EX-10.1



 





Exhibit 10.1




EXECUTION VERSION






 





Published CUSIP Number: 46262FAC6




$575,000,000




CREDIT AGREEMENT




Dated as of May 10, 2006




among




iPAYMENT, INC.,




as the Borrower,




iPAYMENT HOLDINGS, INC.




and




THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,




as the Guarantors,




THE LENDERS PARTY HERETO,




as Lenders




BANK OF AMERICA, N.A.,




as Administrative Agent, Swing Line Lender and L/C Issuer,




and




JPMORGAN CHASE BANK, N.A.,




as Syndication Agent




BANC OF AMERICA SECURITIES LLC,




as Sole Lead Arranger and Sole Book Manager




 





 









 







Table of Contents




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	Article I DEFINITIONS AND ACCOUNTING TERMS	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.01	 	Defined Terms	 	 	 	 
	 
	 	1.02	 	Other Interpretive Provisions	 	 	34	 
	 
	 	1.03	 	Accounting Terms; Calculation of Financial Covenants	 	 	35	 
	 
	 	1.04	 	Rounding	 	 	37	 
	 
	 	1.05	 	Times of Day	 	 	37	 
	 
	 	1.06	 	Letter of Credit Amounts	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	Article II THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.01	 	The Loans	 	 	37	 
	 
	 	2.02	 	Borrowings, Conversions and Continuations of Loans	 	 	38	 
	 
	 	2.03	 	Letters of Credit	 	 	40	 
	 
	 	2.04	 	Swing Line Loans	 	 	48	 
	 
	 	2.05	 	Prepayments	 	 	51	 
	 
	 	2.06	 	Termination or Reduction of Aggregate Revolving Commitments	 	 	54	 
	 
	 	2.07	 	Repayment of Loans	 	 	55	 
	 
	 	2.08	 	Interest	 	 	56	 
	 
	 	2.09	 	Fees	 	 	56	 
	 
	 	2.10	 	Computation of Interest and Fees	 	 	57	 
	 
	 	2.11	 	Evidence of Debt	 	 	57	 
	 
	 	2.12	 	Payments Generally; Administrative Agent’s Clawback	 	 	58	 
	 
	 	2.13	 	Sharing of Payments by Lenders	 	 	60	 
	 
	 	2.14	 	Incremental Facility	 	 	60	 
	 
	 	 	 	 	 	 	 	 
	Article III TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	63	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.01	 	Taxes	 	 	63	 
	 
	 	3.02	 	Illegality	 	 	65	 
	 
	 	3.03	 	Inability to Determine Rates	 	 	66	 
	 
	 	3.04	 	Increased Costs	 	 	66	 
	 
	 	3.05	 	Compensation for Losses	 	 	67	 
	 
	 	3.06	 	Mitigation Obligations; Replacement of Lenders	 	 	68	 
	 
	 	3.07	 	Survival	 	 	69	 
	 
	 	 	 	 	 	 	 	 
	Article IV GUARANTY	 	 	69	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.01	 	The Guaranty	 	 	69	 
	 
	 	4.02	 	Obligations Unconditional	 	 	69	 
	 
	 	4.03	 	Reinstatement	 	 	70	 
	 
	 	4.04	 	Certain Additional Waivers	 	 	71	 
	 
	 	4.05	 	Remedies	 	 	71	 
	 
	 	4.06	 	Rights of Contribution	 	 	71	 






i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	4.07	 	Subordination	 	 	71	 
	 
	 	4.08	 	Additional Guarantors	 	 	72	 
	 
	 	4.09	 	Guarantee of Payment; Continuing Guarantee	 	 	72	 
	 
	 	 	 	 	 	 	 	 
	Article V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	73	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.01	 	Conditions of Initial Credit Extension	 	 	73	 
	 
	 	5.02	 	Conditions to all Credit Extensions	 	 	76	 
	 
	 	 	 	 	 	 	 	 
	Article VI REPRESENTATIONS AND WARRANTIES	 	 	77	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.01	 	Existence, Qualification and Power	 	 	77	 
	 
	 	6.02	 	Authorization; No Contravention	 	 	77	 
	 
	 	6.03	 	Governmental Authorization; Other Consents	 	 	77	 
	 
	 	6.04	 	Binding Effect	 	 	77	 
	 
	 	6.05	 	Financial Statements; No Material Adverse Effect	 	 	78	 
	 
	 	6.06	 	Litigation	 	 	78	 
	 
	 	6.07	 	No Default	 	 	79	 
	 
	 	6.08	 	Ownership of Property; Liens	 	 	79	 
	 
	 	6.09	 	Environmental Compliance	 	 	79	 
	 
	 	6.10	 	Insurance	 	 	80	 
	 
	 	6.11	 	Taxes	 	 	80	 
	 
	 	6.12	 	ERISA Compliance	 	 	81	 
	 
	 	6.13	 	Subsidiaries	 	 	81	 
	 
	 	6.14	 	Margin Regulations; Investment Company Act	 	 	81	 
	 
	 	6.15	 	Disclosure	 	 	82	 
	 
	 	6.16	 	Compliance with Laws	 	 	82	 
	 
	 	6.17	 	Intellectual Property; Licenses, Etc.	 	 	82	 
	 
	 	6.18	 	Business Locations	 	 	83	 
	 
	 	6.19	 	Solvency	 	 	83	 
	 
	 	6.20	 	Senior Debt and Designated Senior Debt	 	 	83	 
	 
	 	 	 	 	 	 	 	 
	Article VII AFFIRMATIVE COVENANTS	 	 	83	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.01	 	Financial Statements	 	 	83	 
	 
	 	7.02	 	Certificates; Other Information	 	 	84	 
	 
	 	7.03	 	Notices	 	 	86	 
	 
	 	7.04	 	Payment of Taxes	 	 	87	 
	 
	 	7.05	 	Preservation of Existence, Etc.	 	 	87	 
	 
	 	7.06	 	Maintenance of Properties	 	 	88	 
	 
	 	7.07	 	Maintenance of Insurance	 	 	88	 
	 
	 	7.08	 	Compliance with Material Contractual Obligations and Laws	 	 	89	 
	 
	 	7.09	 	Books and Records	 	 	89	 
	 
	 	7.10	 	Inspection Rights	 	 	89	 
	 
	 	7.11	 	Use of Proceeds	 	 	89	 
	 
	 	7.12	 	Additional Subsidiaries	 	 	90	 
	 
	 	7.13	 	ERISA Compliance	 	 	90	 






ii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	7.14	 	Pledged Assets	 	 	90	 
	 
	 	7.15	 	Compliance with Environmental Laws	 	 	91	 
	 
	 	7.16	 	Interest Rate Hedging	 	 	91	 
	 
	 	7.17	 	Ratings	 	 	92	 
	 
	 	7.18	 	Post-Closing Requirement	 	 	92	 
	 
	 	 	 	 	 	 	 	 
	Article VIII NEGATIVE COVENANTS	 	 	92	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.01	 	Liens	 	 	92	 
	 
	 	8.02	 	Investments	 	 	94	 
	 
	 	8.03	 	Indebtedness	 	 	95	 
	 
	 	8.04	 	Fundamental Changes	 	 	97	 
	 
	 	8.05	 	Dispositions	 	 	97	 
	 
	 	8.06	 	Restricted Payments	 	 	98	 
	 
	 	8.07	 	Change in Nature of Business	 	 	100	 
	 
	 	8.08	 	Transactions with Affiliates and Insiders	 	 	100	 
	 
	 	8.09	 	Burdensome Agreements	 	 	100	 
	 
	 	8.10	 	Use of Proceeds	 	 	101	 
	 
	 	8.11	 	Financial Covenants	 	 	101	 
	 
	 	8.12	 	Organization Documents; Fiscal
Year; Legal Name, State of Formation and Form of Entity	 	 	103	 
	 
	 	8.13	 	Ownership of Subsidiaries	 	 	103	 
	 
	 	8.14	 	Sale Leasebacks	 	 	103	 
	 
	 	8.15	 	Prepayment of Other Indebtedness, Etc.	 	 	103	 
	 
	 	8.16	 	Capital Expenditures	 	 	104	 
	 
	 	8.17	 	Accounting Changes	 	 	104	 
	 
	 	8.18	 	Partnerships, Etc.	 	 	104	 
	 
	 	8.19	 	Speculative Transactions	 	 	104	 
	 
	 	8.20	 	Designation of Senior Debt	 	 	105	 
	 
	 	8.21	 	Holding Company	 	 	105	 
	 
	 	 	 	 	 	 	 	 
	Article IX EVENTS OF DEFAULT AND REMEDIES	 	 	105	 
	 
	 	 	 	 	 	 	 	 
	 
	 	9.01	 	Events of Default	 	 	105	 
	 
	 	9.02	 	Remedies Upon Event of Default	 	 	108	 
	 
	 	9.03	 	Application of Funds	 	 	109	 
	 
	 	 	 	 	 	 	 	 
	Article X ADMINISTRATIVE AGENT	 	 	110	 
	 
	 	 	 	 	 	 	 	 
	 
	 	10.01	 	Appointment and Authority	 	 	110	 
	 
	 	10.02	 	Rights as a Lender	 	 	110	 
	 
	 	10.03	 	Exculpatory Provisions	 	 	111	 
	 
	 	10.04	 	Reliance by Administrative Agent	 	 	112	 
	 
	 	10.05	 	Delegation of Duties	 	 	112	 
	 
	 	10.06	 	Resignation of Administrative Agent	 	 	113	 
	 
	 	10.07	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	114	 
	 
	 	10.08	 	No Other Duties; Etc.	 	 	114	 






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	 	 	 	 	 	 	Page	 
	 
	 	10.09	 	Administrative Agent May File Proofs of Claim	 	 	114	 
	 
	 	10.10	 	Collateral and Guaranty Matters	 	 	115	 
	 
	 	 	 	 	 	 	 	 
	Article XI MISCELLANEOUS	 	 	116	 
	 
	 	 	 	 	 	 	 	 
	 
	 	11.01	 	Amendments, Etc.	 	 	116	 
	 
	 	11.02	 	Notices and Other Communications; Facsimile Copies	 	 	118	 
	 
	 	11.03	 	No Waiver; Cumulative Remedies	 	 	120	 
	 
	 	11.04	 	Expenses; Indemnity; and Damage Waiver	 	 	120	 
	 
	 	11.05	 	Payments Set Aside	 	 	122	 
	 
	 	11.06	 	Successors and Assigns	 	 	122	 
	 
	 	11.07	 	Treatment of Certain Information; Confidentiality	 	 	125	 
	 
	 	11.08	 	Set-off	 	 	126	 
	 
	 	11.09	 	Interest Rate Limitation	 	 	126	 
	 
	 	11.10	 	Counterparts; Integration; Effectiveness	 	 	127	 
	 
	 	11.11	 	Survival of Representations and Warranties	 	 	127	 
	 
	 	11.12	 	Severability	 	 	127	 
	 
	 	11.13	 	Replacement of Lenders	 	 	127	 
	 
	 	11.14	 	Governing Law; Jurisdiction; Etc.	 	 	128	 
	 
	 	11.15	 	WAIVER OF RIGHT TO TRIAL BY JURY	 	 	129	 
	 
	 	11.16	 	USA PATRIOT Act Notice	 	 	130	 







iv









 






	 	 	 	 	 	 	 	 	 
	SCHEDULES	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.01	 	Consolidated EBITDA	 	 	 	 
	 
	 	2.01	 	Commitments and Applicable Percentages	 	 	 	 
	 
	 	6.06	 	Litigation	 	 	 	 
	 
	 	6.08(b)	 	Owned Property	 	 	 	 
	 
	 	6.08(c)	 	Leased Property (Loan Parties as Lessee)	 	 	 	 
	 
	 	6.08(d)	 	Leased Property (Loan Parties as Lessor)	 	 	 	 
	 
	 	6.13	 	Subsidiaries	 	 	 	 
	 
	 	6.17	 	IP Rights	 	 	 	 
	 
	 	6.18(a)	 	Locations of Tangible Personal Property	 	 	 	 
	 
	 	6.18(b)	 	Location of Chief Executive Office, Etc.	 	 	 	 
	 
	 	6.18(c)	 	Changes in Legal Name, State of Formation and Structure	 	 	 	 
	 
	 	8.01	 	Liens Existing on the Closing Date	 	 	 	 
	 
	 	8.02	 	Investments Existing on the Closing Date	 	 	 	 
	 
	 	8.03	 	Indebtedness Existing on the Closing Date	 	 	 	 
	 
	 	8.13	 	Joint Ventures	 	 	 	 
	 
	 	11.02	 	Certain Addresses for Notices	 	 	 	 
	 
	 	11.06(b)	 	Processing and Recordation Fees	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	EXHIBITS	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.02	 	Form of Loan Notice	 	 	 	 
	 
	 	2.04	 	Form of Swing Line Loan Notice	 	 	 	 
	 
	 	2.11(a)-1	 	Form of Revolving Note	 	 	 	 
	 
	 	2.11(a)-2	 	Form of Term Note	 	 	 	 
	 
	 	2.11(a)-3	 	Form of Swing Line Note	 	 	 	 
	 
	 	4.08	 	Form of Joinder Agreement	 	 	 	 
	 
	 	5.01(a)(iii)	 	Form of Security Agreement	 	 	 	 
	 
	 	5.01(a)(iv)	 	Form of Pledge Agreement	 	 	 	 
	 
	 	5.01(a)(vii)	 	Form of Opinion of Debevoise &
Plimpton, LLP, special New York Counsel to Loan Parties	 	 	 	 
	 
	 	5.01(a)(viii)	 	Form of Opinion of White & Case, LLP, special Counsel to Loan Parties	 	 	 	 
	 
	 	5.01(a)(ix)	 	Form of Opinion of Afshin Yazdian, General Counsel to Loan Parties	 	 	 	 
	 
	 	5.01(a)(xi)	 	Form of Solvency Certificate	 	 	 	 
	 
	 	7.02	 	Form of Compliance Certificate	 	 	 	 
	 
	 	11.06	 	Form of Assignment and Assumption	 	 	 	 






v









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (this “Agreement”) is entered into as of May 10, 2006, by and
among iPAYMENT, INC., a Delaware corporation (the “Borrower”), the Guarantors (as
hereinafter defined), the Lenders (as hereinafter defined), BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer and JPMORGAN CHASE BANK, N.A., as
Syndication Agent (as hereinafter defined).



PRELIMINARY STATEMENTS




     iPayment Holdings, Inc., a Delaware corporation (“Holdings”), was organized by
management of iPayment, Inc., a Delaware corporation (the “Company”), to acquire control of
the Company. Pursuant to the Agreement and Plan of Merger dated December 27, 2005 (as amended,
supplemented or otherwise modified in accordance with its terms, to the extent permitted in the
Loan Documents (as hereinafter defined), the “Merger Agreement”) among Holdings, iPayment
MergerCo., Inc., a Delaware corporation and a wholly owned subsidiary of Holdings
(“MergerCo”), and the Company, Holdings and MergerCo have agreed to consummate a merger
(the “Merger”) of MergerCo with the Company in which the Company will be the surviving
corporation.



     The Borrower has requested that (a) immediately upon the consummation of the Merger, the
Lenders lend to the Borrower up to $575,000,000 to pay to the holders of the Shares (as defined in
the Merger Agreement) the Merger Consideration (as defined in the Merger Agreement) for such Shares
in the Merger, to pay transaction fees and expenses and to refinance certain Indebtedness of the
Company and its subsidiaries and (b) from time to time, the Lenders lend to the Borrower and the
L/C Issuer issue Letters of Credit (as hereinafter defined) for the account of the Borrower to
provide a revolving credit facility for the Borrower and its Subsidiaries (as hereinafter defined).



     The Borrower has requested that the Lenders provide a revolving credit facility, a term loan
facility, and the Lenders have indicated their willingness to lend and the L/C Issuer has indicated
its willingness to so issue Letters of Credit, in each case, on the terms and subject to the
conditions set forth herein.



     NOW, THEREFORE, in consideration of these premises and the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




1.01 Defined Terms.




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



     “Acquisition”, by any Person, means the acquisition by such Person, in a single
transaction or in a series of related transactions, of (a) all or any substantial portion of the



 









 







Property of another Person or at least a majority of the Voting Stock of another Person, in each
case whether or not involving a merger or consolidation with such other Person, or (b) Merchant
Portfolios with an aggregate value in excess of $5,000,000, in each case, for clauses (a) and (b),
whether for cash, property, services, assumption of Indebtedness, securities or otherwise.



     “Additional Guarantors” has the meaning specified in Section 4.08.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02 or such other address or account as the
Administrative Agent may from time to time notify to the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



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



     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The initial amount of the Aggregate Revolving Commitments in effect on the Closing Date is
$60,000,000.



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means (a) in respect of the Term Facility, with respect to any
Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Commitment at
such time and (ii) thereafter, the principal amount of such Term Lender’s Term Loans at such time
and (b) in respect of the Revolving Facility, with respect to any Revolving Lender at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Revolving Commitments
represented by such Revolving Lender’s Revolving Commitment at such time; provided that if
the commitment of each Revolving Lender to make Revolving Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if
the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Revolving
Lender shall be determined based on the Applicable Percentage of such Revolving Lender most
recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage
of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.



2









 





     “Applicable Rate” means (a) in respect of the Revolving Facility and the Commitment
Fee, a percentage per annum determined by reference to the Consolidated Leverage Ratio as set forth
in the most recent Compliance Certificate received by the Administrative Agent pursuant to
Section 7.02(a):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	Eurodollar Rate	 	 	 	 
	Pricing	 	Consolidated	 	(Letters of	 	 	 	 
	Tier	 	Leverage Ratio	 	Credit)	 	Base Rate	 	Commitment Fee
	 
	1

	 	Less than 4.0:1.0
	 	 	1.50	%	 	 	0.50	%	 	 	0.375	%
	2

	 	Greater than or

equal to 4.0:1.0

but less than

4.5:1.0
	 	 	1.75	%	 	 	0.75	%	 	 	0.375	%
	3

	 	Greater than or

equal to 4.5:1.0

but less than

5.0:1.0
	 	 	2.00	%	 	 	1.00	%	 	 	0.375	%
	4

	 	Greater than or

equal to 5.0:1.0
	 	 	2.25	%	 	 	1.25	%	 	 	0.500	%





and (b) in respect of the Term Facility, 2.25% per annum for Eurodollar Rate Loans and 1.25% per
annum for Base Rate Loans; provided, that if the Borrower receives a rating on the Credit
Facilities of at least B1 by Moody’s (with a stable outlook), the percentages set forth in this
clause (b) shall be 2.00% per annum for Eurodollar Rate Loans and 1.00% per annum for Base
Rate Loans. Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is required to be delivered pursuant to Section
7.02(a); provided, however, that if a Compliance Certificate is not delivered
when due in accordance with such Section, then Pricing Tier 4 shall apply as of the first Business
Day after the date on which such Compliance Certificate was required to have been delivered and
shall continue to apply until the first Business Day immediately following the date a Compliance
Certificate is delivered in accordance with Section 7.02(a), whereupon the Applicable Rate
shall be adjusted based upon the calculation of the Consolidated Leverage Ratio contained in such
Compliance Certificate. The Applicable Rate in effect from the Closing Date through the first
Business Day immediately following the date a Compliance Certificate is required to be delivered
pursuant to Section 7.02(a) for the fiscal quarter ending June 30, 2006 shall be determined
based upon Pricing Tier 4.




     “Applicable Revolving Percentage” means with respect to any Revolving Lender at any
time, such Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such
time.



     “Appropriate Lender” means, at any time, (a) with respect to any of the Term Facility
or the Revolving Facility, a Lender that has a Commitment with respect to such Facility at such
time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters
of



3









 







Credit have been issued pursuant to Section 2.03(a), the Revolving Lenders and (c)
with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans
are outstanding pursuant to Section 2.04(a), the Revolving Lenders.



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arranger” means Banc of America Securities LLC, in its capacity as sole lead arranger
and sole book manager.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit 11.07 or any other form approved by the Administrative Agent.



     “Assumed Tax Rate” means, for or in respect of any Tax Period and any item of income,
the greater of (x) the maximum combined federal, state and local income tax rate applicable during
such Tax Period to such item of income if included in income by an individual residing in New York
City and (y) the maximum combined federal, state and local tax rate applicable during such Tax
Period to such item of income if included as New York source income by a corporation doing business
in New York City, in each case taking into account the deductibility of state and local income
taxes for federal income tax purposes.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease, (c) in respect of any Securitization Transaction of any Person,
the outstanding principal amount of such financing, after taking into account reserve accounts and
making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment
and (d) in the case of any Sale and Leaseback Transaction, the present value (discounted in
accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the
lessee for rental payments during the term of such lease).



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended December 31, 2005, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Company and its Subsidiaries, including the notes thereto.



     “Auto-Extension Letter of Credit” has the meaning specified in Section
2.03(b)(iii).



     “Availability Period” means, with respect to the Revolving Commitments, the period
from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of
termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the
date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 9.02.



4









 





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



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



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



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



     “Borrowing” means a Revolving Borrowing, a Swing Line Borrowing or a Term Borrowing,
as the context may require.



     “Businesses” means, at any time, a collective reference to the businesses operated by
Holdings and its Subsidiaries at such time.



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



     “Capital Expenditures” means, with respect to any Person for any period the aggregate
of all expenditures incurred by such Person during such period that, in accordance with GAAP, are
or should be included in “additions to property, plant or equipment” or similar items reflected in
the statement of cash flows of such Person, provided, however, that Capital
Expenditures for Holdings and its Subsidiaries shall not include (a) Acquisitions, (b) to the
extent permitted by this Agreement, including Section 2.05(b)(ii), reinvestments of the Net
Cash Proceeds of any Disposition and Involuntary Disposition and (c) interest capitalized during
such period.



     “Capital Lease” means, as applied to any Person, any lease of any Property by that
Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease
on the balance sheet of that Person.



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



     “Cash Consideration” means the cash consideration paid in connection with an
Acquisition, consisting of (a) cash and Cash Equivalents, (b) Indebtedness of the Person being
acquired that is assumed by the acquiring Person and (c) the Borrower’s good faith estimate at the
closing of such Acquisition of the aggregate amount of cash payments to be made on Deferred
Purchase Price Obligations.



5









 





     “Cash Distributions” means, with respect to any Person for any period, all dividends
and other distributions on any of the outstanding Equity Interests in such Person, all purchases,
redemptions, retirements, defeasances or other acquisitions of any of the outstanding Equity
Interests in such Person and all returns of capital to the stockholders, partners or members (or
the equivalent persons) of such Person, in each case to the extent paid in cash by or on behalf of
such Person during such period.



     “Cash Equivalents” means, as at any date, (a) U.S. Securities, (b) Dollar-denominated
time deposits and certificates of deposit that are fully insured by the Federal Deposit Insurance
Corporation or are of (i) any Lender, (ii) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or
the equivalent thereof (any such bank being an “Approved Bank”), in each case with
maturities of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and
maturing within six months of the date of acquisition, (d) repurchase agreements entered into by
any Person with a bank or trust company (including any of the Lenders) or recognized securities
dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or
fully guaranteed by the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair
market value of at least one hundred percent (100%) of the amount of the repurchase obligations and
(e) Investments, classified in accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940 which are administered by reputable
financial institutions having capital of at least $500,000,000 and the portfolios of which are
limited to Investments of the character described in the foregoing subdivisions (a) through (d).



     “Change in Consolidated Working Capital” means for any period, a positive or negative
number equal to (a) the amount of Consolidated Working Capital at the beginning of such
period minus the amount of Consolidated Working Capital at the end of such period
plus (b) the amount of restricted cash held by any settlement bank and/or processor
at the beginning of such period minus the amount of restricted cash held by any settlement
bank and/or processor at the end of such period, in each case determined on a consolidated basis
for the Borrower and its Subsidiaries.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any Governmental Authority.



