EX-10.1



 





Exhibit 10.1




CONFIDENTIAL




November 13, 2007




Dayton Superior Corporation

7777 Washington Village Drive

Suite 130

Dayton, Ohio 45459




	 	 	 
	Attention:

	 	Edward J. Puisis
	 

	 	Executive Vice President and CFO
	 
	 	 
	Re:

	 	Commitment Letter






Gentlemen:



General Electric Capital Corporation (“GE Capital”) is pleased to commit to provide Dayton
Superior Corporation (“you” or “Borrower”), directly or through an affiliate, the
entire principal amount of the Financing (as defined below) and to act as the sole administrative
agent for the Financing, all upon and subject to the general terms and conditions set forth herein,
in the Summary of Terms attached hereto as Exhibit A and incorporated herein by reference
(the “Term Sheet” and together with this letter, the “Commitment Letter”) and in
the Fee Letter (as defined below). GE Capital Markets, Inc. (“GECM”) is pleased to advise
the Borrower of its agreement to act as the sole lead arranger and book-running manager for the
Financing. Capitalized terms used in the text of this Commitment Letter without definition have
the meanings assigned such terms in the Term Sheet.



You have advised GE Capital and GECM that you intend to (i) redeem and retire all of the Borrower’s
103/4% Senior Second Secured Notes due 2008 (the “08 Notes”), and discharge the indenture
under which the 08 Notes were issued (the “08 Notes Refinancing”), and (ii) refinance
certain other of Borrower’s indebtedness, including, without limitation, indebtedness under the
Credit Agreement, dated as of January 30, 2004, as amended (the “Existing Credit
Facility”), among GE Capital, individually and as agent, the other lender named therein and you
(the “Existing Debt Refinancing” and, together with the 08 Notes Refinancing, the
“Transaction”).



You have further advised GE Capital that you intend to obtain (i) in connection with the
Transaction, senior secured financing comprised of (a) a $150,000,000 Senior Secured Revolving
Credit Facility (the “Revolving Credit Facility”) and (b) a $100,000,000 senior secured
term loan (the “Term Loan”) to be used solely to redeem and retire the 08 Notes (and to pay
fees, expenses, prepayment charges and accrued interest in connection therewith), with the
remainder of the funding required for these purposes funded from loans under the Revolving Credit
Facility, in each case, on the terms and conditions described in the Term Sheet (collectively, the
“Financing”).




Syndication.



GE Capital intends and reserves the right, prior to and after the execution of definitive
documentation for the Financing (the “Financing Documentation”), to syndicate all or a
portion of its commitments under this Commitment Letter or its loans and commitments under the
Financing Documentation, as the case may be, to one or more financial institutions in consultation
with you (other than those financial institutions identified by you on or prior to the commencement
of the Primary Syndication, as defined below, to GECM in a written list that has been reasonably
approved by GECM (“Excluded Lenders”)) pursuant to a syndication to be managed by GECM, in
consultation with you (GE Capital and such


 









 






financial institutions becoming parties to such Financing Documentation being collectively referred
to as the “Lenders”). The syndication of all or a portion of GE Capital’s commitments
and/or loans under the Financing on or prior to the Closing Date (as defined in the Term Sheet) is
hereinafter referred to as the “Primary Syndication.”



GECM will commence the Primary Syndication promptly after your acceptance of this Commitment Letter
and the Fee Letter (as defined below). It is understood and agreed that GECM will, in consultation
with you, manage and control all aspects of the Primary Syndication, including selection of the
potential other Lenders, determination of when GECM will approach potential other Lenders (other
than Excluded Lenders) and the time of acceptance of the other Lenders’ commitments, any naming
rights, titles or roles to be awarded to the other Lenders, the final allocations of the
commitments among the other Lenders and the amount and distribution of fees among the other
Lenders. It is further understood and agreed that (i) no additional agents, co-agents,
co-arrangers or co-bookrunners shall be appointed, or other titles, names or roles conferred to any
other Lender or any other person or entity, by you in respect of the Financing, (ii) the amount and
distribution of fees among the other Lenders will be at GECM’s discretion and (iii) no other Lender
will be offered by, or receive from, you compensation of any kind for its participation in the
Financing, except in each case as expressly provided for in this Commitment Letter or the Fee
Letter or with the prior consent of GECM.



You agree to actively assist and to cooperate with GE Capital and GECM in connection with the
Primary Syndication. Such assistance shall include (a) promptly preparing and providing to GE
Capital and GECM all information with respect to the Borrower prepared by or on behalf of the
Borrower and its subsidiaries relating to the Transaction and the other transactions contemplated
hereby, including all financial information and projections (the “Projections”), as GE
Capital and GECM may reasonably request in connection with the Primary Syndication, (b)
participating in Lender and other relevant meetings (including meetings with rating agencies) in
connection with the Primary Syndication, (c) providing direct contact during the Primary
Syndication between the Borrower’s senior management, representatives and advisors, on the one
hand, and potential Lenders, on the other hand, (d) using your commercially reasonable efforts to
ensure that GECM’s syndication efforts benefit from Borrower’s existing banking relationships, and
(e) assisting GECM in the preparation of confidential information memoranda, presentations and
other information materials regarding the Financing to be used in connection with the Primary
Syndication and confirming, prior to such materials being made available to potential Lenders, the
accuracy of such materials as set forth under “Information” below.



     Until the earliest of (i) the date on which a Successful Syndication (as defined in the Fee
Letter) occurs, (ii) 60 days following the date of the initial funding under the Financing
Documentation and (iii) in the event that no funding under the Financing has occurred as of such
time, the expiration of this Commitment Letter, the Borrower shall not (and Borrower shall cause
Borrower’s subsidiaries not to), without the prior written consent of GECM, offer, issue, place,
syndicate or arrange any debt or preferred equity securities or debt facilities (including any
renewals, restatements, restructuring or refinancings of any existing debt or preferred equity
securities or debt facilities), attempt or agree to do any of the foregoing, announce or authorize
the announcement of any of the foregoing, or engage in discussion concerning any of the foregoing.



Information.



You hereby represent and covenant, to the best knowledge of your responsible officers, that (a) all
information, taken as a whole, other than the Projections and general economic or specific industry
information developed by, and obtained from, third-party sources (the “Information”) that
has been or will be made available to GE Capital and GECM by you or any of your subsidiaries or
representatives is or will be, when furnished, true and correct in all material respects and does
not or will not, when


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furnished, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not materially misleading in light of
the circumstances under which such statements are made and (b) the Projections that have been or
will be made available to us by the Borrower or any of the Borrower’s subsidiaries or
representatives have been or will be prepared in good faith based upon assumptions believed to be
reasonable by your responsible officers (it being understood that the Projections are not forecasts
and that the actual results may vary from the Projections and the variances may be material). You
agree that if at any time prior to the initial funding of the Financing any of the representations
in the preceding sentence would be materially incorrect if the Information or Projections were
being furnished, and such representations were being made, at such time, then you will promptly
supplement the Information or the Projections, as the case may be, so that such representations
will be correct in all material respects under those circumstances. You understand that in
arranging and syndicating the Financing we may use and rely on the Information and Projections
without independent verification thereof.



