exv10w9






Exhibit 10.9




Execution Version




 





CREDIT AGREEMENT




between



HB SERVICE, LLC



and



WACHOVIA BANK, NATIONAL ASSOCIATION



$15,000,000 Revolving Line of Credit



June 25, 2008



 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	 	Page
	 
	 	ARTICLE I	 	 
	 
	 	 	 	 
	 
	 	DEFINITIONS	 	 
	 
	 	 	 	 
	1.1
	 	Defined Terms	 	 1
	1.2
	 	Accounting Terms	 	10
	1.3
	 	Singular/Plural	 	11
	1.4
	 	Other Terms	 	11
	 
	 	 	 	 
	 
	 	ARTICLE II	 	 
	 
	 	 	 	 
	 
	 	AMOUNTS AND TERMS OF THE LOANS	 	 
	 
	 	 	 	 
	2.1
	 	Commitments	 	11
	2.2
	 	Note	 	11
	2.3
	 	Principal Payments; Maturity of Loans	 	11
	2.4
	 	Interest	 	12
	2.5
	 	[Reserved]	 	12
	2.6
	 	Termination or Reduction of Commitments	 	12
	2.7
	 	General Provisions as to Payments	 	12
	2.8
	 	Disbursement of Loan Proceeds	 	12
	2.9
	 	Use of Proceeds	 	13
	2.10
	 	Taxes	 	13
	2.11
	 	Illegality	 	13
	 
	 	 	 	 
	 
	 	ARTICLE III	 	 
	 
	 	 	 	 
	 
	 	CLOSING; CONDITIONS OF CLOSING AND BORROWING	 	 
	 
	 	 	 	 
	3.1
	 	Conditions of Initial Loans and Advances	 	13
	3.2
	 	Conditions to all Loans	 	15
	3.3
	 	Waiver of Conditions Precedent	 	16
	 
	 	 	 	 
	 
	 	ARTICLE IV	 	 
	 
	 	 	 	 
	 
	 	REPRESENTATIONS AND WARRANTIES	 	 
	 
	 	 	 	 
	4.1
	 	Corporate Organization and Power	 	16
	4.2
	 	Corporate Authority: No Conflict With Other Instruments or Law	 	16
	4.3
	 	Due Execution and Delivery	 	17
	4.4
	 	Enforceability	 	17
	4.5
	 	Governmental Approval	 	17
	4.6
	 	Margin Stock	 	17






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	 	 	 	 	Page
	4.7
	 	Investment Company	 	17
	4.8
	 	Taxes	 	17
	4.9
	 	Litigation	 	18
	4.10
	 	Financial Statements; Solvency	 	18
	4.11
	 	No Material Adverse Change	 	18
	4.12
	 	Compliance with Laws	 	18
	4.13
	 	Environmental Compliance	 	19
	4.14
	 	Ownership of Properties	 	20
	4.15
	 	Intellectual Property	 	20
	4.16
	 	Insurance	 	20
	4.17
	 	ERISA	 	20
	4.18
	 	Full Disclosure	 	21
	4.19
	 	No Default	 	21
	4.20
	 	Subsidiaries	 	21
	4.21
	 	Labor Relations	 	21
	4.22
	 	OFAC; Anti-Terrorism Laws	 	21
	 
	 	 	 	 
	 
	 	ARTICLE V	 	 
	 
	 	 	 	 
	 
	 	AFFIRMATIVE COVENANTS	 	 
	 
	 	 	 	 
	5.1
	 	Financial and Business Information	 	22
	5.2
	 	Notice of Certain Events	 	23
	5.3
	 	Existence; Franchises; Maintenance of Properties	 	24
	5.4
	 	Compliance with Law	 	24
	5.5
	 	Payment of Obligations	 	24
	5.6
	 	Maintenance of Books and Records; Inspection	 	25
	5.7
	 	Maintenance of Insurance	 	25
	5.8
	 	Compliance with ERISA	 	25
	5.9
	 	Name Change	 	25
	5.10
	 	Creation of Subsidiaries	 	25
	5.11
	 	OFAC, PATRIOT Act Compliance	 	26
	5.12
	 	Banking Relationship	 	26
	5.13
	 	Further Assurances	 	26
	 
	 	 	 	 
	 
	 	ARTICLE VI 	 	 
	 
	 	 	 	 
	 
	 	FINANCIAL COVENANTS	 	 
	 
	 	 	 	 
	6.1
	 	Consolidated EBITDA	 	26
	 
	 	 	 	 
	 
	 	ARTICLE VII	 	 
	 
	 	 	 	 
	 
	 	NEGATIVE COVENANTS	 	 
	 
	 	 	 	 
	7.1
	 	Mergers; Consolidations	 	26
	7.2
	 	Indebtedness	 	27
	7.3
	 	Liens and Encumbrances	 	27






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	 	 	 	 	Page
	7.4
	 	Disposition of Assets	 	29
	7.5
	 	Restricted Investments	 	29
	7.6
	 	Restricted Payments	 	30
	7.7
	 	Transactions With Affiliates	 	30
	7.8
	 	Sale-Leaseback Transactions	 	30
	7.9
	 	Certain Amendments	 	30
	7.10
	 	Limitation on Certain Restrictions	 	31
	7.11
	 	No Other Negative Pledges	 	31
	7.12
	 	Subsidiaries or Partnerships	 	31
	7.13
	 	Lines of Business	 	31
	7.14
	 	Fiscal Year	 	32
	7.15
	 	Accounting Changes	 	32
	 
	 	ARTICLE VIII	 	 
	 
	 	 	 	 
	 
	 	EVENTS OF DEFAULT; REMEDIES	 	 
	 
	 	 	 	 
	8.1
	 	Events of Default	 	32
	8.2
	 	Remedies	 	34
	8.3
	 	Notice to Borrower	 	35
	 
	 	ARTICLE IX	 	 
	 
	 	 	 	 
	 
