exv10w6





Exhibit
10.6




Execution Version




FOURTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT




     THIS FOURTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this “Amendment”) is made and
entered into as of June 25, 2008, by and between SWISHER INTERNATIONAL, INC., a Nevada corporation
(the “Borrower”), and WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association with its principal office in Charlotte,
North Carolina (the “Bank”).



BACKGROUND STATEMENT




     A. The Borrower and the Bank are parties to a Credit Agreement, dated as of November
14, 2005, as amended by that certain First Amendment to Credit Agreement dated as of April 26,
2006, by that certain Second Amendment and Waiver to Credit Agreement dated as of September 8, 2006
and by that certain Third Amendment and Waiver to Credit Agreement dated as of March 21, 2008 (as
further amended, modified, supplemented, or restated from time to time, the “Existing Credit
Agreement”), pursuant to which the Bank has made available to the Borrower a revolving credit
facility in the aggregate principal amount of up to $10,000,000, which amount may vary depending on
the Borrower’s compliance with certain covenants set forth therein. Capitalized terms used in this
Amendment that are not otherwise defined shall have the meanings given to such terms in the Amended
Credit Agreement (as defined herein).



     B. Pursuant to the Third Amendment and Waiver to Credit Agreement dated as of March 21, 2008,
the Borrower was required to deliver an opinion of counsel and certain secretary’s certificates
(collectively, the “Third Amendment Post-Closing Deliverables”) to the Bank prior to 30
days following the Third Amendment Date. The Borrower delivered the Third Amendment Post-Closing
Deliverables after the expiration of the 30-day period, resulting, in an Event of Default (the
“Specified Event of Default”). The Borrower has requested that the Bank waive the Specified Event
of Default. The Bank has agreed to waive the Specified Event of Default as set forth herein.



     C. The Borrower has requested that certain amendments be made to the Existing Credit
Agreement. The Bank has agreed to amend the Existing Credit Agreement as requested by the Borrower
as set forth herein.



STATEMENT OF AGREEMENT




     NOW, THEREFORE, in consideration of the foregoing premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower
and the Bank hereby agree as follows:



ARTICLE I




AMENDMENTS TO CREDIT AGREEMENT



     1.1 Amendments. Subject to satisfaction of the conditions precedent set
forth in Article IV hereof, the Lenders hereby agree that from and after the date hereof, (i) the
Existing Credit Agreement is amended in its entirety to read in the form of such Credit Agreement



 









 





attached hereto as Exhibit A to this Amendment (the “Amended Credit Agreement”); and (ii)
Exhibit H to the Existing Credit Agreement is amended in its entirety in the form attached hereto
as Exhibit B. All other exhibits referenced in the Amended Credit Agreement shall remain as
attached to the Existing Credit Agreement.



     1.2 Liens. Each of the Borrower, HB Service and their respective Subsidiaries
parties hereto hereby ratifies and confirms the grant of a security interest in and Lien on the
collateral contained in the Security Documents to which each is a party which were executed in
connection with the Existing Credit Agreement of which the Amended Credit Agreement is an amendment
and restatement, which security interest and Lien shall continue in full force and effect without
interruption, and shall constitute the single grant of a security interest and Lien.



ARTICLE II




WAIVER



     Based upon the representations and warranties contained herein, the Bank hereby waives
the Specified Event of Default and any remedy the Bank would be entitled to as a result thereof.
This waiver is limited as specified and shall not constitute or be deemed to constitute an
amendment, modification or waiver of any provision of the Existing Credit Agreement or the Amended
Credit Agreement or a waiver of any Default or Event of Default except as expressly set forth
herein with respect to the Specified Event of Default.



ARTICLE III




REPRESENTATIONS AND WARRANTIES



     The Borrower hereby represents and warrants that:



     3.1 Representations in Credit Agreement. The representations and warranties of the
Borrower set forth in the Amended Credit Agreement are true and correct in all material respects as
of the date hereof, except to the extent such representations and warranties relate solely to or
are specifically expressed as of a particular date or period.



     3.2 Compliance with Credit Agreement. After giving effect to this Amendment, the
Borrower is in compliance with all covenants, terms and provisions set forth in the Amended Credit
Agreement to be observed or performed by it.



     3.3 Due Authorization. This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and each of this Amendment, and the
Amended Credit Agreement, constitutes the legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms and each of the other Credit Documents
constitutes the legal, valid and binding obligation of the Borrower enforceable against it in
accordance with its terms.



2









 





     3.4 No Event of Default. No Default or Event of Default under any of the Credit
Documents has occurred or is continuing.



     3.5 Continuing Security Interests. All obligations of the Borrower under the Amended
Credit Agreement continue to be or will be secured by the Bank’s security interests in all of the
collateral granted under the Amended Credit Agreement and the Security Documents, and nothing
herein will affect the validity, enforceability, perfection or priority of such security interests.



     3.6 No Defenses. The Borrower does not have any right of setoff, counterclaim, or
defense to payment of its respective liabilities or obligations under the Amended Credit Agreement.
The Bank hereby expressly reserves all rights and remedies it may have against the Borrower and all
other Persons who may be or may hereafter become secondarily liable for the repayment of the
obligations under the Amended Credit Agreement.



ARTICLE IV




CONDITIONS TO EFFECTIVENESS



     This Amendment shall become effective as of the date hereof upon the satisfaction of
each of the following conditions precedent:



     (a) The Bank shall have received a duly executed counterpart of this Amendment from each
of the Borrower, the Subsidiary Guarantors and HB Service and its Subsidiaries;



     (b) The Bank shall have received a duly executed counterpart of the Shareholder Guaranty;



     (c) The Bank shall have received a certificate of the secretary or an assistant secretary of
the Borrower, in form and substance reasonably satisfactory to the Bank, certifying (i) that
attached thereto is a true and complete copy of the articles or certificate of incorporation or
other organizational document and all amendments thereto of the Borrower, certified as of a recent
date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of
organization, and that the same has not been amended since the date of such certification, (ii)
that attached thereto is a true and complete copy of the bylaws or similar governing document of
the Borrower, as then in effect and as in effect at all times from the date on which the
resolutions referred to in clause (iii) below were adopted to and including the date of such
certificate, (iii) that attached thereto is a true and complete copy of resolutions adopted by the
board of directors (or similar governing body) of the Borrower, authorizing the execution, delivery
and performance of any of the Credit Documents to which it is a party, and (iv) as to the
incumbency and genuineness of the signature of each officer of the Borrower executing any of the
Credit Documents on behalf of such party, and attaching all such copies of the documents described
above;



     (d) The Borrower shall have paid all reasonable out-of-pocket costs and expenses of the Bank
in connection with the preparation, negotiation, execution and delivery of this



3









 




Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Bank with respect thereto); and




     (e) The Bank shall have received such other documents, certificates, opinions,
instruments and other evidence as the Bank may reasonably request, all in a form and substance
satisfactory to the Bank and its counsel.



ARTICLE V




ACKNOWLEDGEMENT



     The Subsidiary Guarantors and HB Service and its Subsidiaries each hereby acknowledge
that the Borrower and the Bank have agreed to amend the Existing Credit Agreement as provided
herein. Each of the Subsidiary Guarantors and HB Service and each of its Subsidiaries hereby
approves and consents to the transactions contemplated by this Amendment and agrees that its
obligations under the Guaranty, the HB Service Guaranty and the other Credit Documents to which it
is a party shall not be diminished as a result of the execution of this Amendment. This
acknowledgement by the Subsidiary Guarantors and HB Service and its Subsidiaries is made and
delivered to induce the Bank to enter into this Amendment, and each such party acknowledges that
the Bank would not enter into this Amendment in the absence of the acknowledgements contained
herein.



ARTICLE VI




GENERAL



     6.1 Full Force and Effect. This Amendment is limited as specified and, except
as specifically set forth herein, shall not constitute a modification, acceptance or waiver of any
other provision of any of the Credit Documents. The Existing Credit Agreement, as amended by the
Amended Credit Agreement, shall continue to be in full force and effect in accordance with the
provisions thereof on the date hereof. From and after the date hereof, any reference to the
Existing Credit Agreement in any of the Security Documents or other Credit Documents shall mean the
Amended Credit Agreement, as may be further amended, modified, restated, or supplemented from time
to time.



     6.2 Applicable Law. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North Carolina.



     6.3
Counterparts; Execution. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument. The exchange of copies of this Amendment and of signature
pages by facsimile transmission shall constitute effective execution and delivery of this Amendment
and such copies may be used in lieu of the original Amendment for all purposes. Delivery of an
executed counterpart of a signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Amendment.



4









 





     6.4 Expenses. The Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Bank in connection with the preparation, execution and delivery of this Amendment,
including, without limitation, all reasonable attorneys’ fees.



     6.5 Further Assurances. The Borrower shall execute and deliver to the Bank such
documents, certificates, and opinions as the Bank may reasonably request to effect the amendments
contemplated by this Amendment and to continue the existence, perfection and first priority of the
Bank’s security interests in the collateral securing the obligations under the Amended Credit
Agreement.



     6.6 Headings. The headings of this Amendment are for the purposes of reference only
and shall not affect the construction of this Amendment.



[The remainder of this page is left blank intentionally.]



5









 





     IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to Credit
Agreement to be executed and delivered by their duly authorized officers all as of the date first
above written.



	 	 	 	 	 
	 	SWISHER INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	Name: 	Hugh H. Cooper 	 
	 	Title: 	Chief Financial Officer 	 
	 



[Signature Pages Continued on the Following Page]




Signature Page to Fourth Amendment to Swisher Credit Agreement




 









 





	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Cavan J. Harris
 	 
	 	 	Cavan J. Harris  	 
	 	 	Senior Vice President 	 
	 



[Signature Pages Continued on the Following Page]




Signature Page to Fourth Amendment to Credit Agreement




 









 





	 	 	 	 	 
	 	SUBSIDIARY GUARANTORS:

(For purposes of Section 1.2 and Article VI only)



SWISHER HYGIENE FRANCHISE CORP. 

SWISHER PEST CONTROL CORP. 

SWISHER MAIDS, INC.

 	 
	 	By:  	/s/  Hugh H. Cooper
 	 
	 	Name: 	Hugh H. Cooper 	 
	 	Title: 	Chief Financial Officer 	 
	 
	 	SHFC BUFFALO, LLC 

SHFC MINNEAPOLIS, LLC

SHFC OKLAHOMA, LLC 

SHFC OPERATIONS, LLC

SHFC ARIZONA, LLC 

SHFC TEXAS, LLC

 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	Name: 	Hugh H. Cooper 	 
	 	Title: 	Chief Financial Officer 	 
	 



[Signature Pages Continued on the Following Page]




Signature Page to Fourth Amendment to Swisher Credit Agreement




 









 





	 	 	 	 	 
	 	HB SERVICE AND ITS SUBSIDIARIES: 



HB SERVICE, LLC

 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	Name: 	Hugh H. Cooper 	 
	 	Title: 	Chief Financial Officer 	 
	 
	 	SERVICE BALTIMORE, LLC

SERVICE BEVERLY HILLS, LLC

SERVICE BIRMINGHAM, LLC

SERVICE CALIFORNIA, LLC

SERVICE CAROLINA, LLC

SERVICE CENTRAL FL, LLC

SERVICE CHARLOTTE LLC

SERVICE CHATTANOOGA, LLC

SERVICE CINCINNATI, LLC

SERVICE COLUMBIA, LLC

SERVICE COLUMBUS, LLC

SERVICE DC, LLC

SERVICE DENVER, LLC

SERVICE FCS, LLC

SERVICE FLORIDA, LLC

SERVICE FRESNO, LLC

SERVICE GAINESVILLE, LLC

SERVICE GOLD COAST, LLC

SERVICE GREENSBORO, LLC

SERVICE GREENVILLE, LLC

SERVICE GULF COAST, LLC

SERVICE HOUSTON, LLC

SERVICE INDIANAPOLIS, LLC

SERVICE LAS VEGAS, LLC

SERVICE LOUISVILLE, LLC

SERVICE MEMPHIS, LLC

SERVICE MIDATLANTIC, LLC

SERVICE MIDWEST, LLC

SERVICE NASHVILLE, LLC

SERVICE NEW ORLEANS, LLC

SERVICE NEW YORK, LLC

SERVICE NORTH, LLC

SERVICE NORTH-CENTRAL, LLC

SERVICE OKLAHOMA CITY, LLC

SERVICE PHILADELPHIA, LLC

SERVICE PHOENIX, LLC

SERVICE RALEIGH, LLC

 	 
	 	 	 
	 	 	 
	 	 	 
	 



Signature Page to Fourth Amendment to Swisher Credit Agreement





 









 





	 	 	 	 	 
	 	SERVICE SALT LAKE CITY, LLC 

SERVICE SEATTLE, LLC 

SERVICE SOUTH, LLC 

SERVICE ST. LOUIS, LLC 

SERVICE TALLAHASSEE, LLC 

SERVICE TAMPA, LLC

SERVICE TRI-CITIES, LLC 

SERVICE VIRGINIA, LLC 

SERVICE WEST COAST, LLC

 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	Name: 	Hugh H. Cooper 	 
	 	Title: 	Chief Financial Officer 	 
	 



Signature Page to Fourth Amendment to Swisher Credit Agreement








 









 








Exhibit A





 









 





Execution Version




 




CREDIT AGREEMENT



between



SWISHER INTERNATIONAL, INC.



and



WACHOVIA BANK, NATIONAL ASSOCIATION



$10,000,000 Revolving Line of Credit



November 14, 2005

(as amended through the Fourth Amendment, dated June 25, 2008)



 








 









 









TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 
	 	 	 	 	 	 
	DEFINITIONS

	 
	 	 	 	 
	1.1
	 	Defined Terms
	 	 	1	 
	1.2
	 	Accounting Terms
	 	 	12	 
	1.3
	 	Singular/Plural
	 	 	13	 
	1.4
	 	Other Terms
	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	AMOUNTS AND TERMS OF THE LOANS

	 
	 	 	 	 	 	 
	2.1
	 	Commitments
	 	 	13	 
	2.2
	 	Note
	 	 	13	 
	2.3
	 	Principal Payments; Maturity of Loans
	 	 	13	 
	2.4
	 	Interest
	 	 	14	 
	2.5
	 	Fees
	 	 	14	 
	2.6
	 	Termination or Reduction of Commitments
	 	 	15	 
	2.7
	 	General Provisions as to Payments
	 	 	15	 
	2.8
	 	Disbursement of Loan Proceeds
	 	 	15	 
	2.9
	 	Use of Proceeds
	 	 	15	 
	2.10
	 	Taxes
	 	 	15	 
	2.11
	 	Illegality
	 	 	16	 
	2.12
	 	Letter of Credit Subfacility
	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	CLOSING; CONDITIONS OF CLOSING AND BORROWING

	 
	 	 	 	 	 	 
	3.1
	 	[Reserved]
	 	 	17	 
	3.2
	 	Conditions to all Loans
	 	 	17	 
	3.3
	 	Waiver of Conditions Precedent
	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 	 	 
	4.1
	 	Corporate Organization and Power
	 	 	18	 
	4.2
	 	Corporate Authority: No Conflict With Other Instruments or Law
	 	 	18	 
	4.3
	 	Due Execution and Delivery
	 	 	19	 
	4.4
	 	Enforceability
	 	 	19	 
	4.5
	 	Governmental Approval
	 	 	19	 
	 
	 	 	 	 	 	 
	 i 






 









 






	 	 	 	 	 
	 	 	Page
	4.6 Margin Stock
	 	 	19	 
	4.7 Investment Company
	 	 	19	 
	4.8 Taxes
	 	 	19	 
	4.9 Litigation
	 	 	19	 
	4.10 Financial Statements; Solvency
	 	 	20	 
	4.11 No Material Adverse Change
	 	 	20	 
	4.12 Compliance with Laws
	 	 	20	 
	4.13 Environmental Compliance
	 	 	20	 
	4.14 Ownership of Properties
	 	 	22	 
	4.15 Intellectual Property
	 	 	22	 
	4.16 Insurance
	 	 	22	 
	4.17 ERISA
	 	 	22	 
	4.18 Full Disclosure
	 	 	23	 
	4.19 No Default
	 	 	23	 
	4.20 Subsidiaries
	 	 	23	 
	4.21 First Priority Liens
	 	 	23	 
	4.22 Labor Relations
	 	 	23	 
	4.23 OFAC; Anti-Terrorism Laws
	 	 	24	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	AFFIRMATIVE COVENANTS

	 
	 	 	 	 
	5.1 Financial and Business Information
	 	 	24	 
	5.2 Notice of Certain Events
	 	 	25	 
	5.3 Existence; Franchises; Maintenance of Properties
	 	 	26	 
	5.4 Compliance with Law
	 	 	27	 
	5.5 Payment of Obligations
	 	 	27	 
	5.6
Maintenance of Books and Records; Inspection
	 	 	27	 
	5.7 Maintenance of Insurance
	 	 	27	 
	5.8 Compliance with ERISA
	 	 	28	 
	5.9 Name Change
	 	 	28	 
	5.10 Creation of Subsidiaries
	 	 	28	 
	5.11 OFAC, PATRIOT Act Compliance
	 	 	29	 
	5.12 Banking Relationship
	 	 	29	 
	5.13 Further Assurances
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	FINANCIAL COVENANTS

	 
	 	 	 	 
	6.1 Fixed Charge Coverage Ratio
	 	 	29	 
	6.2 Minimum Net Worth
	 	 	29	 
	6.3 Funded Debt to EBITDA Ratio
	 	 	30	 
	 
	 	 	 	 
	 ii 






 









 






	 	 	 	 	 
	 	 	Page
	ARTICLE VII

	 
	 	 	 	 
	NEGATIVE COVENANTS

	 
	 	 	 	 
	7.1 Mergers; Consolidations
	 	 	30	 
	7.2 Indebtedness
	 	 	30	 
	7.3 Liens and Encumbrances
	 	 	31	 
	7.4 Disposition of Assets
	 	 	32	 
	7.5 Restricted Investments
	 	 	33	 
	7.6 Restricted Payments
	 	 	34	 
	7.7 Transactions With Affiliates
	 	 	35	 
	7.8 Sale-Leaseback Transactions
	 	 	35	 
	7.9 Certain Amendments
	 	 	35	 
	7.10 Limitation on Certain Restrictions
	 	 	35	 
	7.11 No Other Negative Pledges
	 	 	36	 
	7.12 Subsidiaries or Partnerships
	 	 	36	 
	7.13 Lines of Business
	 	 	36	 
	7.14 Fiscal Year
	 	 	36	 
	7.15 Accounting Changes
	 	 	37	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	EVENTS OF DEFAULT; REMEDIES

	 
	 	 	 	 
	8.1 Events of Default
	 	 	37	 
	8.2 Remedies
	 	 	39	 
	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	9.1 Costs, Expenses and Taxes
	 	 	40	 
	9.2 Indemnification
	 	 	40	 
	9.3 Arbitration; Preservation and Limitation of Remedies
	 	 	41	 
	9.4 Waiver of Automatic or Supplemental Stay
	 	 	42	 
	9.5 Notices
	 	 	43	 
	9.6 Continuing Obligations
	 	 	43	 
	9.7 Controlling Law
	 	 	43	 
	9.8 Successors and Assigns
	 	 	44	 
	9.9 Assignment and Sale
	 	 	44	 
	9.10 Entire Agreement
	 	 	44	 
	9.11 Amendment
	 	 	44	 
	9.12 Severability
	 	 	44	 
	9.13 Confidentiality
	 	 	44	 
	9.14 Counterparts
	 	 	45	 
	9.15 Captions
	 	 	45	 






 iii 



 









 





	 	 	 

	Exhibit A

	 	Form of Revolving Note
	Exhibit B

	 	Form of Guaranty
	Exhibit C

	 	Form of Compliance Certificate
	Exhibit D

	 	Form of Notice of Borrowing
	Exhibit E

	 	[Reserved]
	Exhibit F

	 	Form of HB Service Guaranty
	Exhibit G

	 	Form of HB Service Security Agreement
	Exhibit H

	 	Form of Shareholder Guaranty
	 
	 	 
	Schedule 4.9

	 	Litigation
	Schedule 4.10(b)

	 	Solvency
	Schedule 4.10(c)

	 	Note Receivables
	Schedule 4.13

	 	Environmental Compliance
	Schedule 4.14

	 	Realty; Registry
	Schedule 4.15

	 	Intellectual Property
	Schedule 4.16

	 	Insurance
	Schedule 4.20

	 	Subsidiaries
	Schedule 7.2(v)

	 	Indebtedness of Seller Notes on Franchise and Other Acquisitions
	Schedule 7.3(ix)

	 	Liens Securing Indebtedness Permitted under Section 7.2(v)
	Schedule 7.7

	 	Affiliate Transactions






 iv 



 









 





CREDIT AGREEMENT




     THIS
CREDIT AGREEMENT, dated as of November 14, 2005 (as amended through the Fourth
Amendment, dated June 25, 2008), is made and entered into by and between SWISHER INTERNATIONAL,
INC., a Nevada corporation, (the “Borrower”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association (the “Bank”).