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




     (a) at any time prior to an initial registered public offering of Equity Interests of
Holdings or any Person who, directly or indirectly, owns one hundred percent (100%)



6









 







of the issued and outstanding Equity Interests of Holdings (any such Person, a “Parent
Company”), Permitted Holders shall cease to beneficially own, within the meaning of Rules
13d-3 and Rule 13d-5 under the Securities Exchange Act, either directly or indirectly,
Equity Interests in Holdings representing more than fifty percent (50%) of the combined
voting power of all of the Equity Interests entitled to vote for members of the board of
directors or equivalent governing body of such Person on a fully-diluted basis (and taking
into account all such securities that such person or group has the right to acquire pursuant
to any option right); or




     (b) at any time after an initial registered public offering of Equity Interests of
Holdings or any Parent Company, any “person” or “group” (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act, but excluding (i) the Permitted Holders and
(ii) any employee benefit plan of Holdings or its Subsidiaries and any person or entity
acting in its capacity as trustee, agent or other fiduciary or administrator of any such
plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act, except that a person or group shall be deemed to have “beneficial
ownership” of all Equity Interests that such person or group has the right to acquire (such
right, an “option right”), whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of the greater of (A) thirty percent
(30%) or more and (B) a higher percentage than is beneficially owned by the Permitted
Holders of the Equity Interests of Holdings or such Parent Company entitled to vote for
members of the board of directors or equivalent governing body of Holdings or such Parent
Company on a fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or




     (c) during any period of twelve (12) consecutive months, a majority of the members of
the board of directors or equivalent governing body of Holdings ceases to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clauses (ii) and
(iii), any individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of one or more
directors by any person or group other than a solicitation for the election of one or more
directors by or on behalf of the board of directors); or




     (d) Holdings shall cease, directly or indirectly, to own and control legally and
beneficially all of the Equity Interests in the Borrower; or




     (e) Gregory S. Daily and any trusts for the benefit of the family members of Gregory S.
Daily, in which Gregory S. Daily is the trustee, shall cease to beneficially



7









 







own or control at least a majority of the Equity Interests in Holdings or any Parent
Company beneficially owned by the Permitted Holders; or




     (f) a “Change of Control” under, and as defined in, the Senior Subordinated Notes
Indenture shall have occurred.



     “Closing Date” means the first date on which all the conditions precedent in
Section 5.01 are satisfied or waived in accordance with Section 11.01, which is May
10, 2006.



     “Collateral” means a collective reference to all real and personal Property with
respect to which Liens in favor of the Administrative Agent, for the benefit of itself and the
other Secured Parties, are purported to be granted pursuant to and in accordance with the terms of
the Collateral Documents.



     “Collateral Documents” means, collectively, the Security Agreement, the Pledge
Agreement, Joinder Agreements, or other similar agreements delivered to the Administrative Agent
and the Lenders pursuant to Section 7.12, and each of the other agreements, instruments or
documents that creates or purports to create a Lien in favor of the Administrative Agent for the
benefit of the Secured Parties.



     “Commitment” means a Term Commitment or a Revolving Commitment, as the context may
require.



     “Commitment Date” has the meaning specified in Section 2.14(b).



     “Commitment Fee” has the meaning specified in Section 2.09(a).



     “Company” has the meaning specified in the Preliminary Statements hereto.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
7.02.



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus the
following to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated
Interest Charges for such period, (b) the provision for federal, state, local and foreign income
taxes payable by the Borrower and its Subsidiaries for such period including such taxes paid by the
Borrower and its Subsidiaries with respect to minority interest income or expense for such period,
(c) the amount of depreciation and amortization expense for such period, (d) any non-cash amount
expensed in respect of stock options, restricted stock awards, and similar equity compensation
arrangements, (e) (i) Transaction Costs, (ii) severance expenses incurred prior to the first
anniversary of the Closing Date in an amount not to exceed $3,000,000, (iii) restructuring charges
in an aggregate amount not to exceed $10,000,000; provided that with respect to each item
referred to in this subclause (e), the Borrower shall have delivered to the Administrative Agent an
officer’s certificate specifying and quantifying such item, and (f) other non-recurring expenses of
the Borrower and its Subsidiaries which do not represent a cash item in such period or in any
future period, all, to the extent applicable, as determined in accordance with GAAP.
Notwithstanding the foregoing, Consolidated EBITDA for the quarterly periods of



8









 







the Borrower and its Subsidiaries ended June 30, 2005, September 30, 2005, December 31, 2005
and March 31, 2006 shall be as set forth on Schedule 1.01 hereto.



     “Consolidated Funded Indebtedness” means Funded Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.



     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) all interest, premium
payments, debt discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest, but excluding, to the extent included in interest expense, (A)
fees and expenses associated with the consummation of the Transaction, (B) amortization or writeoff
of financing costs and (C) upfront cash costs and all non-cash costs associated with obtaining Swap
Contracts) or in connection with the deferred purchase price of assets, in each case to the extent
treated as interest in accordance with GAAP, plus (ii) the portion of rent expense with
respect to such period under Capital Leases that is treated as interest in accordance with GAAP
plus (iii) the implied interest component of Synthetic Leases with respect to such period;
provided, that: (a) for purposes of determining the amount of Consolidated Interest
Charges included in the calculation of the Consolidated Interest Coverage Ratio for the fiscal
quarter ended September 30, 2006, such amount for the Measurement Period then ended shall equal
such item for such fiscal quarter multiplied by four; (b) for purposes determining the amount of
Consolidated Interest Charges included in the calculation of the Consolidated Interest Coverage
Ratio for the fiscal quarter ended December 31, 2006, such amount for the Measurement Period then
ended shall equal such item for the two fiscal quarters then ended multiplied by two; and (c) for
purposes of determining the amount of Consolidated Interest Charges included in the calculation of
the Consolidated Interest Coverage Ratio for the fiscal quarter ended March 31, 2007, such amount
for the Measurement Period then ended shall equal such item for the three fiscal quarters then
ended multiplied by 4/3.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Charges, in each case, of or by the
Borrower and its Subsidiaries for the most recently completed Measurement Period.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of the
sum of (a) Consolidated Funded Indebtedness as of such date minus cash and Cash Equivalents
(excluding any U.S. Securities having maturities more than twelve months from the date of
acquisition) of the Borrower and its Subsidiaries on such date up to $5,000,000 to (b) Consolidated
EBITDA for the most recently completed Measurement Period.



     “Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding
extraordinary gains) for that period, as determined in accordance with GAAP.



     “Consolidated Working Capital” means at the date of determination thereof, the
aggregate amount of all Current Assets minus the aggregate amount of all Current
liabilities, in each case determined on a consolidated basis for the Borrower and its Subsidiaries.



9









 





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



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto. Without limiting the generality of the foregoing, a Person
shall be deemed to be Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote ten percent (10%) or more of the securities having ordinary voting power
for the election of directors, managing general partners or the equivalent.



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



     “Credit Facility” means the Revolving Facility, the Term Facility, the Swing Line
Sublimit or the Letter of Credit Sublimit, as the context may require.



     “Cure Amount” has the meaning specified in Section 8.11(c).



     “Cure Right” has the meaning specified in Section 8.11(c).



     “Current Assets” means, with respect to any Person, all assets of such Person that
would be classified as current assets on the balance sheet of such Person, excluding cash and Cash
Equivalents.



     “Current Liabilities” means, with respect to any Person, (a) all Indebtedness of such
Person that by its terms is payable on demand or matures within one year after the date of
determination (excluding any Indebtedness renewable or extendible, at the option of such Person, to
a date more than one year from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period of more than one year from
such date and the current portion of long-term debt) and (b) all other items (including taxes
accrued as estimated and trade payables otherwise excluded from Indebtedness under clause
(d) of the definition thereof) that are classified on the balance sheet of such Person as
current liabilities of such Person.



     “Debt Issuance” means, with respect to any Person, the issuance by such Person of any
Indebtedness of the type referred to in clause (a) of the definition of “Funded
Indebtedness” set forth in this Section 1.01.



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



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



10









 





     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) two percent (2%) per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus two percent (2%) per annum, in each case to the fullest extent permitted by applicable
Laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
plus two percent (2%) per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Term Loans, Revolving Loans, participations in L/C Obligations or participations in Swing Line
Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one (1) Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency or similar proceeding.



     “Deferred Purchase Price Obligations” means deferred purchase price obligations
(including, without limitation, earn-out obligations) of Holdings or any Subsidiary issued in
connection with any Permitted Acquisition or any Acquisition consummated prior to the Closing Date.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any Property by Holdings or any
Subsidiary (including the Equity Interests of any Subsidiary), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith, but excluding any Involuntary Disposition.



     “Disqualified Capital Stock” means any Equity Interest that, by its terms (or by the
terms of any security or other Equity Interest into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of
the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in
cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interest that would constitute Disqualified Capital Stock, in each case, prior to the Maturity Date
of the Term Loans.



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



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
state of the United States or the District of Columbia.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent and (ii) in the case of an assignment of a Revolving Commitment, (A) the L/C Issuer and the
Swing Line Lender and (B) unless an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed); provided that



11









 







notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of
the Borrower’s Affiliates or Subsidiaries.



     “Environmental Laws” means any and all applicable federal, state, local, foreign and
other applicable statutes, laws, regulations, ordinances, rules, judgments, orders or decrees
relating to pollution and the protection of the environment or the release of any Hazardous
Materials into the environment, including those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.



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



     “Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.



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



     “Equity Issuance” means, with respect to any Person, any issuance by such Person of
Equity Interests. A Disposition shall not be deemed to be an Equity Issuance.



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



     “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member
of the controlled group of any Loan Party, or under common control with any Loan Party within the
meaning of Section 414 of the Internal Revenue Code.



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment



12









 







as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.



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



     “Eurodollar Rate” means, for any Interest Period, with respect to any Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained
by dividing (a) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest Period by
(b) one minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such
Interest Period.



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



     “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan
shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.



     “Event of Default” has the meaning specified in Section 9.01.



     “Excess Cash Flow” means, for any period (without duplication), (a) Consolidated Net
Income for such period, plus (b) an amount equal to the aggregate amount of all noncash
charges deducted in determining the Consolidated Net Income for such period, plus (c) the
Change in Working Capital for such period, less (d) an amount equal to the aggregate amount
of all noncash credits included in determining the Consolidated Net Income for such period,
less (e) an



13









 







amount equal to the aggregate amount of all Capital Expenditures made in cash by Holdings and
its Subsidiaries during such period, less (f) an amount equal to the aggregate amount of
all Required Principal Payments made by Holdings and its Subsidiaries during such period, and the
aggregate principal amount of all optional prepayments made pursuant to Section 2.05(a)
during such period (so long as each such optional prepayment in respect of the Revolving Facility
resulted in a corresponding permanent commitment reduction of the Revolving Facility pursuant to
Section 2.06 at the time of such prepayment), less (g) an amount equal to the
aggregate amount of all cash and Cash Equivalents paid by Holdings and its Subsidiaries during such
period as consideration for Merchant Portfolios with an aggregate value of less than $5,000,000,
less (h) an amount equal to the aggregate amount of all Cash Distributions paid by Holdings
during such period, other than Cash Distributions permitted under Section 8.06(f) or (h),
less (i) voluntary prepayments of any Indebtedness other than prepayments of the Loans
pursuant to Section 2.05(a) in an amount not to exceed $15,000,000 per annum;
provided that (i) such prepayments are otherwise permitted hereunder and (ii) if such
Indebtedness consists of a revolving line of credit, the commitments under such line of credit are
permanently reduced by the amount of such prepayment, less (j) Letter of Credit Fees and
annual agency fees, less (k) any Investments permitted under Sections 8.02(g), (h),
(j), (k), (l), and (n), plus (l) an amount equal to the aggregate amount of any
repayments received with respect to any loans referred to in clause (k) above for which an
adjustment to Excess Cash Flow has been taken pursuant to clause (k), less (m) fees
and expenses in connection with exchanges or refinancings permitted by Section 8.15,
less (n) expenses paid in cash in respect of any Equity Issuance or Debt Issuance (whether
or not consummated), less (o) upfront cash expenditures made in respect of Swap Contracts
during such period, less (p) to the extent not deducted in the computation of Net Cash
Proceeds in respect of any Disposition or Involuntary Disposition giving rise thereto, the amount
of any mandatory prepayment of Indebtedness during such period (other than Indebtedness hereunder
or under any other Loan Document), together with any interest, premium or penalties required to be
paid (and actually paid) in connection therewith, but not to exceed the amount of any gain included
in determining the Consolidated Net Income for such period in respect of such Disposition or
Involuntary Disposition, less (q) if the Borrower is an “S corporation” or “qualified
subchapter S subsidiary,” each within the meaning of the Internal Revenue Code, for such period,
Permitted Tax Distributions made or accrued by the Borrower with respect to such period,
less (r) an amount equal to the aggregate amount paid by Holdings or any of its
Subsidiaries in respect of earn-out obligations owing in respect of acquisitions consummated prior
to the Closing Date to the extent such amount has not otherwise reduced Consolidated Net Income.



     “Exchange” has the meaning specified in Section 5.01(b).



     “Excluded Property” means, with respect to any Loan Party, including any Person that
becomes a Loan Party after the Closing Date as contemplated by Section 7.12, (a) any owned,
licensed or leased real or personal Property which is located outside of the United States unless
requested by the Administrative Agent or the Required Lenders, (b) any leased real property unless
requested by the Administrative Agent or the Required Lenders, (c) any personal Property
(including, without limitation, motor vehicles) in respect of which perfection of a Lien is not
either (i) governed by the UCC or (ii) effected by appropriate evidence of the Lien being filed in
either the United States Copyright Office or the United States Patent and Trademark Office, unless
requested by the Administrative Agent or the Required Lenders, (d) the Equity Interests of



14









 







any direct Foreign Subsidiary of a Loan Party to the extent not required to be pledged to
secure the Obligations pursuant to Section 7.14(a) and (e) any Property which, subject to
the terms of Section 8.09, is subject to a Lien of the type described in Section
8.01(i) pursuant to documents which prohibit such Loan Party from granting any other Liens in
such Property.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes (in lieu of net income taxes), capital taxes and net worth taxes
imposed on it, by any jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by
the United States or any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender, any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability
(other than as a result of a Change in Law) to comply with Section 3.01(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 3.01(a).



     “Existing Credit Agreement” means that certain Amended and Restated Credit Agreement
dated as of December 28, 2004 among the Borrower, certain subsidiaries of the Borrower identified
therein, as guarantors, the lenders party thereto, and Bank of America, as administrative agent.



     “Facilities” means, at any time, a collective reference to the facilities and real
properties owned, leased or operated by the Borrower or any Subsidiary.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letter” means that certain letter agreement dated as of December 27, 2005 among
Holdings, Bank of America, Banc of America Bridge LLC and the Arranger.



     “Financial Covenants” has the meaning specified in Section 8.11(c).



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this




15









 






definition, the United States, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.




     “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



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



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.



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




     (a) all obligations for borrowed money, whether current or long-term (including the
Obligations) and all obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;




     (b) all purchase money Indebtedness;




     (c) the principal portion of all obligations under conditional sale or other title
retention agreements relating to Property purchased by Holdings or any Subsidiary (other
than customary reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business);




     (d) all obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments;




     (e) all obligations in respect of the deferred purchase price of property or services
(other than (i) trade accounts payable in the ordinary course of business and, in each case,
not past due for more than 60 days after the date on which such trade account payable was
created and (ii) Deferred Purchase Price Obligations that are not included as indebtedness
or liabilities on the balance sheet of such Person in accordance with GAAP);




     (f) the Attributable Indebtedness of Capital Leases, Sale and Leaseback Transactions
and Synthetic Leases;




     (g) the Attributable Indebtedness of Securitization Transactions;




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



16









 






     (i) all Funded Indebtedness of others secured by (or for which the holder of such
Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any
Lien on, or payable out of the proceeds of production from, Property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed;




     (j) all Guarantees with respect to Funded Indebtedness of the types specified in
clauses (a) through (i) above of another Person; and




     (k) all Funded Indebtedness of the types referred to in clauses (a) through
(j) above of any partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which such Person is a general partner
or joint venturer, except to the extent that Funded Indebtedness is expressly made
non-recourse to such Person.


For purposes hereof, the amount of any direct obligation arising under letters of credit (including
standby and commercial letters of credit), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments shall be the maximum amount available to be drawn thereunder.




     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, consistently applied and as in effect from time to time.



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



     “Guarantee” means, as to any Person, without duplication (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing
any Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any such obligation of
such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of such Indebtedness or
other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to
maintain working capital, equity capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any



17









 







such Lien) provided that the term “Guarantee” shall not include endorsements for
collection or deposit, in the ordinary course of business. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.



     “Guarantors” means (i) Holdings and (ii) each Domestic Subsidiary of the Borrower
identified as a “Guarantor” on the signature pages hereto and each other Person that joins as a
Guarantor pursuant to Section 7.12, in each case, together with their successors and
permitted assigns.



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Secured Parties
pursuant to Article IV, together with each other guaranty, guaranty supplement and joinder
agreement delivered pursuant to Section 7.12.



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



     “Holdings” has the meaning specified in the Preliminary Statements hereto.



     “Honor Date” has the meaning set forth in Section 2.03(c).



     “Immaterial Subsidiary” means any Subsidiary which has Property with a fair market
value of less than $100,000.



     “Increase Date” has the meaning specified in Section 2.14(a).



     “Incremental Commitments” has the meaning specified in Section 2.14(a).



     “Incremental Facility” has the meaning specified in Section 2.14(a).



     “Incremental Term Facility” has the meaning specified in Section 2.14(a).



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




     (a) all Funded Indebtedness;




     (b) the Swap Termination Value of any Swap Contract;




     (c) all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) and (b) above of any other Person; and



18









 






     (d) all Indebtedness of the types referred to in clauses (a) through
(c) above of any partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which such Person is a general partner
or joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitee” has the meaning specified in Section 11.04(b).



     “Interest Payment Date” means (a) as to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date of the Credit Facility under which
such Loan was made; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three months after the
beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate
Loan (including a Swing Line Loan), the last Business Day of each March, June, September and
December and the Maturity Date of the Credit Facility under which such Loan was made.



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one (1), two (2), three (3) or six (6) months thereafter, or, if available
to all Revolving Lenders or Term Lenders, as applicable, nine (9) or twelve (12) months thereafter,
in each case as selected by the Borrower in its Loan Notice subject to availability;
provided that:




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




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




     (iii) no Interest Period shall extend beyond the Maturity Date of the Credit Facility
under which such Loan was made.


Notwithstanding the foregoing, the Administrative Agent agrees to permit, and each Lender shall
provide, on a one-time basis, an Interest Period of less than one (1) month commencing on the
Closing Date in order to align the end dates of subsequent Interest Periods with the dates on which
amortization amounts are due pursuant to Section 2.07(b) of this Agreement.




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or interest in, another



19









 







Person, including any partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) an
Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



     “Investors” means iPayment Investors, Inc., a Delaware corporation.



     “Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any Property of Holdings or any of its
Subsidiaries.



     “IP Rights” has the meaning specified in Section 6.17.



     “IRS” means the United States Internal Revenue Service.



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



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



     “Joinder Agreement” has the meaning specified in Sections 4.08.



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



     “L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of
its participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage.



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



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



     “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



20









 





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



     “Lenders” means each of the Persons identified as a “Revolving Lender”, “Term Lender”
and/or “Swing Line Lender” on the signature pages hereto and their successors and assigns.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued hereunder.



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



     “Letter of Credit Expiration Date” means the day that is thirty days prior to the
Maturity Date then in effect with respect to the Revolving Facility (or, if such day is not a
Business Day, the next preceding Business Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $25,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



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



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Revolving Loan, a Term Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, the Guaranty,
the Collateral Documents and the Fee Letter.



     “Loan Notice” means a notice of (a) a Borrowing of Revolving Loans, (b) a Borrowing of
Term Loans, (c) a conversion of Loans from one Type to the other, or (d) a continuation of
Eurodollar Rate Loans, in each case pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit 2.02.



21









 





     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Management Investors” means the officers, directors, employees and other members of
the management of any Parent, Holdings or any of their respective Subsidiaries, or family members
or relatives thereof (provided that, solely for purposes of the definition of “Permitted
Holders,” such relatives shall include only those Persons who are or become Management Investors in
connection with estate planning for or inheritance from other Management Investors, as determined
in good faith by the Borrower, which determination shall be conclusive), or trusts, partnerships or
limited liability companies for the benefit of any of the foregoing, or any of their heirs,
executors, successors and legal representatives, who at any date beneficially own or have the right
to acquire, directly or indirectly, Equity Interests of the Borrower or any Parent.



     “Mastercard” means Mastercard Incorporated and its Subsidiaries.



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



     “Material Contract” means any contract, the cancellation or termination of which would
reasonably be expected to have a Material Adverse Effect.



     “Material Subsidiary” means, at any time, any direct or indirect Subsidiary of the
Borrower having (a) assets in an amount equal to at least 7.5% of the amount of the total assets of
the Borrower and its Subsidiaries, determined as of the last day of the most recent fiscal quarter
of the Borrower at such time or (b) revenues in an amount equal to at least 7.5% of the amount of
the revenues of the Borrower and its Subsidiaries on a consolidated basis for the twelve-month
period ending on the last day of the most recent fiscal quarter of the Borrower at such time.



     “Maturity Date” means (a) with respect to the Revolving Facility, May 10, 2012 and (b)
with respect to the Term Facility, May 10, 2013, in each case, subject to Section 9.02.



     “Measurement Period” means, at any date of determination, the most recently completed
four fiscal quarters of the Borrower for which financial statements have been or are required to be
delivered pursuant to Section 7.01(a) or 7.01(b).



     “Merchant Portfolio” means a portfolio of contracts for credit card servicing
transactions with merchants.



     “Merger” has the meaning specified in the Preliminary Statements hereto.



     “Merger Agreement” has the meaning specified in the Preliminary Statements hereto.



     “Merger Consideration” has the meaning specified in the Merger Agreement.



22









 





     “MergerCo” has the meaning specified in the Preliminary Statements hereto.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



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



     “Nasdaq” means the National Association of Securities Dealers, Inc. Automated
Quotation System.



     “Net Cash Proceeds” means:




     (a) in respect of any Disposition or Involuntary Disposition, the aggregate cash or
Cash Equivalents proceeds received by Holdings or any Subsidiary in respect thereof, net of
(i) direct costs incurred in connection therewith (including, without limitation, legal,
accounting and investment banking fees, and sales commissions), (ii) taxes paid or payable
as a result thereof (or if the Borrower is an “S corporation” or “qualified subchapter S
subsidiary,” each within the meaning of the Internal Revenue Code, Permitted Tax
Distributions made or accrued by the Borrower with respect to income or gain arising as a
result of such Disposition or Involuntary Disposition) and (iii) the amount necessary to
retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the
Administrative Agent) on the related Property; it being understood that “Net Cash Proceeds”
shall include, without limitation, any cash or Cash Equivalents received upon the sale or
other disposition of any non-cash consideration received by Holdings, the Borrower or any
Subsidiary in any Disposition or Involuntary Disposition; and




     (b) in respect of incurrence or issuance of any Indebtedness by Holdings or any
Subsidiary, the aggregate cash or Cash Equivalent proceeds received by Holdings or any
Subsidiary in respect thereof, net of all taxes, fees (including investment banking fees),
underwriting discounts and commissions, costs and other out-of-pocket expenses, incurred in
connection therewith.



     “Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).



     “Note” means any of the Term Notes, the Revolving Notes and the Swing Line Note.



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



23









 







pursuant to Section 8.03(d) and (b) all obligations under any Treasury Management
Agreement between any Loan Party and any Lender or Affiliate of a Lender.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



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



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



     “Parent” means any of Investors, Holdings and any other Person of which the Borrower
at any time is or becomes a Subsidiary after the Closing Date.



     “Parent Company” has the meaning specified in the definition of “Change of
Control”.



     “Participant” has the meaning specified in Section 11.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.



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



     “Permitted Acquisitions” means Investments consisting of an Acquisition by the
Borrower or any of its Subsidiaries that is a Loan Party, provided that (a) the Property
acquired (or the Property of the Person acquired) in such Acquisition is used or useful in the same
or a similar line of business as Holdings and its Subsidiaries were engaged in on the Closing Date
(or



24









 







any reasonable extensions or expansions thereof), (b) the Administrative Agent shall have
received all items in respect of the Equity Interests or Property acquired in such Acquisition
required to be delivered by the terms of Section 7.12, (c) in the case of an Acquisition of
the Equity Interests of another Person, the board of directors (or other comparable governing body)
of such other Person shall have duly approved such Acquisition, (d) for any Acquisition for which
the Cash Consideration paid by Holdings or any Subsidiary is more than $10,000,000, the Borrower
shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
that, upon giving effect to such Acquisition on a Pro Forma Basis, the Loan Parties would be in
compliance with the financial covenants set forth in Section 8.11 as of the most recent
fiscal quarter for which the Borrower was required to deliver financial statements pursuant to
Section 7.01(a) or (b), (e) the representations and warranties made by the Loan
Parties in each Loan Document shall be true and correct in all material respects at and as if made
as of the date of such Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date, (f) if such transaction
involves the purchase of an interest in a partnership between Holdings (or a Subsidiary) as a
general partner and entities unaffiliated with Holdings or such Subsidiary as the other partners,
such transaction shall be effected by having such equity interest acquired by a corporate holding
company directly or indirectly wholly-owned by the Borrower newly formed for the sole purpose of
effecting such transaction and (g) the aggregate Cash Consideration paid by Holdings and its
Subsidiaries for all Acquisitions, together with any Investments in Equity Interests pursuant to
Section 8.02(j), shall not exceed (x) $25,000,000 in any fiscal year to the extent the
Consolidated Leverage Ratio shall be equal to or greater than 4.50:1.00, (y) $60,000,000 in any
fiscal year to the extent the Consolidated Leverage Ratio shall be less than 4.50:1.00 but greater
than 2.50:1.00 and (z) $100,000,000 in any fiscal year to the extent the Consolidated Leverage
Ratio shall be less than or equal to 2.50:1.00.