	 	MISCELLANEOUS	 	 
	 
	 	 	 	 
	9.1
	 	Costs, Expenses and Taxes	 	35
	9.2
	 	Indemnification	 	35
	9.3
	 	Arbitration; Preservation and Limitation of Remedies	 	36
	9.4
	 	Waiver of Automatic or Supplemental Stay	 	37
	9.5
	 	Notices	 	38
	9.6
	 	Continuing Obligations	 	38
	9.7
	 	Controlling Law	 	38
	9.8
	 	Successors and Assigns	 	39
	9.9
	 	Assignment and Sale	 	39
	9.10
	 	Entire Agreement	 	39
	9.11
	 	Amendment	 	39
	9.12
	 	Severability	 	39
	9.13
	 	Confidentiality	 	39
	9.14
	 	Counterparts	 	40
	9.15
	 	Captions	 	40






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	Exhibit A

	 	Form of Revolving Note
	Exhibit B

	 	Form of Guaranty
	Exhibit C

	 	Form of Notice of Borrowing
	Exhibit D

	 	Compliance Certificate
	 
	 	 
	Schedule 4.9

	 	Litigation
	Schedule 4.10(c)

	 	Solvency
	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(iv)

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

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

	 	Affiliate Transactions










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CREDIT AGREEMENT



     THIS CREDIT AGREEMENT, dated as of June 25, 2008, is made and entered into by and between HB
SERVICE, LLC, a Delaware limited liability company (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 $15,000,000 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:



     “10,000,000 Credit Agreement” shall mean the Credit Agreement dated as of November 14,
2005, between the Bank and the Borrower, 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 dated as
of March 21, 2008, and that certain Fourth Amendment and Waiver to Credit Agreement dated as of
June 25, 2008, and as further amended, modified or supplemented from time to time.



     “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.




     “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 1.35%.



     “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 HB Service, LLC, a Delaware limited liability company, 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 cash flows of the Borrower 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



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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.



     “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 the date upon which the initial extensions of credit are
made pursuant to this Agreement, which shall be the date upon which each of the conditions set
forth in Sections 3.1 and 3.2 shall have been satisfied or waived in accordance with the terms of
this Agreement.



     “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 D, together with a Covenant Compliance Worksheet.



     “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.



3









 






     “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 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 (i) extraordinary gains and losses, (ii) any other non-operating gains and
losses, and (iii) non-recurring expenses or charges not to exceed $1,000,000 arising out of the
installation and implementation of the Borrower’s STORM software system.



     “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 D.



     “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, notices, security agreements, trust account agreements and all other written
matters whether heretofore, now or hereafter executed by or on behalf of the Borrower 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.



4









 





     “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, 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 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 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 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 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 or any ERISA Affiliate to enforce
Section 515 of ERISA, which is not dismissed within thirty (30) days, (vi) the imposition upon the
Borrower 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 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 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 or any of its 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 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.



     “Existing Swisher $15,000,000 Credit Facility” shall mean the credit facility
evidenced by the Credit Agreement, dated as of September 8, 2006, as amended by the First Amendment
to Credit Agreement dated as of March 21, 2008 and the Second Amendment to Credit Agreement dated as
of April 22, 2008, and as further amended, modified and supplemented from time to time, between
Swisher and Wachovia Bank, National Association.



     “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.



5









 






     “Fiscal
Quarter” or “FQ” shall mean a fiscal quarter of the Borrower and its
Subsidiaries.



     “Fiscal Year” or “FY” shall mean a fiscal year of the Borrower and its Subsidiaries.



     “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 on a consolidated basis throughout the period indicated
and consistent with the financial practice of the Borrower and its Subsidiaries 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 the guaranty agreement, dated as of the date hereof, made by
the Guarantor in favor of the Bank in the form of Exhibit C attached hereto, as amended,
modified, restated or supplemented from time to time.



     “Guarantor” shall mean H. Wayne Huizenga.



     “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.



     “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



6









 




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.



     “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 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.



7









 





     “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, taken as a whole; (ii) the
ability of the Borrower or any Subsidiary 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.



     “Note” shall mean the Revolving Note.



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



     “Obligations” shall mean and include (i) 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 (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



8









 




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 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.



     “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,
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 the Borrower, the chairman of the
board of directors, the president, the chief executive officer, the chief financial officer, any
executive officer, controller or treasurer of the Borrower, and any other officer or similar
official thereof responsible for the administration of the obligations of the Borrower 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) the date that is 120 days after the Bank provides notice to the Borrower that it
desires to terminate the Revolving Credit Commitment (which 120th day shall not be earlier than
June 25, 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 promissory note of the Borrower dated the date hereof
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



9









 




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 OFAC 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 Documents” shall mean the Guaranty and all other pledge or security
agreements, mortgages, deeds of trust, assignments or other similar agreements or instruments
executed and delivered by the Borrower or any of its 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.



     “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.



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



     “Swisher” shall mean Swisher International, Inc., a Nevada corporation.



     “Unrestricted Cash” shall mean cash or Cash Equivalents held by the Borrower or its
Subsidiaries, free and clear of any Liens other than Permitted Liens.



     “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 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 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.



10









 





     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 aggregate outstanding principal amount of the Revolving Loans by
the Bank shall not exceed $15,000,000 (as such figure may be reduced from time to time as provided
in this Agreement, 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 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.




     (a) 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




     (iii) In part, immediately in the event that the total principal amount
outstanding at any time under the Revolving Note exceeds the Revolving Credit
Commitment, in the amount of such excess.



11









 





     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 [Reserved].



     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.



     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



12









 




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 for general corporate purposes.



     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.



     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.



ARTICLE III




CLOSING; CONDITIONS OF CLOSING AND BORROWING



     3.1 Conditions of Initial Loans and Advances. The obligation of the Bank to make
Loans in connection with the initial Borrowing hereunder is subject to the satisfaction of the
following conditions precedent:



13









 





     (a) Credit Documents. The Bank shall have received the following, each dated as of
the Closing Date (unless otherwise specified) and in such number of copies as the Bank shall
have requested:




     (i) from each of the parties hereto, a duly executed counterpart of this
Agreement signed by such party;




     (ii) a duly executed Revolving Note for the account of the Bank;




     (iii) the Guaranty, duly completed and executed by the Guarantor, in form and
substance satisfactory to the Bank; and




     (iv) an opinion of counsel to the Borrower dated as of the Closing Date and
addressed to the Bank, in form and substance satisfactory to the Bank.



