. Total Tangible Assets:
	 	$	                    	 
	 
	2. Total Liabilities:
	 	$	                    	 
	 
	3. Tangible Net Worth (Line I.A.1 less Line I.A.2):
	 	$	                    	 
	 
	B. 1. $650,000:
	 	$	650,000	 
	 
	2. plus the sum of 75% of net income after income taxes
(without subtracting losses) earned in each four week
reporting period commencing after October 4, 2003:
	 	$	                    	 
	 
	3. plus the net proceeds from any equity securities
issued after October 4, 2003:
	 	$	                    	 
	 
	4. plus any increase in stockholder’s equity resulting
from the conversion of debt securities to equity
security after February 16, 2005:
	 	$	                    	 
	 
	5. minus the amount of distributions permitted under
(i) Section 7.06(d) of the Agreement that are made
after February 16, 2005 and (ii) Section 7.06(e) of the
Agreement that are made after the First Amendment
Effective Date:
	 	$	                    	 
	 
	6. Minimum Required Tangible Net Worth (I.B.1 plus
I.B.2 plus I.B.3 plus I.B.4 minus I.B.5):
	 	$	                    	 
	 
	C. Excess (deficient) for covenant compliance (Line I.A.3
less I.B.6):
	 	$	                    	 






II. Section 6.12(b) – Senior Leverage Ratio.




	 	 	 	 	 
	A. Funded Debt
	 	 	 	 






4









 






	 	 	 	 	 
	1. all outstanding liabilities for borrowed money plus
other interest-bearing liabilities, including current
and long-term liabilities:
	 	$	                    	 
	 
	2. Total Funded Debt:
	 	$	                    	 
	 
	B. Subordinated Liabilities:
	 	$	                    	 
	 
	C. EBITDA
	 	 	 	 
	 
	1. net income:
	 	$	                    	 
	 
	2. less income or plus loss from discontinued
operations and extraordinary items:
	 	$	                    	 
	 
	3. plus income taxes:
	 	$	                    	 
	 
	4. plus interest expense:
	 	$	                    	 
	 
	5. plus depreciation, depletion and amortization:
	 	$	                    	 
	 
	6. Total EBITDA:
	 	$	                    	 
	 
	D. Senior Leverage Ratio ((Line II.A.2-Line II.B)  ̧
Line II.C.6):
	 	                to 1.0
	 
	Maximum Permitted Senior Leverage Ratio
	 	 	 	 
	 
	Date of Determination
	 	Ratio
	First Amendment Effective Date through December 30, 2007
	 	 	3.0 : 1.0	 
	December 31, 2007 and thereafter
	 	 	2.75 : 1.0	 






III. Section 6.12(c) – Interest Coverage Ratio.




	 	 	 	 	 
	A. EBITDA (Line II.C.6)
	 	$	                    	 
	 
	B. Interest expense:
	 	$	                    	 
	 
	C. Interest Coverage Ratio (Line III.A  ̧ Line III.B):
	 	 	          to 1.0
	 
	Minimum Required Interest Coverage Ratio:
	 	 	 	 






5









 






	 	 	 	 	 
	Date of Determination
	 	Ratio
	First Amendment Effective Date through December 30, 2006
	 	 	3.0 : 1.0	 
	December 31, 2006 and thereafter
	 	 	3.5 : 1.0	 






IV. Section 6.12(d) — Capital Expenditures.




	 	 	 	 	 
	A. Expenditures made and obligations accrued (including,
without limitation, expenditures made and obligations
accrued with respect to capital leases but excluding
expenditures made and obligations accrued as
consideration for Permitted Acquisitions) with respect
to the acquisitions of fixed assets during the fiscal
year to date:
	 	 	 	 
	 
	B. Maximum permitted capital expenditures:
	 	 	 	 
	 
	Fiscal Year
	 	Amount
	Fiscal Year 2005
	 	$	4,350,000	 
	Fiscal Year 2006 and thereafter
	 	$	5,000,000	 
	C. Excess (deficient) for covenant compliance (Line IV.A –
IV.B):
	 	$	                    	 
	Description of Capital Expenditures during the most
recent accounting period:
	 	 	 	 