BACKGROUND STATEMENT




     A. The Borrower has requested that the Bank extend a $10,000,000 revolving line of
credit to the Borrower, to be advanced by the Bank pursuant to the terms and conditions hereof.



     B. The Bank is willing to extend the revolving line of credit described above upon the terms
and subject to the conditions set forth in this Credit Agreement.



AGREEMENT




     NOW,
THEREFORE, in consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to induce
the Bank to make the loans described herein, the parties hereto hereby agree as follows:



ARTICLE I




DEFINITIONS



     1.1 Defined Terms. In addition to the words and terms defined elsewhere
in this Agreement, the following terms when used herein shall have the following respective
meanings:



     “$15,000,000 HB Service Credit Agreement” means that certain Credit Agreement dated
as of September 8, 2006 between HB Service and Bank.



     “AAA” shall mean the American Arbitration Association.



     “Adjusted LIBOR Rate” shall mean, for any day, a rate equal to the sum of (i) the
LIBOR Market Index Rate for such day, and (ii) the Applicable Margin in effect at such time with
respect to such Loan.



     “Affiliate” shall mean, as to any Person, (i) any other Person which directly, or indirectly
through one or more intermediaries, controls such Person, (ii) any other Person which directly, or
indirectly through one or more intermediaries, is controlled by or is under common control with
such Person, or (iii) any other Person of which such Person owns, directly or indirectly, ten
percent (10%) or more of the common stock or equivalent equity interests. As used herein, the term
“control” means possession, directly or indirectly, of the power to direct or cause the direction
of the management or policies of a Person, whether through the ownership of voting securities or
otherwise.



 









 





     “Affiliate Note Receivables” shall mean those accounts receivable payable to the
Borrower or a Subsidiary pursuant to notes or other debt instruments evidencing debt owed by an
employee, officer, director or Affiliate of the Borrower or a Subsidiary other than Former
Franchisee Receivables or advances made to HB Service.



     “Agreement” or “this Agreement” or “Credit Agreement” shall mean this Credit Agreement
and all schedules and exhibits hereto, together with any amendments, modifications, replacements
and supplements hereto, any substitutes herefor, and any replacements, renewals or extensions
hereof, in whole or in part, and shall refer to this Agreement as the same may be in effect at the
time such reference becomes operative.



     “Applicable Margin” shall mean (x) for so long as the Shareholder Guaranty is in full
force and effect, 1.95% and (y) following the termination of the Shareholder Guaranty, 2.50%.



     “Applicable
Percentage” shall mean 1.875%.



     “Arbitration Rules” shall mean the Commercial Financial Disputes Arbitration Rules of
the AAA.



     “Bank” shall mean Wachovia Bank, National Association, a national banking association and its
successors and assigns.



     “Bankruptcy Code” shall mean Title 11 of the United States Code, as amended, and any
successor statute or statutes having substantially the same function.



     “Borrower” shall mean Swisher International, Inc., a Nevada corporation, and all of its
permitted successors and assigns.



     “Borrowing” means any borrowing hereunder consisting of Revolving Loans made to the Borrower
pursuant to Article II.



     “Business Day” shall mean any day of the year on which banks are open for business in
Charlotte, North Carolina and, in respect of any determination relevant to the determination or
payment of interest determined based on LIBOR, any such day that is also a day on which dealings in
Dollar deposits are carried out in the London interbank market.



     “Capitalized Lease” shall mean any lease or similar arrangement which is of a nature
that payment obligations of the lessee or obligor thereunder at the time are or should be
capitalized and shown as liabilities (other than current liabilities) upon a balance sheet of such
lessee or obligor prepared in accordance with GAAP.



     “Capitalized Lease Obligations” shall mean, with respect to any Capital Lease, the
amount of the obligation of the lessee thereunder that would, in accordance with GAAP, appear on a
balance sheet of such lessee with respect to such Capital Lease.



     “Capital Expenditures” shall mean, during any period, the sum of all amounts paid
during such period that would, in accordance with GAAP, be included on the consolidated statement
of



2









 





cash flows of the Borrower and its Subsidiaries, or HB Service and its Subsidiaries, as an
acquisition of fixed assets or improvements, replacements, substitutions or additions thereto.



     “Capital Stock” shall mean (i) with respect to any Person that is a corporation, any and all
shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether common
or preferred) of such corporation, and (ii) with respect to any Person that is not a corporation,
any and all partnership, membership, limited liability company or other equity interests of such
Person; and in each case, any and all warrants, rights or options to purchase any of the foregoing.



     “Cash Equivalents” shall mean (i) securities issued or unconditionally guaranteed or
insured by the United States of America or any agency or instrumentality thereof, backed by the
full faith and credit of the United States of America and maturing within one year from the date of
acquisition, (ii) commercial paper issued by any Person organized under the laws of the United
States of America, maturing within 180 days from the date of acquisition and, at the time of
acquisition, having a rating of at least A-l or the equivalent thereof by Standard & Poor’s Ratings
Services or at least P-l or the equivalent thereof by Moody’s Investors Service, Inc., (iii) time
deposits and certificates of deposit maturing within 180 days from the date of issuance and issued
by a bank or trust company organized under the laws of the United States of America or any state
thereof (y) that has combined capital and surplus of at least $500,000,000 or (z) that has (or is a
subsidiary of a bank holding company that has) a long-term unsecured debt rating of at least A or
the equivalent thereof by Standard & Poor’s Ratings Services or at least A2 or the equivalent
thereof by Moody’s Investors Service, Inc., (iv) repurchase obligations with a term not exceeding
thirty (30) days with respect to underlying securities of the types described in clause (i) above
entered into with any bank or trust company meeting the qualifications specified in clause (iii)
above, and (v) money market funds at least ninety-five percent (95%) of the assets of which are
continuously invested in securities of the foregoing types.



     “Casualty Event” shall mean, with respect to any collateral of the Borrower or any of its
Subsidiaries, or HB Service or any of its Subsidiaries, any loss of, damage to, or Condemnation or
other taking of, such property for which the Borrower, HB Service or such Subsidiary receives
insurance proceeds, proceeds of a Condemnation award or other compensation.



     “Change of Law” shall mean the adoption of any applicable law, rule or regulation, or any
change therein or any existing or future law, rule or regulation, or any change in the
interpretation or administration thereof, by any Governmental Authority, or compliance by the Bank
(or its Lending Office) with any request or directive (whether or not having the force of law) of
any Governmental Authority.



     “Closing Date” shall mean November 14, 2005.



     “Code” shall mean the Internal Revenue Code of 1986, as amended, or any successor federal tax
code. Any reference to any provision of the Code shall also include the income tax regulations
promulgated thereunder, whether final, temporary or proposed.



     “Compliance Certificate” shall mean a fully completed and duly executed certificate in
the form of Exhibit C, together with a Covenant Compliance Worksheet.



3









 





     “Condemnation” shall mean any taking of title, of use, or of any other property interest under
the exercise of the power of eminent domain, whether temporarily or permanently, by any
governmental authority or by any Person acting under governmental authority.



     “Consolidated EBITDA” shall mean, for any Person for any period, the aggregate
of (i) Consolidated Net Income of such Person for such period plus (ii) the sum of
depreciation, amortization of intangible assets, interest expense, and income tax expense for
such period.



     “Consolidated Fixed Charges” shall mean, for any Person for any period of four
consecutive Fiscal Quarters, the aggregate (without duplication) of (i) Consolidated Interest
Expense during such period, (ii) the aggregate (without duplication) of all scheduled payments of
principal on Indebtedness required to have been made by such Person and its Subsidiaries during
such period (whether or not such payments are actually made), (iii) aggregate expense for federal
state, local and other income taxes for such period, (iv) all payments required to be made by such
Person pursuant to leases of real and personal property during such period (whether or not such
payments are actually made), and (v) Capital Expenditures of such Person to the extent paid by
internally generated cash flow, and not financed, during such period.



     “Consolidated Interest Expense” shall mean, for any Person for any period, the
aggregate (without duplication) of (i) total interest expense of such Person and its Subsidiaries
for such period in respect of Indebtedness of such Person and its Subsidiaries (including all such
interest expense accrued or capitalized during such period, whether or not actually paid during
such period), and (ii) all net amounts payable under or in respect of Hedge Agreements, to the
extent paid or accrued by such Person and its Subsidiaries during such period.



     “Consolidated Net Income” shall mean, for any Person for any period, the net income
(or loss) of such Person and its Subsidiaries, as determined on consolidated basis in accordance
with GAAP, but excluding extraordinary gains and losses and any other non-operating gains and
losses.



     “Consolidated Net Worth” shall mean, as of any date of determination for any Person,
the (i) total assets of such Person and its Subsidiaries as of such date, other than Affiliate Note
Receivables, minus (ii) total liabilities of such Person and its Subsidiaries as of such
date, in each case as determined on a consolidated basis in accordance with GAAP.



     “Controlled Group” shall mean all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated) under common control which, together with
the Borrower, are treated as a single employer under Section 414 of the Code.



     “Costs” shall have the meaning set forth in Section 9.2.



     “Covenant Compliance Worksheet” shall mean a fully completed worksheet in the form of
Attachment A to Exhibit C.



     “Credit Documents” shall mean and collectively refer to this Agreement, the Note, the
Letters of Credit, the Security Documents and any and all other agreements, instruments and
documents, including, without limitation, notes, guaranties, mortgages, deeds to secure debt, deeds
of trust, chattel mortgages, pledges, powers of attorney, consents, assignments, contracts,



4









 




notices, security agreements, trust account agreements and all other written matters whether
heretofore, now or hereafter executed by or on behalf of the Borrower, HB Service or any of their
respective Subsidiaries, or delivered to the Bank with respect to this Agreement or with respect to
the transactions contemplated by this Agreement, and in each case, together with any amendments,
modifications and supplements thereto, any replacements, renewals, extensions and restatements
thereof, and any substitutes therefor, in whole or in part.




     “Default” shall mean any event which with the giving of notice, lapse of time, or both, would
become an Event of Default.



     “Default Rate” shall mean an interest rate equal to the Adjusted LIBOR Rate plus two
percent (2.0%) per annum.



     “Disputes” shall have the meaning set forth in Section 9.3(a).



     “Dollar” or “$” shall mean dollars in lawful currency of the United States of America.



     “Environmental Law” shall mean any federal, state or local law, statute, ordinance,
rule, regulation, permit, license, approval, interpretation, order, guidance or other legal
requirement (including without limitation any subsequent enactment, amendment or modification)
relating to the protection of human health or the environment, including, but not limited to, any
requirement pertaining to the manufacture, processing, distribution, use, treatment, storage,
disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation
of materials that are or may constitute a threat to human health or the environment.



     “Environmental Liability” shall mean any liability, whether accrued, contingent
or otherwise, arising from or in any way associated with any Environmental Law.



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



     “ERISA Affiliate” shall mean any Person (including any trade or business, whether or not
incorporated) that would be deemed to be under “common control” with, or a member of the same
Controlled Group as, the Borrower or any of its Subsidiaries or HB Service or any of its
Subsidiaries, within the meaning of Sections 414(b), (c), (m) or (o) of the Internal Revenue Code
or Section 4001 of ERISA.



     “ERISA Event” shall mean any of the following with respect to a Plan or Multiemployer Plan, as
applicable: (i) a Reportable Event with respect to a Plan or a Multiemployer Plan, (ii) a complete
or partial withdrawal by the Borrower, HB Service or any ERISA Affiliate from a Multiemployer Plan
that results in liability under Section 4201 or 4204 of ERISA, or the receipt by the Borrower, HB
Service or any ERISA Affiliate of notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA, (iii) the distribution by the Borrower, HB Service or any
ERISA Affiliate under Section 4041 or 4041A of ERISA of a notice of intent to terminate any Plan or
the taking of any action to terminate any Plan, (iv) the commencement of proceedings by the PBGC
under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer,
any Plan, or the receipt by the Borrower, HB







5









 







Service or any ERISA Affiliate of a notice from any Multiemployer Plan that such action has been
taken by the PBGC with respect to such Multiemployer Plan, (v) the institution of a proceeding by
any fiduciary of any Multiemployer Plan against the Borrower, HB Service or any ERISA Affiliate to
enforce Section 515 of ERISA, which is not dismissed within thirty (30) days, (vi) the imposition
upon the Borrower, HB Service or any ERISA Affiliate of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, or the imposition
or threatened imposition of any Lien upon any assets of the Borrower, HB Service or any ERISA
Affiliate as a result of any alleged failure to comply with the Internal Revenue Code or ERISA in
respect of any Plan, (vii) the engaging in or otherwise becoming liable for a nonexempt Prohibited
Transaction by the Borrower, HB Service or any ERISA Affiliate, (viii) a violation of the
applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section
401(a) of the Internal Revenue Code by any fiduciary of any Plan for which the Borrower, HB
Service or any of their respective ERISA Affiliates may be directly or indirectly liable or (ix)
the adoption of an amendment to any Plan that, pursuant to Section 401(a)(29) of the Internal
Revenue Code or Section 307 of ERISA, would result in the loss of tax-exempt status of the trust of
which such Plan is a part if the Borrower, HB Service or an ERISA Affiliate fails to timely provide
security to such Plan in accordance with the provisions of such sections.




     “Event of Default” shall have the meaning specified in Article VIII hereof.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time,
and any successor statute, and all rules and regulations from time to time promulgated thereunder.



     “Fiscal Quarter” or “FQ” shall mean a fiscal quarter of the Borrower and its Subsidiaries, or
HB Service and its Subsidiaries, as applicable.



     “Fiscal Year” or “FY” shall mean a fiscal year of the Borrower and its Subsidiaries, or HB
Service and its Subsidiaries, as applicable.



     “Fixed Charge Coverage Ratio” shall mean, as of the last day of any period of four
consecutive Fiscal Quarters, the ratio of: (i)(A) the aggregate Consolidated EBITDA of the Borrower
and HB Service for such period minus (B) all dividends and distributions paid in cash by
the Borrower or HB Service to their respective shareholders during such period plus (C) all
payments required to be made by the Borrower or HB Service pursuant to leases of real and personal
property during such period (whether or not such payments are actually made), to (ii) the aggregate
Consolidated Fixed Charges for the Borrower and HB Service for such period.



     “Former Franchisee Receivable” shall mean a receivable payable to the Borrower or a
Subsidiary pursuant to notes or other debt instruments evidencing debt owed by an Affiliate of the
Borrower or a Subsidiary, which debt was incurred by a unaffiliated Franchisee prior to its
acquisition by such Affiliate.



     “Fourth Amendment Date” shall mean June 25, 2008.



     “Franchisee” shall mean any Person with whom the Borrower or any of its Affiliates has entered
a franchise agreement.



6









 





     “Funded Debt” shall mean all Indebtedness of the Borrower, HB Service and their respective
Subsidiaries (other than (x) Indebtedness of the types referred to in clauses (xi) of the
definition of “Indebtedness” and (y) Indebtedness identified in Sections 7.2(ii), 7.2(iii), 7.2(iv)
and 7.2(v)).



     Funded Debt to EBITDA Ratio” shall mean, as of the last day of any Fiscal Quarter, the
ratio of (i) Funded Debt as of such day to (ii) the aggregate Consolidated EBITDA for the Borrower
and HB Service for the period of the four consecutive Fiscal Quarters ending on such day.



     “GAAP” shall mean generally accepted accounting principles, as recognized by the American
Institute of Certified Public Accountants, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries, or HB Service and its Subsidiaries, as the case may
be, on a consolidated basis throughout the period indicated and consistent with the financial
practice of the Borrower and its Subsidiaries, or HB Service and its Subsidiaries, as the case may
be, after the date hereof.



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



     “Guaranty” shall mean a guaranty agreement, dated as of the date hereof, made by the
Subsidiary Guarantors in favor of the Bank in the form of Exhibit D attached hereto, as amended,
modified, restated or supplemented from time to time.



     “Hazardous Material” shall mean any substance or material meeting any one or more of
the following criteria: (i) it is or contains a substance designated as a hazardous waste,
hazardous substance, pollutant, contaminant or toxic substance under any Environmental Law; (ii) it
is toxic, explosive, corrosive, ignitable, infectious, radioactive, mutagenic or otherwise
hazardous, (iii) its presence requires investigation or remediation under an Environmental Law or
common law; (iv) it constitutes a danger, nuisance, trespass or health or safety hazard to persons
or property; and/or (v) it is or contains, without limiting the foregoing, petroleum hydrocarbons.



     “HB Service” shall mean HB Service, LLC, a Delaware limited liability company.



     “HB Service Guaranty” shall mean the guaranty agreement, dated as of the Third
Amendment Date, made by HB Service and its Subsidiaries in favor of the Bank in the form of Exhibit
F attached hereto, as amended, modified, restated or supplemented from time to time.



     “HB Service Security Agreement” shall mean the security agreement, dated as of the
Third Amendment Date, between HB Service, each of its Subsidiaries and the Bank, in the Form of
Exhibit G, as the same may be amended, modified, supplemented or restated from time to time.



7









 





     “Hedge Agreement” shall mean any interest or foreign currency rate swap, cap, collar,
option, hedge, forward rate or other similar agreement or arrangement designed to protect against
fluctuations in interest rates or currency exchange rates.



     “Indebtedness” shall mean, for any Person, without duplication (i) obligations of such Person
for borrowed money; (ii) obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments; (iii) obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course of business on
terms customary in the trade); (iv) obligations of such Person under any conditional sale or other
title retention agreement(s) relating to property acquired by such Person; (v) Capitalized Lease
Obligations of such Person; (vi) obligations, contingent or otherwise, of such Person in respect of
letters of credit, acceptances or similar extensions of credit (whether or not drawn upon and in
the stated amount thereof); (vii) guaranties by such Person of the type of indebtedness described
in clauses (i) through (vi) above; (viii) all indebtedness of a third party secured by any Lien on
property owned by such Person, whether or not such indebtedness has been assumed by such Person;
(ix) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or
otherwise acquire for value any common stock of such Person; (x) off-balance sheet liability
retained in connection with asset securitization programs, synthetic leases, sale and leaseback
transactions or other similar obligations arising with respect to any other transaction which is
the functional equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheet of such Person and its Subsidiaries; and (xi)
obligations under any Hedge Agreement.