     (b) Closing Certificate. The Bank shall have received a certificate, signed by the
president, the chief executive officer or the chief financial officer of the Borrower, dated as of
the Closing Date and in form and substance reasonably satisfactory to the Bank, certifying that (i)
all representations and warranties of the Borrower and its Subsidiaries contained in this Agreement
and the other Credit Documents are true, correct and complete as of the Closing Date, both
immediately before and after giving effect to the making of the initial Loans and the application
of the proceeds thereof (except to the extent any such representation or warranty is expressly
stated to have been made as of a specific date, in which case such representation or warranty shall
be true and correct as of such date), (ii) no Default or Event of Default has occurred and is
continuing, both immediately before and after giving effect to the making of the initial Loans and
the application of the proceeds thereof, (iii) both immediately before and after giving effect to
the making of the initial Loans and the application of the proceeds thereof, no Material Adverse
Effect has occurred since December 31, 2005, and there exists no event, condition or state of facts
that could reasonably be expected to result in a Material Adverse Effect, and (iv) all conditions
to the initial extensions of credit hereunder set forth in this Section 3.1 and in Section 3.2 have
been satisfied or waived as required hereunder.



     (c) Secretary’s Certificate. The Bank shall have received a certificate of the
secretary or an assistant secretary of the Borrower as of the Closing Date, dated as of the Closing
Date and in form and substance reasonably satisfactory to the Bank, certifying (i) that attached
thereto (unless otherwise agreed by Bank) is a true and complete copy of the certificate of
formation 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
operating agreement 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 managers (or similar governing body) of the Borrower, authorizing the execution,
delivery and performance of this Agreement and the other 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 this Agreement or any of such other Credit Documents, and attaching all such copies of
the documents described above.



14









 





     (d) Good Standings. The Bank shall have received a certificate as of a recent date of
the good standing or existence of the Borrower under the laws of its jurisdiction of organization,
from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.



     (e) Financial Statements. The Bank shall have received copies of the financial
statements referred to in Section Error! Reference source not found, and the budget referred to in
Section Error! Reference source not found.



     (f) Consents; Approvals. All approvals, permits and consents of any Governmental
Authorities or other Persons required in connection with the execution and delivery of this
Agreement or the other Credit Documents shall have been obtained, without the imposition of
conditions that are not acceptable to the Bank, and all related filings, if any, shall have been
made, and all such approvals, permits, consents and filings shall be in full force and effect and
the Bank shall have received such copies thereof as it shall have reasonably requested.



     (g) Payoff
of Existing Swisher $15,000,000 Credit Facility. Concurrently with the
making of the initial Loans hereunder (i) all principal, interest and other amounts under the
Existing Swisher $15,000,000 Credit Facility shall be repaid and satisfied in full, and (ii) all
commitments to extend credit under the agreement and instruments related to the Existing Swisher
$15,000,000 Credit Facility shall be terminated.



     (h) No Litigation. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court or other
governmental authority to enjoin, restrain or prohibit, or to obtain substantial damages in respect
of, or that is related to or arises from, the making of the Loans.



     (i) Fees; Expenses. The Borrower shall have paid (i) to the Bank, the fees
required to be paid to them on the Closing Date, and (ii) all other fees and reasonable expenses
required hereunder or under any other Credit Document to be paid on or prior to the Closing Date
(including reasonable fees and expenses of counsel) in connection with this Agreement and the other
Credit Documents.



     (j) No Material Adverse Change. Since December 31, 2007, both immediately
before and after giving effect to the consummation of this Agreement and the transactions
contemplated hereby, there shall not have occurred (i) a Material Adverse Effect or (ii) any event,
condition or state of facts that could reasonably be expected to have a Material Adverse Effect.



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



     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



15









 





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.



     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
(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,
(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, (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’ 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



16









 




other agreement or instrument to which the Borrower 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 any of their properties.




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



     4.4 Enforceability. This Agreement and the other Credit Documents to which the
Borrower and each of its Subsidiaries is a party constitute the legal, valid and binding
obligations of the Borrower and each of its Subsidiaries enforceable against the Borrower and each
of its Subsidiaries 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 and each of its 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 or its 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 or its 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 or its 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
and each of its 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 the Borrower and each of its
Subsidiaries 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 or any of its Subsidiaries’ income taxes is
pending or, to the knowledge of the Borrower or any of its Subsidiaries, threatened.



17









 





     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 or any of its Subsidiaries, threatened against or affecting
the Borrower or any of its Subsidiaries, before any court, commission, panel, board, bureau,
arbitrator or any Governmental Authority which (in any 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 the unaudited consolidated balance sheets of the
Borrower and its Subsidiaries as of March 31, 2008, March 31, 2007 and December 31,2007, and the
related statements of income, and cash flows for the Fiscal Quarters ending March 31, 2008 and 2007
and the Fiscal Year ended December 31, 2007, respectively. 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 for the respective periods then ended.



     (b) The Borrower has delivered to Bank a copy of the budgeted consolidated statements of
income for the Fiscal Year ending December 31, 2008 compared to the unaudited statements of income
for the years ended December 31, 2007, 2006 and 2005. In the good faith opinion of management of
the Borrower, the assumptions used in the preparation of the budget were fair, complete and
reasonable when made and continue to be fair, complete and reasonable as of the date hereof. The
budget was prepared in good faith by the executive and financial personnel of the Borrower, is
complete and represents a reasonable estimate of the future performance and financial condition of
the Borrower and its Subsidiaries, subject to the uncertainties and approximations inherent in any
projections.



     (c) Except as set forth on Schedule 4.10(c), each of the Borrower and its Subsidiaries is
Solvent.



     4.11 No Material Adverse Change. Since December 31, 2007, (a) there has been no
Material Adverse Change, nor to the knowledge of the Borrower or any of its Subsidiaries, is any
Material Adverse Change threatened or reasonably likely to occur, and (b) neither the Borrower 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 and its Subsidiaries,
each of the Borrower 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



18









 




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 and its Subsidiaries,



     (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 or any of its Subsidiaries or any portion thereof, and no part of the property owned,
leased or operated by the Borrower or any of its 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 or any of its Subsidiaries contain any asbestos or substances containing asbestos; (iii)
none of the property owned, leased or operated by the Borrower or any of its 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 or any of its Subsidiaries.