You hereby authorize and agree on behalf of yourself and your subsidiaries, that the Information,
the Projections and all other information provided by or on behalf of you and your subsidiaries to
GE Capital and GECM regarding you and your subsidiaries, the Transaction and the other transactions
contemplated hereby and delivered to GE Capital and GECM in connection with the Financing
(collectively, “Evaluation Material”) may be disseminated by or on behalf of GE Capital and
GECM, and made available, to potential other Lenders and other persons, who have agreed to be bound
by customary confidentiality undertakings (including, “click-through” agreements), all in
accordance with GECM’s standard loan syndication practices (whether transmitted electronically by
means of a website, e-mail or otherwise, or made available orally or in writing, including at
potential Lender or other meetings). You hereby further authorize GECM to download copies of your
logos from your website and post copies thereof on an Intralinks® or similar workspace
and use such logos on any confidential information memoranda, presentations and other marketing and
materials prepared in connection with the Primary Syndication.



At GECM’s request, you agree to assist in the preparation of Evaluation Material, including a
version of the information memorandum, lender presentation and other information materials,
consisting exclusively of information that is either publicly available with respect to you and
your subsidiaries and parent companies, or that is not material with respect to you, or your
subsidiaries and you or your subsidiaries’ securities for purposes of United States federal and
state securities laws. You further acknowledge and agree to instruct us from time to time as to
whether the following documents and materials are to be distributed to both Public Lenders and
Private Lenders or only to Private Lenders (each as defined below): term sheets with respect to the
Financing and the Transaction, and administrative materials of a customary nature prepared by GE
Capital and GECM for prospective Lenders, such as a lender meeting invitation, bank allocation, if
any, and funding and closing memorandum. Before distribution of any information memoranda, you
agree to execute and deliver to us a letter in which you authorize distribution of a version of
such information memorandum to prospective Lenders and their employees (each, a “Private
Lender”) willing to receive material non-public information with respect to the Borrower and
your securities (collectively, “MNPI”), and a separate letter in which you authorize
distribution of a version of such information memorandum to prospective Lenders (each, a
“Public Lender”) that does not contain MNPI and represent that no MNPI is contained
therein. You also hereby agree that unless specifically labeled “Private — Contains Non-Public
Information,” no Evaluation Material disseminated to GE Capital, GECM and the potential other
Lenders by the Borrower, its subsidiaries or representatives in connection with the Financing will
contain any MNPI.




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Fee Letter.



As consideration for GE Capital’s and GECM’s agreements hereunder you agree to pay, subject to the
initial funding under the Revolving Credit Facility, GE Capital and such other specified parties,
if any, the fees as set forth in the Term Sheet and in the Fee Letter dated the date hereof and
delivered herewith with respect to the Financing (the “Fee Letter”). Once paid, such fees
shall not be refundable under any circumstances.




Conditions.



The commitment and agreements of GE Capital hereunder, and the agreements of GECM to provide the
services described herein, are subject to the following: (a) the execution and delivery of the
Financing Documentation reasonably acceptable to GE Capital and its counsel on the terms summarized
in the Term Sheet, (b) with respect to the initial funding under the Revolving Credit Facility, GE
Capital not becoming aware after the date hereof of any information not previously disclosed to GE
Capital affecting the Borrower and its current subsidiaries that in GE Capital’s judgment is
inconsistent in a material and adverse manner with information disclosed to GE Capital prior to the
date hereof, (c) GECM having been afforded a period of time acceptable to GECM, following your written authorization for the release of the confidential information
memorandum prepared as part of the Evaluation Material and immediately prior to the date of the
initial funding under the Financing Documentation to complete the Primary Syndication, (d) your
compliance in all material respects with the terms and provisions of this Commitment Letter and the
Fee Letter and (e) the other conditions set forth in the Term Sheet (including, without limitation,
in Schedule I thereto) and the Fee Letter.



Expenses.



     By signing this Commitment Letter you agree to pay, subject to the terms of the Fee Letter, upon
demand to GE Capital and GECM all reasonable out-of-pocket expenses (including, but not limited to,
all reasonable costs and fees of external legal counsel, auditors and other consultants and
advisors, due diligence reports, escrow costs (if applicable), recording and transfer fees and
taxes, title charges and survey costs) incurred in connection with this Commitment Letter, the Fee
Letter, the Transaction, the Financing and the transactions contemplated hereby (and the
negotiation, documentation, closing and syndication thereof).



Confidentiality.



GE Capital is delivering this Commitment Letter to you with the understanding that you will not
disclose the contents of this Commitment Letter, the Fee Letter or GE Capital’s or GECM’s
involvement or interest in providing and arranging the Financing to any third party (including,
without limitation, any financial institution or intermediary) without GE Capital’s prior written
consent other than to (a) Odyssey Investment Partners LLC (the “Sponsor”) and those
individuals who are your and the Sponsor’s respective directors, officers, employees, agents,
auditors or advisors in connection with the Financing, and (b) as may be compelled in a judicial or
administrative proceeding or as otherwise required by law (in which case you agree to inform GE
Capital promptly thereof). You agree to inform all such persons who receive (a) information
included in this Commitment Letter or the Fee Letter concerning GE Capital or GECM or (b) this
Commitment Letter or the Fee Letter or the information contained therein that, in each case, such
information is confidential and may not be used for any purpose other than in connection with


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the Transaction and may not be disclosed to any other person. GE Capital reserves the right to
review and approve, in advance, all materials, press releases, advertisements and disclosures that
you prepare or that are prepared on your behalf that contain GE Capital’s or any affiliate’s name
or describe GE Capital’s financing commitment or GECM’s role and activities with respect to the
Financing.




Indemnity.