     “Intellectual Property” shall mean (i) all inventions (whether or not patentable and
whether or not reduced to practice), all improvements thereto, and all patents, patent
applications, and patent disclosures, together with all reissues, continuations,
continuations-in-part, divisions, revisions, extensions, and reexaminations thereof, (ii) all
trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all
goodwill associated therewith, and all applications, registrations, and renewals in connection
therewith, (iii) all copyrightable works and all copyrights (registered and unregistered), (iv) all
trade secrets and confidential information (including, without limitation, financial, business and
marketing plans and customer and supplier lists and related information), (v) all computer software
and software systems (including, without limitation, data, databases and related documentation),
(vi) all Internet web sites and domain names, (vii) all technology, know-how, processes and other
proprietary rights, and (viii) all licenses or other agreements to or from third parties regarding
any of the foregoing.



     “Investments” shall have the meaning set forth in Section 7.5.



     “Lending Office” shall mean, as to the Bank, any of its offices located in Charlotte, North
Carolina, or such other office as the Bank may hereafter designate as its Lending Office by notice
to the Borrower.



     “Letter of Credit Exposure” shall mean the sum of (i) the aggregate Stated Amount of
all Letters of Credit outstanding at such time and (ii) the aggregate amount of all Reimbursement
Obligations outstanding at such time.



8









 





     “Letters of Credit” shall mean any letter of credit issued by the Bank pursuant to the terms
hereof, as such Letters of Credit may be amended, extended, renewed or replaced from time to time.



     “LIBOR Market Index Rate” shall mean, for any day, the rate for one month U.S. dollar
deposits as reported on Telerate page 3750 as of 11:00 a.m. London time, on such day, or if such
day is not a London business day, then the immediately preceding London business day (or if not so
reported, then as determined by the Bank from another recognized source or interbank quotation).



     “Lien” shall mean any interest in property securing an obligation owed to, or claim by, a
Person other than the owner of such property, whether such interest arises by virtue of contract,
statute or common law, including but not limited to the lien or security interest arising from a
mortgage, security agreement, pledge, lease, conditional sale, consignment or bailment for security
purposes or from attachment, judgment or execution. The term “Lien” shall include any easements,
covenants, restrictions, conditions, encroachments, reservations, rights-of-way, leases and other
title exceptions and encumbrances affecting real property. For the purpose of this Agreement, the
Borrower or HB Service, as applicable, shall be deemed to own, subject to a Lien, any proceeds of a
sale with recourse of accounts receivable, any asset leased under any “sale and lease back”
or similar arrangement and any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, financing lease or other title retention
agreement relating to such asset.



     “Loans” shall mean the Revolving Loans.



     “Material Adverse Effect” or “Material Adverse Change” shall mean a material
adverse effect upon, or a material adverse change in, any of (i) the financial condition,
operations, business or properties of the Borrower and its Subsidiaries or HB Service and its
Subsidiaries, in each case taken as a whole; (ii) the ability of the Borrower, HB Service or any of
their respective Subsidiaries to perform under this Agreement or any other Credit Document in any
material respect or any other material contract in any material respect to which any one or more of
them is a party; (iii) the legality, validity or enforceability of this Agreement or any other
Credit Document; or (iv) the perfection or priority of the Liens of the Bank granted under this
Agreement or any other Credit Document or the rights and remedies of the Bank under this Agreement
or any other Credit Document (other than a change resulting from any act or omission by the Bank).



     “Multiemployer Plan” shall mean any “multiemployer plan” within the
meaning of Section 4001(a)(3) of ERISA.



     “Net Tangible Assets” shall mean, as of any date of determination, (i) total assets of
the Borrower and its Subsidiaries as of such date other than assets, which would be treated as
intangible assets for balance sheet presentation purposes under GAAP (including, without
limitation, intellectual property and goodwill), as determined on a consolidated basis in
accordance with GAAP, minus (ii) Restricted Cash and Affiliate Note Receivables.



     “Note” shall mean the Revolving Note.



9









 





     “Notice of Borrowing” shall have the meaning set forth in Section 3.2(a).



     “Obligations” shall mean and include (i) the Reimbursement Obligations, the Loans and all
other loans, advances, indebtedness, liabilities, obligations, covenants and duties owing, arising,
due or payable from the Borrower to the Bank of any kind or nature, present or future, arising
under this Agreement, the Note or the other Credit Documents or any Hedge Agreement, whether direct
or indirect (including those acquired by assignment), absolute or contingent, primary or secondary,
due or to become due, now existing or hereafter arising and however acquired; and (ii) all interest
(including to the extent permitted by law, all post-petition interest), charges, expenses, fees,
attorneys’ fees and any other sums payable by the Borrower to the Bank under this Agreement or any
of the other Credit Documents.



     “OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control,
and any successor thereto.



     “PATRIOT Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act of 2001), as amended from time to
time, and any successor statute, and all rules and regulations from time to time promulgated
thereunder.



     “PBGC”
shall mean the Pension Benefit Guaranty Corporation and any successor
thereto.


     “Permitted Liens” shall have the meaning set forth in Section 7.3.



     “Person” shall mean an individual, a corporation, a partnership, a limited liability company,
an association, a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.



     “Plan” shall mean, at any time, an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the Code and is either
(i) maintained by a member of the Controlled Group for employees of any member of the Controlled
Group, or (ii) maintained pursuant to a collective bargaining agreement or any other arrangement
under which more than one employer makes contributions and to which a member of the Controlled
Group is then making or accruing an obligation to make contributions or has within the preceding
five plan years made contributions.



     “Realty” shall mean the real property owned by the Borrower or HB Service and set forth on
Schedule 4.14.



     “Registry” shall mean the office of the Register of Deeds (or comparable Governmental
Authority) for each of piece of Realty as set forth on Schedule 4.14.



     “Reimbursement Obligation” shall have the meaning given to such term in
Section 2.12(c).



     “Requirement of Law” shall mean, with respect to any Person, the charter, articles or
certificate of organization or incorporation and bylaws or other organizational or governing
documents of such Person, and any statute, law, treaty, rule, regulation, order, decree, writ,



10









 





injunction or determination of any arbitrator or court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject or otherwise pertaining to any or all of the transactions
contemplated by this Agreement and the other Credit Documents.




     “Responsible Officer” shall mean, with respect to any Person, the chairman of the
board of directors (or similar governing body), the president, the chief executive officer, the
chief financial officer, any executive officer, controller or treasurer of such Person, and any
other officer or similar official thereof responsible for the administration of the obligations of
such Person in respect of this Agreement.



     “Restricted Cash” shall mean cash or Cash Equivalents held by the Borrower or its
Subsidiaries that is subject to a Lien other than a Permitted Lien.



     “Revolving Credit Commitment” shall have the meaning set forth in Section 2.1(a).



     “Revolving Credit Termination Date” shall mean the date of the earliest to occur of
the following: (i) June 30, 2009; (ii) the date on which the Bank makes demand for payment of the
Revolving Loans in accordance with Article VIII; (iii) such date of termination as is mutually
agreed upon by the Bank and the Borrower; and (iv) the date after all Obligations have been paid in
full and the Bank is no longer obligated to make Revolving Loans hereunder.



     “Revolving
Loans” shall have the meaning set forth in Section 2.1(a).



     “Revolving Note” shall mean the amended and restated promissory note of the Borrower dated as
of the Third Amendment Date in the form of Exhibit A attached hereto, executed and delivered to the
Bank pursuant to Article II hereof, evidencing the obligation of the Borrower to repay the
Revolving Loans, together with any amendments, modifications and supplements thereto, any
replacements, restatements, renewals and extensions thereof, and any substitutes therefor, in whole
or in part.



     “Sanctioned Country” shall mean a country subject to a sanctions program identified on
the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index/html, or as otherwise published
from time to time.



     “Sanctioned Person” shall mean (i) a Person named on the list of Specially
Designated Nationals or Blocked Persons maintained by OF AC available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index/html or as otherwise published from time
to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization
controlled by a Sanctioned Country, or (C) a Person resident in a Sanctioned Country, to the extent
subject to a sanctions program administered by OFAC.



     “Security Agreement” shall mean the Security Agreement, dated as of the date
hereof, between the Borrower, each of the Borrower’s Subsidiaries and the Bank, as the same may
be amended, modified, supplemented or restated from time to time.



11









 





     “Security Documents” shall mean the Security Agreement, the Guaranty, the HB Service
Security Agreement, the HB Service Guaranty and the Shareholder Guaranty and all other pledge or
security agreements, guaranties, mortgages, deeds of trust, assignments or other similar agreements
or instruments executed and delivered by the Borrower, HB Service or any of their respective
Subsidiaries pursuant to the terms of this Agreement or otherwise in connection with the
transactions contemplated hereby, in each case as amended, modified or supplemented from time to
time.



     “Shareholder Guaranty” shall mean the guaranty agreement made by H. Wayne Huizenga in
favor of the Bank in the form of Exhibit H attached hereto, as amended, modified, restated or
supplemented from time to time, guaranteeing the Obligations of the Borrower to the Bank in an
amount equal to $5,000,000.



     “Solvent” shall mean as to any Person on any particular date, that such Person (i) does not
have unreasonably small capital to carry on its business as now conducted and as presently proposed
to be conducted, (ii) is able to pay its debts as they become due in the ordinary course of
business, and (iii) has assets with a present fair saleable value greater than its total stated
liabilities and identified contingent liabilities, including any amounts necessary to satisfy
preferential rights of shareholders.



     “Stated Amount” shall mean, with respect to any Letter of Credit at any time, the
aggregate amount available to be drawn thereunder at such time (regardless of whether any
conditions for drawing could then be met).



     “Subsidiary” shall mean, with respect to any Person, any corporation, partnership, limited
liability company, association or other business entity of which such Person owns, directly or
indirectly, more than fifty percent (50%) of the voting securities thereof.



     “Subsidiary Guarantor” shall mean any Subsidiary of the Borrower that is a guarantor
of the Obligations under the Guaranty (or under another guaranty agreement in form and substance
satisfactory to the Bank) and has granted to the Bank a Lien upon and security interest in its
personal property assets pursuant to the Security Agreement.



     “Terminating Indebtedness” shall mean all Indebtedness of the Borrower or any of its
Subsidiaries as of the Closing Date other than Indebtedness permitted under Section 7.2.



     “Third Amendment Date” shall mean March 21, 2008.



     “Wholly Owned” shall mean, with respect to any Subsidiary of any Person, that 100% of the
outstanding Capital Stock of such Subsidiary is owned, directly or indirectly, by such Person.



     1.2 Accounting Terms. Except as specifically provided otherwise in this
Agreement, all accounting terms used herein that are not specifically defined shall have the
meanings customarily given them in accordance with GAAP. Notwithstanding anything to the contrary
in this Agreement, for purposes of calculation of the financial covenants set forth in Article VI,
all accounting determinations and computations hereunder shall be made in accordance with GAAP as
in effect as of the date of this Agreement applied on a basis consistent with the application used
in preparing the most recent financial statements of the Borrower, or HB Service, as the



12









 




case may be, referred to in Section 4.10. In the event that any changes in GAAP after such date are
required to be applied to the Borrower or HB Service and would affect the computation of the
financial covenants contained in Article VI, such changes shall be followed only from and after the
date this Agreement shall have been amended to take into account any such changes.




     1.3 Singular/Plural. Unless the context otherwise requires, words in the
singular include the plural and words in the plural include the singular.



     1.4 Other Terms. All other terms contained in this Agreement shall, when the context
so indicates, have the meanings provided for by the Uniform Commercial Code of the State of North
Carolina to the extent the same are used or defined therein.



ARTICLE II




AMOUNTS AND TERMS OF THE LOANS



     2.1 Commitments.



     (a) The Bank agrees, on the terms and conditions set forth herein, to make loans (each, a
“Revolving Loan.” and collectively, the “Revolving Loans”) to the Borrower, from time to time
before the Revolving Credit Termination Date; provided that, immediately after each
Revolving Loan is made, the sum of the aggregate outstanding principal amount of the Revolving
Loans and the Letter of Credit Exposure shall not exceed $10,000,000 (the “Revolving Credit
Commitment”). So long as no Default or Event of Default has occurred and is continuing, and
subject to the limits set forth in this Section 2.1(a), the Borrower may borrow under this Section
2.1(a), repay or prepay Revolving Loans and reborrow under this Section 2.1(a) at any time before
the Revolving Credit Termination Date.



     (b) Subject to the Bank’s right to cease making Revolving Loans upon the occurrence of a
Default or an Event of Default, the Revolving Credit Commitment and the Bank’s obligation to make
Revolving Loans thereunder shall continue until the Revolving Credit Termination Date.



     2.2 Note. The Revolving Loans made by the Bank shall be evidenced by a single
Revolving Note payable to the order of the Bank for the account of its Lending Office in an amount
equal to the original principal amount of the Revolving Credit Commitment. The Borrower and the
Bank hereby agree that the terms of this Agreement shall be incorporated by reference into the
Revolving Note as if set forth therein and, in the event of any conflict between the terms of this
Agreement and the Note, the terms of this Agreement shall control.



     2.3
Principal Payments; Maturity of Loans. The Borrower shall repay the Revolving
Note:




     (i) In full, on the Revolving Credit Termination Date;




     (ii) In full, upon the occurrence of any Event of Default and acceleration of the
Obligations by the Bank pursuant to Article VIII hereof; and



13









 






     (iii) In part, immediately in the event that the sum of the aggregate outstanding
principal amount of the Revolving Loans and the Letter of Credit Exposure exceeds
$10,000,000, in the amount of such excess.



     2.4 Interest.



     (a) Subject to the terms and conditions of this Agreement, each Loan shall bear, and the
Borrower shall pay, interest from the Closing Date on the unpaid principal balance thereof at the
Adjusted LIBOR Rate.



     (b) Accrued (and theretofore unpaid) interest on the outstanding principal balance of each
Loan shall be due and payable (i) in arrears on the last Business Day of each calendar month,
beginning with the first such day to occur after the Closing Date and (ii) on each date when all or
any amount of the unpaid principal balance of each such Loan shall be due (whether at maturity, by
acceleration or otherwise), but only to the extent accrued.



     (c) Interest on the Loans and fees shall be computed on the basis of a 360-day year and the
actual number of days elapsed.



     (d) Nothing contained in this Agreement or the Note shall be deemed to establish or require
the payment of interest to the Bank at a rate in excess of the maximum rate permitted by governing
law. In the event that the rate of interest required to be paid under this Agreement or the Note
exceeds the maximum rate permitted by governing law, the rate of interest required to be paid
hereunder and under the Note shall be automatically reduced to the maximum rate permitted by
governing law and any amounts collected in excess of the permissible amount shall be deemed a
prepayment of principal on the Note.



     (e) Notwithstanding any other provision of this Agreement to the contrary, upon and during the
continuance of any Event of Default under this Agreement, at the option of the Bank without any
required notice to the Borrower, the outstanding principal amount of each of the Loans, and to the
full extent permitted by law, all interest accrued on each of the Loans, shall bear interest at the
Default Rate, and such default interest shall be payable on demand.



     2.5 Fees.



     (a) The Borrower agrees to pay to the Bank a Revolving Credit Commitment fee, in an aggregate
amount equal to $5,000.00, due and payable in full on the Closing Date.



     (b) The Borrower agrees to pay to the Bank an availability fee on the last Business Day of
each calendar year and on the Revolving Credit Termination Date at a per annum rate of 0.125% of
the difference between (i) $10,000,000 and (ii) the average daily outstanding principal balance of
Revolving Loans for such calendar year or portion thereof. Such facility fees shall accrue from and
including the Closing Date to (but excluding) the Revolving Credit Termination Date.



     (c) The Borrower agrees to pay to the Bank (i) a letter of credit fee equal to the Applicable
Percentage times the Stated Amount of each Letter of Credit at the time of issuance and on each
successive anniversary date if such letter of credit is renewed or extended, and (ii)



14









 




such commissions, transfer fees and other fees and charges incurred in connection with the issuance
and administration of each Letter of Credit as are customarily charged from time to time by the
Bank for the performance of such services in connection with similar letters of credit, or as may
be otherwise agreed to by the Bank.




     2.6 Termination or Reduction of Commitments. The Borrower may, upon at least three (3)
Business Days’ written notice to the Bank, terminate at any time, or proportionately reduce the
unused portion of the Revolving Credit Commitment from time to time by an aggregate amount of at
least $500,000 or any larger integral multiple of $100,000. If the Revolving Credit Commitment is
terminated in its entirety, all accrued fees (as provided under Section 2.5) shall be due and
payable on the effective date of such termination.



     2.7 General Provisions as to Payments. All payments (including prepayments) by the
Borrower on account of principal, interest and fees on the Loan shall be made in immediately
available funds to the Bank at its offices at 301 South Tryon Street, 28th Floor,
Charlotte, North Carolina, prior to 2:00 p.m., Eastern Standard Time, on the date payment is due,
or at such other place as is designated in writing by the Bank.



     2.8 Disbursement of Loan Proceeds. The Borrower hereby authorizes and directs the Bank
to disburse, for and on behalf of the Borrower and for the Borrower’s account, the proceeds of the
Loans made by the Bank pursuant to this Agreement (i) to such Person or Persons as the Borrower
shall direct in a writing signed by two individuals named as authorized individuals by the Borrower
and delivered to the Bank via facsimile; (ii) to pay the Bank any interest, fees, costs and
expenses payable pursuant to Section 9.1 hereof, and (iii) to the Borrower’s depository accounts
with the Bank in an amount equal to the sum necessary to cover checks or other items of payment
drawn by the Borrower upon such accounts and presented for payment.



     2.9 Use of Proceeds. The proceeds of the Revolving Loans shall be used by the Borrower
solely (i) to refinance the Terminating Indebtedness; (ii) to provide working capital for the
Borrower; (iii) to finance future acquisitions; and (iv) to pay fees and expenses in connection
with the transactions contemplated by this Agreement.



     2.10 Taxes. All payments of principal, interest and fees and all other amounts to be
made by the Borrower pursuant to this Agreement with respect to the Loans or fees relating thereto
shall be paid without deduction for, and free from, any tax, imposts, levies, duties, deductions,
or withholdings of any nature now or at any time hereafter imposed on or measured by any
governmental authority or by any taxing authority thereof, or therein, excluding (i) taxes imposed
on or measured by the Bank’s net income, (ii) franchise taxes imposed on the Bank by the
jurisdiction under the laws of which the Bank is organized or any political subdivision thereof,
and (iii) taxes imposed on the Bank’s income, and franchise taxes imposed on it, by the
jurisdiction of the Bank’s Lending Office or any political subdivision thereof. In the event that
the Borrower is required by applicable law to make any such withholding or deduction of taxes with
respect to the Loans or fee or other amount, the Borrower shall pay such deduction or withholding
to the applicable taxing authority, shall promptly furnish to the Bank all receipts and other
additional amounts as may be necessary in order that the amount received by the Bank after the
required withholding or other payment shall equal the amount the Bank would have received had no
such withholding or other payment been made.




15











 





     2.11 Illegality. If, after the date hereof, any Change of Law, or any change in
interpretation or administration thereof by any Governmental Authority, or compliance by the Bank
(or its Lending Office) with any request or directive (whether or not having the force of law) by
any Governmental Authority, shall make it unlawful or impossible for the Bank (or its Lending
Office) to make, maintain or fund Loans, then the Bank shall so notify the Borrower, whereupon
until the Bank notifies the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligation of the Bank to fund Loans shall be suspended. Before giving any notice
to the Borrower pursuant to this Section, the Bank shall designate a different Lending Office if
such designation will avoid the need for giving such notice and will not, in the judgment of the
Bank, be otherwise disadvantageous to the Bank. If the Bank shall determine that it may not
lawfully continue to maintain and fund Loans to maturity and shall so specify in such notice, the
Borrower shall prepay in full the then outstanding principal amount of the Loans, together with
accrued interest thereon, no later than thirty (30) days after the Bank shall have given such
notice.