V. Section 6.12(e) – Total Leverage Ratio.




	 	 	 	 	 
	A. Funded Debt (Line II.A.2)
	 	$	                    	 
	 
	B. EBITDA (Line II.C.6)
	 	$	                    	 
	 
	C. Total Leverage Ratio (Line V.A  ̧ Line V.B):
	 	           to 1.0
	 
	Maximum Permitted Total Leverage Ratio:
	 	 	 	 
	 
	Date of Determination
	 	Ratio
	First Amendment Effective Date through December 30, 2007
	 	 	3.5 : 1.0	 
	December 31, 2007 and thereafter
	 	 	3.25 : 1.0	 






6









 





Annex II




Amended and Restated Promissory Note




(attached)




7









 





EXECUTION COPY




AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”),
dated as of April 30, 2007, is made between HERITAGE-CRYSTAL CLEAN, LLC, an Indiana limited
liability company (the “Borrower”) and BANK OF AMERICA, N.A. (the “Lender”).
Undefined capitalized terms used herein shall have the meanings ascribed to such terms in the
Credit Agreement referenced below.



W I T N
E S S  E T H:




     WHEREAS, the Borrower and the Lender have entered into that certain Amended and Restated
Credit Agreement dated as of October 27, 2005 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”), pursuant to which, among other things, the Lender
has agreed to provide, subject to the terms and conditions contained therein, certain financial
accommodations to the Borrower; and



     WHEREAS, the Borrower has requested that the Lender amend the Credit Agreement and, subject to
the terms and conditions of this Agreement, the Lender hereby agrees to amend the Credit Agreement;



     NOW, THEREFORE, in consideration of the foregoing premises, the terms and conditions stated
herein and other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Borrower and the Lender, such parties hereby agree as follows:



          1. Amendments to Credit Agreement. Subject to the satisfaction of the conditions
precedent set forth in Section 3 of this Agreement, the Credit Agreement is hereby amended
as follows:




          (a) Section 1.01 to the Credit Agreement is hereby amended as follows:




               (i) The definition of “Commitment” set forth therein is hereby amended to delete the
reference to the dollar amount “$20,000,000” set forth therein and to replace such dollar amount
with the dollar amount “$25,000,000.”



               (ii) The definition of “Loan Notice” set forth therein is hereby amended and restated
in its entirety as follows:




     “Loan Notice” means a notice of a Loan Borrowing pursuant to
Section 2.02(a), which shall be (a) substantially in the form of Exhibit
A or (b) in such other form that is reasonably acceptable to the Administrative
Agent (including, without limitation, in the form of electronic mail).



          (b) Section 6.12(d) of the Credit Agreement is hereby amended to amend and restate such
section in its entirety as follows:




 









 









     (d) Capital Expenditures. In any fiscal year, not make expenditures or
accrue obligations (including, without limitation, expenditures made and obligations
accrued with respect to capital leases but excluding expenditures made and
obligations accrued as consideration for Permitted Acquisitions), with respect to
fixed assets in an amount exceeding the corresponding amount set forth below
opposite such fiscal year.



	 	 	 	 	 
	Fiscal Year	 	Amount
	Fiscal Year 2005
	 	$	4,350,000	 
	Fiscal Year 2006
	 	$	4,500,000	 
	Fiscal Year 2007
	 	$	8,000,000	 
	Fiscal Year 2008 and thereafter
	 	$	5,000,000	 






          2. Consent. Subject to the satisfaction of the conditions precedent set forth in
Section 3 of this Agreement, notwithstanding the limitations set forth in Sections
7.11(a), 7.11(b), 7.11(c), and 7.11(d) of the Credit Agreement and in
Sections 1, 4, 5, and 15 of any applicable Subordination Agreements
to which Donald Brinckman, Asphalt Refining Company or Bruckman, Rosser, Sherrill & Co., L.P. is a
party, the Lender hereby consents to (i) the Borrower’s payment of the outstanding principal
balance [with or without cancellation of the underlying Note(s)], whether by one payment or
multiple payments, owing under and/or (ii) an amendment solely to extend the term, reduce the
principal amount of the indebtedness or amount authorized to be advanced under (a) that certain
$3,250,000 Promissory Note dated December 15, 2004 issued by Borrower in favor of Don Brinckman,
(b) that certain $8,320,000 Promissory Note dated December 15, 2004 issued by Borrower in favor of
Asphalt Refining Company, or (c) that certain $1,750,000 Promissory Note dated December 15, 2004
issued by Borrower in favor of Bruckman, Rosser, Sherrill & Co., L.P. at any time so long as,
immediately before and after giving effect to any such payment, no Default has occurred and is
continuing, other than as arising under Sections 7.11(a), 7.11(b), 7.11(c)
or 7.11(d) of the Credit Agreement or under Sections 1, 4, 5, or
15 of any such Subordination Agreement, with respect to such payment.