Regardless of whether the Financing closes, you agree to (a) indemnify, defend and hold each of GE
Capital, GECM, each Lender, and their respective affiliates and the principals, directors,
officers, employees, representatives, agents and third party advisors of each of them (each, an
“Indemnified Person”), harmless from and against all losses, claims, expenses (including,
but not limited to, reasonable attorneys’ fees), damages, and liabilities of any kind (including,
without limitation, any environmental liabilities) which may be incurred by, or asserted against,
any such Indemnified Person in connection with, arising out of, or relating to, this Commitment
Letter, the Fee Letter, the Financing, the use or the proposed use of the proceeds thereof, the
Transaction, any other transaction contemplated by this Commitment Letter, any other transaction
related thereto and any claim, litigation, investigation or proceeding relating to any of the
foregoing (each, a “Claim”, and collectively, the “Claims”), regardless of whether
such Indemnified Person is a party thereto, and (b) reimburse each Indemnified Person upon demand
for all reasonable out-of-pocket expenses (including, without limitation, reasonable legal
expenses) incurred by it in connection with investigating, preparing to defend or defending, or
providing evidence in or preparing to serve or serving as a witness with respect to, any lawsuit,
investigation, claim or other proceeding relating to any of the foregoing (each, an
“Expense”); provided that no Indemnified Person shall be entitled to indemnity
hereunder in respect of any Claim or Expense to the extent that the same is found by a final
judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful
misconduct or bad faith of such Indemnified Person. Under no circumstances shall GE Capital, GECM
or any of their respective affiliates be liable for any punitive, exemplary, consequential or
indirect damages that may be alleged to result in connection with, arising out of, or relating to,
any Claims, this Commitment Letter, the Fee Letter, the Financing, the use or the proposed use of
the proceeds thereof, the Transaction, any other transaction contemplated by this Commitment Letter
and any other transaction related thereto. Furthermore, you hereby acknowledge and agree that the
use of electronic transmission is not necessarily secure and that there are risks associated with
such use, including risks of interception, disclosure and abuse. You agree to assume and accept
such risks by hereby authorizing the transmission of electronic transmissions, and you agree that
each of GE Capital, GECM or any of their respective affiliates will not have any liability for any
damages arising from the use of such electronic transmission systems unless such damages are found
by a final judgment of a court of competent jurisdiction to have resulted from the gross
negligence, willful misconduct or bad faith of GE Capital, GECM or any of their respective
affiliates.




Sharing Information; Absence of Fiduciary Relationship.



You acknowledge that GE Capital, GECM and their affiliates may be providing debt financing, equity
capital or other services to other companies in respect of which you may have conflicting interests
regarding the transactions described herein and otherwise. None of GE Capital, GECM or any of
their respective affiliates will furnish confidential information obtained from you, the Sponsor
and your and their respective officers, directors, employees, attorneys, accountants or other
advisors by virtue of the transactions contemplated by this Commitment Letter or its other
relationships with you to other companies. You also acknowledge that none of GE Capital, GECM or
any of their respective affiliates has any obligation to use in connection with the transactions
contemplated by this Commitment Letter, or furnish to you, the Sponsor, and your and their
respective officers, directors, employees, attorneys, accountants or other advisors, confidential
information obtained by GE Capital, GECM or any of their respective affiliates from other
companies.


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You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between
you, GE Capital or GECM has been or will be created in respect of any of the transactions
contemplated by this Commitment Letter, irrespective of whether GE Capital, GECM and/or their
respective affiliates have advised or are advising you on other matters and (b) you will not bring
or otherwise assert any claim against GE Capital or GECM for breach of fiduciary duty or alleged
breach of fiduciary duty and agree that neither GE Capital nor GECM shall have any liability
(whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders,
employees or creditors.




Assignments and Amendments.



This Commitment Letter shall not be assignable by you without the prior written consent of GE
Capital (and any purported assignment without such consent shall be null and void), is intended to
be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or
create any rights in favor of, any person other than the parties hereto and the Indemnified
Persons. GE Capital may transfer and assign its commitment hereunder, in whole or in part, on the
terms and conditions set forth herein to any of its affiliates or to any other prospective Lender
(other than Excluded Lenders) in connection with the Primary Syndication or otherwise;
provided that GE Capital shall not be released from the portion of its commitment hereunder
that has been so transferred and assigned until immediately following the initial funding under the
Financing Documentation on the Closing Date.



This Commitment Letter may not be amended or waived except by an instrument in writing signed by
you and GE Capital. GE Capital and GECM may perform the duties and activities described hereunder
through any of their respective affiliates and the provisions of the paragraph entitled “Indemnity”
shall apply with equal force and effect to any of such affiliates so performing any such duties or
activities.




Counterparts and Governing Law.



This Commitment Letter may be executed in counterparts, each of which shall be deemed an original
and all of which counterparts shall constitute one and the same document. Delivery of an executed
signature page of this Commitment Letter by facsimile transmission or electronic transmission (in
“pdf” format) shall be effective as delivery of a manually executed counterpart hereof.



The laws of the State of New York shall govern all matters arising out of, in connection with or
relating to this Commitment Letter, including, without limitation, its validity, interpretation,
construction, performance and enforcement.




Venue and Submission to Jurisdiction.



You consent and agree that the state or federal courts located in New York County, State of New
York, shall have exclusive jurisdiction to hear and determine any claims or disputes between or
among any of the parties hereto pertaining to this Commitment Letter, any transaction relating
hereto, any other financing related thereto, and any investigation, litigation, or proceeding in
connection with, related to or arising out of any such matters, provided, that you
acknowledge that any appeals from those courts may have to be heard by a court located outside of
such jurisdiction. You expressly submit and consent in advance to such jurisdiction in any action
or suit commenced in any such court, and hereby waive any objection, which either of them may have
based upon lack of personal jurisdiction, improper venue or inconvenient forum.




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Waiver of Jury Trial.



THE PARTIES HERETO, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO, THIS COMMITMENT LETTER, THE
FEE LETTER, THE FINANCING AND ANY OTHER TRANSACTION CONTEMPLATED HEREBY. THIS WAIVER APPLIES TO
ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.




Survival.



The provisions of this letter set forth under this heading and the headings “Syndication”,
“Information”, “Expenses”, “Confidentiality”, “Indemnity”, “Assignments and Amendments”,
“Counterparts and Governing Law”, “Venue and Submission to Jurisdiction” and “Waiver of Jury Trial”
shall survive the termination or expiration of this Commitment Letter and shall remain in full
force and effect regardless of whether the Financing closes or Financing Documentation shall be
executed and delivered; provided that in the event the initial funding under the Revolving
Credit Facility occurs or the Financing Documentation shall be executed and delivered, the
provisions under the heading “Syndication” and “Information” shall survive only until the
completion of a Successful Syndication and the remaining provisions shall be automatically
terminated and superseded by the provisions of the Financing Documentation upon the initial funding
thereunder.




Integration.



This Commitment Letter and the Fee Letter supersede any and all discussions, negotiations,
understandings or agreements, written or oral, express or implied, between or among the parties
hereto and any other person as to the subject matter hereof.




Patriot Act.