     2.12 Letter of Credit Subfacility.



     (a) Issuance. Subject to and upon the terms and conditions hereof, so long as no
Default or Event of Default has occurred and is continuing, at any time before the seventh day
prior to the Revolving Credit Termination Date, the Bank will issue Letters of Credit for the
account of the Borrower from time to time upon request in a form acceptable to the Bank to be
submitted at least five (5) Business Days prior to the requested date of issuance;
provided, however, that (i) the aggregate amount of Letter of Credit Exposure shall
not at any time exceed $400,000 and (ii) the sum of the aggregate outstanding principal amount of
the Revolving Loans and the Letter of Credit Exposure shall not at any time exceed the Revolving
Credit Commitment. All Letters of Credit shall be denominated in Dollars.



     (b) Term; Extension. No Letter of Credit shall have an original expiry date more than
twelve (12) months from the date of issuance; provided, however, that so long as no
Default or Event of Default has occurred and is continuing and subject to the other terms and
conditions to the issuance of Letters of Credit hereunder, the expiry dates of Letters of Credit
may be extended annually or periodically from time to time on the request of the Borrower or by
operation of the terms of the applicable Letter of Credit to a date not more than twelve (12)
months from the date of extension. Notwithstanding the foregoing, no Letter of Credit as originally
issued or as extended shall have an expiry date extending beyond the Revolving Credit Termination
Date.



     (c) Reimbursement. The Borrower agrees to reimburse the Bank in immediately available
funds (with the proceeds of a Revolving Loan obtained hereunder or otherwise) for any payment made
by the Bank under any Letter of Credit (each such amount so paid until reimbursed, together with
any interest payable thereon, a “Reimbursement Obligation”) no later than the next Business
Day after such payment is made by the Bank. Any Reimbursement Obligation shall be deemed timely
satisfied (but still subject to the payment of interest) if satisfied pursuant to a Borrowing of
Revolving Loans made no later than one Business Day after the date of such payment by the Bank.
Interest on Reimbursement Obligations shall accrue at a rate equal to the Adjusted LIBOR Rate to
the extent not reimbursed prior to 2:00 p.m. Charlotte, North Carolina time, on the date of such
payment is made by the Bank. The Bank shall provide the Borrower with prompt notice of any payment
or disbursement made or to be made under any



16









 







Letter of Credit, although the failure to give, or any delay in giving, such notice shall not
release, diminish or otherwise affect the Borrower’s obligations under this Section 2.12(c) or any
other provision of this Agreement. The Borrower’s reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of any rights of set-off,
counterclaim or defense to payment the Borrower may claim or have against the Bank, the beneficiary
of the Letters of Credit drawn upon or any other Person, including without limitation any defense
based on any failure of the Borrower to receive consideration or the legality, validity, regularity
or unenforceability of the Letter of Credit.



     (d) Payment by Revolving Loans. In the event that the Bank makes any payment under any
Letter of Credit and the Borrower shall not have timely satisfied in full its Reimbursement
Obligation to the Bank pursuant to Section 2.12(c) hereof and to the extent that any amounts then
held as cash collateral pursuant to Section 2.12(e) hereof shall be insufficient to satisfy such
Reimbursement Obligation in full, each such payment by the Bank shall constitute a Revolving Loan
to the Borrower (the Borrower being deemed to have given a timely Notice of Borrowing therefor) and
shall be treated as such for all purposes of this Agreement.



     (e) Cash Collateralization. In the event that the aggregate Letter of Credit Exposure
exceeds the Revolving Credit Commitment, the Borrower shall pay to the Bank cash collateral equal
to the amount of such excess irrespective of whether the Bank shall have paid any amount to a
beneficiary of a Letter of Credit. The Bank shall have exclusive control over such cash collateral
and in the event of a drawing and subsequent payment by the Bank under any Letter of Credit, the
Bank may satisfy such Reimbursement Obligation with such cash collateral and its proceeds.



ARTICLE III




CLOSING; CONDITIONS OF CLOSING AND BORROWING



     3.1 [Reserved]



     3.2 Conditions to all Loans. The obligation of the Bank to make any Loan hereunder
(including any Loans made on or after the Closing Date), is subject to the continued validity of
all Credit Documents and the satisfaction of the following conditions:



     (a) The Bank shall have received a notice of borrowing (each a “Notice of Borrowing”),
in the form of Exhibit D, specifying (i) the aggregate principal amount of the requested Loan to be
made pursuant to such Borrowing, and (ii) the requested date of such Borrowing, which shall be a
Business Day. Each such Notice of Borrowing shall be irrevocable.



     (b) Each of the representations and warranties made by the Borrower in Article IV shall be
true and correct on and as of such date with the same effect as if made on and as of such date
(except to the extent any such representation or warranty related to a specific date, in which case
such representation or warranty shall be true and correct as of such date); and



     (c) No Default or Event of Default shall have occurred and be continuing on such date or after
giving effect to the portion of the Loan to be made on such date.



17









 





     3.3 Waiver of Conditions Precedent. If the Bank funds any portion of the Loans
hereunder prior to the fulfillment of any of the conditions precedent set forth in this Article
III, the making of such Loan shall constitute only an extension of time for the fulfillment of such
condition and not a waiver thereof, and the Borrower shall thereafter use its best efforts to
fulfill each such condition within thirty (30) days after the date of such funding.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES



     Each of the Borrower and its Subsidiaries represents and warrants to the Bank as follows:



     4.1 Corporate Organization and Power. Each of the Borrower and its Subsidiaries, and
HB Service and its Subsidiaries (a) is a corporation or a limited liability company duly organized
or formed, validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be; (b) is duly qualified or licensed to do business
and is in good standing in every other jurisdiction where the nature of its business or its
properties makes such qualification or licensing necessary (except where the failure to be so
qualified or licensed would not have a Material Adverse Effect); (c) has full corporate or limited
liability company power and authority to execute, deliver and perform the Credit Documents to which
it is or will be a party, to own and hold its property and to engage in its business as presently
conducted, and (d) has all governmental licenses, permits, franchises, certificates, inspections,
authorizations, consents and approvals required to carry on its business as it is now being
conducted (except where the failure to have such governmental authorization would not have a
Material Adverse Effect).



     4.2 Corporate Authority: No Conflict With Other Instruments or Law. The execution,
delivery and performance of this Agreement and the other Credit Documents and the consummation of
the transactions contemplated hereby and thereby (a) are within the corporate or limited liability
company power and authority of the Borrower and each of its Subsidiaries and HB Service and each of
its Subsidiaries, (b) have been duly authorized by all necessary corporate or limited liability
company action on the part of the Borrower and each of its Subsidiaries and HB Service and each of
its Subsidiaries, (c) do not and will not conflict with, contravene or violate any provision of, or
result in a breach of or default under, or require the waiver (not already obtained) of any
provision of or the consent (not already given) of any Person under the terms of the Borrower’s or
any of its Subsidiaries’, or HB Service’s or any of its Subsidiaries’, articles or certificate of
incorporation or formation, its bylaws or operating agreement, or other applicable formation or
organizational documents, or any indenture, mortgage, deed of trust, loan or credit agreement or
other agreement or instrument to which the Borrower or any of its Subsidiaries, or HB Service or
any of its Subsidiaries, is a party or by which it is bound or to which any of its properties are
subject, (d) will not violate, conflict with, give rise to any liability under, or constitute a
default under any Requirement of Law, and (e) will not result in the creation, imposition, or acceleration of any indebtedness or tax or any
Lien that is not a Permitted Lien of any nature upon, or with respect to, the Borrower or any of
its Subsidiaries, or HB Service or any of its Subsidiaries, or any of their properties.



18









 





     4.3 Due Execution and Delivery. This Agreement and the other Credit Documents to which
the Borrower, HB Service and each of their respective Subsidiaries is a party have been duly
executed and delivered to the Bank by an officer of the Borrower, HB Service or such Subsidiary who
has been duly authorized to perform such acts.



     4.4 Enforceability. This Agreement and the other Credit Documents to which the
Borrower, HB Service and each of their respective Subsidiaries is a party constitute the legal,
valid and binding obligations of the Borrower, HB Service and each such Subsidiary enforceable
against such Person in accordance with their terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws, statutes or rules of
general application affecting the enforcement of creditor’s rights or general principles of
equity.



     4.5 Governmental Approval. The execution, delivery and performance of this Agreement
and the other Credit Documents to which the Borrower, HB Service and each of their respective
Subsidiaries is a party and the transactions contemplated hereby and thereby do not require any
authorization, exemption, consent or approval of, notice to, or declaration or filing with, any
Governmental Authority other than those obtained on or before the Closing Date.



     4.6 Margin Stock. None of the Borrower, HB Service or their respective Subsidiaries is
engaged principally or as one of its important activities in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X of
the Board of Governors of the Federal Reserve System). The execution, delivery and performance of
this Agreement and the use of the proceeds of the Loan or any extension of credit hereunder, do not
and will not constitute a violation of such Regulations.



     4.7 Investment Company. None of the Borrower, HB Service or their respective
Subsidiaries is an “investment company” or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940, as
amended.



     4.8 Taxes. None of the Borrower, HB Service or their Subsidiaries is delinquent in the
payment of any taxes that have been levied or assessed by any Governmental Authority against it or
its assets unless such tax is being contested in good faith by proper proceedings and adequate
reserves satisfactory to the Bank have been established and maintained with respect thereto. The
Borrower, HB Service and each of their respective Subsidiaries has timely filed all tax returns
that are required by law to be filed, and has paid all taxes shown on said returns to be payable by
such Person and all other assessments or fees levied upon it or upon its properties to the extent
that such taxes, assessments or fees have become due, and if not due, such taxes have been
adequately provided for and sufficient reserves therefor established on its books of account. No
material controversy in respect of the Borrower’s, HB Service’s or any of their respective
Subsidiaries’ income taxes is pending or, to the knowledge of the Borrower or HB Service,
threatened.



     4.9
Litigation. Except as set forth on Schedule 4.9, there is no judgment, injunction
or similar order or decree which, and no action, suit, claim, investigation or proceeding pending
or, to the knowledge of the Borrower, HB Service or any of their respective Subsidiaries,
threatened against or affecting the Borrower, HB Service or any of its Subsidiaries, before any
court, commission, panel, board, bureau, arbitrator or any Governmental Authority which (in any



19









 




one case or in the aggregate, if determined adversely to the interests of the Borrower or any of
its Subsidiaries), (a) is reasonably likely to have a Material Adverse Effect, or (b) affects the
validity or enforceability of this Agreement or any of the other Credit Documents.




     4.10 Financial Statements; Solvency.



     (a) The Borrower has delivered to the Bank (i) the audited consolidated balance sheets of the
Borrower and its Subsidiaries as of December 31, 2004, 2005, and 2006, in each case with the
related statements of income, cash flows and stockholders’ equity for the Fiscal Years then ended,
together with the opinion of Sharf Pera & Co., PLLC thereon, (ii) the unaudited consolidated
balance sheet of the Borrower and its Subsidiaries and HB Service and its Subsidiaries, separately
and on a combined basis, as of December 31, 2007, with the related statements of income, cash flows
and stockholders’ equity for the twelve-month period then ended. Such financial statements contain
no material misstatement or omission and fairly present the financial position, assets and
liabilities of the Borrower and each of its Subsidiaries and HB Service and its Subsidiaries, as
the case may be, for the respective periods then ended.



     (b) Except
as set forth on Schedule 4.10(b), each of the Borrower, HB Service and their
respective Subsidiaries is Solvent.



     (c) Set
forth on Schedule 4.10(c) is a list of all note receivables of the Borrower, HB
Service and their respective Subsidiaries, including all notes from Franchisees and Former
Franchisee Receivables (each indicated as such), outstanding as of the Closing Date, and including
the outstanding balance of each such note receivable.



     4.11 No Material Adverse Change. Since December 31, 2004, (a) there has been no
Material Adverse Change, nor to the knowledge of the Borrower, HB Service or any of their
respective Subsidiaries, is any Material Adverse Change threatened or reasonably likely to occur,
and (b) neither the Borrower nor any of its Subsidiaries, nor HB Service nor any of its
Subsidiaries, has incurred any obligation or liability that would be reasonably likely to have a
Material Adverse Effect or entered into any material contracts not specifically contemplated by
this Agreement or the other Credit Documents or not in the ordinary course of business consistent
with past practice.



     4.12 Compliance with Laws. To the best knowledge of the Borrower, HB Service and their
respective Subsidiaries, each of the Borrower and its Subsidiaries and HB Service and its
Subsidiaries has timely filed all material reports, documents and other materials required to be
filed by it under all applicable Requirements of Law with any Governmental Authority, has retained
all material records and documents required to be retained by it under all applicable Requirements
of Law, and is otherwise in compliance with all applicable Requirements of Law in respect of the
conduct of its business and the ownership and operation of its properties, except in each case to
the extent that the failure to comply therewith, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.



     4.13
Environmental Compliance. Except as set forth on Schedule 4.13, to the best
knowledge of the Borrower, HB Service and their respective Subsidiaries,



20









 





     (a) (i) no Hazardous Material is or has been generated, used, released, treated, disposed of
or stored, or otherwise located, in, on or under any property owned, leased or operated by the
Borrower, HB Service or any of their respective Subsidiaries or any portion thereof, and no part of
the property owned, leased or operated by the Borrower, HB Service or any of their respective
Subsidiaries (now or in the past), including without limitation the soil and groundwater located
thereon and thereunder, has been contaminated by any Hazardous Material; (ii) no improvements on
the property owned, leased or operated by the Borrower, HB Service or any of their respective
Subsidiaries contain any asbestos or substances containing asbestos; (iii) none of the property owned, leased or operated by the Borrower, HB Service or any of their
respective Subsidiaries has been the subject of an environmental audit or assessment, or remedial
action; and (iv) the foregoing statements are true and correct with respect to all of the real
property adjoining any of the property owned, leased or operated by the Borrower, HB Service or any
of their respective Subsidiaries.



     (b) None of the property owned, leased or operated by the Borrower, HB Service or any of their
respective Subsidiaries (now or in the past) has, pursuant to any Environmental Law, been placed on
the “National Priorities List” or “CERCLIS List” (or any similar federal, state or
local list) of sites subject to possible environmental problems.



     (c) There are no underground storage tanks situated on the property owned, leased or operated
by the Borrower, HB Service or any of their respective Subsidiaries and no underground storage
tanks have ever been situated on the property owned, leased or operated by the Borrower, HB Service
or any of their respective Subsidiaries.



     (d) All activities and operations of each of the Borrower, HB Service and each of their
respective Subsidiaries meet all requirements of all applicable Environmental Laws, none of the
Borrower, HB Service or their respective Subsidiaries has violated any Environmental Law in the
past, and none of the property owned, leased or operated by the Borrower, HB Service or their
respective Subsidiaries has ever been the site of a violation of any Environmental Law.



     (e) None of the Borrower, HB Service or their respective Subsidiaries has sent a Hazardous
Material to a site which, pursuant to any Environmental Law, (i) has been placed on the
“National Priorities List” or “CERCLIS List” (or any similar federal, state or
local list) of sites subject to possible environmental problems, or (ii) is subject to, or the
source of, a claim, an administrative order or other request to take “response,”
“removal,” “corrective” or “remedial” action, as defined in any
Environmental Law, or to pay for or contribute to the costs of cleaning up the site.



     (f) None of the Borrower, HB Service or their respective Subsidiaries is involved in any suit
or proceeding and has not received any notice from any Governmental Authority or other third party
with respect to a release or threat of release of any Hazardous Material, or violation or alleged
violation of any Environmental Law, and has not received notice of any claim from any person or
entity relating to property damage or to personal injuries from exposure to any Hazardous Material.








21









 






     (g)
Each of the Borrower, HB Service and their respective Subsidiaries has timely filed
all reports required to be filed, has acquired all necessary certificates, approvals and permits,
and has generated and maintained all required data, documentation and records required under all
Environmental Laws.


     4.14 Ownership of Properties. Each of the Borrower, HB Service and their respective
Subsidiaries (i) has good and marketable title to all real property owned respectively by it, (ii) holds interests as lessee under valid leases in full force and effect with respect to all
material leased real and personal property used in connection with its business, and (iii) has good
title to all of its other material properties and assets reflected in the financial statements
referred to in Section 4.10 (except as sold or otherwise disposed of since the date thereof in the
ordinary course of business), in each case free and clear of all Liens other than Permitted Liens.
Schedule 4.14 lists, as of the Closing Date, all Realty of the Borrower, HB Service and each of
their respective Subsidiaries, indicating in each case the identity of the owner, the address of
the property, the nature of the use of the premises and whether such interest is a leasehold or fee
ownership interest.



     4.15 Intellectual Property. Each of the Borrower, HB Service and their respective
Subsidiaries owns, or has the legal right to use, all Intellectual Property necessary for it to
conduct its business as currently conducted. Schedule 4.15 lists, as of the Closing Date, all
registered Intellectual Property owned by the Borrower, HB Service or any of their respective
Subsidiaries. No claim has been asserted or is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does the Borrower know of any such claim, and to the knowledge of the Borrower and HB
Service, the use of such Intellectual Property by the Borrower, HB Service and their respective
Subsidiaries does not infringe on the known rights of any Person.



     4.16 Insurance. Schedule 4.16 sets forth, as of the Closing Date, an accurate and
complete list and a brief description (including the insurer, policy number, type of insurance,
coverage limits, deductibles, expiration dates and any special cancellation conditions) of all
policies of property and casualty, liability (including, but not limited to, product liability),
business interruption, workers’ compensation, keyman life insurance, and other forms of insurance
owned or held by the Borrower, HB Service or any of their respective Subsidiaries or pursuant to
which any of their respective assets are insured. The assets, properties and business of the
Borrower, HB Service and their respective Subsidiaries are insured against such hazards and
liabilities, under such coverages and in such amounts, as are customarily maintained by prudent
companies similarly situated and under policies issued by insurers of recognized responsibility.



     4.17 ERISA.



     (a) The Borrower, HB Service and each member of the Controlled Group have fulfilled
their obligations under the minimum funding standards of ERISA and the Code with respect to each
Plan. The Borrower, HB Service and each member of the Controlled Group are in compliance in all
material respects with the presently applicable provisions of ERISA and the Code, and have not
incurred any liability to the PBGC or a Plan under Title IV of ERISA.



22









 





     (b) Neither the Borrower, HB Service nor any member of the Controlled Group has incurred any
withdrawal liability with respect to any Multiemployer Plan under Title IV of ERISA, and no such
liability is expected to be incurred.



     (c) Neither the Borrower, HB Service nor any member of the Controlled Group has participated
in a prohibited transaction, as defined in Section 406 of ERISA or Section 4975(c) of the Code,
which could subject either the Borrower, HB Service or a member of the Controlled Group to any
material civil penalty under ERISA or material tax under the Code.



     4.18 Full Disclosure. All information heretofore furnished to the Bank by each of the
Borrower, HB Service and their respective Subsidiaries for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information hereafter furnished
to the Bank by each of the Borrower, HB Service and their respective Subsidiaries will be, true,
accurate and complete in every material respect or based on reasonable estimates on the date as of
which such information is stated or certified. Each of the Borrower, HB Service and their
respective Subsidiaries has disclosed to the Bank in writing any and all facts which materially and
adversely affect or may affect (to the extent the Borrower, HB Service or any of their respective
Subsidiaries can now reasonably foresee), the business, operations, prospects or condition,
financial or otherwise, of each of the Borrower, HB Service and their respective Subsidiaries, or
the ability of the Borrower, HB Service or any of their respective Subsidiaries to perform its
obligations under this Agreement or any of the other Credit Documents.



     4.19 No Default. No Default or Event of Default under this Agreement has occurred and
is continuing.



     4.20
Subsidiaries. Except as set forth on
Schedule 4.20, the Borrower and HB Service
have no Subsidiaries. Except as indicated on
Schedule 4.20, none of the Subsidiaries of the
Borrower or HB Service are foreign Subsidiaries.