     (b) None of the property owned, leased or operated by the Borrower or any of its 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 or any of its Subsidiaries and no underground storage tanks have ever been situated
on the property owned, leased or operated by the Borrower or any of its Subsidiaries.



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



     (e) None of the Borrower or its 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 or its 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.



19









 





     (g) Each of the Borrower and its 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 and its 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 and each of its 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 and its 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 or any of its 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, the use of such Intellectual Property by the Borrower 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 or any of its Subsidiaries or pursuant to which any of their
respective assets are insured. The assets, properties and business of the Borrower and its
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 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
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.



     (b) Neither the Borrower 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.



20









 





     (c) Neither the Borrower 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 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 and its 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 and its 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 and its 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 or any of
its Subsidiaries can now reasonably foresee), the business, operations, prospects or condition,
financial or otherwise, of each of the Borrower and its Subsidiaries, or the ability of the
Borrower or any of its 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 has no
Subsidiaries. Except as indicated on Schedule 4.20, none of the Subsidiaries are foreign
Subsidiaries.



     4.21 Labor Relations. None of the Borrower or its 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, threatened, against the
Borrower or any of its Subsidiaries, (ii) no strike, lock-out, slowdown, stoppage, walkout or other
labor dispute pending or, to the knowledge of the Borrower, threatened, against the Borrower or any
of its Subsidiaries, and (iii) to the knowledge of the Borrower, no petition for certification or
union election or union organizing activities taking place with respect to the Borrower or any of
its Subsidiaries. As of the Closing Date, there are no collective bargaining agreements or
Multiemployer Plans covering the employees of the Borrower or any of its Subsidiaries.



     4.22 OFAC; Anti-Terrorism Laws.



     (a) None of the Borrower or its 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 and its 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



21









 




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 its 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, a consolidated balance sheet of the Borrower and its Subsidiaries
as of the close of such Fiscal Quarter and consolidated statements of income and cash flows for the
Borrower and its Subsidiaries 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 president or chief financial officer to be true and accurate;



     (b) Within one hundred fifty (150) days after the close of each Fiscal Year of the Borrower,
beginning with the Fiscal Year ending December 31, 2008, an audited consolidated balance sheet of
the Borrower and its Subsidiaries as of the close of such Fiscal Year and audited consolidated
statements of income and cash flows for the Borrower and its Subsidiaries for the Fiscal Year then
ended, including the notes to each, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year, 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 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 its
Subsidiaries or with respect to accounting principles followed by the Borrower 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 that in
making its audit of the financial statements of the Borrower and its Subsidiaries, 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;



22









 





     (d) Beginning with the Fiscal Quarter ending December 31, 2008 and concurrently with the
delivery of the financial statements described in subsections (a) and (b) above with respect
thereto, 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 and the
Guarantor;



     (e) [Reserved];



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



     (g) 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 any of their respective
assets, whether or not the claim is considered by the Borrower 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;



     (b) immediately after a Responsible Officer’s learning thereof, the occurrence of any
casualty event in excess of $100,000;



     (c) [Reserved];



     (d) as soon as reasonably practicable, but in any event at least five Business Days prior
thereto, the closing (or changing) of the corporate headquarters 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 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 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 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;



23









 





     (h) promptly after a Responsible Officer’s learning thereof, 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 (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



24









 




unpaid, would become a Lien (other than a Permitted Lien) upon any of the properties of the
Borrower or any of its Subsidiaries; provided, however, that the Borrower and its
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 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 and its
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 is engaged, all in such amounts and with such
insurance companies as shall be reasonably satisfactory to the Bank.



     5.8 Compliance with ERISA.



     (a) The Borrower will, and will cause each of its 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 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 or a member of the Controlled Group to
the PBGC or a Multiemployer Plan. Neither the Borrower 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 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.



     5.10 Creation of Subsidiaries. Subject to the provisions of Section 7.12, the
Borrower may from time to time create new Subsidiaries and the Subsidiaries of the Borrower may
create new Subsidiaries.



25









 





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



     6.1 Consolidated EBITDA. Permit Consolidated EBITDA (i) for the Fiscal Year
ending December 31, 2008, to be less than or equal to 0 and (ii) for any Fiscal Quarter ending
thereafter, to be less than or equal to 0.



ARTICLE VII




NEGATIVE COVENANTS



     Until payment in full of all Obligations of the Borrower to the Bank, the Borrower will not,
and will not permit 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 any Subsidiary of the Borrower may
merge or consolidate with, or be liquidated into, (i) the Borrower (so long as the Borrower is the
surviving or continuing entity) or (ii) any other Subsidiary, and in each case so long as no
Default or Event of Default has occurred and is continuing or would result therefrom.




26












 





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




     (i) Indebtedness consisting of guaranties of the Borrower or any of its
Subsidiaries in favor of the Bank incurred under the $10,000,000 Credit Agreement and the
Credit Documents (as defined therein) for the benefit of Swisher;




     (ii) Indebtedness of the Borrower to its 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;




     (iii) Indebtedness of the Borrower to Swisher; 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 the Borrower consisting of seller notes on franchise and
other acquisitions, with all such Indebtedness of the Borrower existing as of the Closing
Date set forth on Schedule 7.2(iv) 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
exceed $5,000,000; and provided further that Borrower shall deliver to the Bank an
updated Schedule 7.2(iv) 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;




     (v) Indebtedness secured by Permitted Liens;




     (vi) 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;




     (vii) purchase money Indebtedness of the Borrower 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; and




     (viii) other Indebtedness of the Borrower 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, the other Credit Documents and the $10,000,000 Credit
Agreement and the Credit Documents (as defined therein);



27









 






     (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;




     (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(l)
or (m) hereof;




     (vi) Liens with respect to any Realty occupied by the Borrower 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(vii),
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 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 or any of its Subsidiaries except assets then being financed solely by the
same financing source;




     (viii) Liens securing the Indebtedness permitted under Section 7.2(iv) with respect to the
assets of the franchise or other entity acquired thereby, with all such Liens existing as of the
Closing Date set forth on Schedule 7.3(viii) hereof; provided that the Indebtedness giving
rise to such Liens shall not exceed $5,000,000 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



28









 






Schedule 7.3(viii) 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:




     (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 and its Subsidiaries with an aggregate net book value on the Borrower’s balance
sheet of no more than $100,000 in the aggregate; and




     (iii) dividends permitted under Section 7.6.