GE Capital hereby notifies you that pursuant to the requirements of the USA PATRIOT Act, Title III
of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”), each Lender may
be required to obtain, verify and record information that identifies Borrower, which information
includes the name, address, tax identification number and other information regarding Borrower that
will allow such Lender to identify Borrower in accordance with the PATRIOT Act. This notice is
given in accordance with the requirements of the PATRIOT Act and is effective as to each Lender.




[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]





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Please indicate your acceptance of the terms hereof and of the Fee Letter by signing in the
appropriate space below and in the Fee Letter and returning to GE Capital such signature pages to
this Commitment Letter and the Fee Letter by 5:00 p.m., (New York time) on November 13, 2007.
Unless extended in writing by GE Capital (which extension may be granted or withheld by GE Capital
in its sole discretion), the commitments contained herein shall expire on the first to occur of (a)
the date and time referred to in the previous sentence unless you shall have executed and delivered
a copy of this Commitment Letter and the Fee Letter as provided above and (b) 5:00 p.m. (New York
time) on January 25, 2008 unless the initial funding under the Revolving Credit Facility is
consummated on or before that date on the terms, and subject to the conditions, contained herein.




	 	 	 	 	 	 	 
	Sincerely,	 	 
	 
	 	 	 	 	 	 
	GENERAL ELECTRIC CAPITAL CORPORATION	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Michelle Handy	 	 
	 	 	 	 	 
	 

	 	Name:	 	Michelle Handy 	 	 
	 

	 	Title:	 	Duly Authorized Signatory 	 	 
	 
	 	 	 	 	 	 
	AGREED AND ACCEPTED	 	 
	THIS 13TH DAY OF NOVEMBER, 2007.	 	 
	 
	 	 	 	 	 	 
	DAYTON SUPERIOR CORPORATION	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Edward J. Puisis	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Edward J. Puisis	 	 
	 

	 	Title:
	 	Executive Vice President and Chief Financial Officer
	 	 






Exhibit A to Commitment Letter

$250,000,000 Senior Secured Credit Facility




Summary of Terms

November 9, 2007




     This is the Term Sheet described as Exhibit A in that certain letter dated November 9, 2007.
Capitalized terms used herein without definition shall have the meanings assigned to them in the
letter referenced above.



	 	 	 
	Borrower:

	 	Dayton Superior Corporation, a Delaware corporation (“Borrower”), and
together with its subsidiaries, collectively, the “Group Members”).






 









 






	 	 	 
	Guarantors:

	 	Borrower’s existing and subsequently acquired or formed direct and indirect
domestic subsidiaries (each, a “Guarantor” and collectively, the “Guarantors”).
	 
	 	 
	Administrative Agent and
Collateral Agent:

	 	General Electric Capital Corporation (“GE Capital”)
	 
	 	 
	Sole Lead Arranger and Book
Runner:

	 	GE Capital Markets, Inc. (“GECM”)
	 
	 	 
	Lenders:

	 	A syndicate of financial institutions (including GE Capital individually) arranged by
GECM in consultation with the Borrower other than Excluded Lenders.
	 
	 	 
	Facilities:

	 	$250,000,000 in senior secured credit facilities (the “Facilities”)
consisting of the following:
	 
	 	 
	 

	 	Term Loan: A term loan of $100,000,000 (the “Term
Loan”) will be advanced in one drawing on the
Closing Date (as hereinafter defined) and will be
repayable in scheduled installments of principal
equal to 0.25% of the original principal amount
thereof per calendar quarter (beginning with the
first day of the first calendar quarter beginning
after the date that such Term Loan is made) with the
remaining outstanding principal balance being
repayable in full on the date (the “Maturity
Date”) that is the sixth anniversary of the
Closing Date; provided, that the Maturity Date shall
be March 14, 2009 if (and only if) the Borrower’s 13%
senior subordinated notes due June, 2009 (the “09
Notes”) have not been redeemed and retired on
such date (such date, the “Earlier Maturity
Date”). Amounts repaid on the Term Loan may not
be reborrowed.
	 
	 	 
	 

	 	Revolving Credit Facility: A revolving credit
facility (the “Revolving Credit Facility”) of
$150,000,000 under which borrowings may be made,
subject to Availability (as defined below), from time
to time during the period from the Closing Date until
the Maturity Date.
	 
	 	 
	 	 	A. Letters of Credit. Up to $30,000,000 of the
Revolving Credit Facility, subject to
Availability, will be available for the issuance
of letters of credit (“Letters of
Credit”) for the account of Borrower. No
Letter of Credit will have a termination date
that is later than (a) 30 days prior to the
Maturity Date and (b) other than through the
operation of “evergreen provisions” (which shall
in no event extend beyond the 30 days prior to
the Maturity Date), one year after the date of
issuance. Until the 09 Notes are redeemed and
retired in full as







 









 






	 	 	 
	 

	 	contemplated in the definition of “Maturity Date” no Letter of Credit shall have a
termination date beyond the date 30 days prior to the Earlier Maturity Date.

	 
	 	 
	 

	 	B. Swing Line Loans. Up to $10,000,000 of the Revolving Credit Facility, subject to
Availability, will be available to Borrower for
swing line loans from GE Capital.

	 
	 	 
	Availability:

	 	Borrowing availability (“Availability”) under the Revolving Credit
Facility will be limited to the sum of (a) 85% of the eligible accounts receivable of
Borrower and its domestic subsidiaries which are not more than 120 days past invoice date
and 80% of the net amount of eligible accounts of Borrower and its domestic subsidiaries
which are more than 120 and not more than 150 days past invoice date plus (b) the lesser
of 60% of the cost or 85% of the net orderly liquidation value of eligible inventory of
the Borrower and its domestic subsidiaries, less (c) $15,000,000; in each case, less such
reserves as the Agent may impose from time to time in its reasonable credit judgment,
(the “Borrowing Base”), but not to exceed the lesser of the maximum amount of the
revolving credit commitments or the amount allowed under the indenture governing the 09
Notes, as amended (the “Senior Subordinated Notes Indenture”).
	 
	 	 
	 

	 	Eligibility criteria substantially the same as that
in the Existing Credit Facility will be set forth in
the Financing Documentation. Administrative Agent
will retain the right from time to time, in its
Permitted Discretion (as defined below), to adjust
advance rates and standards of eligibility and to
establish reserves against availability.
	 
	 	 
	 

	 	“Permitted Discretion” means a determination
made in good faith and in the exercise of reasonable
(from the perspective of a secured asset-based
lender) business judgment.
	 