     “Permitted Holders” means, collectively, (a) the Principal Shareholders, the
Management Investors and any of their Affiliates, (b) any investment fund or vehicle managed,
sponsored or advised by the Principal Shareholders or Affiliates thereof, and any Affiliate or
successor to any such investment fund or vehicle and (c) any Person acting in the capacity of an
underwriter in connection with a public or private offering of Equity Interests of Holdings or any
Parent Company.



     “Permitted Liens” means, at any time, Liens in respect of Property of the Borrower or
any of its Subsidiaries permitted to exist at such time pursuant to the terms of Section
8.01.



     “Permitted Merchant Portfolio Transfers” means Dispositions of immaterial Merchant
Portfolios (with “immaterial” meaning, with respect to Merchant Portfolios only, that the Merchant
Portfolio has an aggregate value of less than $5,000,000) in an aggregate amount not to exceed
$25,000,000 in any fiscal year.



     “Permitted Tax Distributions” means, for or in respect of any Tax Period of the
Borrower, a dividend or distribution to holders of the Borrower’s Equity Interests in an amount
equal to the product of (x) each amount included in Taxable Income for such Tax Period multiplied
by (y) the Borrower’s good-faith estimate of the highest federal, state and local income tax rates
actually applicable to any holder of Equity Interests in Holdings for the taxable



25









 







period that includes the distribution (but in no event, shall the estimated rates exceed the
Assumed Tax Rate with respect to each amount).



     “Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of
business; (b) Permitted Merchant Portfolio Transfers; (c) Dispositions of inventory, machinery,
equipment and other fixed assets no longer used or useful in the conduct of business of Holdings
and its Subsidiaries that are Disposed of in the ordinary course of business; (d) Dispositions of
Property to Holdings or any Subsidiary; provided that if the transferor of such Property is
a Loan Party (i) the transferee thereof must be a Loan Party or (ii) to the extent such transaction
constitutes an Investment, such transaction is permitted under Section 8.02; (e)
Dispositions of accounts receivable in connection with the collection or compromise thereof; (f)
licenses, sublicenses, leases or subleases granted to others not interfering in any material
respect with the business of Holdings and its Subsidiaries; and (g) the sale or disposition of Cash
Equivalents for fair market value.



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



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



     “Pledge Agreement” means the Pledge Agreement executed by each Loan Party in
connection with this Agreement in substantially the form of Exhibit 5.01(a)(iv), as
amended, amended and restated or otherwise modified from time to time.



     “Pledged Shares” has the meaning specified in Section 2 of the Pledge
Agreement.



     “Post Petition Interest” has the meaning specified in Section 4.07(b).



     “Principal Shareholders” means, collectively, (a) Gregory S. Daily, (b) Carl A.
Grimstad and (c) Harrold Stream Entity.



     “Pro Forma Basis” means that any Disposition (other than Permitted Transfers),
Involuntary Disposition or Acquisition (including the Merger) shall be deemed to have occurred as
of the first day of the most recent four (4) fiscal quarter period preceding the date of such
transaction for which the Borrower was required to deliver financial statements pursuant to
Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to any
Disposition or Involuntary Disposition, income statement and cash flow statement items (whether
positive or negative) attributable to the Property disposed of shall be excluded to the extent
relating to any period occurring prior to the date of such transaction and (b) with respect to any
Acquisition (including the Merger), income statement items attributable to the Person or Property
acquired shall be included to the extent relating to any period applicable in such calculations to
the extent (i) such items are not otherwise included in such income statement items for the
Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set
forth in Section 1.01 and (ii) such items are supported by financial statements or other
information reasonably satisfactory to the Administrative Agent.



26









 





     “Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the
Borrower containing reasonably detailed calculations of the financial covenants set forth in
Section 8.11 as of the most recent fiscal quarter end for which the Borrower was required
to deliver financial statements pursuant to Section 7.01(a) or (b) after giving
effect to the applicable transaction on a Pro Forma Basis.



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



     “Register” has the meaning specified in Section 11.06(c).



     “Registered Public Accounting Firm” has the meaning specified by the Securities Laws
and shall be independent of Holdings and its Subsidiaries as prescribed by the Securities Laws.



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



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



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



     “Required Lenders” means, as of any date of determination, Lenders holding more than
fifty percent (50%) of the sum of (a) the Total Outstandings (with the aggregate amount of each
Revolving Lender’s risk participation and funded participation in L/C Obligations and Swing Line
Loans being deemed “held” by such Revolving Lender for purposes of this definition) and (b) the
aggregate unused Revolving Commitments; provided that the unused Revolving Commitment of,
and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.



     “Required Percentage” means, with respect to any fiscal year of the Borrower,
seventy-five percent (75%); provided, that if at the time of any prepayment required by
Section 2.05(b)(iii) in respect of such fiscal year the Consolidated Leverage Ratio as of
the last day of the most recent fiscal quarter for which financial statements have been delivered
pursuant to Sections 7.01(a) or (b) (together with the related Compliance
Certificate) is (a) less than 4.50:1.00 but greater than or equal to 3.00:1.00, such percentage
shall be fifty percent (50%) or (b) less than 3.00:1.00, such percentage shall be zero percent
(0%).



     “Required Principal Payments” means, with respect to any Person for any period, the
sum of all regularly scheduled principal payments or redemptions of outstanding Funded Indebtedness
made during such period.



     “Required Revolving Lenders” means, as of any date of determination, Revolving Lenders
holding more than fifty percent (50%) of the sum of (a) the Total Revolving



27









 







Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving
Lender for purposes of this definition) and (b) the aggregate unused Revolving Commitments;
provided that the unused Revolving Commitment of, and the portion of the Total Revolving
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Revolving Lenders.



     “Required Term Lenders” means, as of any date of determination, Term Lenders holding
more than fifty percent (50%) of the aggregate principal amount of the Term Loans outstanding on
such date; provided that the Term Loans held by any Defaulting Lender shall be excluded for
purposes of making a determination of Required Term Lenders.



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



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of any Person or any of its
Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such Equity Interests or on account of any return
of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or
any setting apart of funds or Property for any of the foregoing.



     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by
each of the Revolving Lenders pursuant to Section 2.01(a).



     “Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to Section 2.01(a), (b) purchase participations in
L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name
on Schedule 2.01 under the caption “Revolving Commitment” or opposite such caption in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as
such amount may be adjusted from time to time in accordance with this Agreement.



     “Revolving Facility” means, at any time, the aggregate amount of the Revolving
Lenders’ Revolving Commitments at such time.



     “Revolving Facility Increase” has the meaning specified in Section 2.14(a).



     “Revolving Lender” means, at any time, any Lender that has a Revolving Commitment at
such time.



     “Revolving Loan” has the meaning specified in Section 2.01(a).



28









 





     “Revolving Note” means any of the promissory notes of the Borrower in favor of each of
the Lenders holding a Revolving Commitment evidencing the Revolving Loans provided pursuant to
Section 2.01(a), individually or collectively, as appropriate, as such promissory notes may
be amended, modified, supplemented, extended, renewed or replaced from time to time.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “Sale and Leaseback Transaction” means, with respect to Holdings or any Subsidiary,
any arrangement, directly or indirectly, with any Person whereby Holdings or such Subsidiary shall
sell or transfer any Property used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such Property or other Property that it intends to use for
substantially the same purpose or purposes as the Property being sold or transferred.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Secured Obligations” has the meaning specified in Section 1 of the Security
Agreement.



     “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C
Issuer, any Person that is a Lender or an Affiliate of a Lender in its capacity as a party to a
Swap Contract or a Treasury Management Agreement, each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 10.05, and the other Persons the
Secured Obligations owing to which are or are purported to be secured by the Collateral under the
terms of the Collateral Documents.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Securities Laws” means the Securities Act, the Securities Exchange Act,
Sarbanes-Oxley Act of 2002, and, in each case, the rules and regulations of the SEC promulgated
thereunder, and the applicable accounting and auditing principles, rules, standards and practices
promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board,
as each of the foregoing may be amended and in effect on any applicable date under this Agreement.



     “Securitization Transaction” means, with respect to any Person, any financing
transaction or series of financing transactions (including factoring arrangements) pursuant to
which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant
a security interest in, accounts, payments, receivables, rights to future lease payments or
residuals or similar rights to payment to a special purpose subsidiary or Affiliate of such Person.



     “Security Agreement” means the Security Agreement executed by each Loan Party in
connection with this Agreement in substantially the form of Exhibit 5.01(a)(iii), as
amended, amended and restated or otherwise modified from time to time.



29









 





     “Senior Leverage Ratio” means, as of the date of determination, the ratio of the sum
of (a) Consolidated Funded Indebtedness as of such date minus Subordinated Indebtedness and
minus cash and Cash Equivalents (excluding any U.S. Securities having maturities more than
twelve months from the date of acquisition) of the Borrower and its Subsidiaries on such date up to
$5,000,000 to (b) Consolidated EBITDA for the most recently completed Measurement Period.



     “Senior Subordinated Notes” means the 93/4% unsecured senior subordinated notes of the
Borrower due 2014 in an initial aggregate principal amount of $205,000,000 issued pursuant to the
Senior Subordinated Notes Indenture, as such notes may be exchanged for substantially similar
unsecured senior notes that have been registered under the Securities Act, and as such notes or
such substantially similar notes may be amended, supplemented, waived or otherwise modified from
time to time in accordance with Section 8.15 to the extent applicable.



     “Senior Subordinated Notes Documents” means the Senior Subordinated Notes Indenture,
the Senior Subordinated Notes, the Registration Rights Agreement, dated as of May May 10, 2006,
among the Borrower, its Subsidiaries that are Guarantors, Banc of America Securities LLC and Wells
Fargo Bank, National Association and the Purchase Agreement, dated as of May 3, 2006, among the
Borrower, its Subsidiaries that are Guarantors, Banc of America Securities LLC and the other
initial purchasers thereto.



     “Senior Subordinated Notes Indenture” means the Indenture, dated as of May 10, 2006,
among the Borrower and Wells Fargo Bank, National Association, as trustee, pursuant to which the
Senior Subordinated Notes are issued, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with Section 8.15 to the extent applicable.



     “Shares” has the meaning specified in the Merger Agreement.



     “Solvency Certificate” means a certificate signed by a Responsible Officer of the
Borrower, substantially in the form of Exhibit 5.01(a)(xi).



     “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person
is not engaged in business or a transaction, and is not about to engage in business or a
transaction, for which such Person’s property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.



     “Specified Subsidiary” has the meaning specified in Section 7.12(b).



30









 





     “Sponsor Bank” means a federal or state chartered bank which is a member of the Visa
and/or Mastercard card associations and which processes bankcard transactions on behalf of Holdings
and its Subsidiaries.



     “Subordinated Indebtedness” means, collectively, (a) the Senior Subordinated Notes and
(b) any other Indebtedness of Holdings or any Subsidiary which by its terms is subordinated to the
Obligations (i) to the same or greater extent as the Senior Subordinated Notes or (ii) in a manner
and to an extent acceptable to the Administrative Agent.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of Voting Stock is at
the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of Holdings.



     “Supplemental Collateral Agent” has the meaning specified in Section 10.05.



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



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



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



31









 





     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Borrowing of Swing Line Loans pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
2.04.



     “Swing Line Note ” means the promissory note of the Borrower in favor of the Swing
Line Lender evidencing the Swing Line Loans provided pursuant to Section 2.04, as such
promissory note may be amended, modified, supplemented, extended, renewed or replaced from time to
time.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $7,500,000 and (b)
the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to,
the Aggregate Revolving Commitments.



     “Syndication Agent” means JPMorgan Chase Bank, N.A., as syndication agent under the
Loan Documents.



     “Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as an operating lease
or does not otherwise appear on a balance sheet under GAAP.



     “Tax Period” means a taxable year within the meaning of the Internal Revenue Code.



     “Taxable Income” means, for or in respect of any Tax Period and any type of income
(e.g., ordinary income, net capital gain), the taxable income of the Borrower determined for
federal income tax purposes as if the Borrower were an individual and Wholly Owned Subsidiaries of
the Borrower were disregarded entities for federal income tax purposes.



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



     “Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the
Term Lenders pursuant to Section 2.01(b).



     “Term Commitment” means, as to each Term Lender, its obligation to make Term Loans to
the Borrower pursuant to Section 2.01(b) in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Term Lender’s name on Schedule
2.01 under the caption “Term Commitment” or opposite such caption in the Assignment and
Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount
may be adjusted from time to time in accordance with this Agreement.



32









 





     “Term Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate
amount of Term Commitments at such time and (b) thereafter, the aggregate principal amount of the
Term Loans of all Term Lenders outstanding at such time.



     “Term Lender” means, at any time, any Lender that has a Term Commitment at such time.



     “Term Loan” has the meaning specified in Section 2.01(b).



     “Term Note” means any of the promissory notes of the Borrower in favor of the Lenders
holding a Term Commitment evidencing the Term Loans provided pursuant to Section 2.01(b),
individually or collectively, as appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.



     “Threshold Amount” means $6,000,000.



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



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



     “Transaction” means, collectively, (a) the organization of Holdings and Investors and
the issuance of all of the Equity Interests of Investors to the Principal Shareholders, (b) the
Exchange, (c) the consummation of the Merger, (d) the issuance and sale of the Senior Subordinated
Notes, (e) the entering into by the Loan Parties and their applicable Subsidiaries of the Loan
Documents and the Senior Subordinated Notes Documents to which they are or are intended to be a
party, (f) the refinancing of the Existing Credit Agreement and certain other outstanding
Indebtedness of the Company and its Subsidiaries and the termination of all commitments with
respect to the Existing Credit Agreement and (g) the payment of the Transaction Costs.



     “Transaction Costs” means the out-of-pocket costs and expenses incurred by Holdings or
any Subsidiary in connection with the Transaction, the financing of the Transaction and any
refinancing of such financing (including fees paid to the Lenders and fees and expenses of the
Management Investors and their counsel and advisors).



     “Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, funds transfer, automated
clearinghouse, zero balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.



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



     “UCC” means the Uniform Commercial Code in effect in any applicable jurisdiction form
time to time.



33









 





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



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



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



     “U.S. Securities” means securities issued or directly and fully guaranteed or insured
by the United States or any agency or instrumentality thereof (provided that the full faith and
credit of the United States is pledged in support thereof).



     “Visa” means Visa International Service Association, Visa USA and its related
memberships and associations.



     “Voting Stock” means, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a contingency.



     “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: (a) the sum of the products obtained by
multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in respect thereof, by
(ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment by (b) the then outstanding principal amount of such Indebtedness.



     “Wholly Owned Subsidiary” means any Person one hundred percent (100%) of whose Equity
Interests are at the time owned by the Borrower directly or indirectly through other Persons one
hundred percent (100%) of whose Equity Interests are at the time owned, directly or indirectly, by
the Borrower.



1.02 Other Interpretive Provisions.




     With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise, (i)
any definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any restrictions on



34









 







such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, (iii) the words “herein”, “hereof”,
“hereto” and “hereunder”, and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, the Loan Document in which such references appear, (v) any reference to
any law shall include all statutory and regulatory provisions consolidating, amending
replacing or interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or supplemented
from time to time, and (vi) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.




     (b) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including”; the words “to” and
“until” each mean “to but excluding”; and the word “through” means
“to and including”.




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



1.03 Accounting Terms; Calculation of Financial Covenants.




     (a) Generally. Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements; provided, however, that calculations of
Attributable Indebtedness under any Synthetic Lease or the implied interest component of any
Synthetic Lease shall be made by the Borrower in accordance with accepted financial practice and
consistent with the terms of such Synthetic Lease.



     (b) Changes in GAAP. The Borrower will provide a written summary of material changes
in GAAP and in the consistent application thereof with each annual and quarterly Compliance
Certificate delivered in accordance with Section 7.02(a). If at any time any change in
GAAP would affect the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the Administrative
Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with GAAP prior to such change
therein and (ii) the Borrower shall provide to the Administrative Agent financial statements and
other documents required under this Agreement or as reasonably requested hereunder setting



35









 







forth a
reconciliation between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.



     (c) Calculation of Financial Covenants. Notwithstanding the above, the parties hereto
acknowledge and agree that all calculations of the financial covenants in Section 8.11
(including for purposes of determining the Applicable Rate) shall be made as follows with respect
to any Disposition, Involuntary Disposition (other than Permitted Transfers) and Acquisition:




     (i) with respect to any Disposition (other than Permitted Transfers) or Involuntary
Disposition, the financial covenants shall be calculated on a Pro Forma Basis;




     (ii) with respect to any Acquisition (including the Merger), the financial covenants
shall be calculated as follows:




     (A) if such calculation is made as of the end of a fiscal quarter ending
prior to the first full fiscal quarter ending after the date of consummation of
such Acquisition, the financial covenants shall be calculated on a Pro Forma Basis
for such Acquisition;




     (B) if such calculation is made as of the end of the first, second or third
full fiscal quarter ending after the date of consummation of such Acquisition, the
financial covenants shall be calculated on an annualized basis for such
Acquisition such that:




     (1) as of the end of the first full fiscal quarter ending after the
date of consummation of such Acquisition, each component of the financial
covenant calculations attributable to the acquired Person shall be the
actual financial results of the acquired Person for the one fiscal quarter
period then ended multiplied by four (4);




     (2) as of the end of the second full fiscal quarter ending after the
date of consummation of such Acquisition, each component of the financial
covenant calculations attributable to the acquired Person shall be the
actual financial results of the acquired Person for the two fiscal quarter
period then ended multiplied by two (2); and




     (3) as of the end of the third full fiscal quarter ending after the
date of consummation of such Acquisition, each component of the financial
covenant calculations attributable to the acquired Person shall be the
actual financial results of the acquired Person for the three fiscal quarter
period then ended multiplied by one and one-third (1 1/3);




     (C) if such calculation is made as of the end of the fourth fiscal quarter
ending after the date of consummation of such Acquisition or as of the end of any
fiscal quarter ending thereafter, the financial covenants shall be calculated on a
historical basis for such Acquisition.



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1.04 Rounding.




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



1.05 Times of Day.




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



1.06 Letter of Credit Amounts.




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



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 The Loans.




     (a) Revolving Borrowings. Subject to the terms and conditions set forth herein, each
Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the
Borrower in Dollars from time to time on any Business Day during the Availability Period in an
aggregate amount not to exceed at any time outstanding the amount of such Revolving Lender’s
Revolving Commitment; provided, however, that after giving effect to any Revolving
Borrowings, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Revolving
Lender, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all
L/C Obligations, plus such Revolving Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment.
Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Revolving Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein, provided, however,
all Revolving Borrowings made on the Closing Date shall be made as Base Rate Loans.



     (b) The Term Borrowing. Subject to the terms and conditions set forth herein, each
Term Lender severally agrees to make a single loan to the Borrower on the Closing Date in an



37









 







amount
not to exceed such Term Lender’s Term Commitment (each such loan, a “Term Loan”). The Term
Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with
their respective Term Commitments. Amounts borrowed under this Section 2.01(b) and repaid
or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans as
further provided herein.



2.02 Borrowings, Conversions and Continuations of Loans.




     (a) Each Term Borrowing, each Revolving Borrowing, each conversion of Term Loans or Revolving
Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon
the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or continuation of,
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on
the requested date of any Borrowing of Base Rate Loans; provided, however, that if
the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one, two,
three or six months in duration as provided in the definition of “Interest Period”, the applicable
notice must be received by the Administrative Agent not later than 11:00 a.m. four Business Days
prior to the requested date of such Borrowing, conversion or continuation, whereupon the
Administrative Agent shall give prompt notice to the Term Lenders or Revolving Lenders, as
applicable, of such request and determine whether the requested Interest Period is acceptable to
all of them. Not later than 10:00 a.m., three Business Days before the requested date of such
Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which
notice may be by telephone) whether or not the requested Interest Period has been consented to by
the applicable Lenders. Each telephonic notice by the Borrower pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each
Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount
of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in
Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.
Each Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Term Borrowing, a Revolving Borrowing, a
conversion of Term Loans or Revolving Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or
Revolving Loans are to be converted, and (v) if applicable, the duration of the Interest Period
with respect thereto. If the Borrower fails to specify a Type of a Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable
Term Loans or Revolving Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any Loan
Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.



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     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Term Loans or Revolving Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans as described in the preceding subsection. In the case of a Term Borrowing or a
Revolving Borrowing, each Appropriate Lender shall make the amount of its Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s Office not later
than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial
Credit Extension, Section 5.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date of a Borrowing of Revolving Loans, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in
full of any such L/C Borrowings and, second, shall be made available to the Borrower as
provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of the Interest Period for such Eurodollar Rate Loan unless the Borrower pays
the amount due, if any, under Section 3.05 in connection therewith. During the existence
of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans
without the consent of the Required Lenders, and the Required Lenders may demand that any or all of
the then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.



     (d) The Administrative Agent shall promptly notify the Borrower and the applicable Lenders of
the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of
America’s prime rate used in determining the Base Rate promptly following the public
announcement of such change.



     (e) After giving effect to all Term Borrowings, all conversions of Term Loans from one Type to
the other, and all continuations of Term Loans of the same Type, there shall not be more than five
(5) Interest Periods in effect in respect of the Term Facility. After giving effect to all
Revolving Borrowings, all conversions of Revolving Loans from one Type to the other, and all
continuations of Revolving Loans as the same Type, there shall not be more than seven (7) Interest
Periods in effect in respect of the Revolving Facility.



     (f) The failure of any Lender to make the Loan to be made by it as part of any borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make the loan on the date of
such borrowing, but no Lender shall be responsible for the failure of any other Lender to make the
Loan to be made by such other Lender on the date of any borrowing.



39









 





2.03 Letters of Credit.




     (a) The Letter of Credit Commitment.




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




     (ii) The L/C Issuer shall not issue any Letter of Credit if:




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




     (B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such expiry
date.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or



40









 







request that the L/C
Issuer refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the
L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C Issuer in good
faith deems material to it;




     (B) the issuance of such Letter of Credit would violate one or more policies
of the L/C Issuer;




     (C) except as otherwise agreed by the Administrative Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount less than $100,000,
in the case of a commercial Letter of Credit, or $500,000, in the case of a
standby Letter of Credit;




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




     (E) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




     (F) a default of any Lender’s obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder,
unless the L/C Issuer has entered into satisfactory arrangements with the Borrower
or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender.




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




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




     (vi) The L/C Issuer shall act on behalf of the Revolving Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer
shall have all of the benefits and immunities (A) provided to the Administrative Agent in
Article X with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in Article X included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C Issuer.



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



41









 






     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least five (5)
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may require. In the case of a request for an amendment
of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally,
the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may
require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Revolving Lender, the Administrative Agent
or any Loan Party, at least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable conditions
contained in Article V shall not be satisfied, then, subject to
the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Borrower or the applicable Subsidiary or enter into
the applicable amendment, as the case may be, in each case in accordance with the L/C
Issuer’s usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter
of Credit in an amount equal to the product of such Revolving Lender’s Applicable Revolving
Percentage times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary



42









 







thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the
L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date
not later than the Letter of Credit Expiration Date; provided, however, that
the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of the provisions
of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before the day that is five
Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that
the Required Revolving Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Revolving Lender or the Borrower that one or more of the
applicable conditions specified in Section 5.02 is not then satisfied, and in each
case directing the L/C Issuer not to permit such extension.




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative
Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under
a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse
the L/C Issuer through the Administrative Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Revolving Lender of the
Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”),
and the amount of such Revolving Lender’s Applicable Revolving Percentage thereof. In such
event, the Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the principal amount of Base
Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving
Commitments and the conditions set forth in Section 5.02 (other than the delivery of
a Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.