     4.21 First Priority Liens. Except for Permitted Liens, this Agreement, together with
the Security Documents and the actions described in clauses (i), (ii) and (iii) of Section 3.2 of
the Security Agreement, will create valid, perfected, first-priority security interests in the
collateral described in the Security Documents, in each case enforceable against the Borrower, HB
Service and each of their respective Subsidiaries and securing the payment of all obligations
purported to be secured thereby.



     4.22 Labor Relations. None of the Borrower, HB Service or their respective
Subsidiaries is engaged in any unfair labor practice within the meaning of the National Labor
Relations Act of 1947, as amended. As of the Closing Date, there is (i) no unfair labor practice
complaint before the National Labor Relations Board, or grievance or arbitration proceeding arising
out of or under any collective bargaining agreement, pending or, to the knowledge of the Borrower
and HB Service, threatened, against the Borrower, HB Service or any of their respective
Subsidiaries, (ii) no strike, lock-out, slowdown, stoppage, walkout or other labor dispute pending
or, to the knowledge of the Borrower or HB Service, threatened, against the Borrower, HB Service or
any of their respective Subsidiaries, and (iii) to the knowledge of the Borrower or HB Service, no
petition for certification or union election or union organizing activities taking place with
respect to the Borrower, HB Service or any of their respective





23









 







Subsidiaries. As of the Closing Date, there are no collective bargaining agreements or
Multiemployer Plans covering the employees of the Borrower, HB Service or any of their
respective Subsidiaries.




     4.23 OFAC; Anti-Terrorism Laws.



     (a) None of the Borrower, HB Service or their respective Subsidiaries is a Sanctioned Person
or does business in a Sanctioned Country or with a Sanctioned Person in violation of the economic
sanctions of the United States administered by OFAC.



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



ARTICLE V




AFFIRMATIVE COVENANTS



     Until payment in full of all Obligations of the Borrower to the Bank, the Borrower will, and
will cause HB Service and each of their respective Subsidiaries to:



     5.1 Financial and Business Information. Deliver to the Bank:



     (a) Within forty-five (45) days after the close of each of the first three Fiscal Quarters of
each Fiscal Year of the Borrower and HB Service, a consolidated balance sheet of each of the
Borrower and its Subsidiaries and HB Service and its Subsidiaries, separately and on a combined
basis, in each case as of the close of such Fiscal Quarter and consolidated statements of income
and cash flows for each of the Borrower and its Subsidiaries and HB Service and its Subsidiaries,
separately and on a combined basis, in each case for the Fiscal Quarter then ended and for that
portion of the Fiscal Year then ended, all in reasonable detail setting forth in comparative form
the corresponding figures for the preceding Fiscal Year, all prepared in accordance with GAAP
applied on a basis consistent with that of the preceding period or containing disclosure of the
effect on the financial position or results of operation of any change in the application of
accounting principles and practices during the period, subject only to audit and year-end
adjustments, and certified by the Borrower’s and/or HB Service’s, as the case may be, president or
chief financial officer to be true and accurate;



     (b) Within one hundred twenty (120) days after the close of each Fiscal Year of the Borrower
and HB Service (including the Fiscal Year ending December 31, 2007, except with respect to HB
Service and its Subsidiaries), an audited consolidated balance sheet of each of the Borrower and
its Subsidiaries, and HB Service and its Subsidiaries, separately, in each case as of the close of
such Fiscal Year and audited consolidated statements of income and cash flows for each of the
Borrower and its Subsidiaries and HB Service and its Subsidiaries, separately and on a combined
basis, in each case for the Fiscal Year then ended, including the notes to each, all in




24









 







reasonable detail setting forth in comparative form the corresponding figures for the preceding
Fiscal Year, each prepared by an independent certified public accountant reasonably acceptable to
the Bank, in accordance with GAAP applied on a basis consistent with that of the preceding year or
containing disclosure of the effect on the financial position or results of operation of any change
in the application of accounting principles and practices during the year, and each accompanied by
a report thereon by such certified public accountant containing an opinion that is not qualified
with respect to scope limitations imposed by the Borrower or HB Service, as the case may be, or its
respective Subsidiaries or with respect to accounting principles followed by such entity or its
Subsidiaries not in accordance with GAAP;




     (c) Concurrently with the delivery of the financial statements described in subsection (b)
above, a certificate addressed to the Bank from the independent certified public accountant
certifying (i) that in making its audit of the financial statements of the Borrower and its
Subsidiaries or HB Service and its Subsidiaries, as the case may be, it obtained no knowledge of
the occurrence or existence of any Default or Event of Default under this Agreement, or specifying
the nature and period of existence of any such Default or Event of Default; provided,
however, that such accountant shall not be liable to anyone by reason of its failure to
obtain knowledge of any such Default or Event of Default that would not be disclosed in the course
of an audit conducted in accordance with generally accepted auditing standards and (ii) as to the
aggregate Consolidated EBITDA of the Borrower and HB Service for the Fiscal Year then ended and the
Borrower’s compliance with the financial covenants set forth in Article VI hereof;



     (d) Concurrently with the delivery of the financial statements described in subsections (a)
and (b) above, a Compliance Certificate with respect to the period covered by the financial
statements being delivered thereunder together with a Covenant Compliance Worksheet reflecting the
computation of the financial covenants set forth in Article VI as of the last day of the period
covered by such financial statements, executed by the president or chief financial officer of the
Borrower;



     (e) Prompt notice of any Material Adverse Change; and



     (f) Within a reasonable time, upon the Bank’s request, such other information about the
property, financial condition and operations of the Borrower and its Subsidiaries as the Bank may
from time to time reasonably request.



     5.2 Notice of Certain Events. Give written notice to the Bank of the following:



     (a) promptly after a Responsible Officer’s learning thereof, (i) the commencement of any
material litigation affecting the Borrower or any of its Subsidiaries, or HB Service and any of its
Subsidiaries, or any of their respective assets, whether or not the claim is considered by the
Borrower or HB Service, as applicable, to be covered by insurance, and (ii) the institution of any
material administrative proceeding, that in the case of either clause (i) or (ii), would be
reasonably likely to have a Material Adverse Effect if decided adversely to the Borrower or its
Subsidiaries, or HB Service or its Subsidiaries, as the case may be;



     (b) immediately after a Responsible Officer’s learning thereof, the occurrence of any
Casualty Event;



25









 





     (c) at least 10 days prior thereto, the opening of any new office or place of business of the
Borrower or any of its Subsidiaries;



     (d) as soon as reasonably practicable, but in any event at least five Business Days prior
thereto, the closing of any existing office or place of business of the Borrower or any of its
Subsidiaries;



     (e) promptly after a Responsible Officer’s learning thereof, any labor dispute to which the
Borrower or any of its Subsidiaries, or HB Service or its Subsidiaries, as the case may be, may
become a party, or any strike or walkout relating to any of their plants or other facilities, in
either case that is reasonably likely to have a Material Adverse Effect, and the expiration of any
labor contract to which the Borrower or any of its Subsidiaries, or HB Service or any of its
Subsidiaries, is a party or by which any of them is bound;



     (f) promptly after the occurrence thereof, any default by any obligor under any note or other
evidence of Indebtedness payable to the Borrower or any of its Subsidiaries, or HB Service or any
of its Subsidiaries, exceeding $300,000;



     (g) promptly after the rendition thereof, any judgment in an amount exceeding $300,000
rendered against the Borrower or any of its Subsidiaries, or HB Service or any of its Subsidiaries;



     (h) promptly after a Responsible Officer’s learning thereof, with respect to the
Borrower, HB Service or any of their respective Subsidiaries, any material (i) Environmental
Liability, (ii) pending, threatened or anticipated judicial or administrative proceeding arising
from or in any way associated with any Environmental Law, (iii) notice from any Governmental
Authority, or by any other Person, of possible or alleged noncompliance with or liability under any
Environmental Law and any investigations concerning any violation of any Environmental Law, (iv)
judgment, decree, order or written agreement with a Governmental Authority or other entity arising
from or in any way associated with any Environmental Law, in each case at, on, in, under or in any
way affecting the Realty or any adjacent property, and all facts, events, or conditions that could
lead to any of the foregoing;



     (i) if and when any member of the Controlled Group (i) gives or is required to give
notice to the PBGC of any Reportable Event with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any
Plan has given or is required to give notice of any such Reportable Event; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA; or (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate or appoint a trustee to administer any Plan,
and provide the Bank with a copy of such notice; and



     (j) promptly, but in any event within five Business Days after the Borrower becomes
aware of the occurrence of any Default or Event of Default.



     5.3
Existence; Franchises; Maintenance of Properties. (a) Maintain and preserve
in full force and effect its legal existence, its good standing under the laws of the jurisdiction
of its incorporation or formation, as the case may be, and its qualification to do business in
every other jurisdiction where the nature of its business or its properties makes such
qualification necessary







26









 







(except where the failure to be so qualified or licensed would not have a Material Adverse Effect),
(b) obtain, maintain and preserve in full force and effect its Intellectual Property and all other
rights, franchises, licenses, permits, certifications, approvals and authorizations required by
Governmental Authorities and necessary to the ownership, occupation or use of its properties or the
conduct of its business, except to the extent the failure to do so could not reasonably be expected
to have a Material Adverse Effect, and (c) keep all material properties in good working order and
condition (normal wear and tear and damage by casualty excepted) and from time to time make all
necessary repairs to and renewals and replacements of such properties, except to the extent that
any of such properties are obsolete or are being replaced or, in the good faith judgment of the
Borrower, are no longer useful or desirable in the conduct of the business.




     5.4 Compliance with Law. Comply in all respects with all Requirements of Law
applicable in respect of the conduct of its business and the ownership and operation of its
properties, except to the extent the failure to so comply could not reasonably be expected to have
a Material Adverse Effect.



     5.5
Payment of Obligations. (a) Pay, discharge or otherwise satisfy at or before
maturity all liabilities and obligations as and when due (subject to any applicable subordination,
grace and notice provisions), except to the extent failure to do so could not reasonably be
expected to have a Material Adverse Effect, and (b) pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it, upon its income or profits or upon any of its
properties, prior to the date on which penalties would attach thereto, and all lawful claims that,
if unpaid, would become a Lien (other than a Permitted Lien) upon any of the properties of the
Borrower, HB Service or any of their respective Subsidiaries; provided, however,
that the Borrower, HB Service and their respective Subsidiaries shall not be required to pay any
such liability, obligation, tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings and as to which such party is maintaining adequate reserves with
respect thereto in accordance with GAAP.



     5.6 Maintenance of Books and Records; Inspection. Maintain adequate books, accounts
and records, and prepare all financial statements required under this Agreement in accordance with
GAAP and in compliance with the regulations of any Governmental Authority having jurisdiction over
it. The Borrower and HB Service shall permit any employee or representative of the Bank to visit
and inspect any of its properties, to examine and audit its books of account, records, reports and
other papers, to make copies and extracts therefrom, and to discuss its affairs, finances and
accounts with its officers and, upon prior notice to the Borrower, its independent public
accountants (and by this provision the Borrower authorizes said accountants to discuss its finances
and affairs with the Bank and to provide the Bank with access to such accountants’ work papers),
all upon reasonable notice during business hours and as often as may be reasonably requested.



     5.7 Maintenance of Insurance. Maintain and pay for insurance upon the Borrower, HB
Service and their respective Subsidiaries, and their respective property, wherever located,
covering casualty, hazard, public liability, product liability, business interruption, boiler,
fidelity and such other risks, casualties and contingencies as is customary in the business in
which the Borrower and HB Service are engaged, all in such amounts and with such insurance
companies as shall be reasonably satisfactory to the Bank.








27









 











     5.8 Compliance with ERISA.



     (a) The Borrower will, and will cause HB Service and each of their respective Subsidiaries and
each member of the Controlled Group to, comply in all material respects with ERISA and the Code and
the regulations and requirements of the PBGC, except where the necessity of such compliance is
being contested in good faith through appropriate proceedings.



     (b) The Borrower, HB Service and each member of the Controlled Group will make timely payment
of contributions required to meet the minimum funding standards set forth in ERISA and the Code
with respect to any Plan, and will not take any action or fail to take action the result of which
action or inaction could be a material liability for the Borrower, HB Service or a member of the
Controlled Group to the PBGC or a Multiemployer Plan. Neither the Borrower, HB Service nor a member
of the Controlled Group will participate in a prohibited transaction, as defined in Section 406 of
ERISA or Section 4975(c) of the Code, which could subject either the Borrower, HB Service or a
member of the Controlled Group to any material civil penalty under ERISA or material tax under the
Code.



     5.9 Name Change. Notify the Bank at least thirty (30) days prior to the effective date
of any change of its name, and prior to such effective date the Borrower or such Person shall have
executed any required amended or new UCC financing statements and other documents necessary to
maintain and continue the perfected security interests of the Bank in all of its collateral and
shall have taken such other actions and executed such documents as the Bank shall reasonably
require.



     5.10
Creation of Subsidiaries. Subject to the provisions of
Section 7.12, the Borrower
or HB Service may from time to time create new Subsidiaries and the Subsidiaries of each of the
Borrower and HB Service may create new Subsidiaries, provided that concurrently with (and
in any event within ten (10) Business Days after) the creation thereof:



     (a) Each such new Subsidiary will execute and deliver to the Bank (i) a joinder to the
Guaranty or HB Service Guaranty, as applicable, pursuant to which such new Subsidiary shall become
a guarantor thereunder and shall guarantee the payment in full of the Obligations of the Borrower
under this Agreement and the other Credit Documents, and (ii) a joinder to the Security Agreement
or HB Service Security Agreement, as applicable, pursuant to which such new Subsidiary shall become
a party thereto and shall grant to the Bank a first priority Lien upon and security interest in its
accounts receivable, inventory, equipment, general intangibles and other personal property as
collateral for its obligations under the Guaranty, subject only to Permitted Liens; and



     (b) The Borrower or HB Service, as applicable, will deliver to the Bank a certificate of the
secretary or an assistant secretary of such Subsidiary, in form and substance reasonably
satisfactory to the Bank, certifying (i) that attached thereto is a true and complete copy of the
articles or certificate of incorporation, certificate of formation or other organizational document
and all amendments thereto of such Subsidiary, certified as of a recent date by the Secretary of
State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same
has not been amended since the date of such certification, (ii) that attached thereto is a true and
complete copy of the bylaws, operating agreement or similar governing document of such








28









 










Subsidiary, as then in effect and as in effect at all times from the date on which the resolutions
referred to in clause (iii) below were adopted to and including the date of such certificate, (iii)
that attached thereto is a true and complete copy of resolutions adopted by the board of directors
(or similar governing body) of such Subsidiary, authorizing the execution, delivery and performance
of the Credit Documents to which it is a party, and (iv) as to the incumbency and genuineness of
the signature of each officer of such Subsidiary executing such Credit Documents, and attaching all
such copies of the documents described above;



provided, however, that the provisions of this Section 5.10 shall not be required
with respect to foreign Subsidiaries; provided further that the Borrower or HB Service
shall obtain the consent of Bank prior to the creation of a foreign Subsidiary.




     5.11
OFAC, PATRIOT Act Compliance. (a) Refrain from doing business in a Sanctioned
Country or with a Sanctioned Person in violation of the economic sanctions of the United States
administered by OFAC, and (b) provide, to the extent commercially reasonable, such information and
take such actions as are reasonably requested by the Bank in order to assist the Bank in
maintaining compliance with the PATRIOT Act.



     5.12 Banking Relationship. The Borrower and HB Service shall maintain a significant
operating relationship with the Bank during the period for which any Loans or the Revolving Credit
Commitment is outstanding, including without limitation, maintaining its primary depository
account, cash management and lockbox services with the Bank.



     5.13 Further Assurances. Make, execute, endorse, acknowledge and deliver to the Bank
any amendments, restatements, modifications or supplements hereto and any other agreements,
instruments or documents, and take any and all such other actions, as may from time to time be
reasonably requested by the Bank to effect, confirm or further assure or protect and preserve the
interests, rights and remedies of the Bank under this Agreement and the other Credit Documents.



ARTICLE VI




FINANCIAL COVENANTS



     The Borrower covenant and agrees that, until payment in full of all Obligations of the
Borrower to the Bank the Borrower will not:



     6.1 Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio (i) as of the
last day of the Fiscal Quarter ending December 31, 2008, to be less than 1.0 to 1.0 and (ii) as of
the last day of any Fiscal Quarter thereafter, to be less than 1.25 to 1.0.



     6.2 Minimum Net Worth. Permit the aggregate Consolidated Net Worth of the Borrower and
HB Service as of any date to be less than (i) $4,500,000, for any date prior to December 31, 2008,
and (ii) $5,000,000 plus 75% of the Consolidated Net Income for the Borrower and HB Service for the
fiscal year ending December 31, 2008, for December 31, 2008 and any date thereafter
(provided that Consolidated Net Income for any such Fiscal Year shall be taken into account
for purposes of this calculation only if positive).





29









 








     6.3 Funded Debt to EBITDA Ratio. Permit the Funded Debt to EBITDA Ratio (i) as of
the last day of the Fiscal Quarter ending December 31, 2008, to be greater than 3.25 to 1.0 and
(ii) as of the last day of any Fiscal Quarter thereafter, to be greater than 3.00 to 1.0.



ARTICLE VII




NEGATIVE COVENANTS



     Until payment in full of all Obligations of the Borrower to the Bank, the Borrower will not,
will not permit its Subsidiaries to and will not permit HB Service or any of its Subsidiaries to,
without the express prior written approval of the Bank:



     7.1 Mergers; Consolidations. Merge or consolidate with or into any other Person,
liquidate, wind up or dissolve; provided, however, that HB Service or any of its
Subsidiaries, any Franchisee or any Subsidiary of the Borrower may merge or consolidate with, or be
liquidated into, (i) the Borrower or HB Service (so long as the
Borrower or HB Service, as the
case may be, is the surviving or continuing entity) or (ii) any other Subsidiary of the Borrower or
HB Service (so long as the surviving or continuing entity is a Subsidiary Guarantor or a party to
the HB Service Guaranty), and in each case (x) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom, and (y) in the case of the merger or
consolidation with a Franchisee, the transaction would have been
permitted under Section 7.5(xi).



     7.2 Indebtedness. Directly or indirectly issue, assume, create, incur or suffer to
exist any Indebtedness, or permit HB Service to directly or indirectly issue, assume, create, incur
or suffer to exist, any Indebtedness except for:




     (i) Indebtedness of the Borrower, HB Service and their respective
Subsidiaries in favor of the Bank incurred under this Agreement and the other Credit
Documents;




     (ii) Indebtedness of HB Service in favor of the Bank incurred under the
$15,000,000 HB Service Credit Agreement and the Credit Documents (as defined therein);




     (iii) Indebtedness of the Borrower or HB Service to their respective shareholders,
provided that all such Indebtedness shall be expressly subordinated in right of
payment and performance to the Obligations on terms reasonably satisfactory to the Bank;




     (iv) Indebtedness of HB Service to the Borrower and Indebtedness from the Borrower
to HB Service;




     (v) Indebtedness of HB Service consisting of seller notes on franchise and other
acquisitions, with all such Indebtedness of HB Service existing as of the Third Amendment
Date set forth on Schedule 7.2(v) hereof, which schedule shall identify the principal
amount, lender, interest rate, maturity date and principal repayment schedule of such
Indebtedness; provided that all such Indebtedness existing at any time shall not



30









 







exceed $5,000,000; and provided further that Borrower shall deliver to the Bank
an updated Schedule 7.2(v) with the financial statements required to be delivered by
Sections 5.1(a) and 5.1(b) identifying all such Indebtedness existing as of such date;




     (vi) Indebtedness of the Borrower and its Subsidiaries in favor of California
First Leasing Corporation with respect to the lease of, or sale and leaseback with respect
to, certain equipment, provided that all such Indebtedness does not exceed $500,000;




     (vii) Indebtedness secured by Permitted Liens;




     (viii) Indebtedness of the Borrower under Hedge Agreements entered into in connection
with this Agreement or in the ordinary course of business to manage existing or anticipated
interest rate or foreign currency risks and not for speculative purposes;




     (ix) purchase money Indebtedness of the Borrower and its Subsidiaries, and HB
Service and its Subsidiaries incurred solely to finance the acquisition, construction or
improvement of any equipment, real property or other fixed assets in the ordinary course of
business, including Indebtedness in respect of Capitalized Lease Obligations, provided that all such Indebtedness shall not exceed $1,500,000 in aggregate principal amount
outstanding at any time;




     (x) notwithstanding subsection (iv) above, purchase money Indebtedness of the
Borrower or HB Service incurred pursuant to an agreement to be entered into with Microsoft
Corp. for the purchase of software and accompanying licenses for a purchase price not to
exceed $2,000,000; and




     (xi) other Indebtedness of the Borrower and its Subsidiaries or HB Service and its
Subsidiaries incurred in the ordinary course of business.