     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 and its Subsidiaries in the ordinary course of business;




     (iii) Investments (including equity securities and debt obligations) of the
Borrower and its 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 Swisher; and




     (vii) Investments in connection with the creation (but not acquisition) of new
Subsidiaries organized under the laws of one of the United States.



29









 





     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 and any of its 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 may declare and make dividend payments or
other distributions to the Borrower or to another Subsidiary of the Borrower, in each case
(x) to the extent not prohibited under applicable Requirements of Law, and (y) so long as no
Default or Event of Default shall have occurred and be continuing or would result therefrom;
and




     (iii) the Borrower 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 or Affiliates, or to or from
any member of the immediate family of any of its officers, directors, stockholders or Affiliates,
or subcontract any operations to any Affiliate, except for loans and advances to Swisher in
accordance with Section 7.5(vi) and 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 Affiliate and on
terms substantially no more favorable to such Affiliate than those that such Affiliate would obtain
in a comparable arms-length transaction with a Person not an Affiliate of the Borrower.



     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 or any of its 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 Borrower or any of its 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 or any of its 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



30









 




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 or any of its Subsidiaries to perform and comply with their respective obligations
under the Credit Documents or (b) the ability of any Subsidiary of the Borrower to make any
dividend payment or other distribution in respect of its Capital Stock, to repay Indebtedness owed
to the Borrower or any other Subsidiary, to make loans or advances to the Borrower or any other
Subsidiary, or to transfer any of its assets or properties to the Borrower or any other Subsidiary,
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 or any Subsidiary 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. (a) 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 the Borrower shall give the Bank notice thereof at least thirty (30) days’ prior
or as soon thereafter as reasonably practicable.



     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.



31









 





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



     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 Article 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 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 (including specifically, but without limitation, defaults due to non-payment) under the
terms of any agreement, document or instrument pursuant to which the Borrower 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 or
any of Borrower’s Subsidiaries, the Guarantor, or the holder(s) of Borrower’s majority ownership
interests, on the one hand, and the Bank or any of Bank’s Affiliates on the other;



     (g) Any Security Document to which the Borrower or any of its Subsidiaries or any other Person
is now or hereafter a party shall for any reason cease to be in full force and effect, 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 the Borrower or any such Subsidiary or any



32









 




such Person shall assert any of the foregoing; or any Subsidiary of the Borrower or any Person
acting on behalf of any such Subsidiary or any other Person shall deny or disaffirm such
Subsidiary’s or Person’s obligations thereunder;




     (h) The occurrence and continuance of any default or event of default under the
$10,000,000 Credit Agreement;



     (i) The Borrower or any Subsidiary (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;



     (j) Failure of the Borrower or any Subsidiary 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 or such Subsidiary stayed, or failure of
the Borrower 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;



     (k) The Borrower 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;



     (l) 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 or any of its Subsidiaries and such judgment(s) or
order(s) shall continue unsatisfied and unstayed for a period of thirty (30) days, unless the
Borrower 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 or such Subsidiary had posted an
appropriate bond necessary to prevent collection upon the judgment while the appeal is pending;



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



     (n) 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 or any of its Subsidiaries by the
United States, or any department, agency or instrumentality thereof, or by any other Governmental



33









 




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 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;




     (o) 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;



     (p) Any one or more licenses, permits, accreditations or authorizations of the Borrower
or any of its 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 or any of its 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



     (q) Steve Berrard and Wayne Huizenga cease collectively to own, either directly or
indirectly through their company, HB Fairview Holdings, LLC, a Delaware limited liability company,
on a fully diluted basis (x) a majority of the Capital Stock entitled to vote in the election of
directors of the Borrower, or (y) a majority of Capital Stock entitled to share in the profits of
the Borrower 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 (j); and (iii) 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) 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



34









 




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.



     8.3 Notice to Borrower. The Bank agrees to use its reasonable best efforts to
notify that Borrower prior to making demand for payment from the Guarantor, provided that
the Bank’s failure to notify the Borrower shall not affect the Bank’s rights hereunder or under any
other Credit Documents.



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,



35









 




investigations, administrative proceedings, judgments, liens, liabilities, penalties, fines,
amounts 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 (if any), (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.



36









 




Disputes may include, without limitation, tort claims, counterclaims, claims brought as class
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



37









 




the Bankruptcy Code, whether injunctive or otherwise, which would stay, interdict, condition,
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

	 	HB Service, LLC
	 

	 	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 conflicts of law
provisions thereof).






38









 





     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
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



39









 




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 or any of its Subsidiaries or Affiliates 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, its 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.



     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.]







40









 








     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.



	 	 	 	 	 	 	 

	 	 	HB SERVICE, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Hugh H. Cooper
 

Hugh H. Cooper
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL	 	 
	 	 	ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Cavan J. Harris	 	 
	 

	 	Name:
	 	 

Cavan J. Harris
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






Signature Page to HB Service Credit Agreement






 









 








Exhibit A





 












 





Exhibit A




FORM OF REVOLVING NOTE




			
	 	 	 
	$15,000,000
	 	June _, 2008     
	 
	 	Charlotte, North Carolina






     FOR VALUE RECEIVED, HB SERVICE, LLC (the “Borrower”), hereby promises,
jointly and severally, to pay to the order of



     WACHOVIA BANK, NATIONAL ASSOCIATION (the “Bank”), located at One Wachovia Center, 301
South College Street, Charlotte, North Carolina (or at such other place or places as the Bank may
designate), at the times and in the manner provided in the Credit
Agreement, dated as of June _,
2008 (as amended, modified, restated or supplemented from time to time, the “Credit
Agreement”), between the Borrower and the Bank, the principal sum of



     FIFTEEN MILLION DOLLARS ($15,000,000), or such lesser amount as may constitute the unpaid
principal amount of the Revolving Loans made by the Bank, under the terms and conditions of this
promissory note (this “Revolving Note”) and the Credit Agreement. The defined terms in the
Credit Agreement are used herein with the same meaning. The Borrower also promises to pay interest
on the aggregate unpaid principal amount of this Revolving Note at the rates applicable thereto
from time to time as provided in the Credit Agreement.