     (ii) Each Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Applicable



43









 







Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Revolving Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Revolving Lender’s payment
to the Administrative Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Revolving Lender in satisfaction of
its participation obligation under this Section 2.03.




     (iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Revolving Lender’s Applicable Revolving Percentage of
such amount shall be solely for the account of the L/C Issuer.




     (v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Revolving Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Lender’s obligation to make Revolving
Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 5.02 (other than delivery by the Borrower of a Loan
Notice). No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as provided herein.




     (vi) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the L/C Issuer any amount required to be paid by such Revolving Lender
pursuant to the foregoing provisions of this Section 2.03(c) by the time specified
in Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking
industry rules on interbank compensation. A certificate of the L/C Issuer



44









 







submitted to any
Revolving Lender (through the Administrative Agent) with respect to any amounts owing under
this clause (vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) If at any time after the L/C Issuer has made a payment under any Letter of Credit
and has received from any Revolving Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), the Administrative Agent receives for
the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
cash collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Revolving Lender its Applicable Revolving Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s L/C Advance was outstanding) in the same funds as those received
by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Revolving Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Revolving Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of the
Revolving Lenders under this clause shall survive the payment in full of the Obligations and
the termination of this Agreement.



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




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




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




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



45









 






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




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



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



     (f) Role of L/C Issuer. Each Revolving Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by such
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the Revolving Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such
rights and remedies as it may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer
may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused
by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit unless the
L/C Issuer is prevented or prohibited from so paying as a result of any order or directive of any
court or other Governmental Authority. In furtherance and not in limitation of the foregoing, the
L/C Issuer may accept documents that appear on their face to be in order, without responsibility
for further investigation, regardless of any notice or information to the contrary, and the L/C
Issuer shall not



46









 







be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding and partially or wholly undrawn, the Borrower shall
within three (3) Business Days Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the date of such L/C
Borrower or the Letter of Credit Expiration Date, as the case may be) or, in the case of clause
(ii), provide a back to back letter of credit in a face amount at least equal to the then
undrawn amount of such Letter of Credit from an issuer and in form and substance satisfactory to
the L/C Issuer in its sole discretion. Sections 2.05 and 9.02(c) set forth certain
additional requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.05 and Section 9.02(c), “Cash Collateralize” means to
pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance reasonably satisfactory to the Administrative Agent and the
L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of
the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked
deposit accounts at the financial institution acting as Administrative Agent.



     (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing
Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender (other than a Defaulting Lender, which portion shall be paid
to the L/C Issuer) in accordance with its Applicable Revolving Percentage a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit equal to (x) the Applicable Rate
from time to time on Revolving Loans that are Eurodollar Rate Loans times (y) the daily
maximum amount available to be drawn under such Letter of Credit. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i)
computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after
the end of each March, June, September and December, commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand. If there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate from time to time on Revolving Loans that are Eurodollar Rate Loans separately for
each period during such quarter that such Applicable Rate was in effect.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect




47










 







to
each Letter of Credit, which shall be 0.125% of the actual daily maximum amount available to be
drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such
Letter of Credit) computed on a quarterly basis in arrears. Such fronting fee shall be due and
payable on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. In addition, the Borrower shall pay
directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters
of credit as from time to time in effect. Such customary fees and standard costs and charges are
due and payable on demand and are nonrefundable.



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



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



2.04 Swing Line Loans.




     (a) Swing Line Facility. Subject to the terms and conditions set forth herein, the
Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to the Borrower
in Dollars from time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Loans, when aggregated with the Applicable Revolving Percentage of
the Outstanding Amount of Revolving Loans and L/C Obligations of the Swing Line Lender in its
capacity as a Lender of Revolving Loans, may exceed the amount of such Lender’s Revolving
Commitment; provided, however, that after giving effect to any Swing Line Loan, (i)
the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Revolving
Lender’s Applicable Revolving Percentage of the Outstanding Amount of all L/C Obligations,
plus such Revolving Lender’s Applicable Revolving Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, and provided
further that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04, prepay under
Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be
(x) a Base Rate Loan and (y) repaid in full no later than ten (10) Business Days after such Swing
Line Loan is made. Immediately upon the making of a Swing Line Loan, each Revolving Lender shall
be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the



48









 




product of such
Revolving Lender’s Applicable Revolving Percentage times the amount of such Swing Line Loan.




     (b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum principal amount of $100,000 and integral
multiples of $50,000 in excess thereof, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A) directing
the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in
the proviso to the first sentence of Section 2.04(a), or (B) that one or more of the
applicable conditions specified in Section 5.02 is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the Borrower. Notwithstanding the foregoing, if the Borrower has entered into an auto-borrow or
similar arrangement with the Swing Line Lender, then Swing Line Loan advances shall be made at such
times and in such amounts as provided in the agreement(s) between the Swing Line Lender and the
Borrower relating to such auto-borrow or similar arrangement.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably requests and authorizes the Swing Line
Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an
amount equal to such Lender’s Applicable Revolving Percentage of the amount of Swing Line
Loans then outstanding. Such request shall be made in writing (which written request shall
be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements
of Section 2.02, without regard to the minimum and multiples specified therein for
the principal amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Revolving Commitments and the conditions set forth in Section 5.02. The
Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Revolving Lender
shall make an amount equal to its Applicable Revolving Percentage of the amount specified in
such Loan Notice available to the Administrative Agent in immediately available funds for
the account of the Swing Line Lender at the Administrative Agent’s Office not later than
1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Revolving Lender that so makes



49









 




funds available shall be deemed to have
made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit
the funds so received to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing of
Revolving Loans in accordance with Section 2.04(c)(i), the request for Base Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Revolving Lenders fund its risk participation in
the relevant Swing Line Loan and each Revolving Lender’s payment to the Administrative Agent
for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.



     (iii) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the Swing Line Lender any amount required to be paid by such Revolving Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Revolving Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate per annum equal to
the greater of Federal Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation. A certificate of the
Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (iii) shall be conclusive absent manifest error.



     (iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right
that such Revolving Lender may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or
(C) any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Revolving Lender’s obligation to
make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions
set forth in Section 5.02. No such purchase or funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.



(d) Repayment of Participations.




     (i) At any time after any Revolving Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account
of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Lender its
Applicable Percentage of such payment (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender’s risk participation was
funded) in the same funds as those received by the Swing Line Lender.



50









 






     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Revolving Lender
shall pay to the Swing Line Lender its Applicable Revolving Percentage thereof on demand of
the Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing Line Lender. The
obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Revolving
Lender funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this
Section 2.04 to refinance such Revolving Lender’s Applicable Revolving Percentage of any
Swing Line Loan, interest in respect of such Applicable Revolving Percentage shall be solely for
the account of the Swing Line Lender.



     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



2.05 Prepayments.




     (a) Voluntary Prepayments of Loans.




     (i) Revolving Loans and Term Loans. The Borrower may, upon notice from the
Borrower to the Administrative Agent, at any time or from time to time voluntarily
prepay Loans in whole or in part without premium or penalty; provided that (A)
such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three
(3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the
date of prepayment of Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof (or, if less, the entire principal amount thereof then outstanding); and (C) any
prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if less, the entire principal amount thereof
then outstanding). Each such notice shall specify the date and amount of such prepayment,
the Type(s) of Loans to be prepaid and the Credit Facility to be prepaid. The
Administrative Agent will promptly notify each Revolving Lender or Term Lender, as
applicable, of its receipt of each such notice, and of the amount of such Lender’s
Applicable Percentage of such prepayment (based on such Lender’s Applicable Percentage in
respect of the Term Facility or the Revolving Facility, as the case may be). If such notice
is given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section
3.05. Each prepayment of the outstanding Term Loans pursuant to this Section
2.05(a) shall be applied to reduce scheduled principal repayments required



51









 




under Section 2.07 as directed by the Borrower. Each such prepayment shall be applied to
the Loans of the Lenders in accordance with their respective Applicable Percentages in
respect of the Term Facility or the Revolving Facility, as the case may be.




     (ii) Swing Line Loans. The Borrower may, upon notice to the Swing Line Lender
(with a copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall
be in a minimum principal amount of $100,000 or a whole multiple of $50,000 in excess
thereof (or, if less, the entire principal thereof then outstanding). Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Notwithstanding the
foregoing, if the Borrower has entered into an auto-borrow or similar arrangement with the
Swing Line Lender, then Swing Line Loan shall be prepaid at such times and in such amounts
as provided in the agreement(s) between the Swing Line Lender and the Borrower relating to
such auto-borrow or similar arrangement.



     (iii) Subject to Section 3.05(b), notwithstanding anything to the contrary
contained in this Agreement, the Borrower may rescind any notice of prepayment under
Section 2.05(a)(i) if such prepayment would have resulted from a refinancing of all
of the Loans, which refinancing shall not be consummated or shall otherwise be delayed.



     (iv) For the first twelve months following the Closing Date, the Borrower shall pay a
one percent (1%) prepayment premium for any principal amount of the Term Loan
prepaid pursuant to this Section 2.05(a) from the issuance or incurrence of
debt for which the interest rate payable thereon is lower than the Eurodollar Rate on the
date of such optional prepayment plus the Applicable Rate with respect to the Term Loans at
the time of such optional prepayment. Any such prepayment premium shall be paid on a pro
rata basis to the Term Lenders at the time of such optional prepayment.



(b) Mandatory Prepayments of Loans.




     (i) Revolving Commitments. If for any reason the Total Revolving Outstandings
at any time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall
immediately prepay Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize the
L/C Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full
of the Revolving Loans and Swing Line Loans the Total Revolving Outstandings exceed the
Aggregate Revolving Commitments then in effect.



     (ii) Dispositions and Involuntary Dispositions. The Borrower shall prepay the
Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate
amount equal to one hundred percent (100%) of the Net Cash Proceeds of all



52









 




Dispositions (other than Permitted Transfers, except with respect to Permitted Merchant Portfolio
Transfers to the extent the Net Cash Proceeds of such Permitted Merchant Portfolio Transfers
exceed $10,000,000 in the aggregate in any fiscal year) and Involuntary Dispositions;
provided, however, that, with respect to any Net Cash Proceeds realized
under a Disposition or Involuntary Disposition, at the option of the Borrower (as elected by
the Borrower in writing to the Administrative Agent promptly following receipt of any such
Net Cash Proceeds), and so long as no Event of Default shall have occurred and be
continuing, such Loan Party or such Subsidiary may apply all or any portion of such Net Cash
Proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets useful
in the business of Holdings and its Subsidiaries, or make Investments pursuant to
Section 8.02(g), so long as (A) within 365 days following receipt of such Net Cash
Proceeds, such Net Cash Proceeds shall have been so applied or a definitive agreement for
such application shall have been entered into (as certified by the Borrower in writing to
the Administrative Agent), and (B) within 180 days after the execution of such definitive
agreement, such application shall have been consummated (as certified by the Borrower in
writing to the Administrative Agent); provided further, however,
that any Net Cash Proceeds not subject to such definitive agreement or so applied shall be
immediately applied to the prepayment of the Loans as set forth in this Section
2.05(ii); and provided further, that no such transactions resulting in aggregate
Net Cash Proceeds of less than $1,500,000 per annum shall be subject to prepayment under
this Section 2.05(b)(ii).




     (iii) Excess Cash Flow. Within five (5) Business Days after financial
statements have been delivered pursuant to Section 7.01(a) and the related
Compliance Certificate has been delivered pursuant to Section 7.02(a), the Borrower
shall prepay an aggregate principal amount of Loans equal to the Required Percentage of
Excess Cash Flow for the fiscal year covered by such financial statements.



     (iv) Indebtedness. Within five (5) Business Days after the incurrence or
issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than
Indebtedness expressly permitted to be incurred or issued pursuant to Section 8.03),
the Borrower shall prepay an aggregate principal amount of Loans equal to one hundred
percent (100%) of the Net Cash Proceeds thereof.



     (v) Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied,
first, at the Borrower’s option, to the scheduled principal installments due under
the Term Facility within the following twelve months in direct order of maturity and,
thereafter, ratably to all remaining principal repayment installments of the Term Facility
and, second, to the Revolving Facility in the manner set forth in clause
(vi) of this Section 2.05(b).



     (vi) Prepayments of the Revolving Facility made pursuant to clause (i),
(ii), (iii) or (iv) of this Section 2.05(b), first, shall be
applied ratably to the Unreimbursed Amounts and the Swing Line Loans, second, shall
be applied ratably to the outstanding Revolving Loans, and, third, shall be used to
Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the
Revolving Facility required pursuant to clause (ii), (iii) or (iv) of this
Section 2.05(b), the amount remaining, if any, after the



53









 






prepayment in full of all
Unreimbursed Amounts, Swing Line Loans and Revolving Loans outstanding at such time and the
Cash Collateralization of the remaining L/C Obligations in full may be retained by the
Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the
funds held as Cash Collateral shall be applied (without any further action by or notice to
or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving
Lenders, as applicable.




     (vii) Effect on Interest Periods. Within the parameters of the order of
application set forth above, prepayments shall be applied first to Base Rate Loans and then
to Eurodollar Rate Loans in direct order of Interest Period maturities. All prepayments
under this Section 2.05(b) shall be subject to Section 3.05, but otherwise
without premium or penalty, and shall be accompanied by interest on the principal amount
prepaid through the date of prepayment.




     (viii) Eurodollar Prepayment Account. If the Borrower is required to make a
mandatory prepayment of Eurodollar Rate Loans under this Section 2.05(b), so long as
no Event of Default exists, the Borrower shall have the right, in lieu of making such
prepayment in full, to deposit an amount equal to such mandatory prepayment with the
Administrative Agent in a cash collateral account maintained (pursuant to documentation
reasonably satisfactory to the Administrative Agent) by and in the sole dominion and control
of the Administrative Agent. Any amounts so deposited shall be held by the Administrative
Agent as collateral for the prepayment of such Eurodollar Rate Loans and shall be applied to
the prepayment of the applicable Eurodollar Rate Loans at the end of the current Interest
Periods applicable thereto or, sooner, at the election of the Administrative Agent, upon the
occurrence of an Event of Default. At the request of the Borrower, amounts so deposited
shall be invested by the Administrative Agent in Cash Equivalents maturing on or prior to
the date or dates on which it is anticipated that such amounts will be applied to prepay
such Eurodollar Rate Loans; any interest earned on
such Cash Equivalents will be for the account of the Borrower and the Borrower will
deposit with the Administrative Agent the amount of any loss on any such Cash Equivalents to
the extent necessary in order that the amount of the prepayment to be made with the
deposited amounts may not be reduced.



2.06 Termination or Reduction of Aggregate Revolving Commitments.




     (a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate
the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate
Revolving Commitments to an amount not less than the Outstanding Amount of Revolving Loans, Swing
Line Loans and L/C Obligations; provided that (i) any such notice shall be received by the
Administrative Agent not later than noon five (5) Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) if, after giving effect to any reduction
of the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit
exceeds the amount of the Aggregate Revolving Commitments, such sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of
any such notice of termination or reduction of the Aggregate Revolving Commitments. Any reduction
of the Aggregate Revolving Commitments shall be



54









 




applied to the Revolving Commitment of each Lender
according to its Applicable Percentage. All fees accrued with respect thereto until the effective
date of any termination of the Aggregate Revolving Commitments shall be paid on the effective date
of such termination.




     (b) Mandatory Reductions. The aggregate Term Commitments shall be automatically and
permanently reduced to zero on the date of the Term Borrowing.



2.07 Repayment of Loans.




     (a) Revolving Loans. The Borrower shall repay to the Lenders on the Maturity Date for
the Revolving Facility, the aggregate principal amount of all Revolving Loans outstanding on such
date.



     (b) Term Loans. The Borrower shall repay to the Administrative Agent for the ratable
account of the Term Lenders the aggregate principal amount of all Term Loans outstanding on the
following dates in the respective amounts set forth opposite such dates (which amounts shall be
reduced as a result of the application of prepayments in accordance with the order of priority set
forth in Section 2.05(b)):



	 	 	 	 	 
	Date	 	Amount
	June 30, 2006
	 	$	1,287,500	 
	September 30, 2006
	 	$	1,287,500	 
	December 31, 2006
	 	$	1,287,500	 
	March 31, 2007
	 	$	1,287,500	 
	 
	 	 	 	 
	June 30, 2007
	 	$	1,287,500	 
	September 30, 2007
	 	$	1,287,500	 
	December 31, 2007
	 	$	1,287,500	 
	March 31, 2008
	 	$	1,287,500	 
	 
	 	 	 	 
	June 30, 2008
	 	$	1,287,500	 
	September 30, 2008
	 	$	1,287,500	 
	December 31, 2008
	 	$	1,287,500	 
	March 31, 2009
	 	$	1,287,500	 
	 
	 	 	 	 
	June 30, 2009
	 	$	1,287,500	 
	September 30, 2009
	 	$	1,287,500	 
	December 31, 2009
	 	$	1,287,500	 
	March 31, 2010
	 	$	1,287,500	 
	 
	 	 	 	 
	June 30, 2010
	 	$	1,287,500	 
	September 30, 2010
	 	$	1,287,500	 
	December 31, 2010
	 	$	1,287,500	 
	March 31, 2011
	 	$	1,287,500	 
	 
	 	 	 	 
	June 30, 2011
	 	$	1,287,500	 






55









 






	 	 	 	 	 
	Date	 	Amount
	September 30, 2011
	 	$	1,287,500	 
	December 31, 2011
	 	$	1,287,500	 
	March 31, 2012
	 	$	1,287,500	 
	 
	 	 	 	 
	June 30, 2012
	 	$	1,287,500	 
	September 30, 2012
	 	$	1,287,500	 
	December 31, 2012
	 	$	1,287,500	 
	March 31, 2013
	 	$	480,237,500	 





provided, however, that the final principal repayment installment of the Term Loans
shall be repaid on the Maturity Date for the Term Facility and in any event shall be in an amount
equal to the aggregate principal amount of all Term Loans outstanding on such date.




     (c) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the Maturity
Date for the Revolving Facility.



2.08 Interest.




     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan
outstanding under a Credit Facility shall bear interest on the outstanding principal amount thereof
for each Interest Period at a rate per annum equal to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Rate for such Credit Facility; (ii) each Base Rate Loan
outstanding under a Credit Facility shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate for such Credit Facility; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the Base Rate plus the Applicable Rate in respect of the Revolving Facility.



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



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




     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



2.09 Fees.




     In addition to certain fees described in subsections (i) and (j) of Section
2.03:



56









 






     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent, for
the account of each Revolving Lender in accordance with its Applicable Revolving Percentage,
a commitment fee (the “Commitment Fee”) equal to the product of (i) the Applicable
Rate times (ii) the actual daily amount by which the Aggregate Revolving Commitments exceed
the sum of (A) the Outstanding Amount of Revolving Loans and (B) the Outstanding Amount of
L/C Obligations, provided that any Commitment Fee accrued with respect to any of the
Commitments of a Defaulting Lender during the period prior to the time such Revolving Lender
became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so
long as such Revolving Lender shall be a Defaulting Lender except to the extent that such
Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time;
and provided further that no Commitment Fee shall accrue on any of the
Commitments of a Defaulting Lender so long as such Revolving Lender shall be a Defaulting
Lender. The Commitment Fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article V is not
met, and shall be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date to occur after the
Closing Date, and on the Maturity Date. The Commitment Fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect. For purposes of
clarification, Swing Line Loans shall not be considered outstanding for purposes of
determining the unused portion of the Aggregate Revolving Commitments.




     (b) Fee Letter. The Borrower shall pay to the parties to the Fee Letter the
fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall be non-refundable for any reason whatsoever.



2.10 Computation of Interest and Fees.




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



2.11 Evidence of Debt.




     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by



57









 




the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent (set forth in the
Register) shall control in the absence of manifest error. Upon the request of any Lender made
through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through
the Administrative Agent) a Note or Notes, which shall evidence such Lender’s Loans in addition to
such accounts or records. Each of the Revolving Notes, Term Notes and Swing Line Note shall be in
the forms of Exhibit 2.11(a)-1, Exhibit 2.11(a)-2 and Exhibit 2.11(a)-3,
respectively. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.




     (b) In addition to the accounts and records referred to in subsection (a) above in
this Section 2.11, each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records and, in the case of the Administrative Agent, entries
in the Register, evidencing the purchases and sales by such Lender of participations in Letters of
Credit and Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error.



2.12 Payments Generally; Administrative Agent’s Clawback.




     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage of the relevant Credit Facility (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments
received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to accrue. Subject to
the definition of “Interest Period”, if any payment to be made by the Borrower shall come due on a
day other than a Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share
of such Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent,



58









 




then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation and (B) in the case of a payment
to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to
the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such payment to the Administrative Agent.




          (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Appropriate Lenders or the L/C Issuer, as the
case may be, the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Appropriate Lenders or the L/C Issuer, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation.




     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in Article
V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall
return such funds (in like funds as received from such Lender) to such Lender, without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under Section 11.04(c) on
any date required hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any other Lender to so
make its Loan, to purchase its participation or to make its payment under Section 11.04(c).



59









 





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



2.13 Sharing of Payments by Lenders.




     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof
(as to which the provisions of this Section shall apply).



     Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



2.14 Incremental Facility.




     (a) The Borrower may at any time prior to the relevant Maturity Date, by notice to the
Administrative Agent, request the addition of a new term loan facility (each, an “Incremental
Term Facility”) or an increase in the Revolving Facility (each, a “Revolving Facility
Increase” and, together with the Incremental Term Facilities, an “Incremental
Facility”) denominated in Dollars pursuant to additional commitments (the “Incremental
Commitments”) in an aggregate amount not to exceed $40,000,000 to be effective as of a date
that is at least 90 days prior to the scheduled Maturity Date of the Term Facility or the Revolving
Facility then in effect (the



60









 




“Increase Date”) as specified in the related notice to the
Administrative Agent; provided, however, that (i) in no event shall the aggregate
amount of all of the Incremental Commitments exceed $40,000,000, (ii) each new Incremental Facility
shall be in an aggregate amount of not less than $13,000,000, (iii) on the date of any such request
by the Borrower for an Incremental Facility and on the related Increase Date, the applicable
conditions set forth in Section 5.02 and in subsection (d) of this Section
2.14 shall be satisfied, (iv) such Incremental Facility shall be used for general corporate
purposes, including, without limitation, Permitted Acquisitions, (v) the final maturity of such
Incremental Term Facilities shall be equal to or greater than the final maturity of the existing
Term Facility and no Revolving Facility Increase shall change the Maturity Date of the Revolving
Facility, (vi) such Incremental Facility shall be either (A) an increase in the Term Facility or
the Revolving Facility existing prior to the Increase Date, in which case the requirements of
Section 2.14(e) shall be satisfied or (B) in the case of an Incremental Term Facility, a
new facility (i.e., not on the same terms as any existing Term Facility) and (vii) such Incremental
Term Facility shall be on terms no more restrictive than those set forth in this Agreement and
shall contain such other terms as may be agreed by the Borrower and the Administrative Agent.




     (b) If the Administrative Agent approves the terms of the Incremental Facility (which approval
shall not be unreasonably withheld or delayed if such terms are otherwise in accordance with the
provisions of this Agreement), the Administrative Agent shall promptly notify the Lenders and/or
prospective Lenders of a request by the Borrower for Incremental Commitments, which notice shall
include (i) the proposed amount and other material terms of the Incremental Facility, (ii) the
proposed Increase Date and (iii) the date by which Lenders and/or prospective Lenders wishing to
participate in the Incremental Facility must commit to an Incremental Commitment (the
“Commitment Date”).



     (c) Promptly following the applicable Commitment Date, the Administrative Agent shall notify
the Borrower as to the amount, if any, by which the Lenders and/or prospective Lenders are willing
to participate in the requested Incremental Facility.



     (d) On or before the Increase Date, the Administrative Agent shall have received the
following, each dated such date:




     (i) (A) certified copies of resolutions of the Board of Directors of the Loan Parties
approving the Incremental Facility and the corresponding modifications to this Agreement and
(B) an opinion of counsel for the Loan Parties, in a form reasonably satisfactory to the
Administrative Agent;




     (ii) confirmation from each Lender of the amount of its Commitment in a writing
satisfactory to the Borrower and the Administrative Agent; and




     (iii) such other documents as the Administrative Agent may reasonably request.