          3. Effectiveness of this Agreement; Conditions Precedent. The provisions of
Section 1 and 2 of this Agreement shall be deemed to have become effective as of
the date first written above (the “Effective Date”), but such effectiveness shall be
expressly conditioned upon the Lender’s receipt of the following:




          (a) executed counterparts of this Agreement executed by the Borrower and the Lender;




          (b) an executed Third Amended and Restated Note executed by Borrower in favor of Lender;




          (c) a good standing certificate for Borrower from the office of the Secretary of State of the
State of Indiana dated as of a recent date;




          (d) a certificate executed by the Secretary or Assistant Secretary of Borrower certifying (i)
the resolutions adopted by the Board of Members of Borrower authorizing or



2









 







ratifying the execution, delivery and performance of this Agreement and the performance of the
Credit Agreement as amended hereby, (ii) the names, signatures and incumbency of the officers of
Borrower authorized to execute this Agreement on behalf of Borrower, and (iii) the Certificate of
Formation certified as of a recent date by the Secretary of State of the State of Indiana and
Operating Agreement of Borrower as in effect on the date of such certification;



          (e) an opinion letter of Borrower’s counsel, Pluymert, Piercey, MacDonald & Amato, Ltd. in
form and substance reasonably acceptable to the Lender;



          (f) amendment to each Subordination Agreement in form and substance reasonably acceptable to
the Lender providing for an increase in the dollar amount referenced in the final sentence of
paragraph 8 of each Subordination Agreement to a dollar amount not less than $25,000,000; and



          (g) payment in full from the Borrower, in immediately available funds, of an amendment fee
payable to the Lender in an amount equal to $12,500 (the “Amendment Fee”).



          4. Representations, Warranties and Covenants.



     (a) The Borrower hereby represents and warrants that this Agreement and the Credit Agreement
as amended hereby constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with its terms.



     (b) The Borrower hereby represents and warrants that its execution, delivery and performance
of this Agreement has been duly authorized, does not violate any provision of its limited liability
company agreement, will not violate any law, regulation, court order or writ applicable to it, and
will not require the approval or consent of any governmental agency, or of any other third party
under the terms of any contract or agreement to which it is bound.



     (c) The Borrower hereby represents and warrants that, upon giving effect to the provisions
of this Agreement, (i) no Default or Event of Default shall have occurred, (ii) all of the
representations and warranties of the Borrower contained in the Credit Agreement and each other
Loan Document to which it is a party (other than representations and warranties which, in
accordance with their express terms, are made only as of an earlier specified date) are, and will
be, true and correct as of the date of the Borrower’s execution and delivery hereof or thereof in
all material respects as though made on and as of such date, and (iii) each of the schedules
attached to the Security Agreement is true and correct as of the date hereof, and all supplements
to such schedules have been delivered in accordance with the terms of the Security Agreement.



     (d) The Borrower hereby agrees to pay the Amendment Fee to the Lender upon the Borrower’s
execution and delivery hereof.



          5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF ILLINOIS.




     6. Lender’s Expenses. The Borrower hereby agrees to promptly reimburse the Lender
for all of the reasonable out-of-pocket expenses, including, without limitation, attorneys’ and
paralegals’ fees, it has heretofore or hereafter incurred or incurs in connection with the



3









 







preparation, negotiation and execution of this Agreement and the other documents, agreements
and instruments contemplated hereby.



     7. Counterparts. This Agreement may be executed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same agreement among the
parties.



* * * * *





4









 








          IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first above
written.




	 	 	 	 	 	 	 
	 	 	HERITAGE-CRYSTAL CLEAN, LLC, as Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Greg Ray	 	 
	 

	 	Name:
	 	Greg
Ray

	 	 
	 

	 	Title:
	 	V.P.

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Richard D. Hill, Jr.	 	 
	 

	 	Name:
	 	Richard D. Hill, Jr.

	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	Managing Director	 	 
	 

	 	 	 	 

	 	 






Amendment No. 2 to Amended and Restated Credit Agreement