	 	 
	Use of Proceeds:

	 	The proceeds of the loans and advances under the Facilities
(collectively, the “Loans”) will be used (a) in the case of Loans under the
Revolving Credit Facility and the Term Loan on the Closing Date solely to refinance
indebtedness under the Existing Credit Facility and certain other indebtedness of the
Borrower and to pay costs, fees, interest and expenses in connection therewith and to
redeem and retire all of the 08 Notes and discharge the indenture, dated as of June 9,
2003 as amended (the “Senior Notes Indenture”), under which the 08 Notes were
issued, and to pay interest, premiums, fees and expenses incurred in connection with such






 









 






	 	 	 
	 

	 	redemption and retirement, and (b) in the case of the Loans under the Revolving Credit
Facility made after the Closing Date, for working capital and general corporate and
similar purposes.
	 
	 	 
	Interest:

	 	Interest will be payable on the unpaid principal amount of (a) Loans under the
Revolving Credit Facility, at a rate per annum equal to, at the option of Borrower (i)
the Base Rate (as defined below) plus the Applicable Margin (as defined below),
payable in arrears on the first business day of each month or (ii) so long as no event of
default exists on the first day of the interest period or on the date notice of election
of such interest period is given, the Eurodollar Rate (as defined below) plus the
Applicable Margin, payable at the end of the relevant interest period, but in any event,
at least quarterly or (b) in the case of the Term Loan, at a rate per annum equal to, at
the option of Borrower (i) the Base Rate (as defined below) plus the Applicable
Margin (as defined below), payable in arrears on the first business day of each month or
(ii) so long as no event of default exists on the first day of the interest period or on
the date notice of election of such interest period is given, the Eurodollar Rate (as
defined below) plus the Applicable Margin, payable at the end of the relevant interest
period, but in any event, at least quarterly.
	 
	 	 
	 

	 	“Base Rate” means a floating rate of interest
per annum equal to the higher of the rate publicly
quoted from time to time by The Wall Street
Journal as the “base rate on corporate loans
posted by at least 75% of the nation’s 30 largest
banks” and the federal funds rate plus 50 basis
points. “Eurodollar Rate” means, for each
interest period, the offered rate for deposits in
U.S. dollars in the London interbank market for the
relevant interest period which is published by the
British Bankers’ Association, and currently appears
on Reuters Screen LIBOR01 Page, as of 11:00 a.m.
(London time) on the day which is 2 business days
prior to the first day of such interest period
adjusted for reserve requirements. When selecting
the Eurodollar Rate option, Borrower will be entitled
to choose 1, 2, 3, 6, or, subject to availability by
all affected Lenders, 9 or 12 month interest periods.
	 
	 	 
	 

	 	All interest will be calculated based on a 360-day
year (or, in the case of Base Rate loans calculated
by reference to the prime rate, a 365/366-day year)
and actual days elapsed. The Financing Documentation
will set forth appropriate detail describing the
exact method of calculation and relevant reserve
requirements for the interest rates referred to above
as well as Eurodollar Rate






 









 






	 	 	 
	 

	 	breakage provisions, Eurodollar Rate borrowing mechanics and other Eurodollar Rate definitions.
	 
	 	 
	 

	 	The “Applicable Margin” (on a per annum
basis) means:
	 
	 	 
	 

	 	(a) with respect to the Term Loan, (i) 2.75% per
annum, in the case of Base Rate loans, and (ii) 3.75%
per annum, in the case of Eurodollar Rate loans; and
	 
	 	 
	 

	 	(b) with respect to Loans under the Revolving Credit
Facility, 1.25% per annum, in the case of Base Rate
Loans, and 2.25% per annum, in the case of Eurodollar
Rate Loans.
	 
	 	 
	 

	 	Adjustments in the Applicable Margins for the
Revolving Credit Facility will be implemented
quarterly, on a prospective basis, from and after the
first day of the first calendar month that occurs
more than one (1) day after the first delivery after
the Closing Date of Borrower’s quarterly financial
statements (the “Pricing Grid”). Failure to
timely deliver such financial statements shall, in
addition to any other remedy provided for in the
Financing Documentation, result in an increase of the
Applicable Margins to the highest level of such
pricing grid until such financial statements are
delivered. Downward adjustments will only take
effect (and only remain effective) in the absence of
the continuation of certain material defaults (to be
determined).






	 	 	 
	If Daily Average Availability for the Fiscal Quarter is:

	 	Level of Applicable Margins:
	less than $40,000,000

	 	Level I
	less than $65,000,000, but equal to or more than $40,000,000

	 	Level II
	more than $65,000,000

	 	Level III






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margins
	 	 	Level I	 	Level II	 	Level III
	Applicable Revolver
Margin for Base Rate
Loans
	 	 	1.50	%	 	 	1.25	%	 	 	1.00	%
	Applicable Revolver
Margin for Eurodollar
Loans
	 	 	2.50	%	 	 	2.25	%	 	 	2.00	%






	 	 	 
	Default Rate:

	 	From and after the occurrence of a payment or bankruptcy event of default, or,
at the election of the Administrative Agent or the Required Lenders, certain other
material defaults (to be mutually agreed upon), all amounts under the Financing
Documentation shall bear






 









 






	 	 	 
	 

	 	interest at the applicable interest rate (including those obligations which are determined by
reference to the rate applicable to any other obligation) plus 2% per annum and the
Letter of Credit Fee (as defined below) shall be increased by 2% per annum.
	 
	 	 
	Interest Rate Protection:

	 	Borrower shall obtain, within a time period to be agreed following
the Closing Date, interest rate protection agreements on terms and with counterparties
reasonably satisfactory to the Administrative Agent in effect for 50% of the notional
principal amount of the Term Loan for three (3) years following the Closing Date.
	 
	 	 
	Fees:

	 	In addition to the fees payable to GE Capital as specified in the Fee Letter,
Borrower shall pay the following fees:
	 
	 	 
	 

	 	A fee of 0.375% per annum of the average daily
balance of the unused portion of the Revolving Credit
Facility will be payable quarterly in arrears (the
“Unused Line Fee”).
	 
	 	 
	 

	 	A Letter of Credit fee (the “Letter of Credit
Fee”) equal to the maximum undrawn face amount of
all outstanding Letters of Credit multiplied by an
annual rate equal to the Applicable Margin for Loans
under the Revolving Credit Facility bearing interest
based on the Eurodollar Rate will be due and payable
quarterly in arrears. Borrower shall also pay
certain fees, documentary and processing charges to
an issuer of Letters of Credit as separately agreed
with such issuer or in accordance with such issuer’s
standard schedule at the time of determination
thereof.
	 
	 	 
	 

	 	All fees will be calculated based on a 360-day year
and actual days elapsed.
	 
	 	 
	Prepayments:

	 	Borrower shall make the following mandatory prepayments with respect to the Term
Loan (subject to certain basket amounts and exceptions to be mutually agreed in the
Financing Documentation):
	 
	 

	 	(a) Excess Cash Flow. Prepayments in an
amount equal to 75% of Excess Cash Flow (to be
defined in the Financing Documentation) beginning
with the fiscal year ending 2009, with reductions to
be agreed upon based upon achievement and maintenance
of leverage ratios to be agreed.
	 