On the applicable Increase Date, upon fulfillment of the conditions set forth or referred to in
Section 2.14(a) in the immediately preceding sentence of this Section 2.14(d), the
Administrative Agent shall notify the Lenders and the Borrower, on or before 11:00 a.m., by
telecopier or telex,




61









 







of the occurrence of the Incremental Facility to be effected on the related
Increase Date and shall record in the Register the relevant information with respect to each Lender
on such date. To the extent the weighted average interest rate payable in respect of any
Incremental Term Facility (whether in the form of interest, fees, original issue discount or any
combination thereof) shall be greater than 0.25% per annum in excess of the weighted average
interest rate of the existing Term Facility based on the Incremental Commitments extended with
respect to such Incremental Term Facility, the definition of “Applicable Rate” set forth in
Section 1.01 hereof shall be automatically amended so that the margin payable in respect of
such Incremental Term Facility is not greater than 0.25% above the margin rate for the existing
Term Facility.




     (e) Each Revolving Facility Increase and each Incremental Term Facility that is to constitute
part of, and be added to, an existing Term Facility, shall satisfy the following conditions:




     (i) the advances made under the Incremental Facility shall have the same final maturity
date and, in the case of an Incremental Term Facility, the same Weighted Average Life to
Maturity as the existing Term Facility or Revolving Facility to which the new Incremental
Facility is being added, and shall bear interest at the same rates (i.e.,
have the same “Applicable Rate”) applicable to such Term Facility or Revolving
Facility, as the case may be;




     (ii) any new Incremental Term Facility shall have the same scheduled repayment dates as
then remain with respect to the existing Term Facility to which such new Incremental Term
Facility is being added, with the amount of each scheduled repayment installment of the new
Incremental Term Facility to be the same (on a proportionate basis) as is theretofore
applicable to the existing Term Facility to which such new Incremental Term Facility is
being added; and




     (iii) on the date of the making of a loan under the new Incremental Facility, and
notwithstanding anything to the contrary in Section 2.05, the aggregate principal
amount of such new loan shall be added to (and form part of) each Borrowing of outstanding
Loans of the respective Term Facility or Revolving Facility, as the case may be, on a pro
rata basis (based on the relative sizes of the various outstanding Borrowings), so that each
Lender will participate proportionately in each then outstanding Borrowing under the
respective Term Facility or Revolving Facility, as the case may be, and so that the existing
Lenders with respect to such Term Facility or Revolving Facility continue to have the same
participation (by amount) in each Borrowing as they had before the making of the new
advances under such Term Facility or Revolving Facility.


To the extent the provisions of the preceding clause (iii) require that Lenders making new
loans under an Incremental Facility add the aggregate principal amount of such new loans to the
then outstanding Eurodollar Rate Loans, it is acknowledged that the effect thereof may result in
such new loans having short Interest Periods (i.e. an Interest Period that will begin during an
Interest Period then applicable to the outstanding Eurodollar Rate Loans and which will end on the
last day of such Interest Period). In connection therewith, the Borrower may agree to compensate
the Lenders making the loans under the new Incremental Facility for funding Eurodollar Rate Loans




62









 







during an existing Interest Period on such basis as may be agreed by the Borrower and the
respective Lender or Lenders.




     (f) To the extent any Incremental Term Facility constitutes a new facility separate from any
existing Term Facility, its Weighted Average Life to Maturity shall be no shorter than any existing
Term Facility and it shall be entitled to the benefit of prepayments under Section 2.05 (i)
either ratably with any existing Term Facility or following the prepayment in full of any existing
Term Facility and (ii) prior to or following prepayment of the Revolving Facility, in each case of
clauses (i) and (ii) as the Borrower and the Lenders providing such Incremental Term Facility may
agree. Except as specifically set forth in this Section 2.14, each such Incremental Term
Facility shall constitute a “Term Facility” for all purposes under this Agreement.



     (g) The Borrower and the Administrative Agent are authorized to enter into such amendments to
the Loan Documents as may be necessary or desirable to implement the provisions of this Section
2.14.



     (h) This Section 2.14 shall supersede any provisions in Sections 2.13 or
11.01 to the contrary.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.




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



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



     (c) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,



63









 




interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.




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



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested
by the Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the
Borrower or the Administrative Agent, and the Administrative Agent and the L/C Issuer, in each case
if requested by the Borrower, shall deliver such other documentation prescribed by applicable law
or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or
the Administrative Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements or the Borrower to determine whether or not such
Administrative Agent or such L/C Issuer is subject to backup withholding or information reporting
requirements.



     Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (i) duly completed and executed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a party and
entitlement to complete exemption from (or reduction in) U.S. federal withholding tax on
interest and fees payable hereunder to or for the account of such Foreign Lender,




     (ii) duly completed and executed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to



64









 






the effect that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower
within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue
Code and (y) duly completed and executed copies of Internal Revenue Service Form W-8BEN and,
if any fees are payable by the Borrower to or for the account of such Foreign Lender,
claiming eligibility for benefits of an income tax treaty to which the United States is a
party and entitlement to complete exemption from (or reduction in) U.S. federal withholding
taxes on such fees, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed and executed together
with such supplementary documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.



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



3.02 Illegality.




     If any Change in Law after the date hereof has made it unlawful, or any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, or any Governmental Authority has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then,
on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all



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Eurodollar Rate Loans of such Lender
to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment
or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
Each Lender agrees to designate a different Lending Office if such designation will avoid the need
for such notice and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.




3.03 Inability to Determine Rates.




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



3.04 Increased Costs.




     (a) Increased Costs Generally. If any Change in Law after the date hereof shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate) or the L/C Issuer; or




     (ii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer setting forth in reasonable detail such increased costs, the Borrower will pay to
such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as




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will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or
reduction suffered.




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law after the date hereof affecting such Lender or the L/C Issuer or any Lending Office of such
Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements
has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s
capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the
L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C
Issuer’s holding company could have achieved but for such Change in Law (taking into consideration
such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s
holding company with respect to capital adequacy), then from time to time upon request of such
Lender or the L/C Issuer setting forth in reasonable detail such
circumstances, the Borrower will pay to such Lender or the L/C Issuer, as the case may be,
such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s
or the L/C Issuer’s holding company for any such reduction suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section
and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



3.05 Compensation for Losses.




     Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such Lender harmless from any actual
loss, cost or expense incurred by it as a result of:




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



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




     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of:




     (i) a request by the Borrower pursuant to Section 11.13; or




     (ii) an assignment by Bank of America pursuant to Section 11.06(b) as
part of the primary syndication of the Commitments and Loans during the 60-day
period immediately following the Closing Date, provided that Bank of America
agrees to use reasonable efforts to reduce the breakage costs payable by the
Borrower in connection therewith (including, without limitation, to the extent
reasonably practical, closing such assignments at the end of Interest Periods
of outstanding Eurodollar Rate Loans);


including any loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.




     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.



3.06 Mitigation Obligations; Replacement of Lenders.




     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 11.13.



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3.07 Survival.




     All of the Borrower’s obligations under this Article III shall survive termination of
the Aggregate Revolving Commitments and repayment of all other Obligations hereunder.



ARTICLE IV




GUARANTY




4.01 The Guaranty.




     Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate
of a Lender that enters into a Swap Contract or Treasury Management Agreement with a Loan Party,
and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the
prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further agree that if any of the
Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment,
by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will, jointly
and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case
of any extension of time of payment or renewal of any of the Obligations, the same will be promptly
paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as
a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or
renewal.



     Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents, Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor
under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to
the largest amount that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.



4.02 Obligations Unconditional.




     The obligations of the Guarantors under Section 4.01 are joint and several, absolute
and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Loan Documents, Swap Contracts or Treasury Management Agreements, or any other
agreement or instrument referred to therein, or any substitution, release, impairment or exchange
of any other guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being
the intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be
absolute and unconditional under any and all circumstances. Each Guarantor agrees that such
Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the
Borrower or any other Guarantor for amounts paid under this Article IV until such time as
the Obligations have been paid in full and the Commitments have expired or terminated. Without
limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by
law,



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the occurrence of any one or more of the following shall not alter or impair the liability of
any Guarantor hereunder, which shall remain absolute and unconditional as described above:





     (a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;




     (b) any of the acts mentioned in any of the provisions of any of the Loan Documents,
any Swap Contract or Treasury Management Agreement between any Loan Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents, such Swap Contracts or such Treasury Management
Agreements shall be done or omitted;




     (c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents, any Swap Contract or Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Loan Documents, such Swap Contracts or such Treasury
Management Agreements shall be waived or any other guarantee of any of the Obligations or
any security therefor shall be released, impaired or exchanged in whole or in part or
otherwise dealt with;




     (d) any Lien granted to, or in favor of, the Administrative Agent or any Lender or
Lenders as security for any of the Obligations shall fail to attach or be perfected; or




     (e) any of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any creditor of any
Guarantor).



     With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person
under any of the Loan Documents, any Swap Contract or any Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents, such Swap Contracts or such Treasury Management Agreements, or
against any other Person under any other guarantee of, or security for, any of the Obligations.



4.03 Reinstatement.




     The obligations of the Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf of any Person in
respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise,
and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand
for all reasonable costs and expenses (including, without limitation, the reasonable fees,



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charges and disbursements of counsel) incurred by the Administrative Agent or such Lender in connection
with such rescission or restoration, including any such reasonable costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.




4.04 Certain Additional Waivers.




     Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the
Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02
and through the exercise of rights of contribution pursuant to Section 4.06.



4.05 Remedies.




     The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors,
on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations
may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be
deemed to have become automatically due and payable in the circumstances provided in said
Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the event of such
declaration (or the Obligations being deemed to have become automatically due and payable), the
Obligations (whether or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of Section 4.01. The Guarantors acknowledge and
agree that their obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in accordance with the terms
thereof.



4.06 Rights of Contribution.




     The Guarantors agree among themselves that, in connection with payments made hereunder, each
Guarantor shall have contribution rights against the other Guarantors as permitted under applicable
law. Such contribution rights shall be subordinate and subject in right of payment to the
obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations have been paid in full and the Commitments have terminated.



4.07 Subordination.




     Each Guarantor hereby subordinates any and all debts, liabilities and other obligations owed
to such Guarantor by each other Loan Party (the “Subordinated Obligations”) to the
Obligations to the extent and in the manner hereinafter set forth in this Section 4.07:




     (a) Prohibited Payments, Etc. Except during the continuance of an Event of
Default under Section 9.01(f) or (g) with respect to a Loan Party or following the
taking by the Administrative Agent of any or all of the actions set forth under Section
9.02, each Guarantor may receive regularly scheduled payments from any other Loan Party
on account of the Subordinated Obligations. After the occurrence and during the continuance
of any Event of Default under Section 9.01(f) or (g) with respect to a Loan




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Party or
following the taking by the Administrative Agent of any or all of the actions set
forth under Section 9.02, however, unless the Administrative Agent otherwise
agrees, no Guarantor shall demand, accept or take any action to collect any payment on
account of the Subordinated Obligations.




     (b) Prior Payment of Obligations. In any proceeding under any Debtor Relief
Laws relating to any other Loan Party, each Guarantor agrees that the Secured Parties shall
be entitled to receive payment in full in cash of all Obligations (including all interest
and expenses accruing after the commencement of a proceeding under any Debtor Relief Laws,
whether or not constituting an allowed claim in such proceeding (“Post Petition
Interest”)) before such Guarantor receives payment of any Subordinated Obligations.




     (c) Turn-Over. After the occurrence and during the continuance of any Event of
Default under Section 9.01(f) or (g) with respect to a Loan Party or following the
taking by the Administrative Agent of any or all of the actions set forth under Section
9.02, each Guarantor shall, if the Administrative Agent so requests, collect, enforce
and receive payments on account of the Subordinated Obligations as trustee for the Secured
Parties and deliver such payments to the Administrative Agent on account of the Obligations
(including all Post Petition Interest), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any manner the liability of
such Guarantor under the other provisions of this Guaranty.




     (d) Administrative Agent Authorization. After the occurrence and during the
continuance of any Event of Default under Section 9.01(f) or (g) with respect to a
Loan Party or following the taking by the Administrative Agent of any or all of the actions
set forth under Section 9.02, the Administrative Agent is authorized and empowered
(but without any obligation to so do), in its discretion, (i) in the name of each Guarantor,
to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Obligations (including any and all Post Petition
Interest), and (ii) to require each Guarantor (A) to collect and enforce, and to submit
claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such
obligations to the Administrative Agent for application to the Obligations (including any
and all Post Petition Interest).



4.08 Additional Guarantors.




     Upon the execution and delivery by any Person of a joinder agreement in substantially the form
of Exhibit 4.08 hereto (each, a “Joinder Agreement”), such Person shall be referred
to as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each
reference in this Guaranty to a “Guarantor” shall also mean and be a reference to such Additional
Guarantor, and each reference in any other Loan Document to a “Subsidiary Guarantor” shall also
mean and be a reference to such Additional Guarantor.



4.09 Guarantee of Payment; Continuing Guarantee.




     The Guarantee in this Article IV is a guaranty of payment and not of collection, is a
continuing Guarantee, and shall apply to all Obligations whenever arising.



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ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




5.01 Conditions of Initial Credit Extension.




     The obligation of the L/C Issuer and each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:




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




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




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




     (iii) a Security Agreement, duly executed by each Loan Party, together with:




     (A) copies of proper financing statements, to be filed under the UCC of
all jurisdictions that the Administrative Agent may reasonably deem
necessary or desirable in order to perfect the Liens created under the
Security Agreement, covering the Collateral described in the Security
Agreement,




     (B) the results of a recent search, by a Person satisfactory to the
Administrative Agent, of all effective UCC financing statements, judgment
liens and tax liens (or equivalent filings) made with respect to any
personal or mixed property of any Loan Parties in the jurisdictions referred
to in clause (A), together with copies of such filings disclosed by
such search,




     (C) all other documentation for recording of filing or with respect to
the Security Agreement that the Administrative Agent may reasonably deem
necessary or desirable in order to perfect the Liens created thereby, and




     (D) evidence that all other action that the Administrative Agent may
reasonably deem necessary or desirable in order to perfect the Liens created
under the Security Agreement on the Closing Date has been taken or will be
able to be taken by the Administrative Agent immediately



73









 







following the Closing Date (including receipt of duly executed payoff
letters, UCC-3 termination statements);




     (iv) a Pledge Agreement, duly executed by each Loan Party, together with
certificates representing the Pledged Shares referred to therein accompanied by
undated stock powers executed in blank.




     (v) (A) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan Party as
the Administrative Agent may require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan Party
is a party or is to be a party and (B) a copy of a Certificate of the Secretary of
State of the jurisdiction of organization of each Loan Party certifying (1) as to a
true and correct copy of the Organization Document of such Loan Party and each
amendment thereto on file in such Secretary’s office and (2) that such amendments
are the only amendments to such Loan Party’s Organization Document on file in such
Secretary’s office;




     (vi) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and
that each of Holdings, the Borrower and the other Loan Parties is validly existing,
in good standing and qualified to engage in business in its state of organization or
formation;




     (vii) an opinion of Debevoise & Plimpton LLP, special New York counsel to the
Loan Parties, substantially in the form of Exhibit 5.01(a)(vii);




     (viii) an opinion of White & Case LLP, special counsel to the Loan Parties,
substantially in the form of Exhibit 5.01(a)(viii);




     (ix) an opinion of Afshin Yazdian, General Counsel to the Loan Parties,
substantially in the form of Exhibit 5.01(a)(ix);




     (x) a certificate signed by a Responsible Officer of the Borrower certifying
(A) the representations and warranties of the Borrower and each other Loan Party
contained in Article VI or any other Loan Document are true and correct in
all material respects on and as of the date of the initial Credit Extension, except
to the extent that such representations and warranties specifically refer to an
earlier date or earlier period as the case may be, in which case they shall be true
and correct in all material respects as of such earlier date or earlier period, as
the case may be, (B) no Default has occurred and is continuing, or would result from
such initial Credit Extension or from the application of proceeds thereof, (C) no
approval, consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan



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Document other than (i) those that have already been obtained and are in full
force and effect and (ii) filings to perfect the Liens created by the Collateral
Documents and (D) the representations and warranties made by Holdings, the Company
and Mergeco in the Merger Agreement, disregarding all qualifications contained in
such representations and warranties relating to materiality or Material Adverse
Effect, are true and correct as of the date of the initial Credit Extension, except
to the extent that such representations and warranties refer to an earlier date or
earlier period, as the case may be, in which case they shall be true and correct as
of such earlier date or earlier period, as the case may be, except to the extent
that the failure of any such representation(s) or warranty(ies) to be true and
correct would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect;




     (xi) a Solvency Certificate, executed on behalf of the Loan Parties by a
Responsible Officer of the Borrower;




     (xii) evidence that all insurance policies required to be maintained pursuant
to the Loan Documents have been obtained and are in effect, together, to the extent
required pursuant to the Loan Documents, with the certificates of insurance, naming
the Administrative Agent, on behalf of the Lenders, as an additional insured or loss
payee, as the case may be, under such insurance policies;




     (xiii) certified copies of a certificate of merger or other confirmation
satisfactory to the Lenders of the consummation of the Merger from the Secretary of
State of the State of Delaware substantially concurrently with the satisfaction of
the other conditions precedent set forth in this Section 5.01;




     (xiv) evidence that the Existing Credit Agreement has been or concurrently with
the Closing Date is being terminated and all Liens securing obligations under the
Existing Credit Agreement have been or concurrently with the Closing Date are being
released; and




     (xv) such other assurances, certificates, documents, consents or opinions as
any Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may
require.




     (b) Senior Subordinated Notes. The Administrative Agent shall have received
reasonably satisfactory evidence substantially concurrently with the satisfaction of the
other conditions precedent set forth in this Section 5.01 of (i) receipt by the
Borrower of not less than $205,000,000 in cash proceeds from the issuance by the Borrower of
the Senior Subordinated Notes; and (ii) the exchange (including, without limitation,
pursuant to the Exchange Agreement) by the Principal Shareholders of the Company of
approximately $166,622,139 in shares of common stock of the Company (valued at the Merger
Consideration) for Equity Interests in Investors (collectively, together with the cash
purchase by Gregory S. Daily of approximately $3,377,861 of Equity Interest in Investors,
the “Exchange”).



75









 






     (c) Fees and Expenses. All fees required to be paid to the Administrative
Agent, the Arranger and the Lenders on or before the Closing Date shall have been paid.




     (d) Attorney Costs. Unless waived by the Administrative Agent solely in
respect of this Section 5.01(d), the Borrower shall have paid all reasonable fees,
charges and disbursements of counsel to the Administrative Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of such fees, charges
and disbursements as shall constitute its reasonable estimate of such reasonable fees,
charges and disbursements incurred or to be incurred by it through the closing proceedings
(provided that such payment of any estimated amount shall be subject to a final
settling of accounts between the Borrower and the Administrative Agent, a report of which
will be provided promptly after closing by the Administrative Agent).



5.02 Conditions to all Credit Extensions.




     The obligation of each Lender to honor any Request for Credit Extension is subject to the
following conditions precedent:




     (a) The representations and warranties of the Borrower and each other Loan Party
contained in Article VI or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be true and
correct in all material respects on and as of the date of such Credit Extension, except to
the extent that such representations and warranties specifically refer to an earlier date or
earlier period, as the case may be, in which case they shall be true and correct in all
material respects as of such earlier date or earlier period, as the case may be, and except
that for purposes of this Section 5.02, the representations and warranties contained
in subsections (a)-(c) of Section 6.05 shall be deemed to refer to the most recent
statements furnished pursuant to subsections (a) and (b), respectively, of Section
7.01 and, in the case of the financial statements furnished pursuant to Section
7.01(b), the representations contained in Section 6.05(a), as modified by this
clause, shall be qualified by the statement that such financial statements are subject to
the absence of footnotes and year-end audit adjustments.




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




     (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof.



     Each Request for Credit Extension submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 5.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



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ARTICLE VI




REPRESENTATIONS AND WARRANTIES




     The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:



6.01 Existence, Qualification and Power.




     Each Loan Party (a) is duly organized or formed, validly existing and in good standing under
the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and
authority and all requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform its obligations
under the Loan Documents to which it is a party and consummate the Transaction, and (c) is duly
qualified and is licensed and in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or (c),
to the extent that failure to do so would not reasonably be expected to have a Material Adverse
Effect.



6.02 Authorization; No Contravention.




     The execution, delivery and performance by each Loan Party of each Loan Document and Related
Document to which such Person is party have been duly authorized by all necessary corporate or
other organizational action, and do not (a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, or require any payment to be made under (i) any material Contractual
Obligation to which such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its property is subject; or
(c) violate any Law (including, without limitation, Regulation U or Regulation X issued by the
FRB). Each Loan Party is in compliance with all Contractual Obligations referred to in clause
(b)(i), except to the extent that failure to do so would not reasonably be expected to have a
Material Adverse Effect.



6.03 Governmental Authorization; Other Consents.




     No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document other than (i) those that have already been obtained and are in full
force and effect and (ii) filings to perfect the Liens created by the Collateral Documents. On the
Closing Date, the Merger will have been consummated in accordance with the Merger Agreement and
applicable Laws.



6.04 Binding Effect.




     Each Loan Document has been duly executed and delivered by each Loan Party that is party
thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party
that is party thereto, enforceable against each such Loan Party in accordance with its



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terms,
except as enforceability may be affected by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally or by general principles of equity.




6.05 Financial Statements; No Material Adverse Effect.




     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other material liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including material liabilities for taxes,
commitments and Indebtedness.



     (b) From the date of the Audited Financial Statements to and including the Closing Date, there
has been no Disposition by the Borrower or any Subsidiary, or any Involuntary Disposition, of any
material part of the business or Property of the Borrower and its Subsidiaries, taken as a whole,
and no purchase or other acquisition by any of them of any business or property (including any
Equity Interests of any other Person) material in relation to the consolidated financial condition
of the Borrower and its Subsidiaries, taken as a whole, in each case, which is not reflected in the
foregoing financial statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.



     (c) The financial statements delivered pursuant to Section 7.01(a) and (b)
have been prepared in accordance with GAAP (except as may otherwise be permitted under Section
7.01(a) and (b)) and present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated financial condition, results of operations and cash flows of
the Borrower and its Subsidiaries as of the dates thereof and for the periods covered thereby.



     (d) Since December 31, 2005 there has been no event or circumstance that has had or would
reasonably be expected to have a Material Adverse Effect.



     (e) The consolidated pro forma balance sheet of the Borrower and its Subsidiaries as at
December 31, 2005, and the related consolidated pro forma statements of income and cash flows of
the Borrower and its Subsidiaries for the fiscal year then ended, certified by the Chief Financial
Officer or Treasurer of the Borrower, copies of which have been furnished to each Lender, fairly
present the consolidated pro forma financial condition of the Borrower and its Subsidiaries as at
such date and the consolidated pro forma results of operations of the Borrower
and its Subsidiaries for the period ended on such date, in each case giving effect to the
Transaction, all in accordance with GAAP.



6.06 Litigation.




     There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Loan Parties, threatened at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties
or revenues that (a) purport to affect or pertain to this Agreement, any other Loan Document or



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the
consummation of the Transaction or any of the transactions contemplated hereby or (b) either
individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect
other than as set forth on Schedule 6.06.




6.07 No Default.




     (a) Neither Holdings nor any Subsidiary is in default under or with respect to any Contractual
Obligation that could reasonably be expected to have a Material Adverse Effect.



     (b) No Default has occurred and is continuing.



6.08 Ownership of Property; Liens.




     (a) Each of Holdings and its Subsidiaries has good record and marketable title in fee simple
to, or valid leasehold interests in, all real property necessary in the ordinary conduct of its
business, except for such defects in title and other matters as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The property of Holdings and
its Subsidiaries is subject to no Liens, other than Permitted Liens.



     (b) Set forth on Schedule 6.08(b) hereto is a complete and accurate list of all real
property owned by any Loan Party or any of its Subsidiaries as of the date hereof, showing the
street address, county or other relevant jurisdiction, state, and record owner thereof.



     (c) Set forth on Schedule 6.08(c) hereto is a complete and accurate list of all leases
of real property under which any Loan Party or any of its Subsidiaries is the lessee as of the date
hereof, showing the street address, county or other relevant jurisdiction, state, lessor, lessee
and expiration date.



     (d) Set forth on Schedule 6.08(d) hereto is a complete and accurate list of all leases
of real property under which any Loan Party is the lessor as of the date hereof, showing as of the
date hereof the street address, county or other relevant jurisdiction, state, lessor, lessee and
expiration date.