     7.3 Liens and Encumbrances. Create, assume or suffer to exist any Lien in or on
any of its property, real or personal, whether now owned or hereafter acquired, except for
(collectively, the “Permitted Liens”):




     (i) Liens in favor of the Bank created by or otherwise existing under or in
connection with this Agreement and the other Credit Documents;




     (ii) Liens imposed by mandatory provisions of law of carriers, warehousemen,
mechanics and materialmen incurred in the ordinary course of business for sums not yet due
and payable;




     (iii) Liens incurred in the ordinary course of business in connection with worker’s
compensation, unemployment insurance or other forms of governmental insurance or benefits,
or to secure the performance of letters of credit, bids, tenders, statutory obligations,
leases and contracts (other than for borrowed money) entered into in the ordinary course of
business, provided that all such liens in the aggregate have no reasonable likelihood of
causing a Material Adverse Effect;



31









 






     (iv) Liens for current taxes, assessments or other governmental charges that are
not delinquent or remain payable without any penalty or that are being contested in good
faith and with due diligence by appropriate proceedings, provided that all such liens in the
aggregate have no reasonable likelihood of causing a Material Adverse Effect and, if
requested by the Bank, the Borrower or such Subsidiary has established reserves satisfactory
to the Bank with respect thereto;




     (v) Liens of judgments, execution, attachment or similar process which will not
result or have not yet resulted in the occurrence of an Event of Default as set forth in
Sections 8.1(k) or (l) hereof;




     (vi) Liens with respect to any Realty occupied by the Borrower or any of its
Subsidiaries, or HB Service or any of its Subsidiaries, (a) all easements, rights of way,
reservations, licenses, encroachments, variations and similar restrictions, charges and
encumbrances on title that do not secure monetary obligations and do not materially impair
the use of such property for its intended purposes or the value thereof, and (b) any other
Lien or exception to coverage described in mortgagee policies of title insurance issued in
favor of and accepted by the Bank;




     (vii) Liens securing the purchase money Indebtedness permitted under Section
7.2(ix), provided that (x) any such Lien shall attach to the property being
acquired, constructed or improved with such Indebtedness concurrently with or within ninety
(90) days after the acquisition (or completion of construction or improvement) by the
Borrower or such Subsidiary, (y) the amount of the Indebtedness secured by such Lien shall
not exceed the cost to the Borrower, HB Service or such Subsidiary of acquiring,
constructing or improving the property and any other assets then being financed solely by
the same financing source, and (z) any such Lien shall not encumber any other property of
the Borrower, HB Service or any of its Subsidiaries except assets then being financed solely
by the same financing source;




     (viii) Liens of California First Leasing Corporation with respect to the certain
equipment leased therefrom and securing the Indebtedness permitted under Section 7.2(vi);
and




     (ix) Liens securing the Indebtedness permitted under Section 7.2(v) with respect
to the assets of the franchise or other entity acquired thereby, with all such Liens
existing as of the Third Amendment Date set forth on Schedule 7.3(ix) hereof; provided that the Indebtedness giving rise to such Liens shall not exceed $2,500,000 at any time
without the prior written consent of the Bank (not to be unreasonably withheld, delayed or
conditioned); and provided further that Borrower shall deliver to the Bank an
updated Schedule 7.3(ix) with the financial statements required to be delivered by Sections
5.1(a) and 5.1(b) identifying all such Liens existing at such time.



     7.4 Disposition of Assets. Sell, lease, transfer, convey or otherwise dispose of
any of its assets or property, other than:



32









 






     (i) the sale or other disposition of inventory or Cash Equivalents in the
ordinary course of business, the sale or write-off of past due or impaired accounts
receivable for collection purposes (but not for factoring, securitization or other financing
purposes), and the termination or unwinding of Hedge Agreements permitted hereunder;




     (ii) the sale, exchange or other disposition in the ordinary course of business of
equipment or other assets that are obsolete or no longer necessary for the operations of the
Borrower, HB Service and their respective Subsidiaries with an aggregate net book value on
the Borrower’s or HB Service’s, as the case may be, balance sheet of no more than $100,000
in the aggregate;




     (iii) dividends permitted under Section 7.6; and




     (iv) the sale of all or any portion of any Franchisee or complimentary business
for fair value so long as the proceeds of all such sales do not exceed $500,000 in any
Fiscal Year.



     7.5 Restricted Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock, evidence of indebtedness, or other obligation or security or any
interest whatsoever in any other Person, or make or permit to exist any loans, advances or
extensions of credit to, or any investment in cash or by delivery of property in, any Person
(collectively, “Investments”), except for:




     (i) Investments consisting of Cash Equivalents;




     (ii) Investments consisting of the extension of trade credit, the creation of
prepaid expenses, and the purchase of inventory, supplies, equipment and other assets, in
each case by the Borrower, HB Service and their respective Subsidiaries in the ordinary
course of business;




     (iii) Investments (including equity securities and debt obligations) of the
Borrower, HB Service and their respective Subsidiaries received in connection with the
bankruptcy or reorganization of suppliers and customers and in good faith settlement of
delinquent obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;




     (iv) without duplication, Investments with related Persons expressly permitted
under Section 7.7;




     (v) Investments of the Borrower under Hedge Agreements entered into in connection
with this Agreement or in the ordinary course of business to manage existing or anticipated
interest rate or foreign currency risks and not for speculative purposes;




     (vi) Investments consisting of loans or advances by the Borrower to HB
Service;




     (vii) Investments consisting of loans or advances by HB Service to the
Borrower;



33









 






     (viii) Investments in connection with the creation (but not acquisition) of new
Subsidiaries organized under the laws of one of the United States, provided the Borrower, or
HB Service, as applicable, complies with the terms of Section 5.10;




     (ix) Investments in connection with the creation (but not acquisition) of new
Subsidiaries organized under the laws of Canada or Australia, provided that in no
event shall such investments exceed an aggregate amount of (x) $500,000 per foreign
Subsidiary in Australia or (y) $7,500,000 per foreign Subsidiary in Canada;




     (x) Investments in connection with the creation (but not acquisition) of new
Subsidiaries organized under the laws of a jurisdiction outside of the United States (other
than Canada and Australia), provided that in no event shall such investments exceed
an aggregate amount of $250,000 per foreign Subsidiary;




     (xi) Investments consisting of the acquisition of capital stock or substantially
all the assets of Franchisees in the United States, Canada or Australia, provided
that (i) immediately after giving pro forma effect to such acquisition (and the incurrence
of any Indebtedness in connection therewith), the Borrower is in compliance with the
financial covenants set forth in Article VI for the Fiscal Quarter most recently ended for
which financial statements are required to have been delivered under Section 5.1(a) or
5.1(b), and (ii) in the case of an acquisition of capital stock, the Borrower, or HB
Service, as the case may be, complies with Section 5.10; and




     (xii) other Investments of the Borrower, HB Service and their respective
Subsidiaries not otherwise permitted under this Section 7.5 (including joint ventures, but
excluding Investments in Subsidiaries organized under the laws of a foreign jurisdiction) in
an aggregate amount not exceeding $7,500,000 at any time outstanding for all such
Investments, provided that immediately after giving pro forma effect to such
Investment (and the incurrence of any Indebtedness in connection therewith), the Borrower is
in compliance with the financial covenants set forth in Article VI for the Fiscal Quarter
most recently ended for which financial statements are required to have been delivered under
Section 5.1(a) or 5.1(b).



     7.6 Restricted Payments. Directly or indirectly, declare or make any dividend
payment, or make any other distribution of cash, property or assets, in respect of any of its
Capital Stock, or purchase, redeem, retire or otherwise acquire for value any shares of its Capital
Stock, or set aside funds for any of the foregoing, except that:




     (i) the Borrower, HB Service and any of their respective Subsidiaries may declare
and make dividend payments or other distributions payable solely in its Capital Stock, in
each case to the extent not prohibited under applicable Requirements of Law;




     (ii) each Subsidiary of the Borrower and HB Service may declare and make dividend
payments or other distributions to the Borrower or HB Service, as applicable, or to another
Subsidiary of the Borrower or HB Service, as applicable, in each case (x) to the extent not
prohibited under applicable Requirements of Law, and (y) so long as no



34









 







Default or Event of Default shall have occurred and be continuing or would result
therefrom; and




     (iii) the Borrower and HB Service may declare and make dividend payments and other
distributions in cash if no Default or Event of Default shall have occurred and be
continuing or would result therefrom.



     7.7 Transactions With Affiliates. Except as otherwise permitted by Sections 7.2 and
7.6, directly or indirectly make any loan or advance to, or purchase, assume or guarantee any
indebtedness to or from, any of its officers, directors, stockholders, Franchisees or Affiliates,
or to or from any member of the immediate family of any of its officers, directors, stockholders,
Franchisees or Affiliates, or subcontract any operations to any Affiliate, except, in the case of
the Borrower, for loans and advances to HB Service in accordance with Section 7.5(vi), in the case
of HB Service, for loans and advances to the Borrower in accordance with Section 7.5(vii), and, in
each case, travel or other reasonable expense advances to employees in the ordinary course of
business not to exceed $100,000 in the aggregate; or enter into any other transaction with any
Affiliate, except (i) with respect to the transactions described on Schedule 7.7 hereto or (ii)
pursuant to the reasonable requirements of the business of such Franchisee or Affiliate and on
terms substantially no more favorable to such Franchisee or Affiliate than those that such
Franchisee or Affiliate would obtain in a comparable arms-length transaction with a Person not an
Affiliate.



     7.8 Sale-Leaseback Transactions. Directly or indirectly, become or remain liable as
lessee or as guarantor or other surety with respect to any lease, whether an operating lease or a
Capital Lease, of any property (whether real, personal or mixed, and whether now owned or hereafter
acquired) (i) that the Borrower, HB Service or any of their respective Subsidiaries has sold or
transferred (or is to sell or transfer) to a Person that is not a party to this Agreement or any of
the Credit Documents or (ii) that the Borrower, HB Service or any of their respective Subsidiaries
intends to use for substantially the same purpose as any other property that, in connection with
such lease, has been sold or transferred (or is to be sold or transferred) by the Borrower, HB
Service or any of their Subsidiaries to another Person that is not a party to this Agreement or any
of the Credit Documents, in each case except for transactions otherwise expressly permitted under
this Agreement.



     7.9
Certain Amendments. (a) Amend, modify or waive, or permit the amendment,
modification or waiver of, any provision of material contract; or (b) amend, modify or change any
provision of its articles or certificate of incorporation or formation, bylaws, operating agreement
or other applicable formation or organizational documents, as applicable, the terms of any class or
series of its Capital Stock, or any agreement among the holders of its Capital Stock or any of
them; in each case other than in a manner that could not reasonably be expected to adversely affect
the Bank in any material respect (provided that the Borrower shall give the Bank notice of
any such amendment, modification or change covered by subsection (b) above, together with certified
copies thereof).



     7.10 Limitation on Certain Restrictions. Directly or indirectly, create or otherwise
cause or suffer to exist or become effective any restriction or encumbrance on (a) the ability of
the Borrower, HB Service or any of their respective Subsidiaries to perform and comply with



35









 







their respective obligations under the Credit Documents or (b) the ability of any Subsidiary of the
Borrower or HB Service to make any dividend payment or other distribution in respect of its Capital
Stock, to repay Indebtedness owed to the Borrower, HB Service or any other Subsidiary of the
Borrower or HB Service, to make loans or advances to the Borrower, HB Service or any of their
respective Subsidiaries, or to transfer any of its assets or properties to the Borrower, HB Service
or any other of their respective Subsidiaries, except (in the case of clause (b) above only) for
such restrictions or encumbrances existing under or by reason of (i) this Agreement and the other
Credit Documents, (ii) applicable Requirements of Law, (iii) customary non-assignment provisions in
leases and licenses of real or personal property entered into by the Borrower or any Subsidiary as
lessee or licensee in the ordinary course of business, restricting the assignment or transfer
thereof or of property that is the subject thereof, and (iv) customary restrictions and conditions
contained in any agreement relating to the sale of assets (including Capital Stock of a Subsidiary)
pending such sale, provided that such restrictions and conditions apply only to the assets
being sold and such sale is permitted under this Agreement.



     7.11 No Other Negative Pledges. Enter into or suffer to exist any agreement or
restriction that, directly or indirectly, prohibits or conditions the creation, incurrence or
assumption of any Lien upon or with respect to any part of its property or assets, whether now
owned or hereafter acquired, or agree to do any of the foregoing, except for such agreements or
restrictions existing under or by reason of (i) this Agreement and the other Credit Documents, (ii)
applicable Requirements of Law, (iii) any agreement or instrument creating a Permitted Lien (but
only to the extent such agreement or restriction applies to the assets subject to such Permitted
Lien), (iv) customary provisions in leases and licenses of real or personal property entered into
by the Borrower, HB Service or any of their respective Subsidiaries as lessee or licensee in the
ordinary course of business, restricting the granting of Liens therein or in property that is the
subject thereof, and (v) customary restrictions and conditions contained in any agreement relating
to the sale of assets (including Capital Stock of a Subsidiary) pending such sale, provided
that such restrictions and conditions apply only to the assets being sold and such sale is
permitted under this Agreement.



     7.12 Subsidiaries or Partnerships. Become a partner or joint venturer in any
partnership or joint venture, unless the Borrower shall give the Bank at least thirty (30) days’
prior written notice thereof or as soon thereafter as reasonably practicable, or (b) acquire or
create any Subsidiary or divest itself of any material assets by transferring them to any
Subsidiary, unless (i) in the case of a domestic Subsidiary, the Borrower shall give the Bank
notice thereof at least thirty (30) days’ prior or as soon thereafter as reasonably practicable,
(ii) in the case of a foreign Subsidiary, the Borrower shall obtain the prior consent of the Bank,
and (iii) whether such Subsidiary is a domestic Subsidiary or a foreign Subsidiary, such Subsidiary
shall comply with all of the conditions and requirements set forth in Section 5.10.



     7.13 Lines of Business. Engage in any business other than the business in which it is
currently engaged or a business reasonably related thereto, or make any material change in its
business objectives.



     7.14 Fiscal Year. Change its Fiscal Year or its method of determining Fiscal
Quarters.







36









 








     7.15 Accounting Changes. Other than as permitted pursuant to Section 1.2, make or
permit any material change in its accounting policies or reporting practices, except as may be
required by GAAP.



ARTICLE VIII




EVENTS OF DEFAULT; REMEDIES



     8.1 Events of Default. The occurrence of any one or more of the following events
shall constitute an Event of Default hereunder:



     (a) The Borrower shall fail to pay when due any principal amount or any interest, fees or
other charges payable under this Agreement, the Note or under any other Credit Document;



     (b) The Borrower shall fail to observe or perform any covenant, restriction or agreement
contained in Sections 5.1, 5.2 and 5.3 or Articles VI or VII of this Agreement;



     (c) The Borrower shall fail to observe or perform any covenant, restriction or agreement
contained in this Agreement and not described in Sections 8.1(a) or (b) above for fifteen (15) days
after the earlier of a Responsible Officer (i) obtaining knowledge of such failure, or (ii)
receiving written notice of such failure from the Bank;



     (d) Any representation, warranty, certification or statement made or deemed made by the
Borrower, HB Service or any of their respective Subsidiaries in Article IV of this Agreement, in
any other Credit Document or in any certificate, financial statement or other document delivered
pursuant to this Agreement or any other Credit Document shall prove to have been incorrect in any
material respect when made or deemed made;



     (e) The occurrence and continuance of any default or event of default on the part of the
Borrower or HB Service (including specifically, but without
limitation, defaults due to non-payment)
under the terms of any agreement, document or instrument pursuant to which such Person has incurred
any Indebtedness for money borrowed in excess of $100,000, which default would permit acceleration
of such indebtedness;



     (f) The occurrence and continuance of any default or event of default (i) under any of the
other Credit Documents or (ii) under any other loan, contract or agreement between the Borrower, HB
Service or any of their respective Subsidiaries or the holder(s) of Borrower’s or HB Service’s
majority ownership interest, on the one hand, and the Bank or any of Bank’s Affiliates on the
other, including without limitation, the $15,000,000 HB Service Credit Agreement;



     (g) Any Security Document for any reason cease to be in full force and effect or cease to be
effective to give the Bank a valid and perfected security interest in and Lien upon the collateral
purported to be covered thereby, subject to no Liens other than Permitted Liens, in each case
unless any such cessation occurs in accordance with the terms thereof or is due to any act or
failure to act on the part of the Bank; or any party to a Security Document (other than the



37









 







Bank) shall assert any of the foregoing; or any Person acting on behalf of any such Person shall
deny or disaffirm such Person’s obligations under any Security Document; provided that the
termination of the Shareholder Guaranty pursuant to a Performance Termination (as defined in the
Shareholder Guaranty) shall not constitute an Event of Default;



     (h) The Borrower, HB Service or any of their respective Subsidiaries (i) files a
petition for relief under the Bankruptcy Code or any other insolvency law or seeking to adjudicate
it bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fails to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (ii) takes any corporate
action to authorize or effect any of the foregoing actions, (iii) generally fails to pay, or admits
in writing its inability to pay, its debts as such debts become due; (iv) shall apply for, seek or
consent to, or acquiesce in, the appointment of a custodian, receiver, trustee, examiner,
liquidator or similar official for it or for any material portion of its assets; (v) benefits from
or is subject to the entry of an order for relief under any bankruptcy or insolvency law; or (vi)
makes an assignment for the benefit of creditors;



     (i) Failure of the Borrower, HB Service or any of their respective Subsidiaries within
thirty (30) days after the commencement of any proceeding against it seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation, to have such proceeding dismissed, or to have all
orders or proceedings thereunder affecting the operations or the business of the Borrower, HB
Service or such Subsidiary stayed, or failure of the Borrower, HB Service or such Subsidiary within
thirty (30) days after the appointment, without its consent or acquiescence, of any custodian,
receiver trustee, examiner, liquidator or similar official for it or for any material portion of
its assets, to have such appointment vacated;



     (j) The Borrower or HB Service ceases to be Solvent, or ceases to conduct its business
substantially as now conducted or is enjoined, restrained or in any way prevented by court order
from conducting all or any material part of its business affairs;



     (k) The entry of one or more judgments or orders for the payment of money in excess of
$250,000 in the aggregate against the Borrower, HB Service or any of their respective Subsidiaries
and such judgment(s) or order(s) shall continue unsatisfied and unstayed for a period of thirty
(30) days, unless the Borrower, HB Service or the relevant Subsidiary elects to appeal such
judgment or judgments and (i) the appeal is perfected within the statutory period, and (ii) the
Borrower, HB Service or such Subsidiary had posted an appropriate bond necessary to prevent
collection upon the judgment while the appeal is pending;



     (l) The issuance of a writ of execution, attachment or similar process against the
Borrower, HB Service or any of their respective Subsidiaries which shall not be dismissed,
stayed, discharged or bonded within thirty (30) days after a Responsible Officer acquires
knowledge thereof;



     (m) A notice of lien, levy or assessment in excess of $100,000 is filed of record with
respect to all or any portion of the assets of the Borrower, HB Service or any of their respective



38









 






Subsidiaries by the United States, or any department, agency or instrumentality thereof, or by any
other Governmental Authority, including, without limitation, the PBGC, or if any taxes or debts in
excess of $100,000 owing at any time or times hereafter to any one of them becomes a lien or
encumbrance upon any assets of the Borrower, HB Service or such Subsidiary in each case and the
same is not satisfied, released, discharged or bonded within thirty (30) days after the same
becomes a lien or encumbrance or, in the case of ad valorem taxes, prior to the last day when
payment may be made without material penalty;




     (n) Any ERISA Event or any other event or condition shall occur or exist with respect to
any Plan or Multiemployer Plan and, as a result thereof, together with all other ERISA Events and
other events or conditions then existing, the Borrower and its ERISA Affiliates have incurred or
would be reasonably likely to incur liability to any one or more Plans or Multiemployer Plans or to
the PBGC (or to any combination thereof) in excess of $100,000;



     (o) Any one or more licenses, permits, accreditations or authorizations of the Borrower,
HB Service or any of their respective Subsidiaries shall be suspended, limited or terminated or
shall not be renewed, or any other action shall be taken, by any Governmental Authority in response
to any alleged failure by the Borrower, HB Service or any of their Subsidiaries to be in compliance
with applicable Requirements of Law, and such action, individually or in the aggregate, if the
event giving rise to such action is not remediated within thirty (30) days of notice of any of the
foregoing events, would be reasonably likely to have a Material Adverse Effect; or



     (p) Steve Berrard and Wayne Huizenga cease collectively to own, either directly or
indirectly, on a fully diluted basis (x) a majority of the Capital Stock entitled to vote in the
election of directors of the Borrower and HB Service, or (y) a majority of Capital Stock entitled
to share in the profits of the Borrower and HB Service generally.