     This Revolving Note is issued to evidence the Revolving Loans made by the Bank pursuant to the
Credit Agreement. All of the terms, conditions and covenants of the Credit Agreement are expressly
made a part of this Revolving Note by reference in the same manner and with the same effect as if
set forth herein at length, and any holder of this Revolving Note is entitled to the benefits of
and remedies provided in the Credit Agreement and the other Credit Documents. Reference is made to
the Credit Agreement for provisions relating to the interest rate, maturity, payment, prepayment
and acceleration of this Revolving Note.



     In the event of an acceleration of the maturity of this Revolving Note, this Revolving Note
shall become immediately due and payable, without presentation, demand, protest or notice of any
kind, all of which are hereby waived by the Borrower.



     In the event this Revolving Note is not paid when due at any stated or accelerated maturity,
the Borrower agrees to pay, in addition to the principal and interest, all reasonable and
documented out-of-pocket costs of collection, including reasonable attorneys’ fees.



     This Revolving Note shall be governed by and construed in accordance with the internal laws
and judicial decisions of the State of North Carolina. The Borrower hereby submits to the
nonexclusive jurisdiction and venue of the federal and state courts located in







 









 







Mecklenburg County, North Carolina, although the Bank shall not be limited to bringing an action in
such courts.




[Signature on Following Page]




 









 





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



	 	 	 	 	 	 	 

	 	 	HB SERVICE, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 





Signature Page to Revolving Note




 









 








Exhibit B








 









 





Execution
Version




FORM OF UNCONDITIONAL GUARANTY

[HUIZENGA]




June 25, 2008




HB Service, LLC

6849 Fairview Road

Charlotte, North Carolina 28210

(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 Revolving Note dated as of even date herewith, made by Borrower to the order of Bank,
in the original principal amount of $15,000,000.00, as the same shall be amended, modified,
increased or extended from time to time (the “Note”), that certain Credit Agreement dated as of
even date herewith between the Borrower and the Bank, as the same shall be amended or modified
from time to time (the “Credit Agreement”), and the Loan Documents, as defined below, and all
obligations of Borrower to Bank or any of its affiliates under any related swap agreement (as
defined in 11 U.S.C. § 101, as in effect from time to time), 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. 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 as specifically set forth herein and 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 only 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 the
Guarantor will not affect the existing and continuing obligations of any other guarantor under any
other guaranty.



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 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




2









 




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 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




3









 




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.



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.



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




4









 




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, guaranty agreements, 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 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.




5









 




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 (“Huizenga
Investments”).



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. 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




6









 




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:
	 

	 	 











 









 




Exhibit C




FORM OF NOTICE OF BORROWING




June 25th, 2008



Wachovia Bank, National Association

301 South Tryon Street, T-28

Charlotte, NC 28288 — NC 0154

Attn: Cavan Harris

(fax) 704-374-6483



Ladies and Gentlemen:




     The undersigned, HB Service, LLC (the “Borrower”), refers to the Credit Agreement, dated as
of June 25, 2008, among the Borrower and you (as amended, modified, restated or supplemented from
time to time, the “Credit Agreement,” the terms defined therein being used herein as
therein defined), and, pursuant to Section 3.2(a) of the Credit Agreement, hereby gives you
irrevocable notice that the Borrower requests a Borrowing of Revolving Loan under the Credit
Agreement, and to that end sets forth below the information relating to such Borrowing (the
“Proposed Borrowing”) as required by Section 3.2(a) of the Credit Agreement:




     (i)
The aggregate principal amount of the Proposed Borrowing is
$15,000,000.00.1




     (ii) The Proposed Borrowing is requested to be made on June 25, 2008 (the “Borrowing
Date”).



     The Borrower hereby certifies that the following statements are true on and as of the date hereof
and will be true on and as of the Borrowing Date:




     A. Each of the representations and warranties contained in Article IV of the Credit Agreement and
in the other Credit Documents is and will be true and correct on and as of each such date, with the
same effect as if made on and as of each such date, both immediately before and after giving effect
to the Proposed Borrowing and to the application of the proceeds therefrom (except to the extent
any such representation or warranty is expressly stated to have been made as of a specific date, in
which case such representation or warranty shall be true and correct as of such date);




     B. No Default or Event of Default has occurred and is continuing or would result from the Proposed
Borrowing or from the application of the proceeds therefrom; and





 




			
	1	 	Amount of Proposed Borrowing must comply with Section 2.1 of the Credit Agreement.









 









 








     C. After giving effect to the Proposed Borrowing, the sum of the aggregate principal
amount of Revolving Loans outstanding will not exceed the lesser of the Revolving Credit Commitment
or the Threshold Amount.



	 	 	 	 	 
	 	Very truly yours, 



HB SERVICE, LLC

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




 











 





Exhibit D




 









 





Exhibit D




FORM OF COMPLIANCE CERTIFICATE




     THIS
CERTIFICATE is delivered pursuant to the Credit Agreement, dated as of May      , 2008 (the “Credit Agreement”), among HB Service, LLC, a Delaware limited
liability company (the “Borrower”) and Wachovia Bank, National Association. Capitalized terms used
herein without definition shall have the meanings given to such terms in the Credit Agreement.



     The undersigned hereby certifies that:




     1.
He is the duly elected [President] [Chief Financial
Officer].



     2. Enclosed with this Certificate are copies of the financial statements of the
Borrower and its Subsidiaries as of
                    , and for the [                    -month period] [year]
then ended, required to be delivered under [Section 5.1(a)] [5.1(b)] of the Credit Agreement. Such
financial statements have been prepared in accordance with GAAP [(subject to the absence of notes
required by GAAP and subject to normal year-end adjustments)]1 and fairly present the
financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the date
indicated and the results of operation of the Borrower and its Subsidiaries on a consolidated basis
for the period covered thereby.