6.09 Environmental Compliance.




     Except as would not reasonably be expected to have a Material Adverse Effect:



     (a) Each of the Facilities and all operations at the Facilities are in compliance with all
applicable Environmental Laws, and there is no violation of any Environmental Law with respect to
the Facilities or the Businesses, and there are no known conditions relating to the Facilities or
the Businesses that could give rise to liability under any applicable Environmental Laws.



     (b) None of the Facilities contains, or has previously contained, any Hazardous Materials at,
on or under the Facilities in amounts or concentrations that constitute or constituted a violation
of, or could give rise to liability under, Environmental Laws.



     (c) Neither the Borrower nor any Subsidiary has received any written or verbal notice of, or
inquiry from any Governmental Authority regarding, any violation, alleged violation,
non-



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compliance, liability or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Facilities or the Businesses, nor does any Responsible
Officer of any Loan Party have knowledge or reason to believe that any such notice will be received
or is being threatened.




     (d) Hazardous Materials have not been transported or disposed of from the Facilities, or
generated, treated, stored or disposed of at, on or under any of the Facilities or any other
location, in each case by or on behalf the Borrower or any Subsidiary in violation of, or in a
manner that would be reasonably likely to give rise to liability under, any applicable
Environmental Law.



     (e) No judicial proceeding or governmental or administrative action is pending or, to the
knowledge of the Responsible Officers of the Loan Parties, threatened, under any Environmental Law
to which the Borrower or any Subsidiary is or will be named as a party, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with respect to the
Borrower, any Subsidiary, the Facilities or the Businesses.



     (f) There has been no release or threat of release of Hazardous Materials at or from the
Facilities, or arising from or related to the operations (including, without limitation, disposal)
of the Borrower or any Subsidiary in connection with the Facilities or otherwise in connection with
the Businesses, in violation of or in amounts or in a manner that could give rise to liability
under Environmental Laws.



6.10 Insurance.




     The properties of Holdings and its Subsidiaries are insured with financially sound and
reputable insurance companies not Affiliates of Holdings, in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where Holdings or the applicable
Subsidiary operates.



6.11 Taxes.




     Holdings and its Subsidiaries have filed all federal, state and other material tax returns and
reports required to be filed, and have paid all federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. To the knowledge of the Loan Parties, there is no proposed tax assessment
against Holdings or any Subsidiary that would, if made, have a Material Adverse Effect. Neither
any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement with any Person
that is not a Loan Party. Neither the Merger nor the Exchange will be taxable to Holdings, the
Company or any of their respective Subsidiaries or Affiliates.



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6.12 ERISA Compliance.




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



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



     (c) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has
any Unfunded Pension Liability; (iii) no Loan Party or any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party or any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no
Loan Party or any ERISA Affiliate has engaged in a transaction that could be subject to Section
4069 or 4212(c) of ERISA.



6.13 Subsidiaries.




     Set forth on Schedule 6.13 is a complete and accurate list as of the Closing Date of
each Subsidiary, together with (i) jurisdiction of formation, (ii) number of shares of each class
of Equity Interests outstanding, (iii) number and percentage of outstanding shares of each class
owned (directly or indirectly) by Holdings or any Subsidiary and (iv) number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or purchase and all other
similar rights with respect thereto. The outstanding Equity Interests of each Subsidiary are
validly issued, fully paid and non-assessable and are owned by a Loan Party free and clear of all
Liens, except for any Permitted Liens.



6.14 Margin Regulations; Investment Company Act.




     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than twenty-five percent (25%) of the value of the assets (either of the
Borrower only or of the Borrower and its Subsidiaries on a consolidated basis)



81









 




subject to the
provisions of Section 8.01 or Section 8.05 or subject to any restriction contained
in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender
relating to Indebtedness and within the scope of Section 9.01(e) will be margin stock.




     (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is required
to be registered as an “investment company” under the Investment Company Act of 1940.



6.15 Disclosure.




     No report, financial statement, certificate or other information furnished by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (in each case, as modified or supplemented by other information so furnished) when
taken as a whole contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein (taken as a whole), in the light of the circumstances
under which they were made, not misleading; provided that, with respect to projections,
forecasts, estimates, budgets and other forward-looking information, the Loan Parties represent
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time of the preparation thereof; it being understood that no representation is
made with respect to information of a general economic nature.



6.16 Compliance with Laws.




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



6.17 Intellectual Property; Licenses, Etc.




     Holdings and its Subsidiaries own, or possess the legal right to use, all of the United States
trademarks, service marks, trade names, copyrights, patents, licenses and other intellectual
property rights (collectively, “IP Rights”) that are reasonably necessary for the operation
of their respective businesses as currently conducted, except where the failure to so own or
possess such IP Rights would not reasonably be expected to have a Material Adverse Effect. Set
forth on Schedule 6.17 is a list of all IP Rights registered or pending registration with
the United States Copyright Office or the United States Patent and Trademark Office and owned by
each Loan Party as of the Closing Date. Except for such claims and infringements that would not
reasonably be expected to have a Material Adverse Effect, (i) no claim has been asserted and is
pending by any Person against any Loan Party, or against any other party for which a Loan Party is
indemnifying, challenging or questioning the use of any IP Rights or the validity or effectiveness
of any IP Rights, nor does any Loan Party know of any such claim, and, (ii) to the knowledge of the
Responsible Officers of the Loan Parties, the use of any IP Rights by Holdings or any Subsidiary or
the granting of a right or a license in respect of any IP Rights owned by any of the Loan Parties
from Holdings or any Subsidiary does not infringe on the rights of any



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Person. As of the Closing
Date, none of the IP Rights owned by any of the Loan Parties has been licensed by such Loan Party
pursuant to a licensing agreement or similar arrangement except as set forth on Schedule
6.17.




6.18 Business Locations.




     Set forth on Schedule 6.18(a) is a list of all locations where any tangible personal
property of any Loan Party valued in excess of $50,000 in the aggregate is located as of the
Closing Date. Set forth on Schedule 6.18(b) is the chief executive office, tax payer
identification number and organizational identification number of each Loan Party as of the Closing
Date. The exact legal name and state of organization of each Loan Party is as set forth on the
signature pages hereto. Except as set forth on Schedule 6.18(c), no Loan Party has during
the five years preceding the Closing Date (i) changed its legal name, (ii) changed its state of
formation, or (iii) been party to a merger, consolidation or other change in structure.



6.19 Solvency.




     Each Loan Party is, individually and together with its Subsidiaries, Solvent.



6.20 Senior Debt and Designated Senior Debt.




     A representative of the Lenders is the only designated representative of holders of
“Designated Senior Debt” under the terms of the Senior Subordinated Note Indenture as eligible for
giving a “Payment Blockage Notice” under the terms of the Senior Subordinated Notes Indenture.



ARTICLE VII




AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or, to the extent accrued
and payable, any other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding or not otherwise provided for in full in a manner satisfactory to
the L/C Issuer, Holdings shall and, other than in the case of Sections 7.01, 7.02
and 7.03, shall cause each Subsidiary to:



7.01 Financial Statements.




     Deliver to the Administrative Agent for further distribution to each Lender:




     (a) as soon as available, but in any event within ninety days after the end of each
fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report
and opinion of a Registered Public Accounting Firm of nationally recognized standing, which
report and opinion shall be prepared in accordance with generally



83









 






accepted auditing
standards and shall not be subject to any “going concern” or like qualification or exception
or any qualification or exception as to the scope of such audit; and




     (b) as soon as available, but in any event within forty-five days after the end of each
of the first three (3) fiscal quarters of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and
the related consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal quarter and for the portion of the
Borrower’s fiscal year then ended, setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail and certified by
a Responsible Officer of the Borrower as fairly presenting in all material respects the
financial condition, results of operations, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.


As to any information contained in materials furnished pursuant to Section 7.02(d), the
Borrower shall not be separately required to furnish such information under clause (a) or
(b) above, but the foregoing shall not be in derogation of the obligation of the Borrower
to furnish the information and materials described in clauses (a) and (b) above at
the times specified therein.




7.02 Certificates; Other Information.




     Deliver to the Administrative Agent for further distribution to the Lenders:




     (a) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by
a Responsible Officer of the Borrower, together with a schedule containing information
regarding the (A) occurrence of any Disposition or any Involuntary Disposition for which the
Borrower is or may be required to make a mandatory prepayment pursuant to Section
2.05(b)(ii) and (B) incurrence or issuance of any Indebtedness for which the Borrower is
required to make a mandatory prepayment pursuant to Section 2.05(b)(iv);




     (b) at least thirty (30) days following the first day of each fiscal year of the
Borrower, beginning with the fiscal year commencing January 1, 2007, an annual business plan
and budget of the Borrower and its Subsidiaries containing, among other things, pro forma
financial statements for each quarter of the next fiscal year;




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




     (d) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of any Loan
Party, and copies of all annual, regular, periodic and special reports and registration



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statements which such Loan Party may file or be required to file with the SEC under Section
13 or 15(d) of the Securities Exchange Act, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto;




     (e) promptly after the furnishing thereof, copies of any statement or report furnished
by any Loan Party to any holder of debt securities of any Loan Party or any Subsidiary
thereof pursuant to the terms of any indenture, loan or credit or similar
agreement in principal amount greater than the Threshold Amount and not otherwise
required to be furnished to the Lenders pursuant to Section 7.01 or any other clause
of this Section 7.02;




     (f) promptly, and in any event within five (5) Business Days after receipt thereof by
any Loan Party or any Subsidiary thereof, copies of each notice received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) commencing any formal
investigation or proceeding by such agency regarding financial or other operational results
of any Loan Party or any Subsidiary thereof;




     (g) promptly, such additional information regarding the business, financial or
corporate affairs of Holdings or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender through the Administrative Agent may
from time to time reasonably request;




     (h) promptly after the assertion or occurrence thereof, notice of any environmental
action against or of any noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Laws that would reasonably be expected to have a Material Adverse Effect; and




     (i) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower (i) listing (A) all applications, if any, for Copyrights, Patents or Trademarks
(each such term as defined in the Security Agreement) made since the date of the prior
certificate (or, in the case of the first such certificate, the Closing Date), (B) all
issuances of registrations or letters on existing applications for Copyrights, Patents and
Trademarks (each such term as defined in the Security Agreement) received since the date of
the prior certificate (or, in the case of the first such certificate, the Closing Date), and
(C) all Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as
defined in the Security Agreement) entered into since the date of the prior certificate (or,
in the case of the first such certificate, the Closing Date), and (ii) attaching the
insurance binder or other evidence of insurance for any insurance coverage of the Borrower
or any Subsidiary that was renewed, replaced or modified during the period covered by such
financial statements.



     Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(d) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 11.02; or
(ii) on



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which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) upon the written request of any Lender through the Administrative Agent, the Borrower
shall deliver paper copies of such documents to the Administrative Agent for distribution to such
Lender until a written request to cease delivering paper copies is given by the Administrative
Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent (by telecopier or
electronic mail) of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to provide paper copies
of the Compliance Certificates required by Section 7.02(a) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by the Borrower with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.




     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrower or its securities) (each, a
“Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to
be made available to Public Lenders may be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x)
by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the
Administrative Agent, the Arranger and the Lenders to treat such Borrower Materials as either
publicly available information or not material information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of United States federal
and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated as “Public Investor;” and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as
“Public Investor”. Notwithstanding the foregoing, the Borrower shall be under no obligation to
mark any Borrower Materials “PUBLIC”.



7.03 Notices.




     (a) Promptly (and in any event, within five (5) Business Days after becoming aware thereof)
notify the Administrative Agent of the occurrence of any Default.



     (b) Promptly notify the Administrative Agent of any matter that has resulted or would
reasonably be expected to result in a Material Adverse Effect.



     (c) Promptly notify the Administrative Agent of the occurrence of any ERISA Event.



86









 





     (d) Promptly notify the Administrative Agent of any material change in accounting policies or
financial reporting practices by the Borrower or any Subsidiary.



     (e) Upon the reasonable written request of the Administrative Agent following the occurrence
of any event or the discovery of any condition which the Administrative Agent or the Required
Lenders reasonably believe has caused (or could be reasonably expected to cause) the
representations and warranties set forth in Section 6.09 to be untrue in any material
respect, furnish or cause to be furnished to the Administrative Agent, at the Loan Parties’
expense, a report of an environmental assessment of reasonable scope, form and depth, (including,
where appropriate, invasive soil or groundwater sampling) by a consultant reasonably acceptable to
the Administrative Agent as to the nature and extent of the presence of any Hazardous Materials and
as to the compliance by the Borrower or any of its Subsidiaries with Environmental Laws at such
Real Properties. If the Loan Parties fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request then the Administrative Agent may
arrange for the same, and the Loan Parties hereby grant to the Administrative Agent and its
representatives access to the Real Properties to reasonably undertake such an assessment
(including, where appropriate, invasive soil or groundwater sampling). The reasonable cost of any
assessment arranged for by the Administrative Agent pursuant to this provision will be payable by
the Loan Parties on demand and added to the obligations secured by the Collateral Documents.



     Each notice pursuant to this Section 7.03(a) through (e) shall be accompanied
by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes to take with
respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity
any and all provisions of this Agreement and any other Loan Document that have been breached.



7.04 Payment of Taxes.




     Pay and discharge, as the same shall become due and payable, all tax liabilities, assessments
and governmental charges or levies upon it, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are
being maintained by Holdings or such Subsidiary; provided that the failure to pay such tax
liabilities, assessments and governmental charges or levies promptly after such amounts are due and
payable shall not give rise to or be deemed to constitute a failure to observe or perform under
this Section 7.04 or a Default or an Event of Default unless such unpaid amounts in the
aggregate exceed the Threshold Amount.



7.05 Preservation of Existence, Etc.




     (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws
of the jurisdiction of its organization except in a transaction permitted by Section 8.04
or 8.05 and, in the case of any Subsidiary, to the extent the failure to do so would not
reasonably be expected to have a Material Adverse Effect.



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     (b) Preserve, renew and maintain in full force and effect its good standing under the Laws of
the jurisdiction of its organization, except to the extent the failure to do so would not
reasonably be expected to have a Material Adverse Effect.



     (c) Take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except to the extent that
the failure to do so would not reasonably be expected to have a Material Adverse Effect.



     (d) Preserve or renew all of its material registered patents, copyrights, trademarks, trade
names and service marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.



     (e) Cause the Borrower and, if applicable, any Guarantor to the extent necessary to conduct
its business to be sponsored by a Sponsor Bank with Visa and Mastercard and to be registered with
Visa as an independent sales organization and with Mastercard as a member service provider except,
in each case, to the extent the failure to be so sponsored or registered would not reasonably be
expected to have a Material Adverse Effect.



7.06 Maintenance of Properties.




     (a) Maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted.



     (b) Make all necessary repairs thereto and renewals and replacements thereof, except where the
failure to do so would not reasonably be expected to have a Material Adverse Effect.



     (c) Use the standard of care typical in the industry in the operation and maintenance of its
facilities.



7.07 Maintenance of Insurance.




     Maintain in full force and effect insurance (including worker’s compensation insurance,
liability insurance, casualty insurance, business interruption insurance and “key-man” life
insurance on the Chief Executive Officer of the Borrower as of the Closing Date (in an amount not
less than $25,000,000)) with financially sound and reputable insurance companies not Affiliates of
Holdings, in such amounts, with such deductibles and covering such risks as are customarily carried
by companies engaged in similar businesses and owning similar properties in localities where
Holdings or the applicable Subsidiary operates. The Administrative Agent shall be named as loss
payee and/or additional insured with respect to any such insurance providing coverage in respect of
any Collateral and each provider of any such insurance shall agree, by endorsement upon the policy
or policies issued by it or by independent instruments furnished to the Administrative Agent, that
it will give the Administrative Agent thirty (30) days prior written notice before any such policy
or policies shall be altered or canceled.



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7.08 Compliance with Material Contractual Obligations and Laws.




     Comply with all material Contractual Obligations (including, without limitation, all
applicable regulations and requirements of Visa and Mastercard) and the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.



7.09 Books and Records.




     (a) Maintain proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the case may be.



     (b) Maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such
Subsidiary, as the case may be.



7.10 Inspection Rights.




     (a) Permit representatives and independent contractors of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public accountants, all at the
expense of the Borrower and at such reasonable times during normal business hours and as often as
may be reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and upon reasonable advance
notice.



     (b) If requested by the Administrative Agent in its sole discretion, permit the Administrative
Agent, and its representatives, upon reasonable advance notice to the Borrower, to conduct an
annual audit of the Collateral at the expense of the Borrower.



7.11 Use of Proceeds.




     Use the proceeds of the Credit Extensions (a) to refinance Indebtedness outstanding under the
Existing Credit Agreement, (b) to finance in part the Transaction, including the payment of fees
and expenses incurred in connection therewith and (c) for working capital, Permitted Acquisitions,
capital expenditures and other general corporate purposes; provided that
in no event shall the proceeds of the Credit Extensions be used in contravention of any Law or
of any Loan Document.



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7.12 Additional Subsidiaries.




     Within thirty (30) days after the acquisition or formation of any Subsidiary:



     (a) notify the Administrative Agent thereof in writing, together with the (i) jurisdiction of
formation, (ii) number of shares of each class of Equity Interests outstanding, (iii) number and
percentage of outstanding shares of each class owned (directly or indirectly) by the Borrower or
any Subsidiary and (iv) number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and all other similar rights with respect thereto; and



     (b) if such Subsidiary is a Domestic Subsidiary, cause such Person to (i) become a Guarantor
by executing and delivering to the Administrative Agent a Joinder Agreement in substantially the
form of Exhibit 4.08 or such other documents as the Administrative Agent shall deem
appropriate for such purpose, and (ii) requested by the Administrative Agent, deliver to the
Administrative Agent opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation referred to in
clause (a)), all in form, content and scope reasonably satisfactory to the Administrative
Agent. The Lenders agree that (i) any Subsidiary of which Holdings and its Subsidiaries directly
or indirectly own at least eighty percent (80%) of the Equity Interests (each such Subsidiary a
“Specified Subsidiary”) shall not be required to become a Guarantor if and to the extent
that (A) such Subsidiary is and remains an Immaterial Subsidiary and (B) the aggregate fair market
value of Property owned by all Specified Subsidiaries that are not Guarantors does not exceed
$1,000,000 and (ii) any Subsidiary that is not a Specified Subsidiary shall not be required to
become a Guarantor if and to the extent that all such Subsidiaries that are not Guarantors account
and continue to account in the aggregate for no more than five percent (5%) of the consolidated
revenues of the Borrower and its Subsidiaries for each preceding fiscal year.



7.13 ERISA Compliance.




     Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal
Revenue Code and other federal or state law; (b) cause each Plan that is qualified under Section
401(a) of the Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code.



7.14 Pledged Assets.




     (a) Equity Interests. The Loan Parties will cause (a) one hundred percent (100%) of
the issued and outstanding Equity Interests of each Domestic Subsidiary and (b) sixty-five percent
(65%) (or such greater percentage that, due to a Change in Law after the date hereof,
(1) could not reasonably be expected to cause the undistributed earnings of such Foreign
Subsidiary as determined for United States federal income tax purposes to be treated as a deemed
dividend to such Foreign Subsidiary’s United States parent and (2) could not reasonably be expected
to cause any material adverse tax consequences) of the issued and outstanding Equity Interests
entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and one hundred percent
(100%) of the issued and outstanding Equity Interests not entitled to vote



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(within the meaning of
Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any
Domestic Subsidiary to be subject at all times to a first priority, perfected Lien to the extent
required by this Agreement or the relevant Collateral Documents in favor of the Administrative
Agent pursuant to the terms and conditions of the Collateral Documents, together with opinions of
counsel and any filings and deliveries reasonably necessary in connection therewith to perfect the
security interests therein, all in form and substance reasonably satisfactory to the Administrative
Agent.




     (b) Other Property. Each Loan Party will (i) cause all of its owned and leased
personal Property other than Excluded Property to be subject at all times to first priority,
perfected Liens in favor of the Administrative Agent to secure the Obligations pursuant to the
terms and conditions of the Collateral Documents or, with respect to any such Property acquired
subsequent to the Closing Date, such other additional security documents as the Administrative
Agent shall reasonably request, subject in any case to Permitted Liens and (ii) deliver such other
documentation as the Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, appropriate UCC financing statements, landlord’s waivers, certified
resolutions and other organizational and authorizing documents of such Person, favorable opinions
of counsel to such Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the perfection of the
Administrative Agent’s Liens thereunder) and other items of the types required to be delivered
pursuant to Sections 5.01(a)(iii), (iv), (v), (vi), (xii) and (xv), all in form, content
and scope reasonably satisfactory to the Administrative Agent.



7.15 Compliance with Environmental Laws.




     Comply, and use all reasonable efforts to cause all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all applicable Environmental
Laws and Environmental Permits; obtain and renew all material Environmental Permits necessary for
its operations and properties; and conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the requirements of all
Environmental Laws; provided, however, that neither Holdings nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to
the extent that its obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such circumstances.



7.16 Interest Rate Hedging.




     Enter into on or prior to the date that is ninety (90) days after the Closing Date, and
maintain for a period of two years after the Closing Date, interest rate Swap Contracts with
Persons reasonably acceptable to the Administrative Agent, such that a notional amount of not less
than 50% of any Funded Indebtedness, other than any Revolving Loans, accruing interest based on a
floating rate interest rate is effectively subject to a fixed or limited rate of interest.



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7.17 Ratings.




     Maintain at all times with respect to each of the Credit Facilities, a debt rating from each
of Moody’s and S&P; provided that no such debt rating shall be required if the Consolidated
Leverage Ratio is less than or equal to 3.50:1.00.



7.18 Post-Closing Requirement.




     On or prior to the date that is thirty (30) days after the Closing Date (which may be extended
by the Administrative Agent), deliver to the Administrative Agent a deposit account control
agreement with Business First National Bank duly executed by the appropriate parties.



ARTICLE VIII




NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or, to the extent accrued
and payable any other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding or not otherwise provided for in full in a manner satisfactory to
the L/C Issuer, Holdings shall not, nor shall it permit any Subsidiary to, directly or indirectly:



8.01 Liens.




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




     (a) Liens pursuant to any Loan Document;




     (b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that (i) the Property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased, (iii) the direct
or any contingent obligor with respect thereto is not changed, and (iv) any renewal or
extension of the obligations secured or benefited thereby is permitted by Section
8.03(b);




     (c) Liens (other than Liens imposed under ERISA) for taxes, assessments or governmental
charges or levies not yet delinquent or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;




     (d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business,
provided that such Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;



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




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




     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial in amount and do not secure,
Indebtedness and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the business of the
applicable Person;




     (h) Liens securing judgments for the payment of money (or appeal or other surety bonds
relating to such judgments) not in excess of the Threshold Amount (except to the extent
covered by independent third-party insurance as to which the insurer has acknowledged in
writing its obligation to cover), unless any such judgment remains undischarged for a period
of more than thirty (30) consecutive days during which execution is not effectively stayed;




     (i) Liens securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any Property other than the
Property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not
exceed the cost or fair market value, whichever is lower, of the Property being acquired on
the date of acquisition and (iii) such Liens attach to such Property concurrently with or
within ninety days after the acquisition thereof;




     (j) lease deposits and leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its Subsidiaries;




     (k) any interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Agreement;




     (l) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 8.02;




     (m) normal and customary rights of setoff upon deposits of cash in favor of banks or
other depository institutions;




     (n) Liens of a collection bank arising under Section 4-210 of the UCC on items in the
course of collection;




     (o) Liens securing Indebtedness assumed by the Borrower or any Subsidiary in connection
with a Permitted Acquisition, provided that (i) such Indebtedness is permitted under
Section 8.03(h), (ii) such Indebtedness is not increased after the closing



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of such
Permitted Acquisition and (iii) such Liens do not at any time encumber any Property other
than the Property (A) acquired in such Permitted Acquisition and (B) subject to such Liens
at the closing of such Permitted Acquisition;




     (p) Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under
Article 2 of the UCC or similar provisions of applicable law in the ordinary course of
business, covering only the goods sold and securing only the unpaid purchase price for such
goods and related expenses;




     (q) Liens granted to any settlement bank and/or processor in funds, instruments or
accounts held by such entities securing liabilities arising under sponsorship or processing
agreements;




     (r) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods or provision of services entered into by the Borrower or any
Subsidiary in the ordinary course of business not prohibited by this Agreement;




     (s) Liens on intellectual property to the extent such Liens arise from the granting of
licenses to use such intellectual property to any Person in the ordinary course of business
of Borrower or any of its Subsidiaries;




     (t) any encumbrance or restriction (including, without limitation, put and call
agreements) with respect to the Equity Interests of any joint venture or similar arrangement
pursuant to the joint venture or similar agreement with respect to such joint venture or
similar arrangement; and




     (u) other Liens securing Indebtedness or other obligations outstanding in an aggregate
principal amount not to exceed $1,000,000.