	 	 
	 

	 	(b) Debt Issuances. Prepayments in an amount
equal to 50% of the net cash proceeds of issuances of
debt obligations of Borrower and its subsidiaries
(other than






 









 






	 	 	 
	 

	 	debt permitted under the definitive credit documentation).
	 
	 	 
	 

	 	(c) Asset Sales. Prepayments in an amount
equal to 100% of the net cash proceeds of the sale or
other disposition of any property or assets (other
than the sale of inventory (including, without
limitation, items included in the rental fleet) in
the ordinary course of business and certain other
dispositions to be mutually agreed) of Borrower or
its subsidiaries (including insurance and
condemnation proceeds), subject, in the case of asset
sales of property in which the Term Loan have a first
priority security interest to customary 365-day
reinvestment provisions.
	 
	 	 
	 

	 	Mandatory prepayments described in clauses (a) and
(b) above will be applied to the outstanding
principal balance of the Term Loan (applied pro rata
to remaining installments thereof).
	 
	 	 
	 

	 	In the case of asset sales of property in which the
Facilities in respect of the Term Loan have a first
priority security interest, mandatory prepayments
described in clause (c) above shall be applied to the
outstanding principal balance of the Term Loan
(applied pro rata to remaining installments thereof).
	 
	 	 
	 

	 	In the case of asset sales of property in which the
Revolving Credit Facility has a first priority
security interest, mandatory prepayments of the
Revolving Credit Facility will be required on the
same terms as those applicable to Term Loan
prepayments under clause (c) above and shall be
applied to pay obligations under the Revolving Credit
Facility (without a permanent reduction of the
commitments thereunder) and to provide cash
collateral equal to 105% of the undrawn amount of
Letters of Credit and thereafter to the prepayment of
the Term Loan (applied pro rata to remaining
installments of principal thereof).
	 
	 	 
	 

	 	To the extent that the Loans and Letters of Credit
outstanding under the Revolving Credit Facility
exceed the Borrowing Base or the maximum amount
allowed to be outstanding under the Revolving Credit
Facility, the Borrower shall immediately repay the
revolving Loans to eliminate such excess.
	 
	 	 
	 

	 	Voluntary prepayments of the Loans and terminations
and reductions of the unfunded commitments under the
Facilities will be permitted at any time in whole or
in part without premium or penalty, but the Borrower
will






 









 






	 	 	 
	 

	 	be required to pay breakage costs in connection with any voluntary prepayments of
Eurodollar Rate Loans made on a date other than the last day of an interest period.
Voluntary prepayments shall be applied to the remaining installments of the Term Loan as
directed by Borrower.
	 
	 	 
	 

	 	All voluntary and mandatory prepayments shall be
accompanied by accrued interest on the amount prepaid
to the date of prepayment.
	 
	 	 
	Collateral:

	 	All obligations of Borrower under the Revolving Credit Facility and of the
Guarantors under the guarantees in respect thereof will be secured by (1) a first
priority perfected security interests in (a) all accounts and other receivables for goods
sold or leased or services rendered whether or not earned (“Receivables”); (b)
all inventory (including, without limitation, the rental fleet) of any kind wherever
located (“Inventory”); (c) all instruments, chattel paper and other contracts
evidencing, or substituted for, any Receivable; (d) all guarantees, letters of credit,
security and other credit enhancements for the Receivables; (e) all documents of title
for any Inventory; (f) all claims and causes of action in any way relating to any of the
Receivables or Inventory; (g) all bank accounts into which any proceeds of Receivables or
Inventory are deposited (including all cash and other funds on deposit therein); (h) all
books and records relating to any of the foregoing; (i) all substitutions, replacements,
accessions, products or proceeds (including, without limitation, insurance proceeds) of
any of the foregoing (collectively, the “Revolving Credit Priority Collateral”).
GE Capital would have the right to utilize, at no cost or expense, any trade-names,
trademarks, copyrights or other intellectual property to the extent necessary or
appropriate and permitted by applicable law in order to sell, lease or otherwise dispose
of any of the Revolving Credit Priority Collateral, and (2) a second priority security
interest in all other existing and after-acquired real and personal property (other than
leaseholds) of Borrower and each Guarantor, including, without limitation, 100% of the
outstanding equity interests of domestic subsidiaries of the Borrower, and 66% of the
outstanding equity interests of foreign subsidiaries directly owned by the Borrower or
any domestic subsidiary of the Borrower.
	 
	 	 
	 

	 	All obligations of Borrower under the Facilities in
respect of the Term Loan and under any interest rate
protection or other hedging arrangements entered into
with or supported by a Lender (or any affiliate of
any Lender) and of the Guarantors under the
guarantees in






 









 






	 	 	 
	 

	 	respect thereof will be secured by (1) a second priority security interest in all Revolving
Credit Priority Collateral, and (2) a first priority perfected security interests in
substantially all other existing and after-acquired real and personal property (other
than leaseholds) of Borrower and each Guarantor, including, without limitation, 100% of
the outstanding equity interests of domestic subsidiaries of the Borrower, and 66% of the
outstanding equity interests of foreign subsidiaries directly owned by the Borrower or
any domestic subsidiary of the Borrower.
	 
	 	 
	 

	 	The property securing the Revolving Credit Facility
and the Facilities in respect of the Term Loan shall
be hereafter referred to as the “Collateral.”
	 
	 	 
	 

	 	The Borrower and the Guarantors will not be required
to (a) take any action to perfect a security interest
in any asset where the Administrative Agent
determines in its reasonable judgment that the cost
of perfection is excessive in relation to the benefit
thereof, or (b) make any fixture filings.
	 
	 	 
	 

	 	The Collateral will be free and clear of other liens,
claims, and encumbrances, except permitted liens and
encumbrances reasonably acceptable to Administrative
Agent (to be set forth in the Financing
Documentation).
	 
	 	 
	 

	 	Proceeds from the realization of the Revolving Credit
Priority Collateral shall be applied first to all
obligations (including principal, interest, fees,
indemnities and expenses) in respect of the Revolving
Credit Facility until paid in full, and to provide
cash collateral in an amount equal to 105% of the
undrawn amount of Letters of Credit, and then to
obligations, if any, in respect of the Term Loan.
Proceeds from the realization of the Collateral,
other than the Revolving Credit Facility Priority
Collateral, shall be applied first to all obligations
(including principal, interest, fees, indemnities and
expenses) in respect of the Term Loan until paid in
full, and thereafter shall be applied to all
obligations (including principal, interest, fees,
indemnities and expenses) in respect of the Revolving
Credit Facility until paid in full, and to provide
cash collateral in an amount equal to 105% of the
undrawn amount of Letters of Credit.
	 