     3.
The undersigned has reviewed the terms of the Credit Agreement and has made, or caused to
be made under the supervision of the undersigned, a review in reasonable detail of the transactions
and condition of the Borrower and its Subsidiaries during the accounting period covered by such
financial statements.




     4.
The examination described in paragraph 3 above did not disclose, and the undersigned has no
knowledge of the existence of, any Default or Event of Default during or at the end of the
accounting period covered by such financial statements or as of the date of this Certificate. [,
except as set forth below.






Describe here or in a separate attachment any exceptions to paragraph 4 above by listing, in
reasonable detail, the nature of the Default or Event of Default, the period during which it
existed and the action that the Borrower and/or Guarantor has taken or proposes to take with
respect thereto.]




     5.
Attached to this Certificate as Attachment A is a covenant compliance worksheet
reflecting the computation of the financial covenants set forth in Article VI of the Credit
Agreement as of the last day of and for the period covered by the financial statements
enclosed herewith.




 




			
	1	 	Insert in the case of quarterly financial statements.





 









 





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



	 	 	 	 	 	 	 

	 	 	HB SERVICE, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:  	 	 	 
	 

	 		Name:	 
	 	 
	 

	 		Title:	
 	 	 






2









 






ATTACHMENT A




COVENANT COMPLIANCE WORKSHEET



A. Consolidated EBITDA (Section 6.1 of the Credit Agreement)




	 	 	 	 	 	 	 	 	 

	 	(1	)	 	Consolidated Net Income for the reference
period ending on the date of determination
(from Line B(2) below)

	 	 	 	$                    
	 	(2	)	 	Additions to Consolidated Net Income (to the
extent taken into account in the calculation
of Consolidated Net Income for such period):
	 	 	 	 
	 	 	 	 	(a) Interest expense for such period

	 	$                    	 	 
	 	 	 	 	(b) Income taxes for such period

	 	$                    	 	 
	 	 	 	 	(c) Depreciation and amortization
for such period

	 	$                    	 	 
	 	 	 	 	(d) Add Lines A(2)(a) through A(2)(c)

	 	$                    	 	 
	 	(3	)	 	Consolidated EBITDA:
	 	 	 	 
	 	 	 	 	      Add Lines A(l) and A(2)(d)

	 	 	 	$                    
	 	(4	)	 	Minimum Consolidated EBITDA as of the date of
determination

	 	 	 	$                    0






 









 





B. Consolidated Net Income




	 	 	 	 	 	 	 	 	 	 	 	 

	(1	)	 	Net income or loss of the Borrower and
its Subsidiaries, as determined on a
consolidated basis in accordance with
GAAP
	 	 	 	 	 	$	                    	 
	 	 	 	(a) Extraordinary losses or charges for
such period (attach itemized schedule)
	 	$	                    	 	 	 	 	 
	 	 	 	(b) Extraordinary gains or
income for such period (attach itemized schedule)
	 	$	                    	 	 	 	 	 
	(2	)	 	Consolidated Net Income (Line B(l) plus
Line B(l)(a) minus Line B(l)(b))
	 	 	 	 	 	$	                    	 











 









 











Schedule 4.9

Litigation




NONE



 









 





Schedule 4.10(c)

Solvency




NONE



 









 





Schedule 4.13

Environmental Compliance




NONE



 









 





Schedule 4.14

Realty, Registry




NONE




 











 





Schedule 4.16

Insurance




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Insurers	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Affording	 	NAIC	 	 	 	 	 	 	 	 	 	Effective	 	 
	Coverage	 	#	 	Policy Number	 	Type of Insurance	 	Limits	 	Date	 	Expires
	HB Service:	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Hartford Ins Co of SE	 	38261	 	21UUNTT5295	 	General Liability (Occur)
	 	$	1,000,000	 	 	 	 	 
	 	 	 	 	 	 	Damage to Rented Premises (Ea occurrence)
	 	$	300,000	 	 	 	 	 
	 	 	 	 	 	 	Med. Exp. (Any one person)
	 	$	10,000	 	 	 	 	 
	 	 	 	 	 	 	Personal & Adv Injury
	 	$	1,000,000	 	 	 	 	 
	 	 	 	 	 	 	General Aggregate
	 	$	2,000,000	 	 	 	 	 
	 	 	 	 	 	 	Products-Comp/Op Agg
	 	$	2,000,000	 	 	 	 	 
	Hartford Ins Co of SE	 	38261	 	21UUNTT5295	 	Automobile Liability-Scheduled autos, hired autos, non-owned autos
	 	$	1,000,000	 	 	04/01/08	 	04/01/09
	Commerce & Industry	 	 	 	BE6543310	 	Excess/umbrella liability                                                                    Each Occurence	 	$	25,000,000	 	 	12/31/07	 	12/31/08
	 	 	 	 	 	 	Aggregate  
	 	$	25,000,000	 	 	 	 	 






 









 





Schedule 4.20

Subsidiaries




	 	 	 

	HB Service, LLC Subsidiaries:
	 	Service Las Vegas, LLC
	Service Baltimore, LLC
	 	Service Louisville, LLC
	Service Beverly Hills, LLC
	 	Service Memphis, LLC
	Service Birmingham, LLC
	 	Service Mid-Atlantic, LLC
	Service California, LLC
	 	Service Mid-West LLC
	Service Carolina, LLC
	 	Service Nashville, LLC
	Service Central, LLC
	 	Service New Orleans, LLC
	Service Charlotte, LLC
	 	Service New York, LLC
	Service Chattanooga, LLC
	 	Service North, LLC
	Service Cincinnati, LLC
	 	Service North-Central, LLC
	Service Columbia, LLC
	 	Service Oklahoma City, LLC
	Service Columbus, LLC
	 	Service Philadelphia, LLC
	Service DC, LLC
	 	Service Phoenix, LLC
	Service Denver, LLC
	 	Service Raleigh, LLC
	Service FCS, LLC
	 	Service Salt Lake City, LLC
	Service Florida, LLC
	 	Service Seattle, LLC
	Service Fresno, LLC
	 	Service South, LLC
	Service Gainesville, LLC
	 	Service St. Louis, LLC
	Service Gold Coast, LLC
	 	Service Tallahassee, LLC
	Service Greensboro, LLC
	 	Service Tampa, LLC
	Service Greenville, LLC
	 	Service Tri-Cities, LLC
	Service Gulf Coast, LLC
	 	Service Virginia, LLC
	Service Houston, LLC
	 	Service West Coast, LLC
	Service Indianapolis, LLC	 	 