8.02 Investments.




     Make any Investments, except:




     (a) Investments held by the Borrower or such Subsidiary in the form of cash or Cash
Equivalents;




     (b) Investments existing as of the Closing Date and set forth in Schedule 8.02;




     (c) Investments in any Person that is a Loan Party prior to giving effect to such
Investment;




     (d) Investments by any Subsidiary of the Borrower that is not a Loan Party in any other
Subsidiary of the Borrower that is not a Loan Party;




     (e) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from



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financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;




     (f) Guarantees permitted by Section 8.03;




     (g) the Merger and any Permitted Acquisitions;




     (h) Investments consisting of loans to shareholders of a target in a Permitted
Acquisition to fund taxes and expenses thereon, not exceeding $5,000,000 in the aggregate;




     (i) prepaid expenses made in the ordinary course of business;




     (j) Investments consisting of loans to, or Equity Interests in, other Persons engaged
in the same or substantially similar lines of business as the Borrower or any of its
Subsidiaries in an amount not to exceed $20,000,000 (including all such Investments existing
on the Closing Date and set forth on Schedule 8.02) at any one time outstanding;




     (k) Investments consisting of advances or loans to directors, officers, members of
management, employees, consultants, agents, customers or suppliers (i) in an aggregate
principal amount not to exceed $3,000,000 at any time outstanding; provided that all
such advances must be in compliance with applicable Laws, including, but not limited to, the
Sarbanes-Oxley Act of 2002 and (ii) in connection with such Person’s purchase of Equity
Interest of any Parent in an aggregate amount not to exceed the amount of such Restricted
Payments permitted to be made pursuant to Section 8.06(f));




     (l) Investments consisting of Swap Contracts entered into pursuant to Section
7.16 or in the ordinary course of business and not for speculative purposes;




     (m) Loans to any Parent in an aggregate amount not to exceed the amount of Restricted
Payments permitted to be made to such Parent in accordance with Section 8.06 and not
made to such Parent as a Restricted Payment; and




     (n) Investments of a nature not contemplated in the foregoing clauses in an amount not
to exceed $1,000,000 in the aggregate at any time outstanding.



8.03 Indebtedness.




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





     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness of the Borrower and its Subsidiaries set forth in Schedule
8.03 (and renewals, refinancings and extensions thereof; provided that (i) the
amount of such Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such refinancing
and by an amount equal to any existing commitments unutilized



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thereunder and (ii) the terms
relating to principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing, refunding,
renewing or extending Indebtedness, and of any agreement entered into and of any instrument
issued in connection therewith, are no less favorable in any material respect to the Loan
Parties or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest rate
applicable to any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate;




     (c) intercompany Indebtedness permitted under Section 8.02;




     (d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were)
entered into by such Person pursuant to Section 7.16 or in the ordinary course of
business for the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for purposes of
speculation or taking a “market view;” and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;




     (e) purchase money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to finance
the purchase of point of sale equipment and other fixed assets and equipment, and renewals,
refinancings and extensions thereof, provided that (i) the total of all such
Indebtedness for all such Persons taken together shall not exceed an aggregate principal
amount of $15,000,000 at any one time outstanding; (ii) such Indebtedness when incurred
shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal balance outstanding
thereon at the time of such refinancing;




     (f) (i) the Senior Subordinated Notes and (ii) any other unsecured Subordinated
Indebtedness of the Borrower and its Subsidiaries not to exceed $100,000,000 at any time
outstanding, provided that the covenants, events of default, remedies, acceleration
rights, amortization schedules and other material terms of such other unsecured Subordinated
Indebtedness are (A) no less favorable, taken as a whole, to
the Lenders than such terms contained in the Senior Subordinated Note Indenture or (B)
acceptable to the Administrative Agent;




     (g) unsecured Subordinated Indebtedness issued by the Borrower or any Subsidiary to the
seller as consideration for a Permitted Acquisition;




     (h) Indebtedness assumed by the Borrower or any Subsidiary in connection with Permitted
Acquisitions in an aggregate principal amount not to exceed $15,000,000 at any one time
outstanding;



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     (i) Indebtedness consisting of indemnities provided in connection with a Permitted
Transfer;




     (j) other unsecured Indebtedness of the Borrower and its Subsidiaries in an aggregate
principal amount not to exceed $10,000,000 at any one time outstanding; and




     (k) Guarantees with respect to Indebtedness permitted by this Section 8.03.



8.04 Fundamental Changes.




     Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person; provided that, notwithstanding
the foregoing provisions of this Section 8.04 but subject to the terms of Sections
7.12 and 7.14, (a) the Borrower may merge or consolidate with any of its Subsidiaries
provided that the Borrower shall be the continuing or surviving corporation, (b) any
Domestic Subsidiary may merge, dissolve, liquidate or consolidate with or into any other Domestic
Subsidiary, (c) any Foreign Subsidiary may be merged, dissolved, liquidated or consolidated with or
into any Domestic Subsidiary provided that such Domestic Subsidiary shall be the continuing
or surviving corporation, (d) any Foreign Subsidiary may be merged, dissolved, liquidated or
consolidated with or into any other Foreign Subsidiary, (e) any Subsidiary of the Borrower may
merge with any Person that is not a Loan Party in connection with an Investment not prohibited by
Section 8.02 and (f) any Subsidiary may dissolve, liquidate or wind up its affairs at any
time provided that such dissolution, liquidation or winding up, as applicable, could not
have a Material Adverse Effect; provided, however, nothing in this Section
8.04 shall be deemed to prevent the election of Holdings, the Borrower or any of its
Subsidiaries to be treated as an “S Corporation” under the Internal Revenue Code.



8.05 Dispositions.




     Make any Disposition except:




     (a) Permitted Transfers; and




     (b) other Dispositions so long as (i) the consideration paid in connection therewith
shall be cash or Cash Equivalents paid contemporaneous with consummation of the transaction
and shall be in an amount not less than the fair market value of the Property disposed of,
(ii) if such transaction is a Sale and Leaseback Transaction, such transaction is not
prohibited by the terms of Section 8.14, (iii) such transaction does not involve the
sale or other disposition of a minority equity interest in any Subsidiary, (iv) such
transaction does not involve a sale or other disposition of receivables other than
receivables owned by or attributable to other Property concurrently being disposed of in a
transaction otherwise permitted under this Section 8.05 and (v) the aggregate net
book value of all of the assets sold or otherwise disposed of by the Borrower and its
Subsidiaries in all such transactions in any fiscal year of the Borrower shall not exceed
$2,000,000.



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8.06 Restricted Payments.




     Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that:




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




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




     (c) the payment of the Transaction Costs and the Merger Consideration shall be
permitted;




     (d) cashless repurchases of Equity Interests deemed to occur upon exercise of stock
options or warrants, to the extent that such Equity Interests represent a portion of the
exercise price of such options or warrants, shall be permitted;




     (e) (i) with respect to any Tax Period that Borrower is a member of a group filing
consolidated, combined or unitary federal, state or local income tax returns of which it is
not the common parent, the Borrower may make Restricted Payments to Holdings, and Holdings
may make Restricted Payments to any Parent, in an amount equal to the lesser of (A) the
federal, state and local income tax obligations of the Borrower and its Subsidiaries (as the
case may be) determined as if the Borrower filed a tax return on a stand alone basis for
itself and any of its Subsidiaries as if it were the Parent of a consolidated group and (B)
the total federal, state and local income tax obligations of the consolidated group of which
the Borrower is a member and (ii) with respect to any Tax Period that the Borrower is
treated as an “S corporation” or “qualified subchapter S subsidiary,” each within the
meaning of the Internal Revenue Code, the Borrower may make Restricted Payments to Holdings,
and Holdings may make
Restricted Payments to holders of its Equity Interests, in an amount equal to the
Permitted Tax Distributions;




     (f) the Borrower may pay cash dividends to Holdings, and Holdings may pay cash
dividends to any Parent, in an amount sufficient to allow (i) any Parent to purchase,
redeem, or otherwise acquire or retire for value the Equity Interests of such Parent held by
any future, present or former director, officer, member of management, employee or
consultant of the Borrower or any of its Subsidiaries (or the estate, heirs, family members,
spouse or former spouse of any of the foregoing) or (ii) any Parent to make loans or
advances to any future, present or former director, officer, member of management, employee
or consultant of Holdings or any of its Subsidiaries (or the estate, heirs, family members,
spouse or former spouse of any of the foregoing) in connection with the exercise of stock
options of such Parent; provided that the aggregate amount of Restricted Payments
made under this clause (f) does not exceed $2,500,000 in any



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calendar year or
$5,000,000 in any calendar year if the Consolidated Interest Coverage Ratio is 2.00:1.00
(with unused amounts in any calendar year being carried over to the two succeeding calendar
years); and provided further that such amount in any calendar year may be
increased by an amount not to exceed (i) (A) the cash proceeds from the sale of Equity
Interests (other than Disqualified Capital Stock) to directors, officers, members of
management, employees or consultants of the Borrower or of its Subsidiaries (or the estate,
heirs, family members, spouse or former spouse of any of the foregoing) that occurs after
the Closing Date plus (B) any cash proceeds paid in such calendar year in connection
with the exercise of stock options of any Parent by any future, present or former director,
officer, member of management, employee or consultant (or the estate, heirs, family members,
spouse or former spouse of any of the foregoing), which are distributed to the Borrower or
its Subsidiaries, less (ii) the amount of such proceeds previously applied pursuant
to this clause (f); and




     (g) the Borrower may make Restricted Payments to Holdings, and Holdings may make
Restricted Payments to any Parent:




     (i) the proceeds of which shall be used to (A) pay operating expenses
of any Parent, the Borrower and its Subsidiaries incurred in the ordinary
course of business and other corporate overhead costs and expenses
(including administrative, legal, accounting and similar expenses provided
by third parties), which are reasonable and customary and incurred in the
ordinary course of business, in an aggregate amount not to exceed $1,000,000
in any fiscal year plus any reasonable and customary indemnification
claims made by directors, officers, members of management, employees or
consultants of any Parent attributable to the ownership or operations of
Holdings, the Borrower and its Subsidiaries and (B) pay franchise or similar
taxes and other similar fees, taxes and expenses required to maintain any
Parent’s corporate existence;




     (ii) the proceeds of which shall be used to pay fees and expenses
(other than to Affiliates) related to any Equity Issuance or Debt Issuance
permitted by this Agreement (whether consummated or not);




     (iii) the proceeds of which shall be used to make cash payments in lieu
of issuing fractional shares in connection with the exercise of warrants,
options or other securities convertible into or exchangeable for Equity
Interests of any Parent, the Borrower or its Subsidiaries; provided
that any such cash payment shall not be for the purpose of evading the
limitations set forth in this Section 8.06 (as determined in good
faith by the board of directors of the Borrower or Subsidiary (or any
authorized committee thereof)); and




     (iv) the proceeds of which shall be used to pay customary salary, bonus
and other benefits payable to officers and employees of any Parent to the
extent such salaries, bonuses and other benefits are directly



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attributable
and reasonably allocated to the operations of Holdings and its Subsidiaries.




     (h) the Borrower may make additional Restricted Payments to Holdings, and Holdings may
make additional Restricted Payments to the holders of its Equity Interests; provided
that (i) no Default or Event of Default exists at the time of any such dividend or
distribution or would exist immediately after giving effect thereto, (ii) the Consolidated
Leverage Ratio is less than or equal to 3.50:1.00 and (iii) the aggregate amount of
dividends and other distributions made pursuant to this clause (h) in any fiscal
year shall not exceed $5,000,000.



8.07 Change in Nature of Business.




     Engage in any material line of business substantially different from those lines of business
conducted by the Borrower and its Subsidiaries on the Closing Date or any business substantially
related or incidental thereto.



8.08 Transactions with Affiliates and Insiders.




     Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in
the ordinary course of business, other than on fair and reasonable terms substantially as favorable
to the Borrower or such Subsidiary as would be obtainable by the Borrower of such Subsidiary at the
time in a comparable arm’s-length transaction with a Person other than an Affiliate,
provided that the foregoing restriction shall not apply to (i) transactions between or
among the Loan Parties and their Subsidiaries, (ii) Restricted Payments permitted under Section
8.06, (iii) normal and reasonable compensation and reimbursement of expenses of officers and
directors, (iv) Investments permitted under Section 8.02(j) and (k) and (v) transactions
with joint ventures for the purchase or sale of equipment or services entered into in the ordinary
course of business; provided, further, that with respect to Investments permitted
by Section 8.02(j) and transactions with joint ventures, no other Affiliate of the Borrower
(other than any Subsidiary thereof) directly or indirectly holds any Equity Interests in such
Affiliate.



8.09 Burdensome Agreements.




     (a) Enter into, or permit to exist, any Contractual Obligation that encumbers or restricts on
the ability of any Subsidiary of the Borrower to (i) pay dividends or make any other distributions
to the Borrower or any other Subsidiary of the Borrower on its Equity Interests or with respect to
any other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or
other obligation owed to the Borrower or any other Subsidiary of the Borrower, (iii) make loans or
advances to the Borrower or any other Subsidiary of the Borrower, (iv) sell, lease or transfer any
of its Property to the Borrower or any other Subsidiary of the Borrower, (v) pledge its Property
pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension
thereof or (vi) act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof, except (in respect of any of the matters referred to in
clauses (i)-(v) above) for (1) this Agreement and the other Loan Documents, (2) any
document or instrument governing Indebtedness incurred pursuant to Section 8.03(e),
provided that any such restriction contained therein relates only to the asset or




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assets
constructed or acquired in connection therewith, (3) any Permitted Lien or any document or
instrument governing any Permitted Lien, provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien, (4) customary
restrictions and conditions contained in any agreement relating to the sale of any Property
permitted under Section 8.05 pending the consummation of such sale and (5) customary
provisions in joint venture agreements and other similar agreements applicable to joint ventures
permitted by Section 8.02.




     (b) Enter into, or permit to exist, any Contractual Obligation that prohibits or otherwise
restricts the existence of any Lien upon any of its Property in favor of the Administrative Agent
(for the benefit of the Lenders) for the purpose of securing the Obligations, whether now owned or
hereafter acquired, or requiring the grant of any security for any obligation if such Property is
given as security for the Obligations, except (i) any document or instrument governing Indebtedness
incurred pursuant to Sections 8.03(e) or (h), provided that any such restriction
contained therein relates only to the asset or assets constructed or acquired in connection
therewith, (ii) in connection with any Permitted Lien or any document or instrument governing any
Permitted Lien, provided that any such restriction contained therein relates only to the
asset or assets subject to such Permitted Lien and (iii) pursuant to customary restrictions and
conditions contained in any agreement relating to the sale of any Property permitted under
Section 8.05, pending the consummation of such sale.



8.10 Use of Proceeds.




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



8.11 Financial Covenants.




     (a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any Measurement Period to be less than the ratio set forth below opposite
such Measurement Period:



	 	 	 	 	 
	 	 	Minimum
	 	 	Consolidated
	 	 	Interest Coverage
	Measurement Period(s) Ending	 	Ratio
	Closing Date through March 31, 2007
	 	 	1.45:1.00	 
	June 30, 2007 through March 31, 2008
	 	 	1.50:1.00	 
	June 30, 2008 through March 31, 2009
	 	 	1.60:1.00	 
	June 30, 2009 through September 30, 2009
	 	 	1.70:1.00	 
	December 31, 2009 through September 30, 2010
	 	 	1.75:1.00	 
	December 31, 2010 and each fiscal quarter thereafter
	 	 	2.00:1.00	 






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     (b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end
of any Measurement Period to be greater than the ratio set forth below opposite such Measurement
Period:



	 	 	 	 	 
	 	 	Maximum
	 	 	Consolidated
	Measurement Period(s) Ending	 	Leverage Ratio
	Closing Date through March 31, 2007
	 	 	7.25:1.00	 
	June 30, 2007 through September 30, 2007
	 	 	7.00:1.00	 
	December 31, 2007 through March 31, 2008
	 	 	6.75:1.00	 
	June 30, 2008 through September 30, 2008
	 	 	6.50:1.00	 
	December 31, 2008 through March 31, 2009
	 	 	6.25:1.00	 
	June 30, 2009 through September 30, 2009
	 	 	5.75:1.00	 
	December 30, 2009 through March 31, 2010
	 	 	5.50:1.00	 
	June 30, 2010 through September 30, 2010
	 	 	5.25:1.00	 
	December 31, 2010 through March 31, 2011
	 	 	4.75:1.00	 
	June 30, 2011 through September 30, 2011
	 	 	4.25:1.00	 
	December 31, 2011 and each fiscal quarter thereafter
	 	 	4.00:1.00	 






     (c) Right to Cure. Notwithstanding anything to the contrary in Section 9.01,
in the event the Borrower and its Subsidiaries fail to comply with the requirements of the
financial covenants set forth in Sections 8.11(a) and 8.11(b) (the “Financial
Covenants”), until the expiration of the 10th day subsequent to the date the
applicable Compliance Certificate is required to be delivered in accordance with Section
7.02(a), Holdings shall have the right (hereinafter, the “Cure Right”) to receive from
any of its stockholders equity cash contributions which in turn shall be contributed by Holdings as
equity cash contributions to the Borrower, and upon the receipt by the Borrower of such cash (the
“Cure Amount”) pursuant to the exercise of such Cure Right, the Financial Covenants shall
be recalculated giving effect to the following pro forma adjustments: (i) Consolidated EBITDA
shall be increased, solely for the purpose of measuring the Financial Covenants and not for any
other purpose under this Agreement, by an amount equal to the Cure Amount; and (ii) if, after
giving effect to the foregoing recalculations, the Borrower and its Subsidiaries shall then be in
compliance with the requirements of all Financial Covenants, the Borrower and its Subsidiaries
shall be deemed to have satisfied the requirements of the Financial Covenants as of the relevant
date of determination with the same effect as though there had been no failure to comply therewith
at such date, and the applicable breach or Default of the Financial Covenants that had occurred
shall be deemed cured for this



102









 







purpose of the Agreement. Notwithstanding anything herein to the
contrary, (i) in any two consecutive fiscal quarters of Holdings, the Cure Right shall not be
exercised more than once, (ii) on or prior to the Maturity Date in respect of the Term Facility,
the Cure Right shall not be exercised more than twice, (iii) the Cure Amount in respect of each
exercise of the Cure Right shall be the lesser of (x) $15,000,000 and (y) the amount required for
purposes of complying with the Financial Covenants and (iv) any Cure Amount upon exercise of a Cure
Right shall be retained by the Borrower and its Subsidiaries and may be used for general corporate
purposes.


8.12 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity.




     (a) Amend, modify or change its Organization Documents in a manner adverse to the Lenders.



     (b) Change its fiscal year.



     (c) Without providing ten (10) days’ prior written notice to the Administrative Agent, change
its name, state of formation or form of organization; provided, however, nothing in
this clause (c) shall be deemed to prevent the election of Holdings, Borrower or any of its
Subsidiaries to be treated as an “S Corporation” under the Internal Revenue Code.



8.13 Ownership of Subsidiaries.




     Notwithstanding any other provisions of this Agreement to the contrary, (i) permit any Person
(other than the Borrower or any Wholly Owned Subsidiary of the Borrower) to own any Equity
Interests of any Subsidiary of the Borrower, except to qualify directors where required by
applicable law or to satisfy other requirements of applicable law with respect to the ownership of
Equity Interests of Foreign Subsidiaries; provided that the foregoing shall not restrict
Holdings or its Subsidiaries from (x) holding Equity Interests in the joint ventures set forth on
Schedule 8.13 or (y) acquiring and holding Equity Interests in Subsidiaries that are not
Wholly Owned Subsidiaries pursuant to Sections 8.02(g) or (j) in an aggregate amount not to
exceed $25,000,000, (ii) permit any Subsidiary of the Borrower to issue or have outstanding any
shares of preferred Equity Interests or (iii) create, incur, assume or suffer to exist any Lien on
any Equity Interests of any Subsidiary of the Borrower, except for any Permitted Liens.



8.14 Sale Leasebacks.




     Enter into any Sale and Leaseback Transaction.



8.15  Prepayment of Other Indebtedness, Etc. 




     (a) Amend or modify any of the terms of any Subordinated Indebtedness if such amendment or
modification would add or change any terms in a manner adverse to the Borrower or any Subsidiary
(including, without limitation, any amendment or modification that shortens the final maturity or
average life to maturity or requires any payment to be made sooner than originally scheduled or
increases the interest rate applicable thereto).



103









 





     (b) Make (or give any notice with respect thereto) any optional, mandatory or other
non-scheduled prepayment, redemption, acquisition for value (including without limitation, by way
of depositing money or securities with the trustee with respect thereto before due for the purpose
of paying when due), refund, refinance or exchange (other than an exchange of the Senior
Subordinated Notes for substantially similar unsecured senior notes that have been registered under
the Securities Act) of any Subordinated Indebtedness; provided, that so long as no Default
exists or would result after giving effect thereto, Holdings or any of its Subsidiaries may prepay,
redeem, acquire for value, refund, refinance or exchange any Subordinated Indebtedness in an
aggregate amount not to exceed (x) $15,000,000 to the extent that the Senior Leverage Ratio at the
time of such prepayment, redemption, acquisition, refund, refinancing or exchange is less than or
equal to 2.50:1.00 but greater than 2.00:1.00, (y) $25,000,000 to the extent that the Senior
Leverage Ratio at the time of such prepayment, redemption, acquisition, refund, refinancing or
exchange is less than or equal to 2.00:1.00 but greater than 1.50:1.00, and (z) $50,000,000 to the
extent that the Senior Leverage Ratio at the time of such prepayment, redemption, acquisition,
refund, refinancing or exchange is less than or equal to 1.50:1.00.



     (c) Make any principal, interest or other payment on any Subordinated Indebtedness in
contravention of any subordination agreement applicable thereto (provided that the Borrower
and its Subsidiaries may make regularly scheduled principal and interest payments on Subordinated
Indebtedness, including payment on maturity or conversion of convertible indebtedness, to the
extent such payments are not prohibited by any subordination agreement applicable thereto).



8.16 Capital Expenditures.




     Permit Capital Expenditures for any fiscal year to exceed (a) $5,000,000, plus (b) the
unused amounts available for Capital Expenditures under this Section 8.16 for the
immediately preceding fiscal year (excluding any carry forward available from any prior fiscal
year).



8.17 Accounting Changes.




     Make any change in accounting policies or reporting practices, except as required by GAAP.



8.18 Partnerships, Etc.




     Become a general partner in any general or limited partnership or joint venture, except that
any Subsidiary the sole assets of which consist of its interest in a partnership or joint venture
may become a general partner in such partnership or joint venture.



8.19 Speculative Transactions.




     Enter into, or permit any of its Subsidiaries to enter into any hedging, option or futures
contract that is, in any case for purposes of speculation or not made in the ordinary course of
business.



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8.20 Designation of Senior Debt.




     Designate any representative of holders of “Designated Senior Debt” under the terms of the
Senior Subordinated Note Indenture (other than a representative of the Lenders) as eligible for
giving a “Payment Blockage Notice” under the terms of the Senior Subordinated Note Indenture.