	 	 
	 

	 	The respective priorities and rights with respect to
the Revolving Credit Facility, on the one hand, and
the Facilities in respect of the Term Loan, on the
other hand, shall be set forth in an intercreditor
agreement in form






 









 






	 	 	 
	 

	 	and substance satisfactory to the Borrower and the Administrative Agent.
	 
	 	 
	 

	 	The Financing Documentation for the Revolving Credit
Facility shall be separate and distinct from the
Financing Documentation for the Facilities in respect
of the Term Loan.
	 
	 	 
	Conditions Precedent for
Closing the Revolving Credit
Facility and the
Term Loan:

	 	The availability of the initial Loan under the Revolving Credit Facility and
the Term Loan will be conditioned only upon the satisfaction of the conditions set forth
in Schedule I(A) hereto (the date upon which such conditions precedent to the
initial funding under the Revolving Credit Facility and the Term Loan shall be satisfied,
the “Closing Date”), and the conditions for each borrowing set forth immediately below.
	 
	 	 
	Conditions Precedent
to each Borrowing
(including the Term Loan)
under the Facilities:

	 	All of the representations and warranties in the Financing
Documentation shall be true and correct in all material respects; no default or event of
default shall be continuing; and delivery of any relevant borrowing notices or letter of
credit requests and any other documents or information required to be delivered pursuant
to the terms of the Financing Documentation.
	 
	 	 
	Representations and Warranties:

	 	The Financing Documentation will contain representations and
warranties applicable to the Group Members substantially similar to those in the Existing
Credit Facility.
	 
	 	 
	Affirmative Covenants:

	 	The Financing Documentation shall contain such affirmative covenants
applicable to the Group Members as are usual and customary for financings of this kind,
and such other affirmative covenants reasonably deemed appropriate by Administrative
Agent for the Transaction, including, without limitation, the following: preservation of
corporate existence, compliance with laws (including environmental laws), payment of
material taxes and other claims resulting in liens, maintenance of material properties,
permits, insurance and books and records, and access to books and records and visitation
rights, use of proceeds, further assurances (including provision of additional collateral
and guaranties consistent with the paragraph above entitled “Collateral”); notices of
defaults, material litigation and other material events to be mutually agreed;
maintenance of cash management systems (other than with respect to zero balance payroll






 









 






	 	 	 
	 

	 	accounts, trust accounts and the amounts deposited therein) on terms to be mutually agreed and
completion of field examinations and inventory appraisals (which shall be completed
semi-annually, or more frequently when monthly average Availability falls below
$20,000,000 or while an event of default is continuing).
	 
	 	 
	Financial Covenants:

	 	While the Term Loan is outstanding, a maximum leverage ratio and a
minimum interest coverage ratio will be tested quarterly in amounts to be determined with
a minimum 25% cushion (the “Covenant Cushion”) as against the projected financial
performance reflected in the business plan delivered by the Borrower to GECM in November
2007; provided that the first test date will be the first full fiscal quarter
that ends after the Closing Date.
	 
	 	 
	Reporting Requirements:

	 	The Financing Documentation shall contain such financial and other
reporting requirements applicable to the Group Members as are usual and customary for
financings of this kind, and such other financial and reporting requirements reasonably
deemed appropriate by Administrative Agent for the Transaction, including, without
limitation, the following:
	 
	 	 
	 

	 	Delivery of monthly and quarterly financial
statements and of annual audited financial
statements; delivery of management letters; delivery
of projections and an annual business plan; delivery
of borrowing base certificates (which shall be
delivered monthly, or more frequently following an
event of default or when Availability falls below a
threshold to be determined); and delivery of other
collateral and other reports substantially as
provided in the Existing Credit Facility.
	 
	 	 
	Negative Covenants:

	 	The Financing Documentation shall contain such negative covenants
applicable to the Group Members as are usual and customary for financings of this kind,
and such other negative covenants reasonably deemed appropriate by Administrative Agent
for the Transaction (with exceptions and baskets to be mutually agreed upon), including,
without limitation, the following:
	 
	 	 
	 

	 	Limitations on indebtedness (including guaranties and
speculative hedging transactions), liens, investments
(including loans), asset dispositions (including sale
and leaseback transactions), restricted payments
(consisting of dividends, redemptions and repurchases
with respect to capital stock, cancellation of debt),
prepayments of indebtedness (including redemptions
and repurchases), fundamental corporate changes
(including mergers,






 









 






	 	 	 
	 

	 	consolidations, acquisitions, joint ventures or creation of subsidiaries), changes in nature
of business, transactions with affiliates, third-party restrictions on indebtedness,
liens, investments or restricted payments, and compliance with margin regulations, ERISA
and environmental laws.
	 
	 	 
	Events of Default:

	 	The Financing Documentation shall contain such events of default applicable
to the Group Members as are usual and customary for financings of this kind, and such
other events of default reasonably deemed appropriate by Administrative Agent for the
Transaction (with certain customary grace periods and materiality thresholds to be agreed
upon), including, without limitation, the following:
	 
	 

	 	Failure to pay principal when due; non-payment of
interest and other amounts after a grace period to be
mutually agreed; representations and warranties
incorrect in any material respect or representations
made in any borrowing base certificate are incorrect
in any respect (subject, in the case of borrowing
base certificates, to a threshold for inadvertent
errors to be determined), in each case, when made or
deemed made; failure to comply with covenants in the
Financing Documentation; cross-default to other
indebtedness; failure to satisfy or stay execution of
judgments; bankruptcy or insolvency; actual
invalidity or impairment of any part of the Financing
Documentation (including the failure of any lien on
the Collateral to remain perfected); and change of
ownership or control.
	 
	 	 
	Requisite Lenders:

	 	To be determined. Certain matters to be determined shall be subject to
class voting. The Borrower shall be entitled to replace any Lender that requests tax
gross up payments, capital adequacy or similar yield protection payments or which fails
to approve waivers or amendments that have been approved by the Requisite Lenders with a
financial institution reasonably acceptable to the Administrative Agent on customary terms.
	 
	 	 
	Miscellaneous:

	 	The Financing Documentation will include (a) standard yield protection
provisions (including, without limitation, provisions relating to compliance with
risk-based capital guidelines, increased costs, withholding taxes, illegality and
Eurodollar Rate breakage fees), (b) a waiver of consequential and punitive damages and
right to a jury trial, (c) customary agency, set-off and sharing language and (d) other
provisions as are usual and customary for financings of this kind and those






 









 






	 	 	 
	 

	 	reasonably deemed appropriate by Administrative Agent for the Transaction (including voting,
indemnity and expense provisions consistent with the terms hereof).
	 