 









 





Schedule 7.2(iv)

Indebtedness




HB Services, LLC

7.2(iv) — Schedule of Indebtedness — Notes Payable to Sellers of Franchises and Other Acquisitions

June 23, 2008




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Principal	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Repayment	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Schedule	 	 	 	 	 	 	 	 	 	 
	Lender/Seller	 	 	 	 	 	Payment terms	 	Maturity	 	 	2008	 	 	2009	 	 	2010	 	 	2011	 	 	2012	 	 	2013	 	 	Total	 
	 
	Utah Hygiene, Inc.	 	 	9,375	 	 	$9,375 quarterly, non-interest bearing
	 	September-2008	 	 	9,375	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	9,375	 
	Phoenix Hygiene, Inc.	 	 	240,000	 	 	$60,000 quarterly, plus 6% interest
	 	April-2009	 	 	120,000	 	 	 	120,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	240,000	 
	Colorado Hygiene Corporation	 	 	600,000	 	 	$150,000 annually, non-interest bearing
	 	June-2011	 	 	150,000	 	 	 	150,000	 	 	 	150,000	 	 	 	150,000	 	 	 	 	 	 	 	 	 	 	 	600,000	 
	Swisher of Northern Nevada Corp.	 	 	71,654	 	 	$2,500 monthly, includes interest at prime plus 2%
	 	March-2011	 	 	11,657	 	 	 	25,199	 	 	 	27,907	 	 	 	6,892	 	 	 	 	 	 	 	 	 	 	 	71,654	 
	HSE, Inc.	 	 	232,927	 	 	$4,529 monthly, includes interest at 5%
	 	April-2013	 	 	21,575	 	 	 	44,799	 	 	 	47,091	 	 	 	49,500	 	 	 	52,033	 	 	 	17,929	 	 	 	232,927	 
	 	 	 	 	 	 	 	 	 	 	 	             
	Total third party indebtedness	 	$	1,153,956	 	 	 
	 	 	 	 	 	 	312,607	 	 	 	339,998	 	 	 	224,998	 	 	 	206,392	 	 	 	52,033	 	 	 	17,929	 	 	 	1,153,956	 
	 	 	 	 	 	 	 	 	 	 	 	 






 









 





Schedule 7.3(viii)

Liens Securing Indebtedness Permitted

Under § 7.2(iv)



The Borrower and Guarantors make the following disclosures of third parties with possible security
rights that have failed to perfect any security liens:




	 	 	 	 	 	 	 
	Entity or Party	 	Date	 	Description of Document	 	Expires
	 
	Colorado Hygiene Corporation for
acquisition of Denver franchise

	 	6/16/2007
	 	Secured Promissory Note
	 	6/30/2011
	 
	 	 	 	 	 	 
	Swisher of Northern Nevada Corp.
for acquisition of Reno franchise

	 	3/9/2007
	 	Secured Promissory Note
	 	3/10/2013
	 
	 	 	 	 	 	 
	Utah Hygiene, Inc. for acquisition
of Salt Lake City franchise

	 	9/18/2006
	 	Creditor Workout
Agreement Settlement and
Release
	 	9/15/2008
	 
	 	 	 	 	 	 
	Phoenix Hygiene, Inc. for
acquisition of Phoenix franchise


	 	12/1/2006

	 	Secured Promissory Note


	 	4/30/2009

	 
	 	 	 	 	 	 
	
HSE, Inc.

	 	
3/30/2008
	 	
Secured Promissory Note
	 	
4/1/2013
	 
	 	 	 	 	 	 
	Perfected Security Interests:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Chem Plus Service Systems

	 	6/19/2007
	 	Financing Statement
	 	Florida UCC

200705815623






 









 





Schedule 7.7

Affiliate Transactions



Since November 2004 HB Service, LLC (the “Company”) has acquired forty-three franchises from
unrelated third party franchisees and purchased from Swisher Hygiene Franchise Corp. (“Swisher”)
for $128,000 additional territory rights in Birmingham, Alabama, New Orleans, Louisiana,
Indianapolis, Indiana, Lexington, Kentucky, Tucson, Arizona, Minneapolis, Minnesota, Wichita,
Kansas, and Hudson Valley/Manhattan, New York. In connection with these acquisitions, the Company
agreed to assume notes and accounts receivable that were due from the unrelated third party
franchisees and to reimburse Swisher for certain costs. The assumed notes bore interest at rates
ranging from 7.0% to 12.0%, and matured at various times through July 2008.



For the years ended December 31, 2007, 2006, 2005 and 2004, revenue earned by Swisher from product
sales, royalties, fees for marketing and administrative services with the Company was $22,167,000,
$15,450,000, $5,495,538 and $31,058, respectively, and was charged on terms that are similar to
amounts Swisher charges independent third-party franchisees.



In addition, during 2006 and 2007, Swisher advanced funds to the Company for certain acquisitions
and for working capital purposes.



Interest is payable on these advances at the one month LIBOR plus 1.35%. Total interest earned by
Swisher on the assumed obligations and advances was approximately $750,000, $190,000 and $14,000
for the years ended December 31, 2007, 2006 and 2005, respectively. There was no interest earned
for the year ended December 31, 2004.



The
balance of the assumed obligations and advances as of December 31, 2007 was approximately
$30,000,000, and are collateralized by substantially all of the assets of the Company, including
the franchise rights and membership interests of the Company and all of its wholly-owned
subsidiaries.



In connection with the Company’s closing on the $15,000,000 credit facility with Wachovia Bank,
National Association, the approximate $15,000,000 advance will be repaid to Swisher.