8.21 Holding Company.




     In the case of Holdings, engage in any business or activity other than (a) transactions
contemplated by the Loan Documents or the provision of administrative, legal, accounting and
management services to, or on behalf of, any of its Subsidiaries, (b) the ownership of the Equity
Interests of the Borrower and the exercise of rights and performance of obligations in connection
therewith, (c) the entry into, and exercise of rights and performance of obligations in respect of
(i) this Agreement and any other Loan Document to which it is a party; any other agreement to which
it is a party on the date hereof; and any guarantee of Indebtedness or other obligations of the
Borrower or any of its Subsidiaries permitted pursuant to the Loan Documents; in each case as
amended, supplemented, waived or otherwise modified from time to time, and any refinancings,
refundings, renewals or extensions thereof, (ii) contracts and agreements with officers, directors
and employees of it or the Borrower or any Subsidiary thereof relating to their employment or
directorships, (iii) insurance policies and related contracts and agreements, and (iv) equity
subscription agreements, registration rights agreements, voting and other stockholder agreements,
engagement letters, underwriting agreements and other agreements in respect of its equity
securities or any offering, issuance or sale thereof, (d) the offering, issuance, sale and
repurchase or redemption of, and dividends or distributions on its equity securities, (e) the
filing of registration statements, and compliance with applicable reporting and other obligations,
under federal, state or other securities laws, (f) the listing of its equity securities and
compliance with applicable reporting and other obligations in connection therewith, (g) the
retention of (and the entry into, and exercise of rights and performance of obligations in respect
of, contracts and agreements with) transfer agents, private placement agents, underwriters,
counsel, accountants and other advisors and consultants, (h) the performance of obligations under
and compliance with its certificate of incorporation and by-laws, or any applicable law, ordinance,
regulation, rule, order, judgment, decree or permit, including, without limitation, as a result of
or in connection with the activities of the Borrower or its Subsidiaries, (i) the incurrence and
payment of its operating and business expenses and any taxes for which it may be liable, (j) making
loans to or other Investments in, or incurrence of Indebtedness to, the Borrower or its
Subsidiaries as and to the extent permitted by this Agreement, (k) other activities incidental or
related to the foregoing, and (l) maintaining its corporate existence.



ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES




9.01 Events of Default.




     Any of the following shall constitute an Event of Default:



105









 






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




     (b) Specific Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.01, 7.02, 7.03,
7.05, 7.10, 7.11, 7.12, 7.14 or 7.16, or
Article VIII; or




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




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




     (e) Cross-Default. (i) Any Loan Party or any of its Subsidiaries (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than the Threshold
Amount, or (B) fails to observe or perform any other agreement or condition relating to any
such Indebtedness or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which the
Loan Party or such Subsidiary is the Defaulting Party (as defined in such Swap Contract) or
(B) any Termination Event (as so defined) under such Swap Contract as to which the Loan
Party or such Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Loan Party or such Subsidiary as a result thereof is greater
than the Threshold Amount; or



106









 






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




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




     (h) Judgments. There is entered against Holdings, the Borrower or any of its
Material Subsidiaries (i) one or more final judgments or orders for the payment of money in
an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or
more non-monetary final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case, (A)
enforcement proceedings are commenced by any creditor upon such judgment or order unless
Holdings, the Borrower or such Material Subsidiary, as applicable, is contesting such
enforcement proceedings in good faith by appropriate proceedings diligently conducted and
for which adequate reserves have been provided in accordance with GAAP, or (B) there is a
period of thirty (30) consecutive days during which a stay of enforcement of such judgment,
by reason of a pending appeal or otherwise, is not in effect; or




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




     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and
effect; or any Loan Party or any other Person contests in any manner the validity or



107









 







enforceability of any Loan Document; or any Loan Party denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or




     (k) Change of Control. There occurs any Change of Control; or




     (l) Collateral Document. Any security interest purported to be created by any
Collateral Document and to extend to assets that are not immaterial to Holdings, the
Borrower and the Subsidiaries on a consolidated basis shall cease to be a valid and
perfected security interest to the extent required thereby (having the priority required by
this Agreement or the relevant Collateral Document) in the securities, assets or properties
covered thereby, except to the extent that any such loss of perfection or priority results
from the failure of the Administrative Agent to maintain possession of certificates actually
delivered to it representing securities pledged under the Collateral Documents; or




     (m) Material Contracts. The Borrower or any other Loan Party cancels or
terminates any Material Contract or consents to or accepts any cancellation or termination
thereof and does not replace such Material Contract with one or more contracts, which,
individually or in the aggregate, would constitute a Material Contract within sixty (60)
calendar days.




	9.02	 	Remedies Upon Event of Default.





     If any Event of Default occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders, take any or all of the following
actions:




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




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




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




     (d) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the


108









 






obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




9.03 Application of Funds.




     After the exercise of remedies provided for in Section 9.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 9.02), any
amounts received on account of the Obligations shall be applied by the Administrative Agent in the
following order:




     First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and disbursements of
counsel to the Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;




     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the Lenders and
the L/C Issuer (including fees, charges and disbursements of counsel to the respective
Lenders and the L/C Issuer and amounts payable under Article III), ratably among
them in proportion to the amounts described in this clause Second payable to them;




     Third, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic
payments, and any interest accrued thereon, due under any Swap Contract between any Loan
Party and any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is
permitted by Section 8.03(d), ratably among the Lenders (and, in the case of such
Swap Contracts, Affiliates of Lenders) and the L/C Issuer in proportion to the respective
amounts described in this clause Third held by them;




     Fourth, to (a) payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other
payments, and any interest accrued thereon, due under any Swap Contract between any Loan
Party and any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is
permitted by Section 8.03(d), (c) payments of amounts due under any Treasury
Management Agreement between any Loan Party and any Lender, or any Affiliate of a Lender and
(d) Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit, ratably among the Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders) and the L/C Issuer in proportion to the respective amounts
described in this clause Fourth held by them; and




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



     Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy
drawings



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under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set forth above.



ARTICLE X




ADMINISTRATIVE AGENT




10.01 Appointment and Authority.




     (a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, except in respect of
Section 10.06, and neither the Borrower nor any other Loan Party shall have rights as a
third party beneficiary of any of such provisions.



     (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable) and potential party to a Swap Contract or a Treasury Management Agreement) and the L/C
Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of
such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens
on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together
with such powers and discretion as are reasonably incidental thereto. In this connection, the
Administrative Agent, as “collateral agent” and any Supplemental Collateral Agents, co-agents,
sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section
10.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)
granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the
direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this
Article X and Article XI (including Section 11.04(c), as though such
Supplemental Collateral Agents, co-agents, sub-agents and attorneys-in-fact were the “collateral
agent” under the Loan Documents) as if set forth in full herein with respect thereto.



10.02 Rights as a Lender.




     The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with any Loan Party or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any
duty to account therefor to the Lenders. The Administrative Agent shall also act as the
“collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as
a



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Lender, Swing Line Lender (if applicable) and potential party to a Swap Contract or a Treasury
Management Agreement) and the L/C Issuer hereby irrevocable appoints and authorizes the
Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties
to secure any of the Secured Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent”
and any Supplemental Collateral Agents, co-agents, sub-agents and attorneys-in-fact appointed by
the Administrative Agent pursuant to Section 10.05 for purposes of holding or enforcing any
Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for
exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall
be entitled to the benefits of all provisions of this Article X and Article XI
(including Section 11.04(c), as though such Supplemental Collateral Agents, co-agents,
sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set
forth in full herein with respect thereto.



10.03 Exculpatory Provisions.




     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



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     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in
Article V or elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.



10.04 Reliance by Administrative Agent.




     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Loan Parties), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.



10.05 Delegation of Duties.




     The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent, in its capacity as
the “collateral agent” under the Loan Documents, may also from time to time, when the
Administrative Agent deems it to be necessary or desirable in its reasonable judgment, appoint one
or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact
(each, a “Supplemental Collateral Agent”) with respect to all or any part of the
Collateral; provided, however, that no such Supplemental Collateral Agent shall be
authorized to take any action with respect to any such Collateral unless and except to the extent
expressly authorized in writing by the Administrative Agent. Should any instrument in writing from
the Borrower or any other Loan Party be required by any Supplemental Collateral Agent so appointed
by the Administrative Agent to more fully or certainly vest in and confirm to such Supplemental
Collateral Agent such rights, powers, privileges and duties, the Borrower shall, or shall cause
such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon the
reasonable request by the Administrative Agent. If any Supplemental Collateral Agent,



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or successor
thereto, shall die, become incapable of acting, resign or be removed, all rights, powers,
privileges and duties of such Supplemental Collateral Agent, to the extent permitted by law, shall
automatically vest in and be exercised by the Administrative Agent until the appointment of a new
Supplemental Collateral Agent. The Administrative Agent and any such sub-agent or Supplemental
Collateral Agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub-agent or Supplemental Collateral Agent and to the Related Parties of the
Administrative Agent and any such sub-agent or Supplemental Collateral Agent, and shall apply to
their respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent and Collateral Agent.



10.06 Resignation of Administrative Agent.




     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right to appoint a successor, which shall be a bank with an office in the United
States; provided that the Borrower must consent to the appointment of any such successor
Administrative Agent at all times other than during the existence of a Default (which consent shall
not be unreasonably withheld or delayed), or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 11.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



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     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangement satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.



10.07 Non-Reliance on Administrative Agent and Other Lenders.




     Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.



10.08 No Other Duties; Etc.




     Anything herein to the contrary notwithstanding, neither the Arranger nor any “Syndication
Agent” listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



10.09 Administrative Agent May File Proofs of Claim.




     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise:




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than
obligations under Swap Contracts or Treasury Management Agreements to which the
Administrative Agent is not a party) that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other



114









 







amounts due the
Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and
(j), 2.09 and 11.04) allowed in such judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.




	10.10	 	Collateral and Guaranty Matters.





     The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option
and in its discretion,




     (a) to release any Lien on any Collateral granted to or held by the Administrative
Agent under any Loan Document (i) upon termination of the Aggregate Revolving Commitments
and payment in full of all Obligations (other than contingent indemnification obligations)
and the expiration or termination of all Letters of Credit, (ii) that is transferred or to
be transferred as part of or in connection with any Disposition permitted hereunder or under
any other Loan Document or any Involuntary Disposition, or (iii) as approved in accordance
with Section 11.01, or (iv) owned by a Guarantor upon release of such Guarantor from
its obligations under its Guaranty pursuant to clause (c) below;




     (b) to subordinate any Lien on any Property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such Property that is permitted
by Section 8.01(i); and




     (c) to release any Guarantor from its obligations under any Loan Document to which it
is a party if such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of Property, or to release any Guarantor from its obligations under any Loan
Document to which it is a party, pursuant to this Section 10.10. In each case as specified
in this Section 10.10, the Administrative Agent will, at the Borrower’s expense, execute
and deliver



115









 







to the applicable Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of Collateral from the assignment and security interest
granted under the Collateral Documents, or to release such Guarantor from its obligations under the
Loan Documents, in each case in accordance with the terms of the Loan Documents and this
Section 10.10.



ARTICLE XI




MISCELLANEOUS




11.01 Amendments, Etc.




     No amendment or waiver of any provision of this Agreement or any other Loan Document, and no
consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective
unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided further that




     (a) no such amendment, waiver or consent shall:




     (i) extend or increase the Commitment of a Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of
such Lender whose Commitment is being extended or increased (it being
understood and agreed that a waiver of any condition precedent set forth in
Section 5.02 or of any Default, Event of Default, mandatory prepayment or a
mandatory reduction in Commitments is not considered an extension or increase in
Commitments of any Lender);




     (ii) postpone any date fixed by this Agreement or any other Loan Document for
any payment of principal (excluding mandatory prepayments), interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction
of the Commitments hereunder or under any other Loan Document without the written
consent of each Lender entitled to receive such payment or whose Commitments are to
be reduced;




     (iii) reduce the principal of, or the rate of interest specified herein on, any
Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to
this Section 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender entitled to receive
such payment of principal, interest, fees or other amounts; provided,
however, that only the consent of the Required Lenders shall be necessary to
(A) amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest or Letter of Credit Fees at the Default Rate or (B) to
amend any financial covenant hereunder (or any defined term used therein) even if
the effect of such amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;



116









 






     (iv) change (A) Section 9.03 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender or
(B) the order of application of any reduction in the Commitments or any prepayment
of Loans among the Credit Facilities from the application thereof set forth in the
applicable provisions of Section 2.05(b) or 2.06(b), respectively,
in any manner that materially and adversely affects the Lenders under a Facility
without the written consent of (1) if such Credit Facility is the Term Facility, the
Required Term Lenders and (2) if such Credit Facility is the Revolving Facility, the
Required Revolving Lenders;




     (v) change any provision of this Section 11.01(a) or the definition of
“Required Lenders” without the written consent of each Lender directly affected
thereby;




     (vi) except as otherwise provided in Section 10.10 in connection with a
Disposition permitted under Section 8.05, release all or substantially all
of the Collateral without the written consent of each Lender whose Obligations are
secured by such Collateral; or




     (vii) release the Borrower from its obligations under the Loan Documents or,
except as otherwise provided in Section 10.10 in connection with a merger or
consolidation permitted under Section 8.04 or a Disposition permitted
under Section 8.05, release one or more Guarantors representing all or
substantially all of the Consolidated EBITDA of the Guarantors from their
obligations under the Guaranty, without the written consent of each Lender; and




     (b) unless also signed by the L/C Issuer, no amendment, waiver or consent shall affect
the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it; and




     (c) unless also signed by the Swing Line Lender, no amendment, waiver or consent shall
affect the rights or duties of the Swing Line Lender under this Agreement; and




     (d) unless also signed by the Administrative Agent, no amendment, waiver or consent
shall affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document;




     (e) Certain Amendments.




     (i) General. Notwithstanding the foregoing provisions of Section
11.01, any provision of this Agreement may be amended by an agreement in writing
entered into by the Borrower, the Required Lenders and the Administrative Agent
(and, if its rights or obligations are affected thereby, the L/C Issuer) if (A) by
the terms of such agreement the Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (B) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of



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the principal of and interest accrued
on each Loan made by it and all other amounts owing to it or accrued for its account
under this Agreement.




     (ii) Additional Commitments or Tranches. For the avoidance of doubt
and notwithstanding any provision to the contrary contained in this Section
11.01 (including Section 11.01(a)), this Agreement may be amended (or
amended and restated) with the written consent of the Loan Parties and the Required
Lenders (A) to increase the aggregate Commitments of the Lenders, (B) to add one or
more additional borrowing tranches to this Agreement and to provide for the ratable
sharing of the benefits of this Agreement and the other Loan Documents with the
other then outstanding Obligations in respect of the extensions of credit from time
to time outstanding under such additional borrowing tranche(s) and the accrued
interest and fees in respect thereof and (C) to include appropriately the lenders
under such additional borrowing tranches in any determination of the Required
Lenders and/or to provide consent rights to such lenders under clauses (b),
(c) of this Section 11.01 or clause (i) to the proviso to this
Section 11.01 corresponding to the consent rights of the other Lenders
thereunder.


provided, however, that notwithstanding anything to the contrary herein, (i) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto, (ii) no Defaulting Lender shall have any right to approve or disapprove any
amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender (it being understood that any Commitments or Loans held
or deemed held by any Defaulting Lender shall be excluded from a vote of the Lenders hereunder
requiring any consent of the Lenders), (iii) each Lender is entitled to vote as such Lender sees
fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that
the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the
unanimous consent provisions set forth herein and (iv) the Required Lenders shall determine whether
or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.




11.02 Notices and Other Communications; Facsimile Copies.




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




     (i) if to the Borrower or any other Loan Party, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address
or telephone number specified for such Person on Schedule 11.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.



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



     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.



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



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



     (d) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Loan
Party even if (i) such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof,
as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of a Loan Party in the absence of bad faith, gross
negligence or willful misconduct. All telephonic notices to and other



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telephonic communications
with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.



11.03 No Waiver; Cumulative Remedies.




     No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay
by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



11.04 Expenses; Indemnity; and Damage Waiver.




     (a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of one counsel for the Administrative Agent and of any local counsel
retained with the Borrower’s consent (not to be unreasonably withheld)), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection with
the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit; provided that expenses in this subsection 11.04(a) shall not include Taxes, payment
for which is provided only to the extent provided in Sections 3.01(a), (b) and (c).



     (b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), the Arranger, each Lender and the L/C Issuer, and
each Representative Party (as defined below) of any of the foregoing Persons (each such Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges
and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out
of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document, or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder or the consummation
of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the



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documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by a Loan Party or any
of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any of
its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the bad faith, gross negligence or willful misconduct of such
Indemnitee or such Indemnitee’s Representative Parties, or (y) result from a claim brought by the
Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction or (z) are Taxes, payment for which is provided only to the extent provided
in Sections 3.01(a), (b) and (c).
For purposes of this Section 11.04(b), “Representative Parties” means, as to
any Person, (i) such Person’s officers, directors and employees and (ii) such Person’s Affiliates,
agents, advisers and other representatives, in each case to the extent acting at the discretion of
such Person.



     (c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section
to be paid by them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any
Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer
in its capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.



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



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent and the L/C Issuer, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other Obligations.



11.05 Payments Set Aside.




     To the extent that any payment by or on behalf of any Loan Party is made to the Administrative
Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or
such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the
extent of such recovery, the obligation or part thereof originally intended to be satisfied shall
be revived and continued in full force and effect as if such payment had not been made or such
setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause
(b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.



11.06 Successors and Assigns.




     (a) Successors and Assigns Generally. The provisions of this Agreement and the other
Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and
their respective successors and assigns permitted hereby, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this Section or (iii)
by way of pledge or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or transfer by any party hereto shall
be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in subsection (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of its Commitment and the Loans (including



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for purposes of
this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time
owing to it); provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender,
the aggregate amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the
Loans of the assigning Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent
or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000 in the case of an assignment in respect of the Revolving Facility or
$1,000,000 in the case of an assignment in respect of the Term Facility, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower, otherwise consents (each such consent not to be unreasonably
withheld or delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s Loans and Commitments, and rights and obligations
with respect thereto, assigned, except that this clause (ii) shall not (A) apply to rights
in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its
rights and obligations among separate Credit Facilities on a non-pro rata basis; (iii) any
assignment of a Revolving Commitment must be approved by the Administrative Agent, the L/C Issuer
and the Swing Line Lender, and, so long as no Event of Default has occurred and is continuing,
consented to by the Borrower (such consent not to be unreasonably withheld or delayed) unless the
Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee as set forth in Schedule 11.06(b); and (v) the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire
and (vi) the assigning Lender shall deliver any Notes evidencing such Loans to the Borrower or the
Administrative Agent (and the Administrative Agent shall deliver such Notes to the Borrower).
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits and obligations of Sections 3.01, 3.04,
3.05 and 11.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment). Upon request, and surrender by the assigning Lender of its
Notes, if any, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection
(d) of this Section.



     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment



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and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and the L/C Issuer at any reasonable time and
from time to time upon reasonable prior notice. In addition, at any time that a request for a
consent for a material or substantive change to the Loan Documents is pending, any Lender wishing
to consult with other Lenders in connection therewith may request and receive from the
Administrative Agent a copy of the Register.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the other Lenders and the L/C Issuer shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any
provision of this Agreement and the other Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, waiver or other modification described in clauses (i) through (vii)
of the Section 11.01(a) that affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to the benefits and
obligations of Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.08 as though it were a Lender, provided such Participant agrees to
be subject to Section 2.13 as though it were a Lender.



     (e) Limitation on Participant Rights. A Participant shall not be entitled to receive
any greater payment under Section 3.01, 3.04 or 3.05 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with the Borrower’s
prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.01(e) as though it were a Lender and does so comply.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal



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Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



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



     (h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Revolving Commitments and Revolving Loans pursuant to subsection (b) above, Bank of America
may, (i) upon thirty days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii)
upon thirty days’ notice to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of
America resigns as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation, including the right
to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing
Line Loans pursuant to Section 2.04(c).



11.07 Treatment of Certain Information; Confidentiality.




     Each of the Administrative Agent, the Arranger, the Lenders and the L/C Issuer agrees to
maintain the confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and representatives and to any direct or indirect contractual
counterparty (or such contractual counterparty’s professional advisor) under any Swap Contract
relating to Loans outstanding under this Agreement (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory authority, such as
the National Association of Insurance Commissioners), (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any
action or proceeding relating to this Agreement or any other Loan



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Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee or pledgee under Section 11.06(f) of or
Participant in, or any prospective assignee or pledgee of or Participant in, 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 a Loan Party 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 Administrative Agent,
any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a
source other than the Borrower.



     For purposes of this Section, “Information” means all information received from a Loan
Party or any Subsidiary relating to the Loan Parties or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, the
Arranger, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by such Loan
Party or any Subsidiary. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.



11.08 Set-off.




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



11.09 Interest Rate Limitation.




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



126









 







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



11.10 Counterparts; Integration; Effectiveness.




     This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.



11.11 Survival of Representations and Warranties.




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



11.12 Severability.




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



11.13 Replacement of Lenders.




     If (i) any Lender requests compensation under Section 3.04, (ii) if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the



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account
of any Lender pursuant to Section 3.01, (iii) a Lender does not consent to a proposed
change, waiver, discharge or termination with respect to any Loan Document that requires unanimous
consent of all affected Lenders and that has been approved by the Required Lenders as provided in
Section 11.01, (iv) any Lender delivers a notice pursuant to Section 3.02 with
respect to circumstances that do not affect the other Lenders hereunder, or (v) if any Lender is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in, and consents required by,
Section 11.06), all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:




     (a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or elimination of such payments
thereafter; and




     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



11.14 Governing Law; Jurisdiction; Etc.




     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF SUCH STATE, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE



128









 







FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C
ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.



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



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



11.15 WAIVER OF RIGHT TO TRIAL BY JURY.




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



129









 





11.16 USA PATRIOT Act Notice.




     Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.



[SIGNATURE PAGES FOLLOW]





130









 







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



	 	 	 	 	 	 	 	 	 
	BORROWER:	 	iPAYMENT, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/  Clay M. Whitson	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Clay M. Whitson	 	 
	 	 	Title:	 	Chief Financial Officer and Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	GUARANTORS:	 	iPAYMENT HOLDINGS, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/  Gregory S. Daily	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Gregory S. Daily	 	 
	 	 	Title:	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	iPAYMENT OF CALIFORNIA, LLC,	 	 
	 	 	a Tennessee limited liability company	 	 
	 	 	CARDPAYMENT SOLUTIONS, L.L.C.,	 	 
	 	 	a Delaware limited liability company	 	 
	 	 	iPAYMENT ACQUISITION SUB LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 	 	TS ACQUISITION SUB, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 	 	PCS ACQUISITION SUB, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 	 	NPMG ACQUISITION SUB, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	iPAYMENT, INC.,	 	 
	 	 	 	 	as sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/  Clay M. Whitson	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Clay M. Whitson	 	 
	 	 	 	 	 	 	Title:   Chief Financial Officer and Treasurer






 









 






	 	 	 	 	 	 	 
	 	 	1ST NATIONAL PROCESSING, INC.,	 	 
	 	 	a Nevada corporation	 	 
	 	 	E-COMMERCE EXCHANGE, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 	 	iPAYMENT OF MAINE, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 	 	CARDSYNC PROCESSING, INC.,	 	 
	 	 	a California corporation	 	 
	 	 	QUAD CITY ACQUISITION SUB, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Clay M. Whitson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Clay M. Whitson	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	ONLINE DATA CORP.,	 	 
	 	 	a Delaware corporation	 	 
	 	 	iPAYMENT CENTRAL HOLDINGS, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 	 	iPAYMENT ICE HOLDINGS, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Gregory S. Daily	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Gregory S. Daily	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Anne M. Zeschke	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Anne M. Zeschke	 	 
	 

	 	 	 	Title: Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Swing Line Lender and Issuing Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Thomas C. Kilcrease, JR.	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Thomas C. Kilcrease, JR.	 	 
	 

	 	 	 	Title: SVP	 	 






 









 






	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,	 	 
	 	 	as Syndication Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ John A. Horst	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: John A. Horst	 	 
	 

	 	 	 	Title: Vice President	 	 






 









 






	 	 	 	 	 	 	 
	REVOLVING LENDERS:	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Thomas C. Kilcrease, Jr.	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:  Thomas C. Kilcrease, Jr.	 	 
	 

	 	 	 	Title:    SVP	 	 






 









 






	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  John A. Horst	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: John A. Horst	 	 
	 

	 	 	 	Title:   Vice
President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	THE CIT GROUP/EQUIPMENT FINANCING, INC.,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Terence Sullivan 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:  Terence Sullivan	 	 
	 

	 	 	 	Title:    Managing
Director	 	 






 









 






	 	 	 	 	 	 	 
	 	 	CAROLINA FIRST BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Charles D.
Chamberlain	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:  Charles D.
Chamberlain	 	 
	 

	 	 	 	Title:    Executive
Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK,	 	 
	 	 	an Ohio Banking Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 
	TERM B LENDERS:	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Thomas C.
Kilcrease Jr.	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:  Thomas C.
Kilcrease Jr.	 	 
	 

	 	 	 	Title:    SVP	 	 






 









 






	 	 	 	 	 	 	 
	 	 	THE CIT GROUP/EQUIPMENT FINANCING, INC.,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 
	 	 	CAROLINA FIRST BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK,	 	 
	 	 	an Ohio Banking Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  John K. Perez	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:  John K. Perez	 	 
	 

	 	 	 	Title:    Vice
President