	 	 
	Assignments and Participations:

	 	Lenders will be permitted to make assignments in a minimum
amount of $1.0 million, in the case of the Term Loan, and $5.0 million, in the case of
the Revolving Credit Facility (unless, in each case, such assignment is of a Lender’s
entire interest in a Facility) to other financial institutions acceptable to
Administrative Agent and, so long as no event of default has occurred and is continuing,
Borrower, which acceptances shall not be unreasonably withheld or delayed;
provided however, that the approval of Borrower shall not be required in
connection with assignments to other Lenders (or to affiliates or approved funds of
Lenders). All assignments of a Lender’s interest in a Facility will be made via an
electronic settlement system designated by Administrative Agent. An assignment fee of
$3,500 will be payable to the Administrative Agent by the assignor or assignee for each
assignment.
	 
	 	 
	Governing Law and Submission
to Jurisdiction:

	 	New York.






 









 






SCHEDULE I

to

Summary of Terms




Conditions to Closing Date




     The availability of the initial Loan under the Revolving Credit Facility and the availability
of the Term Loan, in addition to the conditions set forth in the Commitment Letter and Exhibit
A thereto, shall be subject to the satisfaction of the following conditions:



     1. Capital Structure. Administrative Agent shall be reasonably satisfied with the
corporate and capital structure of Borrower, the Guarantors and their respective subsidiaries, and
all legal and tax aspects relating thereto, it being understood that the corporate and capital
structure, and all legal and tax aspects relating thereto, as of the date hereof is satisfactory to
the Administrative Agent.



     2. Absence of Litigation. There shall not exist any action, suit, investigation,
litigation or proceeding pending or threatened in any court or before any arbitrator or
governmental authority that has or would reasonably be expected to have, in the aggregate, a
material adverse effect on the Borrower, the Refinancing, the Facilities or the enforceability of
the Financing Documentation, it being understood that all actions, suits, investigations,
litigations and proceedings disclosed to the Administrative Agent as of the date hereof are not
currently reasonably expected to have such a material adverse effect.



     3. Receipt of Historical Financial Statements. Administrative Agent shall have
received interim unaudited monthly and quarterly financial statements of Borrower and its
subsidiaries through the fiscal month or quarter, as applicable, ending September 30, 2007 and each
subsequent fiscal month and quarter occurring no later than 30 days (or 45 days in the case of
monthly and quarterly financing statements for the fiscal month and quarter, respectively, ending
December 31, 2007) prior to the Closing Date and for which financial statements are available.



     4. Receipt of Pro Forma Financial Statements and Business Plan. Administrative Agent
shall have received (a) a pro forma estimated balance sheet of Borrower and its subsidiaries at the
last day of the fiscal month for which financial statements are available prior to the Closing Date
(so long as such date is not more than 60 days prior to the Closing Date) after giving effect to
the 08 Notes Refinancing, the Existing Debt Refinancing and the funding of the Revolving Credit
Facility and the Term Loan, and (b) Borrower’s business plan which shall include a financial
forecast on a monthly basis for the first twelve months after the Closing Date (such financial
forecast for the first twelve months to include projected Availability and on an annual basis
thereafter through 2012 prepared by Borrower’s management; in each case, with such updates as the
Administrative Agent shall reasonably request.



     5. Retirement of 08 Notes. Substantially concurrently with the advance of the Term
Loan, the Borrower shall redeem and retire all of the 08 Notes and shall discharge the Senior Notes
Indenture pursuant to the terms thereof.



     6. Solvency Certificate. The Administrative Agent shall have received a certificate
of the Chief Financial Officer of Borrower, that Borrower and each of the Guarantors, taken as a
whole, after incurring the indebtedness contemplated by the Revolving Credit Facility and the Term
Loan, will be “Solvent” (as defined in the Existing Credit Facility).



     7. Cash Management. With respect to the initial funding under the Revolving Credit
Facility, Borrower and each Guarantor shall maintain a cash management system (including blocked
account and lock-box agreements) consistent with that required by the Existing Credit Facility.



 









 





     8. No Material Adverse Effect. Since September 30, 2007, there have been no events,
circumstances, or developments relating to the business of the Borrower and its subsidiaries that
has had or would, in the aggregate, reasonably be expected to have a Material Adverse Effect.
“Material Adverse Effect” means an effect that results in or causes, or would reasonably be
expected to result in or cause, a material adverse effect on (a) the condition (financial or
otherwise), business, operations or property of Borrower and its subsidiaries, taken as a whole and
(b) the validity or enforceability of any Financing Documentation or the rights and remedies of the
Administrative Agent, the Lenders and the other secured parties under any Financing Documentation.



     9. Revolving Credit Facility. On the Closing Date, after giving effect to the initial
Loan made and Letters of Credit issued under the Revolving Credit Facility, Borrower shall have at
least $20,000,000 of unused Availability.



     10. 09 Notes. The Administrative Agent shall have received evidence reasonably
satisfactory to it that all indebtedness of Borrower under the Revolving Credit Facility and the
Term Loan constitutes and will constitute “Permitted Indebtedness,” “Designated Senior Debt” and
“Senior Debt” under (and as such terms are defined in) the Senior Subordinated Notes Indenture and
all liens securing the Revolving Credit Facility and the Term Loan constitute “Permitted Liens”
(under and as such term is defined in the Senior Subordinated Notes Indenture), including, if
applicable, certified copies of any supplemental indentures needed to permit such indebtedness or
liens.



     11. Minimum Adjusted EBITDA. The Adjusted EBITDA of Borrower for the most recent
period of twelve months prior to the Closing Date for which financial statements are required to
have been delivered under the Existing Credit Facility shall not be less than $65,000,000.



     12. Other Customary Documentary Conditions. Receipt by the Administrative Agent of
reasonably satisfactory legal opinions of counsel to the Group Members, evidence of substantially
concurrent payment of the Existing Credit Facility and release of existing liens in respect
thereof, documentation relating to the creation and perfection of liens on the Collateral as
provided for in each paragraph entitled “Collateral” above (with exceptions to be mutually agreed),
receipt of lien search reports, receipt of mortgage supporting documents for all properties subject
to a mortgage (including, without limitation, title insurance policies, current certified surveys,
evidence of zoning and other legal compliance, environmental reports, certificates of occupancy,
legal opinions, except in each case to the extent otherwise agreed to by the Administrative Agent),
all required material governmental approval and third party consents shall have been obtained,
evidence of corporate authority, copy of organizational documents, receipt of additional insured
and loss payee insurance certificates reasonably satisfactory to the Administrative Agent and
payment of all fees and expenses required to be paid pursuant to the Commitment Letter and the Fee
Letter.