     8.2 Remedies. Upon the occurrence and during the continuance of any Event of
Default:



     (a) Termination of Revolving Credit Commitment; Acceleration of Indebtedness. The Bank
may, in its sole discretion, (i) terminate the Revolving Credit Commitment, which shall thereupon
terminate; (ii) declare all or any part of the Obligations immediately due and payable, whereupon
such Obligations shall become immediately due and payable without presentment, demand, protest,
notice or legal process of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that all Obligations shall automatically become due and payable
upon the occurrence of an Event of Default under Sections 8.1(g) or (i); (iii) require the Borrower
to pay to the Bank cash collateral in an amount equal to the Letter of Credit Exposure then
outstanding, which cash collateral shall immediately become due and payable; and (iv) pursue all
other remedies available to it by contract, at law or in equity, including but not limited to its
rights under the Security Documents.



     (b) Right of Set-off. The Bank may, and is hereby authorized by the Borrower, at any
time and from time to time, to the fullest extent permitted by applicable laws, without advance
notice to the Borrower (any such notice being expressly waived by the Borrower), set off and apply
any and all deposits (general or special, time or demand, provisional or final but





39









 







specifically excluding the Swisher Hygiene Irrevocable Trust Account (or its successor)) at
any time held and any other indebtedness at any time owing by the Bank or any of its Affiliates to
or for the credit or the account of the Borrower against any or all of the Obligations of the
Borrower under this Agreement or the other Credit Documents now or hereafter existing, whether or
not such obligations have matured. The Bank agrees promptly to notify the Borrower after any such
set-off or application; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.




     (c) Rights and Remedies Cumulative; Non-Waiver; etc. The enumeration of the
Bank’s rights and remedies set forth in this Agreement is not intended to be exhaustive and the
exercise by the Bank of any right or remedy shall not preclude the exercise of any other rights or
remedies, all of which shall be cumulative, and shall be in addition to any other right or remedy
given hereunder, under the other Credit Documents or under any other agreement between the Borrower
and the Bank or that may now or hereafter exist in law or in equity or by suit or otherwise. No
delay or failure to take action on the part of the Bank in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude other or further exercise thereof or the exercise of any other right,
power or privilege or shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrower and the Bank or their agents or employees shall be effective to
change, modify or discharge any provision of this Agreement or any of the other Credit Documents or
to constitute a waiver of any Event of Default.



ARTICLE IX




MISCELLANEOUS



     9.1
Costs, Expenses and Taxes. The Borrower agrees to pay on demand all reasonable
out-of-pocket expenses of the Bank, including reasonable fees and disbursements of counsel, in
connection with: (i) the preparation, execution and delivery of this Agreement and the other Credit
Documents, (ii) any amendments, supplements, consents or waivers hereto or to the Credit Documents,
and (iii) the administration or enforcement of this Agreement and the other Credit Documents. In
addition, the Borrower shall pay any and all stamp and other taxes and fees payable or determined
to be payable in connection with the execution, delivery, filing and recording of this Agreement
and the other Credit Documents and agrees to save the Bank harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and
fees. It is the intention of the parties hereto that the Borrower shall pay amounts referred to in
this Section directly. In the event the Bank pays any of the amounts referred to in this Section
directly, the Borrower will reimburse the Bank for such advances and interest on such advance shall
accrue until reimbursed at the Default Rate.



     9.2 Indemnification. From and at all times after the date of this Credit Agreement,
and in addition to all of the Bank’s other rights and remedies against the Borrower, the Borrower
agrees to indemnify, defend and hold harmless the Bank and its directors, officers, employees,
agents, successors, assigns and affiliates from and against the following (collectively
“Costs”): any and all claims (whether valid or not), losses, damages, actions, suits,
inquiries, investigations, administrative proceedings, judgments, liens, liabilities, penalties,
fines, amounts



40









 







paid in settlement, requirements of Governmental Authorities, punitive damages, interest, damages
to natural resources and other costs and expenses of any kind or nature whatsoever (including
without limitation reasonable attorneys’ fees and expenses, court costs and fees, and consultant
and expert witness fees and expenses) arising in any manner, directly or indirectly, out of or by
reason of (a) the negotiation, preparation, execution or performance of this Agreement or the other
Credit Documents, or any transaction contemplated herein or therein, whether or not the Bank or any
other party protected under this Section is a party to any action, proceeding or suit in question,
or the target of any inquiry or investigation in question; provided, however, that
no indemnified party shall have the right to be indemnified hereunder for any liability resulting
from the willful misconduct or gross negligence of such indemnified party (as finally determined by
a court of competent jurisdiction), (b) any breach of any of the covenants, warranties or
representations of the Borrower hereunder or under any other Credit Document, (c) any lien or
charge upon amounts payable hereunder by the Borrower to the Bank or any taxes, assessments,
impositions and other charges in respect of the collateral secured by the Security Documents, (d)
damage to property or any injury to or death of any person that may be occasioned by any cause
whatsoever pertaining to any such collateral or the use thereof, (e) any violation or alleged
violation of any Environmental Law, federal or state securities law, common law, equitable
requirement or other legal requirement by the Borrower or with respect to any property owned,
leased or operated by the Borrower (in the past, currently or in the future), or (f) any presence,
generation, treatment, storage, disposal, transport, movement, release, suspected release or
threatened release of any Hazardous Material on, in, to or from any property (or any part thereof
including without limitation the soil and groundwater thereon and thereunder) owned, leased or
operated by the Borrower (in the past, currently or in the future).



     All Costs shall be additional Obligations of the Borrower under this Credit Agreement, shall
be payable on demand to the party to be indemnified, and shall be secured by the lien of the
Security Documents.



     Without limiting the foregoing, the Borrower shall be obligated to pay, on demand, the
reasonable costs of any investigation, monitoring, assessment, enforcement, removal, remediation,
restoration or other response or corrective action undertaken by the Bank or any other indemnified
party, or their respective agents, with respect to any property owned, leased or operated by the
Borrower.



     It is expressly understood and agreed that the obligations of the Borrower under this Section
shall not be limited to any extent by payment of the Obligations and termination of this Agreement
and shall remain in full force and effect until expressly terminated by the Bank in writing.



     9.3 Arbitration; Preservation and Limitation of Remedies.



     (a) Upon demand of any party hereto, whether made before or after institution of any
judicial proceeding, any dispute, claim or controversy arising out of, connected with or relating
to this Agreement or any other Credit Document (“Disputes”) between the Borrower and the
Bank shall be resolved by binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand arbitration hereunder.
Disputes may include, without limitation, tort claims, counterclaims, claims brought as class








41









 







actions, claims arising from documents executed in the future, disputes as to whether a matter is
subject to arbitration, or claims arising out of or connected with the transactions contemplated by
this Agreement and the other Credit Documents. Arbitration shall be conducted under and governed by
the Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the
American Arbitration Association (the “AAA”), as in effect from time to time, and the Federal
Arbitration Act, Title 9 of the U.S. Code, as amended. All arbitration hearings shall be conducted
in the city in which the principal demand for arbitration and all hearings shall be concluded
within 120 days of demand for arbitration. These time limitations may not be extended unless a
party shows cause for extension and then for no more than a total of sixty (60) days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be applicable to claims of
less than $1,000,000. All applicable statutes of limitation shall apply to any Dispute. A judgment
upon the award may be entered in any court having jurisdiction. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys selected from the Commercial
Financial Dispute Arbitration panel of the AAA. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general jurisdiction, state or
federal, of the state where the hearing will be conducted. Notwithstanding the foregoing, this
arbitration provision does not apply to Disputes under or related to any Hedge Agreement. The
parties do not waive applicable federal or state substantive law except as provided herein.




     (b) Notwithstanding the preceding binding arbitration provisions, the parties hereto
agree to preserve, without diminution, certain remedies that any party hereto may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Any party hereto shall have
the right to proceed in any court of proper jurisdiction or by self-help to exercise or prosecute
the following remedies, as applicable: (i) all rights to foreclose against any Collateral by
exercising a power of sale granted pursuant to any of the Credit Documents or under applicable law
or by judicial foreclosure and sale, including a proceeding to confirm the sale; (ii) all rights of
self-help, including peaceful occupation of real property and collection of rents, set-off, and
peaceful possession of personal property; (iii) obtaining provisional or ancillary remedies,
including injunctive relief, sequestration, garnishment, attachment, appointment of a receiver and
filing an involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by confession of
judgment. Any claim or controversy with regard to any party’s entitlement to such remedies is a
Dispute. Preservation of these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute. The parties hereto agree that no party
shall have a remedy of punitive or exemplary damages against any other party in any Dispute, and
each party hereby waives any right or claim to punitive or exemplary damages that it has now or
that may arise in the future in connection with any Dispute, whether such Dispute is resolved by
arbitration or judicially. The parties acknowledge that by agreeing to binding arbitration they
have irrevocably waived any right they may have to a jury trial with regard to a Dispute. The
Borrower agrees to pay the reasonable fees and expenses of counsel to the Bank in connection with
any Dispute subject to arbitration as provided herein.



     9.4 Waiver of Automatic or Supplemental Stay. In the event that a petition for
relief under any chapter of the Bankruptcy Code is filed by or against the Borrower, the Borrower
promises and covenants that it will not seek a supplemental stay pursuant to Bankruptcy Code §§ 105
or 362 or any other relief pursuant to Bankruptcy Code § 105 or any other provision of the
Bankruptcy Code, whether injunctive or otherwise, which would stay, interdict, condition,



42









 





reduce or inhibit the Bank’s ability to enforce any rights it has, at law or in equity, to collect
the Obligations from any Person other than the Borrower.




     9.5 Notices. All demands, notices, approvals, consents, requests, and other
communications hereunder shall be in writing and shall be deemed to have been given when the
writing is delivered, if given or delivered by hand, overnight delivery service or facsimile
transmitter (with confirmed receipt), or five (5) days after being mailed, if mailed, by first
class, registered or certified mail, postage prepaid, to the address or telecopy number set forth
below:



	 	 	 
	Party	 	Address
	Borrower

	 	Swisher International, Inc.
	 

	 	4725 Piedmont Row Drive, Suite 400
	 

	 	Charlotte, North Carolina 28210
	 

	 	Attention: Hugh H. Cooper
	 

	 	Telephone: (704) 602-7160
	 

	 	Fax: (704) 602-7983
	 
	 	 
	Bank

	 	Wachovia Bank, National Association
	 

	 	301 South Tryon Street, 28th Floor
	 

	 	Charlotte, North Carolina 28288-0334
	 

	 	Attention: Cavan Harris
	 

	 	Telephone: (704) 383-6423
	 

	 	Telecopy: (704) 374-6483





The Borrower or the Bank may, by notice given hereunder, designate any further or different
addresses or telecopy numbers to which subsequent demands, notices, approvals, consents, requests
or other communications shall be sent or persons to whose attention the same shall be directed.




     9.6 Continuing Obligations. All agreements, representations and warranties contained
herein or made in writing by or on behalf of the Borrower in connection with the transactions
contemplated hereby shall survive the execution and delivery of this Agreement and the other Credit
Documents. The Borrower further agrees that to the extent the Borrower makes a payment to the Bank,
which payment or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any other party under
any bankruptcy, insolvency or other similar state or federal statute, or principle of equity, then,
to the extent of such repayment by the Bank, the Obligation or part thereof intended to be
satisfied by such payment shall be revived and continued in full force and effect as if such
payment had not been received by the Bank.



     9.7 Controlling Law. This Agreement and the other Credit Documents shall (except as
may be expressly otherwise provided in any Credit Document) be governed by, and construed in
accordance with, the law of the State of North Carolina (without regard to the conflicts of law
provisions thereof); provided that each Letter of Credit shall be governed by, and
construed in accordance with, the laws or rules designated in such Letter of Credit, or if no such
laws or rules





43









 







are designated, the International Standby Practices of the International Chamber of Commerce, as in
effect from time to time (the “ISP”), and, as to matters not governed by the ISP, the laws of the
State of North Carolina (without regard to the conflicts of law provisions thereof).




     9.8 Successors and Assigns. This Agreement shall be binding upon the Borrower and its
successors and assigns and all rights against the Borrower arising under this Agreement shall be
for the sole benefit of the Bank.



     9.9 Assignment and Sale. The Borrower may not sell, assign or transfer this Agreement
or any of the other Credit Documents or any portion hereof or thereof, including without limitation
the Borrower’s rights, title, interests, remedies, powers, and duties hereunder or thereunder. The
Bank may assign or sell a participation interest in all or any portion of the Loans to one or more
other financial institutions.



     9.10 Entire Agreement. THIS AGREEMENT AND THE DOCUMENTS AND INSTRUMENTS EXECUTED
AND DELIVERED CONTEMPORANEOUSLY HEREWITH EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE
PARTIES HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR
WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT AND THE DOCUMENTS AND INSTRUMENTS
EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.



     9.11 Amendment. Any provision of this Agreement or any other Credit Document to which
the Borrower is a party may be amended if such amendment is in writing and is signed by the
Borrower and the Bank. In connection with any amendment entered into in accordance with this
Section at the request of the Borrower or upon an Event of Default, the Borrower shall pay to the
Bank a reasonable and customary fee to be negotiated between the Borrower and the Bank. Payment of
such fee by the Borrower to the Bank shall be a condition precedent to the effectiveness of such
amendment and shall be due on the date such amendment is signed by the Bank. No such fee shall be
due in connection with any amendment entered into at the request of the Bank; provided,
that no Event of Default shall have occurred and be continuing.



     9.12 Severability. In the event that any provision of this Agreement shall
be determined to be invalid or unenforceable by any court of competent jurisdiction,
such determination shall not invalidate or render unenforceable any other provision
hereof.



     9.13 Confidentiality. The Bank 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 other 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, (c) to the extent required by applicable Requirements of Law or by any





44









 







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 Credit Document or any Hedge Agreement or any
action or proceeding relating to this Agreement or any other Credit Document or any Hedge Agreement
or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee or prospective
assignee of any of its rights or obligations under this Agreement, or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Bank or any of its Affiliates on a nonconfidential basis from a source
other than the Borrower, HB Service or any of their respective Subsidiaries or Affiliates whom the
Bank reasonably assumed was not under a confidentiality agreement at the time of the disclosure
whom the Bank reasonably assumed was not under a confidentiality agreement at the time of the
disclosure.




     For purposes of this Section, “Information” means all information received from the
Borrower relating to any of the Borrower, HB Service or any of their respective Subsidiaries or any
of their respective businesses, other than any such information that is available to the Bank on a
nonconfidential basis prior to disclosure by the Borrower or its Subsidiaries. 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 whom the Bank reasonably assumed was not under a confidentiality agreement
at the time of the disclosure whom the Bank reasonably assumed was not under a confidentiality
agreement at the time of the disclosure.



     9.14 Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which, together shall constitute but one and the same
instrument.



     9.15 Captions. The captions to the various sections and subsections of this Agreement
have been inserted for convenience only and shall not limit or affect any of the terms hereof.



[The remainder of this page is left blank intentionally.]




45









 





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



	 	 	 	 	 	 	 

	 	 	SWISHER INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 










 









 








Exhibit B




 









 





Execution Version




UNCONDITIONAL GUARANTY

[HUIZENGA]




June 25, 2008




Swisher International, Inc.

4725 Piedmont Row Drive, Suite 400

Charlotte, North Carolina 29210

(Hereinafter referred to as “Borrower”)




H. Wayne Huizenga

450 East Las Olas Boulevard

Suite 1500

Fort Lauderdale, Florida 33301

(Hereinafter referred to as “Guarantor”)




Wachovia Bank, National Association

301 South Tryon Street, 28th Floor

Charlotte, North Carolina 28288-0334

(Hereinafter referred to as “Bank”)



To induce Bank to make, extend or renew loans, advances, credit, or other financial accommodations
to or for the benefit of Borrower, which are and will be to the direct interest and advantage of
the Guarantor, and in consideration of loans, advances, credit, or other financial accommodations
made, extended or renewed to or for the benefit of Borrower, which are and will be to the direct
interest and advantage of the Guarantor, Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to Bank and its successors, assigns and affiliates the timely payment
and performance of all liabilities and obligations of Borrower to Bank and its affiliates, under
that certain amended and restated revolving note (the “Revolving Note”) dated as of March
21, 2008 made by Borrower to the order of Bank, in the original principal amount of $10,000,000.00,
as the same shall be amended, modified, increased or extended from time to time (the “Note”), that
certain Credit Agreement made between the Borrower and Bank, dated as of November 14, 2005, as
amended by that certain First Amendment to Credit Agreement dated as of April 26, 2006, that
certain Second Amendment and Waiver to Credit Agreement dated as of September 8, 2006, that certain
Third Amendment and Waiver to Credit Agreement (the “Third Amendment”) dated as of March
21, 2008 and that Fourth Amendment and Waiver to Credit Agreement (the “Fourth Amendment”)
dated as of June 25, 2008, providing for the availability of a $10,000,000 revolving credit
facility to the Borrower upon the terms and conditions set forth therein (as further amended,
modified or supplemented from time to time, the “Credit Agreement”), however and whenever
incurred or evidenced, whether primary, secondary, direct, indirect, absolute, contingent, due or
to become due, now existing or hereafter contracted or acquired, and all modifications, extensions
and renewals thereof, (collectively, the “Guaranteed Obligations”). Any term used herein but not
defined shall have the meaning as set forth in the Credit Agreement.



Guarantor further covenants and agrees:



GUARANTOR’S LIABILITY. This Guaranty is a continuing and unconditional guaranty of payment and
performance and not of collection. Notwithstanding anything contained herein, Guarantor’s
liability hereunder shall not exceed $5,000,000 plus any unpaid interest accrued on such amount.
This Guaranty does not impose any obligation on Bank to extend or continue to extend credit or
otherwise deal with Borrower at any subsequent time. This Guaranty shall








 









 







continue to be effective or be reinstated, as the case may be, if at any time any payment of the
Guaranteed Obligations is rescinded, avoided or for any other reason must be returned by Bank, and
the returned payment shall remain payable as part of the Guaranteed Obligations, all as though
such payment had not been made. Except to the extent the provisions of this Guaranty give Bank
additional rights, this Guaranty shall not be deemed to supersede or replace any other guaranties
given to Bank by Guarantor; and the obligations guaranteed hereby shall be in addition to any
other obligations guaranteed by Guarantor pursuant to any other agreement of guaranty given to
Bank and other guaranties of the Guaranteed Obligations.



TERMINATION OF GUARANTY. Guarantor may terminate this Guaranty (i) upon the determination by Bank
and delivery of written confirmation of such determination to Borrower following the receipt of
the applicable financial statements and the accompanying certificates and other required
deliverables therewith pursuant to Section 5.1 of the Credit Agreement, that (x) the aggregate
Consolidated EBITDA of Swisher and HB Service for the Fiscal Year ending December 31, 2008 and (y)
the aggregate Consolidated EBITDA of Swisher and HB Service for the four fiscal quarters ending as
of March 31, 2009, each are greater than or equal to $4,000,000 (a “Performance
Termination”); or (ii) by written notice, delivered personally to or received by certified or
registered United States Mail by an authorized officer of Bank at the address for notices provided
herein. Such termination shall be effective only with respect to Guaranteed Obligations arising
more than 15 days after the date such written notice is received by said Bank officer. Guarantor
may not terminate this Guaranty as to Guaranteed Obligations (including any subsequent extensions,
modifications or compromises of the Guaranteed Obligations) then existing, or Guaranteed
Obligations arising subsequent to receipt by Bank of said notice if such Guaranteed Obligations
are a result of Bank’s obligation to make advances pursuant to a commitment, or are based on
Borrower’s obligations to make payments pursuant to any related swap agreement (as defined in 11
U.S.C. § 101, as in effect from time to time), entered into prior to expiration of the 15 day
notice period, or are a result of advances which are necessary for Bank to protect its collateral
or otherwise preserve its interests. Termination of this Guaranty by any single Guarantor will not
affect the existing and continuing obligations of any other Guarantor hereunder.



CONSENT TO MODIFICATIONS. Guarantor consents and agrees that, with prior written notice to
Guarantor, Bank (and, with respect to swap obligations, its affiliates) may from time to time, in
its sole discretion, without affecting, impairing, lessening or releasing the obligations of
Guarantor hereunder: (a) extend or modify the time, manner, place or terms of payment or
performance and/or otherwise change or modify the credit terms of the Guaranteed Obligations; (b)
increase, renew, or enter into a novation of the Guaranteed Obligations; (c) waive or consent to
the departure from terms of the Guaranteed Obligations; (d) permit any change in the business or
other dealings and relations of Borrower or any other guarantor with Bank; (e) proceed against,
exchange, release, realize upon, or otherwise deal with in any manner any collateral that is or may
be held by Bank in connection with the Guaranteed Obligations or any liabilities or obligations of
Guarantor; and (f) proceed against, settle, release, or compromise with Borrower, any insurance
carrier, or any other person or entity liable as to any part of the Guaranteed Obligations, and/or
subordinate the payment of any part of the Guaranteed Obligations to the payment of any other
obligations, which may at any time be due or owing to Bank; all in such manner and upon such terms
as Bank may deem appropriate, and without consent from Guarantor. No invalidity, irregularity,
discharge or unenforceability of, or action or omission by Bank relating to any part of the
Guaranteed Obligations or any security therefor shall affect or impair this Guaranty.



WAIVERS AND ACKNOWLEDGMENTS. Guarantor waives and releases the following rights, demands, and
defenses Guarantor may have with respect to Bank (and, with respect to swap obligations, its
affiliates) and collection of the Guaranteed Obligations: (a) promptness and diligence in
collection of any of the Guaranteed Obligations from Borrower or any other person








2









 







liable thereon, and in foreclosure of any security interest and sale of any property serving as
collateral for the Guaranteed Obligations; (b) any law or statute that requires that Bank (and,
with respect to swap obligations, its affiliates) make demand upon, assert claims against, or
collect from Borrower or other persons or entities, foreclose any security interest, sell
collateral, exhaust any remedies, or take any other action against Borrower or other persons or
entities prior to making demand upon, collecting from or taking action against Guarantor with
respect to the Guaranteed Obligations, including any such rights Guarantor might otherwise have had
under Va. Code §§ 49-25 and 49-26, et seq., N.C.G.S.
§§ 26-7, et seq., Tenn. Code
Ann. § 47-12-101, O.C.G.A. § 10-7-24, Mississippi Code Ann. Section 87-5-1, and any successor
statute and any other applicable law; (c) any law or statute that requires that Borrower or any
other person be joined in, notified of or made part of any action against Guarantor; (d) that Bank
or its affiliates preserve, insure or perfect any security interest in collateral or sell or
dispose of collateral in a particular manner or at a particular time, provided that Bank’s
obligation to dispose of Collateral in a commercially reasonable manner is not waived hereby; (e)
notice of any new transactions or other relationships between Bank, Borrower and/or any guarantor,
and of changes in the financial condition of, ownership of, or business structure of Borrower or
any other guarantor; (f) presentment, protest, notice of dishonor, notice of default, demand for
payment, notice of intention to accelerate maturity, notice of acceleration of maturity, notice of
sale, and all other notices of any kind whatsoever to which Guarantor may be entitled, except as
otherwise provided in the Loan Documents; (g) the right to assert against Bank or its affiliates
any defense (legal or equitable), set-off, counterclaim, or claim that Guarantor may have at any
time against Borrower or any other party liable to Bank or its affiliates; (h) all defenses
relating to an invalidity, insufficiency, unenforceability, enforcement, release or impairment of
Bank or its affiliates’ lien on any collateral, of the Loan Documents, or of any other guaranties
held by Bank; (i) any right to which Guarantor is or may become entitled to be subrogated to Bank
or its affiliates’ rights against Borrower or to seek contribution, reimbursement, indemnification,
payment or the like, or participation in any claim, right or remedy of Bank or its affiliates
against Borrower or any security which Bank or its affiliates now has or hereafter acquires, until
such time as the Guaranteed Obligations have been fully satisfied beyond the expiration of any
applicable preference period; (j) any claim or defense that acceleration of maturity of the
Guaranteed Obligations is stayed against Guarantor because of the stay of assertion or of
acceleration of claims against any other person or entity for any reason including the bankruptcy
or insolvency of that person or entity; and (k) the right to marshalling of Borrower’s assets or
the benefit of any exemption claimed by Guarantor. Guarantor acknowledges and represents that
Guarantor has relied upon Guarantor’s own due diligence in making an independent appraisal of
Borrower, Borrower’s business affairs and financial condition, and any collateral; Guarantor will
continue to be responsible for making an independent appraisal of such matters; and Guarantor has
not relied upon Bank or its affiliates for information regarding Borrower or any collateral.



FINANCIAL CONDITION. Guarantor, in all material respects, warrants, represents and covenants to
Bank and its affiliates that on and after the date hereof: (a) the fair saleable value of
Guarantor’s assets exceeds its liabilities, Guarantor is meeting its current liabilities as they
mature, and Guarantor is and shall remain solvent; (b) all financial statements of Guarantor
furnished to Bank are correct and accurately reflect the financial condition of Guarantor as of
the respective dates thereof; (c) since the date of such financial statements, there has not
occurred a material adverse change in the financial condition of Guarantor; and (d) there are not
now pending any court or administrative proceedings or undischarged judgments against Guarantor,
no federal or state tax liens have been filed or threatened against Guarantor, and Guarantor is
not in default or claimed default under any material agreement.



INTEREST AND APPLICATION OF PAYMENTS. Regardless of any other provision of this Guaranty or other
Loan Documents, if for any reason the effective interest on any of the Guaranteed Obligations
should exceed the maximum lawful interest, the effective interest shall be deemed reduced to and
shall be such maximum lawful interest, and any sums of interest









3









 







which have been collected in excess of such maximum lawful interest shall be applied as a credit
against the unpaid principal balance of the Guaranteed Obligations. Monies received from any
source by Bank or its affiliates for application toward payment of the Guaranteed Obligations may
be applied to such Guaranteed Obligations in any manner or order deemed appropriate by Bank and
its affiliates.



DEFAULT. If any of the following events occur, a default (“Default”) under this Guaranty shall
exist: (a) failure of timely payment or performance of the Guaranteed Obligations or a default
under any Loan Document after applicable notice and cure periods, if any; (b) a breach of any
agreement or representation contained or referred to in the Guaranty, or any of the Loan Documents;
(c) one hundred eighty (180) calendar days after the death of Guarantor unless Bank approves a
substitute guarantor; (d) the assignment for the benefit of creditors of, or the commencement of
any insolvency or bankruptcy proceeding by or against Guarantor, provided such event is not cured
or set aside within sixty (60) days of its occurrence; (e) Bank determines in good faith, in its
sole discretion, that the prospects for payment or performance of the Guaranteed Obligations are
materially impaired or a material adverse change has occurred in the business or prospects of
Guarantor, financial or otherwise; and/or (f) a sale or transfer of Guarantor’s ownership interest
in the Borrower which results in Guarantor or his Affiliate(s) no longer controlling Borrower.



If a Default occurs, the Guaranteed Obligations shall be due immediately and payable without
notice, other than Guaranteed Obligations under any swap agreements (as defined in 11 U.S.C. §
101, as in effect from time to time) with Bank or its affiliates, which shall be due in accordance
with and governed by the default and termination provisions of said swap agreements, and, Bank and
its affiliates may exercise any rights and remedies as provided in this Guaranty and other Loan
Documents, or as provided at law or equity. Guarantor shall pay interest on the Guaranteed
Obligations from such Default at the highest rate of interest charged on any of the Guaranteed
Obligations.



ATTORNEYS’ FEES AND OTHER COSTS OF COLLECTION. Guarantor shall pay all of Bank’s and its
affiliates’ reasonable expenses incurred to enforce or collect any of the Guaranteed Obligations,
including, without limitation, reasonable arbitration, paralegals’, attorneys’ and experts’ fees
and expenses, whether incurred without the commencement of a suit, in any suit, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding; provided that reasonable
attorneys fees shall be based on actual hours expended at normal hourly rates.



SUBORDINATION OF OTHER DEBTS. Guarantor agrees: (a) to subordinate the obligations now or
hereafter owed by Borrower to Guarantor (“Subordinated Debt”) to any and all obligations of
Borrower to Bank or its affiliates now or hereafter existing while this Guaranty is in effect,
provided however that Guarantor may receive regularly scheduled principal and interest payments on
the Subordinated Debt so long as (i) all sums then due and payable by Borrower to Bank and its
affiliates have been paid in full on or prior to such date, and (ii) no event or condition which
constitutes or which with notice or the lapse of time would constitute an event of default with
respect to the Guaranteed Obligations shall be continuing on or as of the payment date; (b)
Guarantor will either place a legend indicating such subordination on every note, ledger page or
other document evidencing any part of the Subordinated Debt or deliver such documents to Bank; and
(c) except as permitted by this paragraph, Guarantor will not request or accept payment of or any
security for any part of the Subordinated Debt, and any proceeds of the Subordinated Debt paid to
Guarantor, through error or otherwise, shall immediately be forwarded to Bank by Guarantor,
properly endorsed to the order of Bank, to apply to the Guaranteed Obligations.








4









 







MISCELLANEOUS. Assignment. This Guaranty and other Loan Documents shall inure to the benefit of and
be binding upon the parties and their respective heirs, legal representatives, successors and
assigns. Bank’s interests in and rights under this Guaranty and other Loan Documents are freely
assignable, in whole or in part, by Bank. Any assignment shall not release Guarantor from the
Guaranteed Obligations. Organization; Powers. Guarantor (i) is an adult individual and is sui
juris, (ii) has the power and authority to own its properties and assets and to carry on its
business as now being conducted and as now contemplated; and (iii) has the power and authority to
execute, deliver and perform, and by all necessary action has authorized the execution, delivery
and performance of, all of its obligations under this Guaranty and any other Loan Document to which
it is a party. Applicable Law; Conflict Between Documents. This Guaranty shall be governed by and
construed under the laws of the state named in Bank’s address shown above without regard to that
state’s conflict of laws principles. If the terms of this Guaranty should conflict with the terms
of any commitment letter that survives closing, the terms of this Guaranty shall control.
Jurisdiction. Guarantor irrevocably agrees to non-exclusive personal jurisdiction in the state
named in Bank’s address shown above. Severability. If any provision of this Guaranty or of the
other Loan Documents shall be prohibited or invalid under applicable law, such provision shall be
ineffective but only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Guaranty or other Loan Documents.
Notices. Any notices to Guarantor shall be sufficiently given if in writing and mailed or delivered
to Guarantor’s address shown above or such other address as provided hereunder, and to Bank, if in
writing and mailed or delivered to Wachovia Bank, National Association, Mail Code VA7628, P.O. Box
13327, Roanoke, VA 24040 or Wachovia Bank, National Association, Mail Code VA7628, 10 South
Jefferson Street, Roanoke, VA 24011 or such other address as Bank may specify in writing from time
to time. Notices to Bank must include the mail code. In the event that Guarantor changes
Guarantor’s address at any time prior to the date the Guaranteed Obligations are paid in full,
Guarantor agrees to promptly give written notice of said change of address to Bank by registered or
certified mail, return receipt requested, all charges prepaid. Plural; Captions. All references in
the Loan Documents to borrower, guarantor, person, document or other nouns of reference mean both
the singular and plural form, as the case may be, and the term “person” shall mean any individual
person or entity. The captions contained in the Loan Documents are inserted for convenience only
and shall not affect the meaning or interpretation of the Loan Documents. Binding Contract.
Guarantor by execution of and Bank by acceptance of this Guaranty agree that each party is bound to
all terms and provisions of this Guaranty. Amendments, Waivers and Remedies. No waivers, amendments
or modifications of this Guaranty and other Loan Documents shall be valid unless in writing and
signed by an officer of Bank. No waiver by Bank or its affiliates of any Default shall operate as a
waiver of any other Default or the same Default on a future occasion. Neither the failure nor any
delay on the part of Bank or its affiliates in exercising any right, power, or privilege granted
pursuant to this Guaranty and other Loan Documents shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise or the exercise of any
other right, power or privilege. All remedies available to Bank or its affiliates with respect to

this Guaranty and other Loan Documents and remedies available at law or in equity shall be
cumulative and may be pursued concurrently or successively. Loan Documents. The term “Loan
Documents” refers to all documents executed in connection with or related to the Guaranteed
Obligations and may include, without limitation, the Note, the Credit Agreement, security
agreements, instruments, financing statements, letters of credit and any amendments or supplements
(excluding swap agreements as defined in 11 U.S.C. § 101, as in effect from time to time).
LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY
ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR
CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS
AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE
OBLIGATIONS








5









 







EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO
THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY
DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY
DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING,
CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR
OTHERWISE. FINAL AGREEMENT. This Agreement and the other Loan Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties. There are no unwritten oral agreements between the
parties.



NEGATIVE COVENANTS. Guarantor agrees that from the date hereof and until final payment in full of
the Guaranteed Obligations, unless Bank shall otherwise consent in writing, Guarantor will not:
Default on Other Contracts or Obligations. Default (beyond any applicable cure and grace periods,
if any) on any material contract or contracts with or obligation when due to a third party or
default in the performance of any obligation to a third party incurred for money borrowed which
would result in the acceleration of debt owed in excess of $5,000,000.00 in the aggregate.
Government Intervention. Permit the assertion or making of any seizure, vesting or intervention by
or under authority of any governmental entity, as a result of which the management of Guarantor is
displaced of its authority in the conduct of its respective business or such business is
materially curtailed or materially impaired. Judgment Entered. Permit the entry of any final
monetary judgment(s) which, in the aggregate exceed $25,000,000.00 when taking into account
Guarantor and Huizenga Investments Limited Partnership, a Nevada limited partnership.



PERSONAL FINANCIAL STATEMENTS. Huizenga Investments and Guarantor shall deliver to Bank, within
120 days after the end of each calendar year, combined financial statements including, a balance
sheet, with supporting schedules; all in reasonable detail and prepared on a consistent basis with
prior financial statements furnished to Bank by Huizenga Investments and Guarantor. Such
statements shall be certified as to their correctness by Guarantor.



ARBITRATION. Upon demand of any party hereto, whether made before or after institution of any
judicial proceeding, any claim or controversy arising out of or relating to the Loan Documents
between parties hereto (a “Dispute”) shall be resolved by binding arbitration conducted under and
governed by the Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the
American Arbitration Association (the “AAA”) and the Federal Arbitration Act. Disputes may include,
without limitation, tort claims, counterclaims, a dispute as to whether a matter is subject to
arbitration, claims brought as class actions, or claims arising from documents executed in the
future. A judgment upon the award may be entered in any court having jurisdiction. Notwithstanding
the foregoing, this arbitration provision does not apply to disputes under or related to swap
agreements. Special Rules. All arbitration hearings shall be conducted in the city named in the
address of Bank first stated above. A hearing shall begin within 90 days of demand for arbitration
and all hearings shall conclude within 120 days of demand for arbitration. These time limitations
may not be extended unless a party shows cause for extension and then for no more than a total of
60 days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed attorneys
selected from the Commercial Financial Dispute Arbitration Panel of the AAA. The parties do not
waive applicable Federal or state substantive law except as provided herein. Preservation and
Limitation of Remedies. Notwithstanding the preceding binding arbitration provisions, the parties
agree to preserve, without diminution, certain remedies that any party may exercise before or after
an arbitration proceeding is brought.








6









 







The parties shall have the right to proceed in any court of proper jurisdiction or by self-help to
exercise or prosecute the following remedies, as applicable: (i) all rights to foreclose against
any real or personal property or other security by exercising a power of sale or under applicable
law by judicial foreclosure including a proceeding to confirm the sale; (ii) all rights of
self-help including peaceful occupation of real property and collection of rents, set-off, and
peaceful possession of personal property; (iii) obtaining provisional or ancillary remedies
including injunctive relief, sequestration, garnishment, attachment, appointment of receiver and
filing an involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by confession of
judgment. Any claim or controversy with regard to any party’s entitlement to such remedies is a
Dispute. Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY
HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE AS TO WHICH
BINDING ARBITRATION HAS BEEN DEMANDED.









7









 








     IN WITNESS WHEREOF, Guarantor, on the day and year first written above, has caused this
Unconditional Guaranty to be executed under seal.



Signed, sealed and delivered

in the presence of:




	 	 	 	 	 	 	 

	 	 	 	 	 
	Print Name:

	 	 	 	 	 	H. Wayne Huizenga
	 

	 	 

	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Print Name:
	 	 	 	 	 	 
	 

	 	 

	 	 	 	 






	 	 	 	 	 

	STATE OF FLORIDA

	 	 	)	 
	 

	 	 	) SS:

	 COUNTY OF BROWARD

	 	 	)	 





The foregoing instrument was acknowledged before me this       day of                     ,      ,
by H. Wayne Huizenga. He is personally known to me or has produced a driver’s license as
identification and did not take an oath.




	 	 	 	 	 

	 	 	 
	 

	 	Print or Stamp Name:	 	 
	 

	 	 	 	 
	 	 	Notary Public, State of Florida at Large






	 	 	 	 	 

	 

	 	Commission No.:	 	 
	 

	 	 	 	 





	 	 	 	 	 

	 

	 	My Commission Expires: