exv10w11






Exhibit 10.11




 

 









[Published CUSIP Number: ______________]




CREDIT AGREEMENT




Dated as of May 29, 2009



among



RIGNET, INC.

as Borrower,



BANK OF AMERICA, N.A.,

as Administrative Agent



and



The Other Lenders Party Hereto



 

 






 









 





TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	16	 
	1.03 Accounting Terms
	 	 	17	 
	1.04 Rounding
	 	 	18	 
	1.05 Times of Day
	 	 	18	 
	 
	 	 	 	 
	ARTICLE II . THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	18	 
	2.01 Term Loan Commitment
	 	 	18	 
	2.02 Conversions and Continuations of Loans
	 	 	18	 
	2.03 Prepayments
	 	 	19	 
	2.04 Repayment of Loans
	 	 	20	 
	2.05 Interest
	 	 	20	 
	2.06 Fees
	 	 	21	 
	2.07 Computation of Interest and Fees
	 	 	21	 
	2.08 Evidence of Debt
	 	 	22	 
	2.09 Payments Generally; Agent’s Clawback
	 	 	22	 
	2.10 Sharing of Payments
	 	 	24	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	24	 
	3.01 Taxes
	 	 	24	 
	3.02 Illegality
	 	 	28	 
	3.03 Inability to Determine Rates
	 	 	28	 
	3.04 Increased Costs
	 	 	28	 
	3.05 Compensation for Losses
	 	 	29	 
	3.06 Mitigation Obligations
	 	 	30	 
	3.07 Survival
	 	 	30	 
	 
	 	 	 	 
	ARTICLE IV . CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	30	 
	4.01 Conditions of Initial Credit Extension
	 	 	31	 
	4.02 Conditions to all Credit Extensions
	 	 	32	 
	 
	 	 	 	 
	ARTICLE V . REPRESENTATIONS AND WARRANTIES
	 	 	33	 
	5.01 Existence, Qualification and Power
	 	 	33	 
	5.02 Authorization; No Contravention
	 	 	33	 
	5.03 Governmental Authorization; Other Consents
	 	 	33	 
	5.04 Binding Effect
	 	 	34	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	34	 
	5.06 Litigation
	 	 	34	 
	5.07 No Default
	 	 	34	 
	5.08 Ownership of Property; Liens
	 	 	35	 
	5.09 Environmental Compliance
	 	 	35	 
	5.10 Insurance
	 	 	35	 
	5.11 Taxes
	 	 	35	 
	5.12 ERISA Compliance
	 	 	35	 
	5.13 Subsidiaries
	 	 	36	 






i









 






	 	 	 	 	 

	5.14 Margin Regulations; Investment Company Act
	 	 	36	 
	5.15 Disclosure
	 	 	36	 
	5.16 Compliance with Laws
	 	 	37	 
	5.17 Taxpayer Identification Number
	 	 	37	 
	5.18 Intellectual Property; Licenses, Etc.
	 	 	37	 
	5.19 Rights in Collateral; Priority of Liens
	 	 	37	 
	 
	 	 	 	 
	ARTICLE VI . AFFIRMATIVE COVENANTS
	 	 	37	 
	6.01 Financial Statements
	 	 	37	 
	6.02 Certificates; Other Information
	 	 	38	 
	6.03 Notices
	 	 	40	 
	6.04 Payment of Obligations
	 	 	40	 
	6.05 Preservation of Existence, Etc.
	 	 	40	 
	6.06 Maintenance of Properties
	 	 	40	 
	6.07 Maintenance of Insurance
	 	 	41	 
	6.08 Compliance with Laws
	 	 	41	 
	6.09 Books and Records
	 	 	41	 
	6.10 Inspection Rights
	 	 	41	 
	6.11 Use of Proceeds
	 	 	41	 
	6.12 Financial Covenants
	 	 	41	 
	6.13 Collateral Records
	 	 	42	 
	6.14 Security Interests
	 	 	42	 
	6.15 Additional Guarantors; Pledge of Equity of Foreign Subsidiaries
	 	 	42	 
	6.16 Cash Collateral
	 	 	43	 
	6.17 Principal Depository
	 	 	43	 
	 
	 	 	 	 
	ARTICLE VII . NEGATIVE COVENANTS
	 	 	44	 
	7.01 Liens
	 	 	44	 
	7.02 Investments
	 	 	45	 
	7.03 Indebtedness
	 	 	46	 
	7.04 Fundamental Changes
	 	 	47	 
	7.05 Dispositions
	 	 	47	 
	7.06 Restricted Payments
	 	 	48	 
	7.07 Change in Nature of Business
	 	 	49	 
	7.08 Transactions with Affiliates
	 	 	49	 
	7.09 Burdensome Agreements
	 	 	49	 
	7.10 Use of Proceeds
	 	 	50	 
	 
	 	 	 	 
	ARTICLE VIII . EVENTS OF DEFAULT AND REMEDIES
	 	 	50	 
	8.01 Events of Default
	 	 	50	 
	8.02 Remedies Upon Event of Default
	 	 	52	 
	8.03 Application of Funds
	 	 	52	 
	 
	 	 	 	 
	ARTICLE IX . ADMINISTRATIVE AGENT
	 	 	53	 
	9.01 Appointment and Authorization of Administrative Agent
	 	 	53	 
	9.02 Rights as a Lender
	 	 	53	 
	9.03 Exculpatory Provisions
	 	 	54	 
	9.04 Reliance by Administrative Agent
	 	 	54	 
	9.05 Delegation of Duties
	 	 	55	 






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	9.06 Resignation of Agent
	 	 	55	 
	9.07 Non-Reliance on Agent and Other Lenders
	 	 	56	 
	9.08 No Other Duties, Etc.
	 	 	56	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	56	 
	9.10 Collateral Matters
	 	 	56	 
	 
	 	 	 	 
	ARTICLE X . MISCELLANEOUS
	 	 	58	 
	10.01 Amendments, Etc.
	 	 	58	 
	10.02 Notices; Effectiveness; Electronic Communications
	 	 	59	 
	10.03 No Waiver; Cumulative Remedies: Enforcement
	 	 	61	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	62	 
	10.05 Payments Set Aside
	 	 	63	 
	10.06 Successors and Assigns
	 	 	64	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	67	 
	10.08 Right of Setoff
	 	 	68	 
	10.09 Interest Rate Limitation
	 	 	68	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	68	 
	10.11 Survival of Representations and Warranties
	 	 	68	 
	10.12 Severability
	 	 	69	 
	10.13 Replacement of Lenders
	 	 	69	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	70	 
	10.15 Waiver of Jury Trial
	 	 	71	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	71	 
	10.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	72	 
	10.18 USA PATRIOT Act Notice
	 	 	72	 
	10.19 Time of the Essence
	 	 	72	 
	10.20 Entire Agreement
	 	 	72	 
	 
	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	2.01 Commitments and Applicable Percentages
	 	 	 	 
	5.06 Litigation
	 	 	 	 
	5.13 Subsidiaries and Other Equity Investments
	 	 	 	 
	7.01 Existing Liens
	 	 	 	 
	7.02 Existing Investments
	 	 	 	 
	7.03 Existing Indebtedness
	 	 	 	 
	7.08 Transactions with Affiliates
	 	 	 	 
	10.02 Administrative Agent’s Office, Certain Addresses for Notices
	 	 	 	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	Form
of

	A            Loan Notice
	 	 	 	 
	B            Note
	 	 	 	 
	C            Compliance Certificate
	 	 	 	 
	D            Assignment and Assumption
	 	 	 	 
	E            Administrative Questionnaire
	 	 	 	 







iii











 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (this “Agreement”) is entered into as of May 29, 2009, among RIGNET,
INC., a Delaware corporation (“Borrower”), each lender from time to time party hereto
(collectively, “Lenders” and each individually, a “Lender”), and BANK OF AMERICA, N.A., a national
banking association, as Administrative Agent for itself and the other Lenders.



     Borrower has requested that Lenders extend credit to Borrower in the form of a $35,000,000
term loan credit facility, and Lenders are willing to do so on the terms and conditions set forth
herein. In consideration of the mutual covenants and agreements herein contained, 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:



     “Administrative Agent” or “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 Agent’s address and, as appropriate, account as set
forth on Schedule 10.02, or such other address or account as Agent may from time to time notify
Borrower and Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form
of Exhibit E or any other form approved by 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.



     “Agent Parties” has the meaning specified in Section 10.02.



     “Aggregate Commitments” means the Commitments of all Lenders.



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means (a) on or prior to the date of the initial Credit Extension,
with respect to any Lender, the percentage set forth opposite the name of such Lender on Schedule
2.01, and (b) at any time after the date of the initial Credit Extension, with respect to any
Lender, the percentage (carried out to the ninth decimal place) of the Outstanding Amount
represented by such Lender’s Loans at such time.



     “Applicable Rate means, from time to time, the following percentages per annum, based upon the
ratio of Funded Debt to EBITDA (the “Financial Covenant”), in each case as set forth in the most
recent Compliance Certificate received by Agent pursuant to Section 6.02(b):



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	Pricing Level	 	Ratio of Funded Debt to EBITDA	 	Applicable Rate
	1

	 	Greater than or equal to 1.50 to 1.00
	 	+5.25%
	 
	 	 	 	 
	2

	 	Greater than or equal to 0.75 to 1.00,
but less than 1.50 to 1.00
	 	+4.75%
	 
	 	 	 	 
	3

	 	Less than 0.75 to 1.00
	 	+4.25%







Any increase or decrease in the Applicable Rate resulting from a change in the Financial
Covenant shall become effective commencing on the fifth Business Day immediately following
the date a Compliance Certificate for the most recent fiscal quarter is delivered pursuant
to Section 6.02(b); provided that, if a Compliance Certificate is not delivered when
due in accordance with Section 6.02(b), then, upon the request of the Required Lenders,
Pricing Level 1 shall apply commencing on the fifth Business Day following the date
such Compliance Certificate was required to have been delivered and shall remain
in effect until the date on which such Compliance Certificate is delivered. The Applicable
Rate in effect from the Closing Date through the date on which Agent receives the Compliance
Certificate for the fiscal quarter ending September 30, 2009, shall be determined based upon
Pricing Level 2.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one another.



     “Assignment and Assumption” means an assignment and assumption entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section 10.06(b)), and
accepted by Agent, in substantially the form of Exhibit D or any other form approved by Agent.



     “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 or IFRS, as applicable, and (b) in respect of any Synthetic
Lease Obligation, 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 or IFRS, as applicable, if such lease were accounted for as a capital lease.



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



     “Bank of America” means Bank of America, N.A., a national banking association, and its
successors.



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



2









 





     “Borrower Materials” has the meaning specified in Section 6.02.



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



     “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
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.



     “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, with respect to Borrower, an event or series of events by which:



          (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan), other than any Permitted Investor, becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that
a person or group shall be deemed to have “beneficial ownership” of all securities that such person
or group has the right to acquire, whether such right is exercisable immediately or
only after the passage of time (such right, an “option right”)), directly or indirectly, of
30% or more of the equity securities of such Person 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) during any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of such Person cease 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 other 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 clause (ii) and clause (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





3









 







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).




     “Closing Date” means the first date that all the conditions precedent in Section 4.01 are
satisfied or waived in accordance with Section 10.01 and the Loans are extended by the Lenders.



     “Code” means the Internal Revenue Code of 1986.



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



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



     “Comerica” means Comerica Bank, a Texas banking association, and its successors.



     “Commitment” means, as to each Lender, its obligation to make Loans to Borrower pursuant to
Section 2.01, 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.



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



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



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



     “Credit Extension” means a Borrowing.



     “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.



     “Default Rate” means an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum.



4









 





     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Loans
required to be funded by it hereunder within one Business Day of the date required to be funded by
it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to Agent or
any other Lender any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute or unless such failure has been
cured, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction) of any property by any Person, including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith. For the avoidance of doubt, a
Disposition shall not include the issuance by any Person of its Equity Interests.



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



     “Domestic Subsidiary” means each Subsidiary of Borrower that is not a Foreign Person.



     “EBITDA” means, for Borrower and its Subsidiaries on a consolidated basis, net income, less
income or plus loss from discontinued operations and extraordinary items, plus income taxes (to the
extent deducted in calculating net income), plus interest expense and all other non-cash finance
expense (including but not limited to (i) changes in valuations of preferred stock, (ii) changes in
valuations of the Put Option, and (iii) non-share based compensation expenses) plus depreciation,
depletion, and amortization, plus up to $4,200,000 in the aggregate comprised of transaction costs
or expenses (including non-recurring attorneys’ fees) paid by Borrower during the applicable
reporting period and prior to the Closing Date in connection with the documentation, preparation
(including compliance with any applicable law and setting up foreign offices), and negotiation of
the proposed initial public offering of Borrower’s capital stock.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee under
Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under
Section 10.06(b)(iii)).



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



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into



5









 




the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.




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



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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.



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



     “Eurodollar Daily Floating Rate” means a fluctuating rate of interest equal to the rate per
annum (rounded upwards to the nearest 1/100 of one percent) 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 selected by Agent from time to time) as determined for
each banking day at approximately 11:00 a.m., London time, two Business Days prior to the date in
question, for Dollar deposits (for delivery on the first day of such interest period) with a one
month term, as adjusted from time to time in Agent’s sole discretion for reserve requirements,
deposit insurance assessment rates and other regulatory costs. If such rate is not available at
such time for any reason, then the rate for that interest period will be determined by such
alternate method as reasonably selected by Agent.



6









 





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



	 	 	 	 	 

	            Eurodollar Rate =

	 	Eurodollar Base Rate
 

	 	 
	 

	 	1.00 — Eurodollar Reserve Percentage	 	 





Where,



“Eurodollar Base Rate” means, for such Interest Period, the rate per annum equal to BBA LIBOR, as
published by Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by 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 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 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 Board of Governors of the Federal
Reserve System of the United States for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding
Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the Eurodollar
Rate, but excluding any Loan that bears interest based on the Eurodollar Daily Floating Rate.



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



     “Excluded Taxes” means, with respect to Agent, any Lender, or any other recipient of any
payment to be made by or on account of any obligation of Borrower hereunder, (a) taxes imposed on
or measured by its overall net or gross income (however denominated), and franchise taxes (however
denominated) imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in which its principal
office is located or, in the case of 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 Borrower is located, (c) any backup withholding tax that is required by the
Code to be withheld from amounts payable to a



7









 




Lender that has failed to comply with clause (A) of
Section 3.01(e)(ii) and (d) in the case of a Foreign Lender, any United States withholding tax that
(i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in
force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office)
or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with clause (B) of Section 3.01(e)(ii), 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 Borrower with respect to such
withholding tax pursuant to Section 3.01(a)(ii).




     “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 Agent.



     “Fixed Charge Coverage Ratio” means, when determined, the ratio of (a) for Borrower and its
Subsidiaries, EBITDA minus cash Taxes, minus cash Restricted Payments made by Borrower to its
stockholders, minus $1,000,000 attributable to maintenance capital expenditures, plus any voluntary
prepayment of the Obligations, in each case for the immediately preceding four fiscal-quarter
period, to (b) for Borrower and its Subsidiaries, the sum of (without duplication) current
maturities of long term debt (including, but not limited to, any Subordinated Liabilities and
capital leases), plus interest expense, plus principal payments made in respect of Subordinated
Liabilities, in each case for the immediately preceding four fiscal-quarter period.



     “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other
than that in which Borrower is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.



     “Foreign Person” means (a) an individual who does not reside in the United States, or (b) any
partnership, limited partnership, corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint venture, syndicate, Governmental Authority,
or other entity or organization of whatever nature that is not organized and validly existing under
the laws of the United States or a state thereof or the District of Columbia.



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



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



8









 





     “GAAP” means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination.



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



     “Guarantor” means, collectively, LandTel, Inc., a Delaware corporation, LandTel
Communications, L.L.C., a Louisiana limited liability company, RigNet Satcom, Inc., and each other
Person who executes a Guaranty.



     “Guaranty” means the guaranty made by each Guarantor in favor of Agent for the benefit of the
Lenders, in form and substance satisfactory to Agent.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,



9









 




infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.




     “IFRS” means the International Financial Reporting Standards adopted by the International
Accounting Standards Board, that are applicable to the circumstances as of the date of
determination.



     “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 or IFRS,
as applicable:



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




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




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




          (d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and, in each case, not past
due for more than 60 days after the due date therefor or outstanding for more than 90 days after
the date on which such trade account payable was created unless such account is being contested in
good faith and appropriate reserves made);




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




          (f) capital leases and Synthetic Lease Obligations;




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




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



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





10









 








     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Loan bearing interest based on the Eurodollar
Rate, the last day of each Interest Period applicable to such Loan and the Maturity Date; and (b)
as to any Loan bearing interest based on the Eurodollar Daily Floating Rate, the last day of each
month and the Maturity Date.



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




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




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




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



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



     “IRS” means the United States Internal Revenue Service.



     “Laws” means, collectively, all applicable 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, licenses, authorizations and permits of, and agreements with,
any Governmental Authority, in each case whether or not having the force of law.



11









 





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



     “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 Borrower and Agent.



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



     “Loan” means an extension of credit by a Lender to Borrower under Article II.



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



     “Loan Documents” means this Agreement, each Note, each Collateral Document, each Guaranty, and
each other agreement or instrument executed at any time by any Loan Party in connection with this
Agreement.



     “Loan Parties” means, collectively, Borrower, each Guarantor, and each Subsidiary of Borrower
(which is not a Foreign Person) executing a Collateral Document.



     “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect
upon, the operations, business, properties, liabilities (actual or contingent), or financial
condition of Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of Borrower, or the Loan Parties taken as a whole, to perform their obligations under any
Loan Document to which it is a party; (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against Borrower or any of its Subsidiaries of any Loan Document
to which it is a party; or (d) a material adverse effect on the interest of the Loan Parties, taken
as a whole, in, or the value, perfection or priority of Agent’s security interest in a material
portion of the Collateral.



     “Material Foreign Subsidiary” means each of RigNet Europe AS, an entity organized under the
laws of Norway, RigNet PTE, Ltd., an entity organized under the laws of Singapore, and each other
Significant Subsidiary of Borrower that is a Foreign Person.



     “Maturity Date” means May 31, 2012; provided, however, that if such date is
not a Business Day, the Maturity Date shall be the next preceding Business Day.



     “Minority Member” means Babin Interests, LLC, which is a member of LandTel Communications,
L.L.C., a Louisiana limited liability company, on the Closing Date.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or is obligated



12









 




to make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.




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



     “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 Swap
Contract executed between Borrower and Agent or any Affiliate of Agent, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after the commencement by
or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws
naming such Person as the debtor in such proceeding, regardless of whether such interest and fees
are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
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, intangible or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means, with respect to Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any prepayments or repayments of Loans occurring on
such date.



     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



     “Permitted Investors” means each of (a) Cubera Private Equity, (b) Altira Group LLC, (c)
Sanders Morris Harris Group (including SMH Private Equity Group, Sanders Opportunity



13









 




Fund, Don A. Sanders and Katherine U. Sanders), and (d) Duncan Interests, and for each of them shall include its
respective investment funds, investment entities which it, or its officers or employees (i) manage
or control, (ii) holds a contract management responsibility for, or (iii) in which it holds a
profits interest.




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



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



     “Platform” has the meaning specified in Section 6.02.



     “Prime Rate” means 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 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 such 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.



     “Public Lender” has the meaning specified in Section 6.02.



     “Put Option” means the right of Minority Member to require LandTel Communications, L.L.C., to
purchase all of Minority Member’s Equity Interests in LandTel Communications, L.L.C., pursuant to
the terms of that certain Amended and Restated Operating Agreement of LandTel Communications,
L.L.C. dated August 25, 2006, as amended by that certain Letter Agreement and Amendment to
Operating Agreement dated December 17, 2008, as amended by that certain Amendment to Letter
Agreement dated February 2, 2009, as amended by that certain Amendment No. 2 to Letter Agreement
dated May 28, 2009.



     “Register” has the meaning specified in Section 10.06(c).



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



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



     “Request for Credit Extension” means with respect to a Borrowing, conversion or continuation
of Loans, a Loan Notice.



     “Required Lenders” means, on or prior to the Closing Date, Lenders having more than 662/3% of
the Aggregate Commitments and at all times after the Closing Date, Lenders holding in the aggregate
more than 662/3% of the Outstanding Amount; provided that, (a) the portion of the
Outstanding Amount held or deemed held by, any Defaulting Lender shall be excluded for



14









 




purposes of making a determination of Required Lenders, and (b) if there are only two Lenders, then Required
Lenders shall mean both Lenders.




     “Responsible Officer” means the chief executive officer, president, chief financial officer,
treasurer, assistant treasurer or controller of a Loan Party and, solely for purposes of notices
given pursuant to Article II, any other officer or employee of the applicable Loan Party so
designated by any of the foregoing officers in a notice to Agent. Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.



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



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



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



     “Significant Subsidiary” means, at any time, each Subsidiary of Borrower that owns 15% or more
of the total assets or earns 15% percent or more of the total income of Borrower and its
Subsidiaries on a consolidated basis.



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



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



15









 




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).



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called
synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession
of property creating obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).



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



     “Threshold Amount” means $1,000,000. 



     “Type” means, with respect to a Loan, its character as a Eurodollar Rate Loan which bears
interest based on the Eurodollar Rate, or a Eurodollar Rate Loan which bears interest based on the
Eurodollar Daily Floating Rate.



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



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



     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





16












 




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




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




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




     1.03 Accounting Terms.



          (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared at
Borrower’s option in conformity with, GAAP or IFRS, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein or as required by Law.




          (b) Changes in GAAP or IFRS. If at any time any change in GAAP or IFRS, or the
application thereof, would affect the computation of any financial ratio or requirement set forth
in any Loan Document, and either Borrower or the Required Lenders shall so request, Agent and
Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP or IFRS or the application thereof, as applicable
(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 or IFRS, as
applicable, prior to such change therein and (ii) Borrower shall provide to Agent and Lenders a
reconciliation between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP or IFRS, as applicable.





17









 








          (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of Borrower and its Subsidiaries or to the determination of any
amount for Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in
each case if GAAP is applicable, be deemed to include each variable interest entity that Borrower
is required to consolidate pursuant to FASB Interpretation No. 46 — Consolidation of Variable
Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest
entity were a Subsidiary as defined herein.




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



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



ARTICLE II .

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Term Loan Commitment. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make a single advance term loan (each such loan, a “Loan”) to Borrower on the
Closing Date, in an amount not to exceed at any time outstanding the amount of such Lender’s
Commitment; provided, however, that after giving effect to the Borrowing on the
Closing Date, (i) the Outstanding Amount shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Loans of any Lender shall not exceed such Lender’s Commitment.
Borrower may prepay the Loans under Section 2.03, and shall repay the Loans pursuant to Section
2.04, but once prepaid or repaid, such Loans shall not be reborrowed. The initial Borrowing on the
Closing Date shall bear interest based on the Eurodollar Daily Floating Rate, subject to subsequent
conversion at Borrower’s option to Eurodollar Rate Loans, as further provided herein.



     2.02 Conversions and Continuations of Loans.



          (a) Each continuation of Eurodollar Rate Loans shall be made upon Borrower’s irrevocable
notice to Agent, which may be given by telephone. Each such notice must be received by Agent not
later than 11:00 a.m. three Business Days prior to the conversion or continuation of Eurodollar
Rate Loans. Each telephonic notice by Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to Agent of a written Loan Notice, appropriately completed and signed by a
Responsible Officer of Borrower. Each conversion or continuation of Eurodollar Rate Loans shall be
in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof. Each Loan
Notice (whether telephonic or written) shall specify (i) whether Borrower is requesting the
conversion or continuation of Eurodollar Rate Loans, (ii) the requested date of conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be converted or continued, (iv) whether the Loans being converted or continued will bear
interest based on the Eurodollar Rate or the Eurodollar Daily Floating Rate, and (v) if applicable,
the duration of the Interest Period with





18









 







respect thereto. If Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Loans shall be made as, or
converted to, Loans bearing interest based on the Eurodollar Daily Floating Rate. Any such
automatic conversion shall be effective as of the last day of the Interest Period then in effect
with respect to the applicable Loans. If Borrower requests a conversion to, or continuation of
Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.




          (b) Following receipt of a Loan Notice, Agent shall promptly notify each Lender of the amount
of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or
continuation is provided by Borrower, Agent shall notify each Lender of the details of any
automatic conversion to Eurodollar Rate Loans described in the preceding subsection. On the
Closing Date, each Lender shall make the amount of its Loan available to Agent in immediately
available funds at 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 Sections 4.01 and 4.02 on the Closing Date, Section 4.01, Agent shall make the funds so received
available to Borrower in like funds as received by Agent either by (i) crediting the account of
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)
Agent by Borrower.




          (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders, and the Required Lenders may demand that any or all of the
then outstanding Eurodollar Rate Loans be converted immediately to Loans bearing interest based on
the Eurodollar Daily Floating Rate and Borrower agrees to pay all amounts due under Section 3.05 in
accordance with the terms thereof due to any such conversion.




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




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




     2.03 Prepayments.



          (a) Borrower may, upon notice to Agent, at any time or from time to time voluntarily prepay
Loans in whole or in part without premium or penalty; provided that (i) such notice must be
received by Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment
of Eurodollar Rate Loans and (B) on the date of prepayment of Loans bearing interest based on the
Eurodollar Daily Floating Rate; (ii) any prepayment of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (iii) any
prepayment of Loans bearing interest based on the Eurodollar Daily





19









 







Floating Rate shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate
Loans are to be prepaid, the Interest Period(s) of such Loans. Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage
of such prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Loans of Lenders in accordance with their respective Applicable Percentages.




          (b) If for any reason the Outstanding Amount at any time exceeds the Aggregate Commitments
then in effect, Borrower shall immediately prepay Loans in an aggregate amount equal to such
excess.




     2.04 Repayment of Loans. On June 30, 2009, Borrower shall repay to the Lenders the principal
amount of $729,166.67 and commencing on September 30, 2009, and continuing on the last Business Day
of each quarter thereafter, Borrower shall repay to the Lenders the principal amount of $2,187,500.
On the Maturity Date, Borrower shall repay to the Lenders the Outstanding Amount, together with
any accrued and unpaid interest. Any payment of the Loans shall be applied first to Loans bearing
interest based on the Eurodollar Daily Floating Rate and then to Eurodollar Rate Loans beginning
with those Loans with the least number of days remaining in the Interest Period applicable thereto
and ending with those Loans with the most number of days remaining in the Interest Period
applicable thereto.



     2.05 Interest.



          (a) Subject to the provisions of subsection (b) below, (i) each Loan bearing interest based on
the Eurodollar Rate shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period
plus the Applicable Rate; and (ii) each Loan bearing interest based on the Eurodollar Daily
Floating Rate shall bear interest on the outstanding principal amount thereof at the Eurodollar
Daily Floating Rate plus the Applicable Rate.




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





(ii) If any amount (other than principal of any Loan) payable by Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request of
the Required Lenders, 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.



20









 






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




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



          (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.




     2.06 Fees.



          (a) Agent’s Fee. Borrower shall pay to Agent for Agent’s own account an annual agency
fee in the amount of $15,000 to be paid on the Closing Date and on each anniversary of the Closing
Date. The fees paid under this Section 2.06 shall be fully earned when paid and shall be
nonrefundable for any reason whatsoever.




          (b) Upfront Fee. On the Closing Date, Borrower shall pay to Agent, for the account of
each Lender in accordance with their respective Applicable Percentages, an upfront fee in the
amount of $175,000. Such upfront fees are for the credit facilities committed by Lenders under
this Agreement and are fully earned on the date paid. The upfront fee paid to each Lender is
solely for its own account and is not refundable for any reason whatsoever.




     2.07 Computation of Interest and Fees.



          (a) All 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 for the day on which the Loan or such portion is
paid. Each determination by Agent of an interest rate or fee hereunder shall be conclusive and
binding for all purposes, absent manifest error.




          (b) If, as a result of any restatement of or other adjustment to the financial statements of
Borrower, or for any other reason, Borrower or the Lenders determine that (i) the Financial
Covenant used in the definition “Applicable Rate” as calculated by Borrower as of any applicable
date was inaccurate and (ii) a proper calculation of such Financial Covenant would have resulted
in higher pricing for such period, Borrower shall immediately and retroactively be obligated to pay
to Agent for the account of the applicable Lenders, promptly upon demand by Agent (or, after the
occurrence of an actual or deemed entry of an order for relief with respect to Borrower under the
Bankruptcy Code of the United States, automatically and without further action by Agent or any
Lender), an amount equal to the excess of the amount of interest and fees that should have been
paid for such period over the amount of interest and fees actually paid for such period. This
paragraph shall not limit the rights of Agent or any Lender, as the case may be, under Section
2.05(b) or under Article VIII.




21









 








     2.08 Evidence of Debt. The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by Agent in the ordinary course of business.
The accounts or records maintained by Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by Lenders to Borrower and the interest and
payments thereon. Any failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of Agent in respect of such matters, the accounts and records
of Agent shall control in the absence of manifest error. Upon the request of any Lender made
through Agent, Borrower shall execute and deliver to such Lender (through Agent) a Note, which
shall evidence such Lender’s Loans in addition to such accounts or records. 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.



     2.09 Payments Generally; Agent’s Clawback.



          (a) (i) General. All payments to be made by Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by Borrower hereunder shall be made to 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 pm on the date specified herein. Agent will
promptly distribute to each Lender its Applicable Percentage (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 Agent after 2:00 pm shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue. If any payment to be
made by Borrower shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.





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



          (b) (i) Funding by Lenders; Presumption by Agent. Unless Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such





22









 







Lender will not make
available to Agent such Lender’s share of such Borrowing, 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 Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to Agent, then the applicable
Lender and Borrower severally agree to pay to 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 Borrower to but excluding the date of payment to 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 Agent in accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by Agent in connection with the
foregoing and (B) in the case of a payment to be made by Borrower, the Eurodollar Daily Floating
Rate plus the Applicable Rate. If Borrower and such Lender shall pay such interest to Agent for
the same or an overlapping period, Agent shall promptly remit to Borrower the amount of such
interest paid by Borrower for such period. If such Lender pays its share of the applicable
Borrowing to Agent, then the amount so paid shall constitute such Lender’s Loan included in such
Borrowing. Any payment by Borrower shall be without prejudice to any claim Borrower may have
against a Lender that shall have failed to make such payment to Agent.





(ii) Payments by Borrower; Presumptions by Agent. Unless Agent shall have
received notice from Borrower prior to the date on which any payment is due to Agent
for the account of the Lenders hereunder that Borrower will not make such payment,
Agent may assume that Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to Lenders, the
amount due. In such event, if Borrower has not in fact made such payment, then each
of Lenders severally agrees to repay to Agent forthwith on demand the amount so
distributed to such Lender, 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 Agent, at the greater of the Federal Funds Rate and
a rate determined by Agent in accordance with banking industry rules on interbank
compensation. A notice of Agent to any Lender or 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 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 Borrower by Agent because the conditions to
the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance
with the terms hereof, 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 Lenders hereunder to make
Loans and to make payments under Section 10.04(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
10.04(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




23









 







failure of any other
Lender to so make its Loan, purchase its participation or to make its payment under Section
10.04(c).




          (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.




     2.10 Sharing of Payments. 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, 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
Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans, 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 any payment made
by Borrower pursuant to and in accordance with the express terms of this Agreement.


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.




ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



          (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.





     (i) Any and all payments by Borrower to or on account of any obligation of Borrower
hereunder or under any other Loan Document shall to the extent permitted by applicable Laws
be made free and clear of and without reduction or withholding for any Indemnified Taxes or
Other Taxes. If, however, applicable Laws require Borrower or Agent to withhold or deduct
any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined
by Borrower or Agent, as the case may be,



24









 






upon the basis of the information and
documentation to be delivered pursuant to subsection (e) below.




     (ii) If Borrower or Agent shall be required by the Code to withhold or deduct any
Taxes, including both United States Federal backup withholding and withholding taxes, from
any payment, then (A) Agent shall withhold or make such deductions as are determined by
Agent to be required based upon the information and documentation it has received pursuant
to subsection (e) below, (B) Agent shall timely pay the full amount withheld or deducted to
the relevant Governmental Authority in accordance with the Code, and (C) to the extent that
the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section), Agent or Lender as the case may be, receives an
amount equal to the sum it would have received had no such withholding or deduction been
made.



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




          (c) Tax Indemnifications.





     (i) Without limiting the provisions of subsection (a) or (b) above, Borrower shall, and
does hereby, indemnify Agent and each Lender, and shall make payment in respect thereof
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) withheld or deducted by Borrower or Agent or paid by
Agent or such Lender, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. Borrower shall also, and does hereby, indemnify Agent, and shall make payment in
respect thereof within 10 days after demand therefor, for any amount which a Lender for any
reason fails to pay indefeasibly to Agent as required by clause (ii) of this subsection. A
certificate as to the amount of any such payment or liability delivered to Borrower by a
Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.




     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender shall,
and does hereby, indemnify Borrower and Agent, and shall make payment in respect thereof
within 10 days after demand therefor, against any and all Taxes and any and all related
losses, claims, liabilities, penalties, interest and expenses (including the fees, charges
and disbursements of any counsel for Borrower or Agent) incurred by or asserted against
Borrower or Agent by any Governmental Authority as a result of the failure by such Lender,
to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation
required to be delivered by such Lender, to Borrower or Agent pursuant to subsection (e).
Each Lender hereby authorizes Agent to set off and



25









 






apply any and all amounts at any time
owing to such Lender under this Agreement or any other Loan Document against any amount due
to Agent under this clause (ii). The agreements in this clause (ii) shall survive the
resignation and/or replacement of Agent, any assignment of rights by, or the replacement of,
a Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all other Obligations.



          (d) Evidence of Payments. Upon request by Borrower or Agent, as the case may be,
after any payment of Taxes by Borrower or by Agent to a Governmental Authority as provided in this
Section 3.01, Borrower shall deliver to Agent or Agent shall deliver to Borrower, as the case may
be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Laws to report such payment or other evidence of
such payment reasonably satisfactory to Borrower or Agent, as the case may be.




          (e) Status of Lenders.





     (i) Each Lender shall deliver to Borrower and to Agent, at the time or times prescribed
by applicable Laws or when reasonably requested by Borrower or Agent, such properly
completed and executed documentation prescribed by applicable Laws or by the taxing
authorities of any jurisdiction and such other reasonably requested information as will
permit Borrower or Agent, as the case may be, to determine (A) whether or not payments made
hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the
required rate of withholding or deduction, and (C) such Lender’s entitlement to any
available exemption from, or reduction of, applicable Taxes in respect of all payments to be
made to such Lender by Borrower pursuant to this Agreement or otherwise to establish such
Lender’s status for withholding tax purposes in the applicable jurisdiction.




     (ii) Without limiting the generality of the foregoing, if Borrower is resident for tax
purposes in the United States,




     (A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to Borrower and Agent executed originals of
Internal Revenue Service Form W-9 or such other documentation or information
prescribed by applicable Laws or reasonably requested by Borrower or Agent as will
enable Borrower or Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements; and




     (B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to Borrower and 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



26









 






Borrower or Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable:




     (1) executed originals of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a
party,




     (2) executed originals of Internal Revenue Service Form W-8ECI,




     (3) executed originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation,




     (4) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) executed
originals of Internal Revenue Service Form W-8BEN, or




     (5) executed originals of any other form prescribed by applicable Laws as a
basis for claiming exemption from or a reduction in United States Federal
withholding tax together with such supplementary documentation as may be prescribed
by applicable Laws to permit the Borrower or the Administrative Agent to determine
the withholding or deduction required to be made.




     (iii) Each Lender shall promptly (A) notify Borrower and Agent of any change in
circumstances which would modify or render invalid any claimed exemption or reduction, and
(B) take such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the re-designation of
its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that
Borrower or Agent make any withholding or deduction for taxes from amounts payable to such
Lender.



          (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any
obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the
account of such Lender. If Agent or any Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by Borrower or
with respect to which Borrower has paid additional amounts pursuant to this Section, it shall pay
to Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by Borrower under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses incurred by Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund), provided that Borrower, upon the request of Agent, such Lender agrees to
repay the amount paid over to Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to Agent,






27









 







such Lender in the event Agent or such Lender is
required to repay such refund to such Governmental Authority. This subsection shall not be
construed to require Agent or any Lender to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to Borrower or any other Person.




     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of 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 Borrower through Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans shall be suspended until such Lender
notifies Agent and Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, Borrower shall, upon demand from such Lender (with a copy to
Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Loan bearing
interest based on the Eurodollar Daily Floating Rate, 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, Borrower shall also pay accrued interest on the amount so
prepaid or converted and all amounts due under Section 3.05 in accordance with the terms thereof
due to such prepayment or conversion.



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



     3.04 Increased Costs.




     (a) Increased Costs Generally. If any Change in Law 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);



28









 






     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, or any Eurodollar Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded
Tax payable by such Lender); or




     (iii) impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender 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 reduce the amount of any sum received or receivable by such Lender hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender, Borrower will pay to
such Lender, such additional amount or amounts as will compensate such Lender, for such additional
costs incurred or reduction suffered.




          (b) Capital Requirements. If any Lender determines that any Change in Law affecting
such Lender or any Lending Office of such Lender or such Lender’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate of return on such
Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below
that which such Lender or such Lender’s holding company could have achieved but for such Change in
Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy), then from time to time Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such Lender’s holding company
for any such reduction suffered.




          (c) Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company, as the case may be,
as specified in subsection (a) or (b) of this Section and delivered to Borrower shall be conclusive
absent manifest error. Borrower shall pay such Lender 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 to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation, provided that Borrower shall not be
required to compensate a Lender 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 notifies Borrower of the Change in Law giving rise to such increased costs or reductions and
of such Lender’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 Agent) from time to
time, Borrower shall promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:



29









 





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




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



including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing. For purposes of calculating amounts
payable by Borrower to Lenders under this Section 3.05, 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.



          (a) Designation of a Different Lending Office If any Lender requests compensation
under Section 3.04, or 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, as applicable, 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. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any in
connection with any such designation or assignment.




          (b) Replacement of Lenders. If (i) any Lender requests compensation under Section
3.04, (ii) a 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 (iii) any Lender ceases to
make Eurodollar Rate Loans as a result of any condition described in Sections 3.02 or 3.03,
Borrower may replace such Lender in accordance with Section 10.13.




     3.07 Survival. All of Borrower’s obligations under this Article III shall survive termination
of the Aggregate Commitments, and repayment of all other Obligations hereunder and resignation of
Agent.






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ARTICLE IV .

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of each Lender to make its
initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:



          (a) 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
satisfactory to Agent and each of the Lenders:





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




     (ii) a Note executed by Borrower in favor of each Lender that requests a Note;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as 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;




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




     (v) an opinion of Fulbright & Jaworski, counsel to the Loan Parties, and of Gibson,
Gruenert & Zaunbrecher, P.L.L.C., counsel to LandTel Communications, L.L.C., in each case
addressed to Agent and each Lender, as to the matters set forth concerning the Loan Parties
and the Loan Documents in form and substance reasonably satisfactory to Agent;




     (vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;




     (vii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the
conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has
been no event or circumstance since the date of the Audited Financial Statements that has
had or could be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect;



31









 






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




     (ix) a Subordination Agreement executed among Minority Member, Agent, and Borrower,
with respect to the Put Option, on such terms as are acceptable to Agent its sole
discretion;




     (x) evidence that Borrower has satisfied the requirements of Section 6.16 together a
duly executed deposit account control agreement among Borrower, Agent, and Comerica with
respect to Borrower’s account at Comerica;




     (xi) executed payoff letters and lien releases from Comerica and Guggenheim Corporate
Funding, in form and substance reasonably satisfactory to Agent;




     (xii) executed payoff letters from the holders of Borrower’s Series A Notes and Series
B Notes, in form and substance reasonably satisfactory to Agent;




     (xiii) delivery to Agent of all original stock certificates and executed blank stock
powers with respect to all Collateral that is comprised of certificated equity interests;
and




     (xiv) such other assurances, certificates, documents, consents or opinions as Agent, or
the Required Lenders reasonably may require.



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




          (c) Unless waived by Agent, Borrower shall have paid all fees, charges and disbursements of
counsel to Agent (directly to such counsel if requested by 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 fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between Borrower and Agent).




          (d) The Closing Date shall have occurred on or before June 1, 2009.




          Without limiting the generality of the provisions of the last sentence of Section 9.03(d), for
purposes of determining compliance with the conditions specified in this Section 4.01, each Lender
that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless Agent shall have received notice from such Lender
at least one (1) Business Day prior to the proposed Closing Date specifying its objection thereto.




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



32









 





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




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




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




ARTICLE V .

REPRESENTATIONS AND WARRANTIES



Borrower represents and warrants to Agent and the Lenders that:




     5.01 Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof (a) is
duly organized or formed, validly existing and, as applicable, 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 or lease
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 (c) is duly qualified and is licensed and, as
applicable, 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 could
not reasonably be expected to have a Material Adverse Effect.



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



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



33









 





     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, except as enforceability may be limited by Debtor
Relief Laws and by general principles of equity.



     5.05 Financial Statements; No Material Adverse Effect.



          (a) The Audited Financial Statements for the fiscal year ending December 31, 2008, and when
delivered for each fiscal year thereafter (i) were prepared in accordance with GAAP or IFRS as the
case may be, in each case consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects the financial
condition of Borrower and its Subsidiaries as of the date thereof and their results of operations
for the period covered thereby in accordance with GAAP or IFRS, as applicable, in each case
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 Borrower and its Subsidiaries as of the date thereof, including liabilities for
material taxes, commitments and Indebtedness.




          (b) The unaudited consolidated balance sheet of Borrower and its Subsidiaries dated March 31,
2009, and the related consolidated statements of income or operations, shareholders’ equity, and
cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP or
IFRS as the case may be, in each case consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and (ii) fairly present in all material respects the
financial condition of Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.




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




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



     5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred



34









 




and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.




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



     5.09 Environmental Compliance. There are no claims alleging potential liability or
responsibility for violation of any Environmental Law on the respective businesses, operations and
properties of Borrower and its Subsidiaries that could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of Borrower, in such amounts (after giving
effect to any self-insurance compatible with the following standards), with such deductibles and
covering such risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where Borrower or the applicable Subsidiary operates.



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



     5.12 ERISA Compliance.



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




          (b) There are no pending or, to the knowledge of Borrower, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could be
reasonably be expected to have a Material Adverse Effect. There has been no





35









 







prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.





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



     5.13 Subsidiaries. As of the Closing Date, Borrower has no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity Interests in
such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by
Borrower, directly or indirectly, in the amounts specified on Part (a) of Schedule 5.13 free and
clear of all Liens. Borrower has no equity investments in any other corporation or entity other
than those specifically disclosed in Part (b) of Schedule 5.13. All of the outstanding Equity
Interests in Borrower have been validly issued and are fully paid and nonassessable and are owned
by the shareholders in the amounts specified on Part (c) of Schedule 5.13.



     5.14 Margin Regulations; Investment Company Act.



          (a) Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.




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




     5.15 Disclosure. Borrower has disclosed to Agent and Lenders all agreements, instruments and
corporate or other restrictions to which it or any Loan Party is subject, and all other matters
known to it, that, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No written report, financial statement, certificate or other information
furnished (whether in writing or orally) by or on behalf of any Loan Party to 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) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not materially misleading; provided that, with respect to projected
financial information, Borrower represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time (it being understood that actual
results may vary and that such variances could be material).




36











 





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



     5.17 Taxpayer Identification Number. Borrower’s true and correct U.S. taxpayer identification
number is set forth on Schedule 10.02.



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



     5.19 Rights in Collateral; Priority of Liens. Borrower and each other Loan Party owns the
property granted by it as Collateral under the Collateral Documents, free and clear of any and all
Liens in favor of third parties, other than Liens permitted by Section 7.01. Upon the proper
filing of UCC financing statements, and the taking of the other actions required by Law or the
Required Lenders, the Liens granted pursuant to the Collateral Documents will constitute valid and
enforceable first, prior and perfected Liens (subject to Liens permitted by Section 7.01) on the
Collateral in favor of Agent, for the ratable benefit of Agent and Lenders.



ARTICLE VI .

AFFIRMATIVE COVENANTS



So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, Borrower shall, and shall cause each Subsidiary to:




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



          (a) as soon as available, but in any event within 120 days after the end of each fiscal year
of Borrower, a consolidated balance sheet of Borrower and its Subsidiaries as at the end of such
fiscal year, and the related consolidated statements of income or operations, changes in
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, at Borrower’s option, GAAP or IFRS, such consolidated statements to be audited and
accompanied by a report and opinion of Deloitte & Touche or of an independent certified public
accountant of nationally recognized standing or otherwise reasonably acceptable to Agent, which
report and opinion shall be prepared in accordance with generally accepted



37









 




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;




          (b) as soon as available, but in any event within 45 days after the end of each fiscal quarter
of Borrower, a consolidated balance sheet of Borrower and its Subsidiaries as at the end of such
fiscal quarter, and the related consolidated statements of income or operations for the portion of
Borrower’s fiscal year then ended, all in reasonable detail, such consolidated statements to be
certified by the chief executive officer, chief financial officer, treasurer or controller of
Borrower as fairly presenting in all material respects the financial condition and results of
operations of Borrower and its Subsidiaries in accordance with, at Borrower’s option, GAAP or
IFRS, subject only to normal year-end audit adjustments and the absence of footnotes; and



          (c) as soon as available, but in any event within 30 days after the end of each month, a
financial report summarizing on a consolidated basis, the results of operations and financial
performance of Borrower and its Subsidiaries as at the end of such month, in each case in
accordance with, at Borrower’s option, GAAP or IFRS, and in substantially similar form as
previously provided to Agent by Borrower for the month ended March 31, 2009.



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



          (a) concurrently with the delivery of the financial statements referred to in Sections 6.01(a)
and (b), a duly completed Compliance Certificate signed by a Responsible Officer of Borrower, which
shall disclose any material change in accounting policies or financial reporting practices by
Borrower or any Subsidiary, if any;



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



          (c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of Borrower, and copies of all
annual, regular, periodic and special reports and registration statements which Borrower may file
or be required to file with the Securities and Exchange Commission (or comparable agency in any
applicable non-U.S. jurisdiction) under Section 13 or 15(d) of the Securities Exchange Act of 1934,
and not otherwise required to be delivered to Agent pursuant hereto;



          (d) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;



          (e) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the
Securities and Exchange Commission (or comparable agency in any



38









 




applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry by such agency regarding
financial or other operational results of any Loan Party or any Subsidiary thereof;




          (f) by not later than 45 days after the end of each fiscal year of Borrower, a detailed annual
operating budget and financial statement projections for Borrower’s next succeeding fiscal year,
approved by Borrower’s board of directors; and



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


Documents required to be delivered pursuant to Section 6.01(a), (b), or (c), or Section 6.02(d) (to
the extent any such documents are included in materials otherwise filed with the SEC (or comparable
agency in any applicable non-U.S. jurisdiction)) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which Borrower posts such
documents, or provides a link thereto on Borrower’s website on the Internet at the website address
listed on Schedule 10.02; or (ii) on which such documents are posted on Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and Agent have access (whether a
commercial, third-party website or whether sponsored by Agent); provided that: (i) upon
request Borrower shall deliver paper copies of such documents to Agent until a written request to
cease delivering paper copies is given by Agent and (ii) Borrower shall notify Agent and each
Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Agent
by electronic mail electronic versions (i.e., soft copies) of such documents. 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 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.



Borrower hereby acknowledges that (a) Agent will make available to Lenders materials and/or
information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by
posting Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive
material non-public information with respect to Borrower or its Affiliates or the respective
securities of any of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. Borrower hereby agrees that (w) all Borrower
Materials that are to be made available to Public Lenders shall 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,” Borrower shall be deemed to have
authorized Agent and the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to Borrower or its securities for purposes of United States
Federal and state securities laws (provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform that
is designated “Public Side Information;” and (z) Agent 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 designated “Public




39









 




Side Information. Notwithstanding the foregoing, Borrower shall be
under no obligation to mark any Borrower Materials “PUBLIC.”




     6.03 Notices. Promptly notify Agent and each Lender:



          (a) of the occurrence of any Default;



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



          (c) of the occurrence of any ERISA Event.


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




     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies in excess of $25,000 in the aggregate upon it or its properties or assets, unless
the same are being contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP or IFRS, as applicable, are being maintained by Borrower
or such Subsidiary; (b) all lawful claims in excess of the Threshold Amount which, if unpaid, would
by law become a Lien upon any of its property; and (c) all Indebtedness for borrowed money with a
principal amount in excess of the Threshold Amount, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing such Indebtedness.



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



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



40









 




have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.




     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of Borrower, insurance with respect to its properties and business against
loss or damage of the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts (after giving effect to any self-insurance compatible
with the following standards) as are customarily carried under similar circumstances by such other
Persons and providing for not less than 30 days’ prior notice to Agent of termination, lapse or
cancellation of such insurance.



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



     6.09 Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP or IFRS, as applicable, shall be made of all financial
transactions and matters involving the assets and business of Borrower or such Subsidiary, as the
case may be; and (b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over Borrower
or such Subsidiary, as the case may be. Borrower shall maintain at all times books and records
pertaining to the Collateral in such detail, form and scope as Agent or any Lender shall reasonably
require.


     6.10 Inspection Rights. Permit representatives and independent contractors of 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 Borrower and at such reasonable times during normal business hours and as often as may
be reasonably desired, upon reasonable advance notice to Borrower; provided,
however, that, excluding any such visits and inspections during the continuation of an
Event of Default, Agent (who may be accompanied by any Lender at such Lender’s option and sole
expense), may exercise rights under this Section 6.10 no more often than two (2) times during any
calendar year and only one (1) such time shall be at the expense of Borrower, absent the existence
and continuation of an Event of Default; provided further that when an Event of
Default exists Agent or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the sole expense of Borrower at any time during normal
business hours, without advance notice, and without restriction as to the number of visits per
year. The Agent and the Lenders shall give Borrower the opportunity to participate in any
discussions they may have with Borrower’s accountants.




     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions to refinance existing
Indebtedness, in each case not in contravention of any Law or of any Loan Document.



41









 






     6.12 Financial Covenants.



          (a) Fixed Charge Coverage Ratio. Maintain on a consolidated basis, as of the end of
each fiscal quarter, a Fixed Charge Coverage Ratio of not less than 1.50 to 1.00. The Fixed Charge
Coverage Ratio shall be calculated and tested quarterly for the four fiscal-quarter period ended as
of the last day of each fiscal quarter, beginning June 30, 2009, and on the last day of each fiscal
quarter thereafter.



          (b) Ratio of Funded Debt to EBITDA. Maintain on a consolidated basis, as of the end
of each fiscal quarter, a ratio of Funded Debt to EBITDA that is less than or equal to 2.00 to
1.00. The ratio of Funded Debt to EBITDA shall be calculated and tested quarterly for the four
fiscal-quarter period ended as of the last day of each fiscal quarter, beginning June 30, 2009, and
on the last day of each fiscal quarter thereafter.



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



     6.14 Security Interests. To, and to cause each other Loan Party to, (a) defend the Collateral
against all claims and demands of all Persons at any time claiming the same or any interest therein
(other than holders of Liens permitted under Section 7.01), (b) comply with the requirements of all
state and federal laws in order to grant to Agent and Lenders valid security interests in the
Collateral which constitute a perfected first priority lien (subject only to prior Liens expressly
permitted under Section 7.01), with perfection, in the case of any investment property, deposit
account or letter of credit, being effected by using commercially reasonable efforts to give Agent
control of such investment property or deposit account or letter of credit, rather than by the
filing of a Uniform Commercial Code (“UCC”) financing statement with respect to such investment
property, and (c) do whatever Agent may reasonably request, from time to time, to effect the
purposes of this Agreement and the other Loan Documents, including filing notices of liens, UCC
financing statements, fixture filings and amendments, renewals and continuations thereof; and
keeping stock records. Agent is hereby authorized by Borrower to file any UCC financing statements
covering the Collateral whether or not Borrower’s signatures appear thereon.



     6.15 Additional Guarantors; Pledge of Equity of Foreign Subsidiaries. Notify Agent at the
time that any Person becomes a Subsidiary, and promptly thereafter (and in any event within 30
days), unless otherwise agreed to by Agent in writing:



          (a) with respect to each Significant Subsidiary that is neither a Foreign Person nor owned by
a Foreign Person, (i) cause such Subsidiary to become a Guarantor by executing and delivering to
Agent a Guaranty, (ii) cause Borrower or any Guarantor to pledge all of their respective Equity
Interests in such Significant Subsidiary, and (iii) cause such Significant Subsidiary to execute a
security agreement granting a lien on substantially all of its assets in the form executed by the
Guarantors on the Closing Date, or to execute such other documents and instruments requested by
Agent in its reasonable discretion;



42









 





          (b) with respect to each Subsidiary that becomes a Material Foreign Subsidiary of Borrower
after the Closing Date (other than any Material Foreign Subsidiary whose Equity Interests are
issued to a Foreign Person), pledge 65% of its Equity Interests in such Material Foreign Subsidiary
to Agent by executing a pledge agreement in the form executed by Borrower on the Closing Date, and
to provide such evidence that such security interest has been recorded and is enforceable under the
laws of the applicable foreign jurisdiction if requested by Agent in its reasonable discretion; and



          (c) deliver to Agent documents of the types referred to in clauses (iii) and (iv) of Section
4.01(a) and, if requested by 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 Agent.



     6.16 Cash Collateral. Borrower shall at all times maintain (a) a cash balance of no less than
$5,000,000 on deposit in its main operating account at Bank of America (or, at Borrower’s option,
invested by Borrower in a certificate of deposit issued by Bank of America), and (b) a cash balance
of no less than $5,000,000 on deposit in a demand deposit account at Comerica (or, at Borrower’s
option, invested by Borrower in a certificate of deposit issued by Comerica), subject to reduction
as follows:




     (i) commencing on July 3, 2010, provided that Borrower has made each scheduled
principal payment in respect of the Principal Debt when due, Borrower shall at all times
maintain (A) a cash balance of no less than $3,750,000 on deposit in its main operating
account at Bank of America (or, at Borrower’s option, invested by Borrower in a certificate
of deposit issued by Bank of America), and (B) a cash balance of no less than $3,750,000 on
deposit in a demand deposit account at Comerica (or, at Borrower’s option, invested by
Borrower in a certificate of deposit issued by Comerica); and




     (ii) commencing on July 3, 2011, provided that Borrower has made each scheduled
principal payment in respect of the Principal Debt when due, Borrower shall at all times
maintain (A) a cash balance of no less than $2,500,000 on deposit in its main operating
account at Bank of America (or, at Borrower’s option, invested by Borrower in a certificate
of deposit issued by Bank of America), and (B) a cash balance of no less than $2,500,000 on
deposit in a demand deposit account at Comerica (or, at Borrower’s option, invested by
Borrower in a certificate of deposit issued by Comerica); and


provided that, if any Default or Event of Default exists and is continuing on any proposed date of
reduction in the preceding clauses (i) and (ii), then such reduction shall be postponed until the
earliest date on which (x) any such Default or Event of Default has been cured, waived or otherwise
ceases to exist, and (y) no other Default or Event or Default then exists.




     6.17 Principal Depository. To maintain Bank of America as its principal depository bank,
including for the maintenance of business, cash management, operating and administrative deposit
accounts.



43









 





ARTICLE VII .

NEGATIVE COVENANTS



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




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



          (a) Liens pursuant to any Loan Document;



          (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed (other
than after-acquired property that is affixed to or incorporated in the property covered by such
Lien), (ii) the amount secured or benefited thereby is not increased except as contemplated by
Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) and any renewal or extension of the obligations secured or benefited thereby is permitted
by Section 7.03(b);



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



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



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



          (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, 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 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 not constituting an Event of Default
under Section 8.01(h);



44









 





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



          (j) leases, licenses, subleases or sublicenses granted to its customers in the ordinary course
of business and in furtherance of the business of Borrower and its Subsidiaries;



          (k) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code
on items in the course of collection and (ii) in favor of a banking institution arising as a matter
of law encumbering deposits (including the right of set-off) and which are within the general
parameters customary in the banking industry;



          (l) Liens consisting of an agreement to Dispose of any property permitted under Section 7.05,
solely to the extent such Disposition is permitted on the date of the creation of such Lien;



          (m) Liens on property of any Foreign Subsidiary securing Indebtedness of such Foreign
Subsidiary to the extent permitted under Section 7.03;



          (n) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of
business; and



          (o) Liens securing Indebtedness that is permitted to be incurred under Section 7.03(k),
provided that such secured Indebtedness does not exceed $500,000 at anytime.



     7.02 Investments. Make any Investments, except:



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



          (b) advances to officers, directors and employees of Borrower and Subsidiaries (i) in an
aggregate amount not to exceed $50,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes, and (ii) after the Closing Date in an
aggregate amount not to exceed $500,000 to enable such officers, directors and employees to pay
taxes incurred in connection with the exercise of cashless warrants and “penny” warrants;



          (c) Investments (i) by Borrower and its Subsidiaries in any Subsidiaries of Borrower, provided
that the aggregate amount of all such Investments in any fiscal year does not exceed $2,500,000,
and (ii) by any Loan Party or any Subsidiary in any Loan Party;



          (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of



45









 




business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;




          (e) Guarantees permitted by Section 7.03;



          (f) Investments existing on the date hereof and set forth on Schedule 7.02;



          (g) promissory notes and other non-cash consideration received in connection with Dispositions
permitted under Section 7.05;



          (h) Investments in the ordinary course of business consisting of endorsements for collection
or deposit;



          (i) to the extent constituting Investments, transactions permitted under Sections 7.03, 7.04,
7.05 and 7.06; and



          (j) so long as immediately after giving effect to any such Investment no Event of Default has
occurred and is continuing, other Investments not exceeding $1,000,000 in the aggregate for
Borrower and its Subsidiaries in any fiscal year of Borrower.



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



          (a) Indebtedness under the Loan Documents;



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



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



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



46









 





          (e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section 7.01(i);
provided, however, that the aggregate amount of all such Indebtedness at any one
time outstanding shall not exceed $1,500,000;



          (f) Indebtedness that is approved by the Required Lenders in writing in their sole discretion;



          (g) Indebtedness representing deferred compensation to key executive officers of Borrower and
its Subsidiaries in the ordinary course of business;



          (h) Indebtedness consisting of promissory notes issued by any Loan Party to current or former
officers, directors and employees, their respective estates, spouses or former spouses to finance
the purchase or redemption of Equity Interests of Borrower permitted by Section 7.06(d);



          (i) Indebtedness consisting of a purchase price or similar adjustment which is incurred by
Borrower or its Subsidiaries in connection with any Disposition permitted under Section 7.05;



          (j) Indebtedness in respect of netting services, overdraft protection and similar treasury
arrangements in each case in connection with deposit accounts; and



          (k) Indebtedness in an aggregate principal amount not to exceed $1,000,000 at any one time
outstanding, of which up to $500,000 may constitute secured Indebtedness pursuant to Section
7.01(o).



     7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



          (a) any Subsidiary may merge with (i) Borrower, provided that Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries (including a merger the
purpose of which is to reorganize such Subsidiary in a new jurisdiction), provided that
when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary
shall be the continuing or surviving Person, and, provided further that if a Guarantor is
merging with another Subsidiary, the Guarantor shall be the surviving Person; and



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



     7.05 Dispositions. Make any Disposition, except:



47









 





          (a) Dispositions of obsolete or worn out property or property no longer used in the conduct of
business, whether now owned or hereafter acquired, in the ordinary course of business;



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



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



          (d) Dispositions of property by Borrower to any Subsidiary or by any Subsidiary to Borrower or
another Subsidiary of Borrower; provided that if the transferor of such property is a Loan
Party, (i) the transferee thereof must be a Loan Party, or (ii) such transaction must be an
intercompany Investment permitted under Section 7.02(c);



          (e) Dispositions permitted by Section 7.04;



          (f) Dispositions of cash equivalents for fair market value;



          (g) Dispositions of accounts receivable in connection with the collection or compromise
thereof;



          (h) leases, subleases, licenses or sublicenses of property to its customers in the ordinary
course of business and which do not materially interfere with the business of Borrower and its
Subsidiaries;



          (i) Dispositions not otherwise permitted under this Section 7.05; provided that (i) at the
time of such Disposition, no Event of Default shall exist or would result therefrom, (ii) the
aggregate book value of all property Disposed in reliance on this clause (i) shall not exceed
$1,000,000 and (iii) the purchase price for such property shall be paid to Borrower or such
Subsidiary for not less than 75% cash consideration.


provided, however, that any Disposition pursuant to clauses (a),(b),(c),(f),(h) and
(i) shall be for fair market value.



To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05, such
Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Agent
shall be authorized to and shall take any actions it deems appropriate in order to effectuate the
foregoing.




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



48









 





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



          (c) so long as no Default shall have occurred and be continuing or would result therefrom,
Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by
it with the proceeds received from the substantially concurrent issue of new shares of its common
stock or other common Equity Interests;



          (d) so long as no Default shall have occurred and be continuing or would result therefrom,
Borrower may repurchase Equity Interests issued by it from directors, employees or members of
management of Borrower or any Subsidiary (or their estate, family members, spouse and/or former
spouses) after the Closing Date in an aggregate amount not in excess of $2,000,000;



          (e) so long as no Default shall have occurred and be continuing or would result therefrom,
Borrower may make repurchases of Equity Interests issued by it deemed to occur upon the exercise of
cashless or penny warrants or employee stock options; and



          (f) so long as no Default shall have occurred and be continuing or would result therefrom,
Borrower may, or may cause LandTel, Inc. or LandTel Communications, L.L.C., to (i) repurchase for
cash Minority Member’s Equity Interests in LandTel Communications, L.L.C. upon Minority’s Member’s
exercise of its Put Option and so long as such cash payment is permitted under the Subordination
Agreement among Minority Member, Agent, and Borrower, and (ii) issue Equity Interests in the form
of “penny” warrants as contemplated by that certain Amendment No. 2 to Letter Agreement dated May
28, 2009, among Borrower, LandTel, Inc., LandTel Communications, L.L.C., Babin Interests, LLC, and
Leslie K. Babin, individually.



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



     7.08 Transactions with Affiliates. Except as disclosed on Schedule 7.08, enter into any
transaction of any kind with any Affiliate of Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to Borrower or such
Subsidiary as would be obtainable by Borrower or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate, provided that the foregoing restriction
shall not apply to intercompany transactions between or among Borrower and any of its Subsidiaries
which are expressly permitted under Sections 7.02, 7.03, 7.04, 7.05 and 7.06.



     7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement,
any other Loan Document, or any loan agreements relating to the Indebtedness listed on Schedule
7.03) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to Borrower or
any Guarantor or to otherwise transfer property to Borrower or any Guarantor, (ii) of any
Subsidiary to Guarantee the Indebtedness of Borrower or (iii) of Borrower or any



49









 




Subsidiary to
create, incur, assume or suffer to exist Liens on property of such Person; provided,
however, that this clause (iii) shall not prohibit (x) any negative pledge incurred or
provided in favor of any holder of Indebtedness permitted under Section 7.03(e) solely to the
extent any such negative pledge relates to the property financed by or the subject of such
Indebtedness, or (y) customary restrictions in leases, subleases, licenses, or asset sale
agreements otherwise permitted under this Agreement so long as such restrictions relate solely to
the assets subject thereto; or (b) requires the grant of a Lien to secure an obligation of such
Person if a Lien is granted to secure another obligation of such Person.




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



ARTICLE VIII .

EVENTS OF DEFAULT AND REMEDIES




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



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



          (b) Specific Covenants. Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section 6.01, 6.03(a), 6.05 (with respect to Borrower), 6.11, 6.12,
or Article VII, or any Guarantor fails to perform or observe any term, covenant or agreement
contained in the Guaranty; or



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



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



          (e) Cross-Default. (i) Borrower or any Subsidiary (A) fails to make any payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Guarantee of Indebtedness (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



50









 




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 Borrower or any
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 Borrower or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or




          (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed (i) for 45 calendar days for
Borrower or any Domestic Subsidiary, or (ii) for 60 calendar days for any Subsidiary of Borrower
that is a Foreign Person; 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 (i) for 45 calendar days for Borrower or any Domestic Subsidiary,
or (ii) for 60 calendar days for any Subsidiary of Borrower that is a Foreign Person; or an order
for relief is entered in any such proceeding; or



          (g) Inability to Pay Debts; Attachment. (i) Borrower or any Subsidiary becomes unable
or admits in writing its inability or fails generally to pay its debts as they become due, or (ii)
any writ or warrant of attachment or execution or similar process is issued or levied against all
or any material part of the property of Borrower or any Subsidiary and is not released, vacated or
fully bonded (A) for any Subsidiary of Borrower that is a Foreign Person, within 60 days after its
issue or levy, and (B) for Borrower or any Domestic Subsidiary, within 30 days after its issue or
levy; or



          (h) Judgments. There is entered against Borrower or any Subsidiary (i) one or more
final judgments or orders for the payment of money in an aggregate amount (as to all such judgments
or orders) 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 has, individually or in the aggregate, a Material Adverse Effect and, in either
case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of (x) 10 consecutive days for Borrower or any Domestic Subsidiary, or (y) 60
consecutive days for any Subsidiary of Borrower that is a



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Foreign Person, during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or




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



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



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



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, 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 unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by Borrower;



          (b) 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 Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans 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, in each case without further act of Agent or any Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02 (or
after the Loans have automatically become immediately due and payable), any amounts received on
account of the Obligations shall be applied by Agent in the following order:




First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including reasonable fees, charges, out-of-pocket expenses,



52









 






and
disbursements of outside counsel to Agent and amounts payable under Article III) payable to
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 Lenders (including
reasonable fees, charges, out-of-pocket expenses, and disbursements of outside counsel to
the respective Lenders and amounts payable under Article III), ratably among them in
proportion to the respective 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 other Obligations, ratably among Lenders in proportion to the
respective amounts described in this clause Third payable to them;




Fourth, to payment of that portion of the Obligations constituting unpaid principal
of the Loans, ratably among Lenders 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 Borrower or as otherwise required by Law.



ARTICLE IX .

ADMINISTRATIVE AGENT




     9.01 Appointment and Authorization of Administrative Agent.



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



          (b) Agent shall also act as the “collateral agent” under the Loan Documents, and each of the
Lenders hereby irrevocably appoints and authorizes Agent to act as the agent of such Lender 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 Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, Agent, as “collateral agent” and any co-agents,
sub-agents and attorneys-in-fact appointed by Agent pursuant to Section 9.05 or otherwise 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
Agent), shall be entitled to the benefits of all provisions of this Article IX and Article X, as
though such 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.



     9.02 Rights as a Lender. The Person serving as 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



53









 




though it were
not Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless
the context otherwise requires, include the Person serving as 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 Borrower or any Subsidiary or other Affiliate thereof as if such Person were not
Agent hereunder and without any duty to account therefor to Lenders.




     9.03 Exculpatory Provisions. 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, 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 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 Agent shall not be required to take any action that,
in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to
any Loan Document or applicable Law;



          (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
Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
Agent or any of its Affiliates in any capacity; and



          (d) 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 Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Sections 8.02 and 10.01) or (ii) in the absence of its own gross negligence or
willful misconduct. Agent shall be deemed not to have knowledge of any Default unless and until
written notice describing such Default is given to Agent by Borrower or a Lender. 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 (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to Agent.



     9.04 Reliance by Administrative Agent. 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



54









 




or otherwise authenticated by the proper Person. 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, that by its terms must be fulfilled to the satisfaction of a Lender, Agent
may presume that such condition is satisfactory to such Lender unless Agent shall have received
notice to the contrary from such Lender prior to the making of such Loan. Agent may consult with
legal counsel (who may be counsel for Borrower), 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.




     9.05 Delegation of Duties. 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 Agent. Agent and any such sub-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 and to the Related Parties of Agent
and any such sub-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 Agent.



     9.06 Resignation of Agent. Agent may at any time give notice of its resignation to Lenders
and Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, with Borrower’s consent so long as no Default or Event of Default exists (which consent
shall not be unreasonably withheld or delayed), to appoint a successor, which shall be a bank with
an office in the United States, 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 Agent gives notice of its resignation,
then the retiring Agent may on behalf of Lenders, appoint a successor Agent meeting the
qualifications set forth above; provided that if Agent shall notify 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 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 Agent on behalf of the Lenders under any of the
Loan Documents, the retiring Agent shall continue to hold such collateral security until such time
as a successor Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through Agent shall instead be made by or to each Lender directly, until such
time as the Required Lenders appoint a successor Agent as provided for above in this Section. Upon
the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Agent, and the retiring 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 Borrower to a successor Agent shall be the same as those payable to
its predecessor unless otherwise agreed between Borrower and such successor. After the retiring
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of such retiring 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.



55









 





     9.07 Non-Reliance on Agent and Other Lenders. Each Lender acknowledges that it has,
independently and without reliance upon 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 also acknowledges that it will,
independently and without reliance upon 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.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, no Lender holding
a title 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 Agent,
a Lender hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, Agent
(irrespective of whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether Agent shall have made any
demand on 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 and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of Lenders and Agent
(including any claim for the reasonable compensation, expenses, disbursements and advances of
Lenders and Agent and their respective agents and counsel and all other amounts due Lenders and
Agent under Sections 2.03(i) and (j), 2.09 and 10.04) 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 to make such payments to Agent
and, in the event that Agent shall consent to the making of such payments directly to Lenders, to
pay to Agent any amount due for the reasonable compensation, expenses, disbursements and advances
of Agent and its agents and counsel, and any other amounts due Agent under Sections 2.06 and 10.04.
Nothing contained herein shall be deemed to authorize Agent to authorize or consent to or accept
or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize Agent to vote in respect of
the claim of any Lender in any such proceeding.




56









 






     9.10 Collateral Matters.



          (a) Each Lender hereby irrevocably authorizes and directs Agent to enter into the Collateral
Documents for the benefit of such Lender. Each Lender hereby agrees, and each holder of any Note
by the acceptance thereof will be deemed to agree, that, except as otherwise set forth in Section
10.01, any action taken by the Required Lenders, in accordance with the provisions of this
Agreement or the Collateral Documents, and the exercise by the Required Lenders of the powers set
forth herein or therein, together with such other powers as are reasonably incidental thereto,
shall be authorized and binding upon all of Lenders. Agent is hereby authorized (but not
obligated) on behalf of all of Lenders, without the necessity of any notice to or further consent
from any Lender from time to time prior to, an Event of Default, to take any action with respect to
any Collateral or Collateral Documents which may be necessary to perfect and maintain perfected the
Liens upon the Collateral granted pursuant to the Collateral Documents.



          (b) Each Lender hereby irrevocably authorizes Agent, at its option and in its discretion,




     (i) to release any Lien on any property granted to or held by Agent under any Loan
Document (A) upon payment in full of all Obligations (other than contingent indemnification
obligations), (B) that is sold or to be sold as part of or in connection with any sale
permitted hereunder or under any other Loan Document, (C) subject to Section 10.01, if
approved, authorized or ratified in writing by the Required Lenders, or (D) in connection
with any foreclosure sale or other disposition of Collateral after the occurrence of an
Event of Default; and




     (ii) to subordinate any Lien on any property granted to or held by Agent under any Loan
Document to the holder of any Lien on such property that is permitted by this Agreement or
any other Loan Document.


Upon request by Agent at any time, each Lender will confirm in writing Agent’s authority to release
or subordinate its interest in particular types or items of Collateral pursuant to this Section
9.10.




          (c) Subject to subsection (b) above, Agent shall (and is hereby irrevocably authorized by each
Lender, to execute such documents as may be necessary to evidence the release or subordination of
the Liens granted to Agent for the benefit of Agent and Lenders herein or pursuant hereto upon the
applicable Collateral; provided that (i) Agent shall not be required to execute any such
document on terms which, in Agent’s opinion, would expose Agent to or create any liability or
entail any consequence other than the release or subordination of such Liens without recourse or
warranty and (ii) such release or subordination shall not in any manner discharge, affect or impair
the Obligations or any Liens upon (or obligations of Borrower or any other Loan Party in respect
of) all interests retained by Borrower or any other Loan Party, including the proceeds of the sale,
all of which shall continue to constitute part of the Collateral. In the event of any sale or
transfer of Collateral, or any foreclosure with respect to any of the Collateral, Agent shall be
authorized to deduct all expenses reasonably incurred by Agent from the proceeds of any such sale,
transfer or foreclosure.



57









 





          (d) Agent shall have no obligation whatsoever to any Lender or any other Person to assure that
the Collateral exists or is owned by Borrower or any other Loan Party or is cared for, protected or
insured or that the Liens granted to Agent herein or in any of the Collateral Documents or pursuant
hereto or thereto have been properly or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to exercise or to continue exercising at
all or in any manner or under any duty of care, disclosure or fidelity any of the rights,
authorities and powers granted or available to Agent in this Section 9.10 or in any of the
Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act,
omission or event related thereto, Agent may act in any manner it may deem appropriate, in its sole
discretion, given Agent’s own interest in the Collateral as one of Lenders and that Agent shall
have no duty or liability whatsoever to Lenders.



          (e) Each Lender hereby appoints each other Lender as agent for the purpose of perfecting
Lenders’ security interest in assets which, in accordance with Article 9 of the UCC can be
perfected only by possession. Should any Lender (other than Agent) obtain possession of any such
Collateral, such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor
shall deliver such Collateral to Agent or in accordance with Agent’s instructions.



ARTICLE X .

MISCELLANEOUS




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



          (a) waive any condition set forth in Section 4.01(a) without the written consent of each
Lender; provided, however, in the sole discretion of Agent, only a waiver by Agent
shall be required with respect to immaterial matters or items specified in Section 4.01(a) (iii) or
(iv) with respect to which Borrower has given assurances satisfactory to Agent that such items
shall be delivered promptly following the Closing Date;



          (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



          (c) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other amounts due to Lenders (or
any of them) hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;



          (d) reduce the principal of, or the rate of interest specified herein on, any Loan, or
(subject to clause (ii) of the second proviso to this Section 10.01) any fees or other amounts
payable hereunder or under any other Loan Document, without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the Required



58









 




Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation
of Borrower to pay interest at the Default Rate or (ii) 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 to reduce any fee payable hereunder;




          (e) change Section 2.10 or Section 8.03 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender;



          (f) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or



          (g) release any Guarantor from the Guaranty (other than in connection with a transaction
permitted under Section 7.04) or release the Liens on all or substantially all of the Collateral in
any transaction or series of related transactions except in accordance with the terms of any Loan
Document, without the written consent of each Lender;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by Agent in addition to the Lenders required above, affect the rights or duties
of Agent under this Agreement or any other Loan Document; and (ii) any fee letter to which Agent is
a party may not be amended, or rights or privileges thereunder waived, unless done in a writing
executed by Agent and all parties thereto. Notwithstanding anything to the contrary herein, 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.




     10.02 Notices; Effectiveness; Electronic Communications.



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




     (i) if to Borrower or Agent, to the address, telecopier number, electronic mail address
or telephone number specified for such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices sent by hand or overnight courier service shall be deemed to have been given when received;
notices sent by certified or registered mail shall be deemed to have been given upon the earlier of
actual receipt by the relevant party and four (4) Business Days after deposit in the mail, postage
prepaid; 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




59









 







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 Lenders hereunder
may be delivered or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has notified the Agent that it
is incapable of receiving notices under such Article by electronic communication. Agent or
Borrower may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications. Unless 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) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF BORROWER MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER
MATERIALS OR THE PLATFORM. In no event shall Agent or any of its Related Parties (collectively,
the “Agent Parties”) have any liability to Borrower, any Lender, or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of Borrower’s or Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however, that in no event
shall any Agent Party have any liability to Borrower, any Lender, or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages).



          (d) Change of Address, Etc. Each of Borrower and Agent, 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 Borrower and



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Agent. In addition, each
Lender agrees to notify Agent from time to time to ensure that Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such
Public Lender to at all times have selected the “Private Side Information” or similar designation
on the content declaration screen of the Platform in order to enable such Public Lender or its
delegate, in accordance with such Public Lender’s compliance procedures and applicable Law,
including United States Federal and state securities Laws, to make reference to Borrower Materials
that are not made available through the “Public Side Information” portion of the Platform and that
may contain material non-public information with respect to the Borrower or its securities for
purposes of United States Federal or state securities laws.




          (e) Reliance by Agent and Lenders. Agent and Lenders shall be entitled to rely and
act upon any notices (including telephonic Loan Notices) purportedly given by or on behalf of
Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall
indemnify Agent, 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 Borrower. All telephonic notices to and other telephonic communications
with Agent may be recorded by Agent, and each of the parties hereto hereby consents to such
recording.



     10.03 No Waiver; Cumulative Remedies: Enforcement. No failure by any Lender or 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.



     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, Agent in
accordance with Section 8.02 for the benefit of all Lenders; provided, however,
that the foregoing shall not prohibit (a) Agent from exercising on its own behalf the rights and
remedies that inure to its benefit (solely in its capacity as Agent) hereunder and under the other
Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.08
(subject to the terms of Section 2.10), or (c) any Lender from filing proofs of claim or appearing
and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan
Party under any Debtor Relief Law; and provided, further, that if at any time there
is no Person acting Agent hereunder and under the other Loan Documents, then (i) the Required
Lenders shall have the rights otherwise ascribed to Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and



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subject
to Section 2.10, any Lender may, with the consent of the Required Lenders, enforce any rights and
remedies available to it and as authorized by the Required Lenders.




     10.04 Expenses; Indemnity; Damage Waiver.



          (a) Costs and Expenses. Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by Agent and its Affiliates (including the reasonable fees, charges, out-of pocket
expenses and disbursements of outside counsel for Agent), 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 out-of-pocket expenses incurred by Agent or any Lender
(including the fees, charges and disbursements of any outside counsel for Agent or any Lender), in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection with
the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.



          (b) Indemnification by Borrower. Borrower shall indemnify Agent (and any sub-agent
thereof), each Lender, and each Related Party 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 fees, charges, out-of-pocket
expenses, and disbursements of any outside counsel for any Indemnitee), incurred by any Indemnitee
or asserted against any Indemnitee by any third party or by Borrower or any of its Subsidiaries
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, or, in the case of Agent (and
any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the
other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan
or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by Borrower or any of its Subsidiaries and regardless of whether any
Indemnitee is a party thereto IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN
PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower or any of its
Subsidiaries against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan



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Document, if Borrower or such Subsidiary has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.




          (c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to Agent (or any sub-agent thereof), or any Related Party, each Lender severally agrees to pay to
Agent (or any such sub-agent) 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 Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any
of the foregoing acting for Agent (or any such sub-agent) in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of Section
2.09(d).



          (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or 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 to such unintended
recipients by such Indemnitee 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 other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



          (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 Agent,
the replacement of any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is made
to Agent, or any Lender, or Agent, 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 Agent 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 severally agrees to pay to Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid by Agent, plus
interest thereon from the date of such demand to the date such



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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 under
clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.




     10.06 Successors and Assigns.



          (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an 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 Agent 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
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans; provided that any such assignment shall be subject
to the following conditions:




     (i) Minimum Amounts




     (A) in the case of an assignment of the entire remaining amount of the Loans at
the time owing to it or in the case of an assignment to a Lender or an Affiliate of
a Lender no minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, 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 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
unless each of Agent and, so long as no Event of Default has occurred and is
continuing, Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent assignments to members of
an Assignee Group and concurrent assignments from members of an Assignee Group to a
single Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single



64









 







assignment for purposes of determining whether
such minimum amount has been met;




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned.




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender or
an Affiliate of a Lender;




     (B) the consent of Agent (such consent not to be unreasonably withheld or
delayed) shall be required for assignments in respect of (1) any Commitment if such
assignment is to a Person that is not a Lender, or an Affiliate of such Lender or
(2) any Loan to a Person that is not a Lender; or an Affiliate of a Lender.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to Agent an Assignment and Assumption, together with a processing and
recordation fee in the amount of $3,500; provided, however, that the Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case
of any assignment. The assignee, if it is not a Lender, shall deliver to Agent an
Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to Borrower or
any of Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and Assumption, the 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 of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment. Upon request and upon the return of any Note
executed in favor of the assigning Lender, 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




65









 







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. Agent, acting solely for this purpose as an agent of Borrower, shall
maintain at Administrative Agent’s Office a copy of each Assignment 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 owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”). The entries in the Register shall be conclusive, and Borrower, 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 Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.



          (d) Participations. Any Lender may at any time, without the consent of, or notice to,
Borrower or Agent, sell participations to any Person (other than a natural person or Borrower or
any of 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; 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) Borrower, Agent, and the Lenders
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 to approve any amendment, modification or waiver of any provision of this Agreement;
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
the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of
this Section, Borrower agrees that each Participant shall be entitled to the benefits 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 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.10 as though it were a Lender.



          (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 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 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 Borrower is notified of and consents to (which consent shall not be unreasonably
withheld or delayed) the participation sold to such Participant and such Participant agrees, for
the benefit of Borrower, to comply with Section 3.01(e) as though it were a Lender.



          (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)



66









 




to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal 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) Deemed Consent of Borrower. If the consent of Borrower to an assignment to an
assignee is required hereunder (including a consent to an assignment which does not meet the
minimum assignment threshold specified in Section 10.06(b)(i)(B)), Borrower shall be deemed to have
given its consent five Business Days after the date notice thereof has been delivered to Borrower
by the assigning Lender (through Agent) unless such consent is expressly refused by Borrower prior
to such five Business Day.



     10.07 Treatment of Certain Information; Confidentiality. Each of Agent and the Lenders agrees
to maintain the confidentiality of the Information (as defined below), except that Information may
be disclosed (a) solely in connection with the transaction contemplated hereby, to its Affiliates
and to its and its Affiliates’ respective partners, directors, officers, employees, agents,
trustees, advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any regulatory authority,
purporting to have jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee 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 Borrower and its obligations, (g) with the consent of Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to Agent, any Lender, or any of their respective Affiliates on a
nonconfidential basis from a source (not known to Agent or such Lender to be bound by a
confidentiality agreement) other than Borrower. For purposes of this Section, “Information” means
all information received from Borrower or any Subsidiary relating to Borrower or any Subsidiary or
any of their respective businesses, other than any such information that is available to Agent or
any Lender on a nonconfidential basis prior to disclosure by Borrower or any Subsidiary. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information. Each of Agent and the Lenders acknowledges that (a) the
Information may include material non-public information concerning Borrower or a Subsidiary, as the
case may be, (b) it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in accordance with
applicable Law, including Federal and state securities Laws.



67









 





     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, 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, or any such
Affiliate to or for the credit or the account of Borrower or any other Loan Party against any and
all of the obligations of Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or any such Affiliate, irrespective of whether
or not such Lender shall have made any demand under this Agreement or any other Loan Document and
although such obligations of Borrower or such Loan Party may be contingent or unmatured or are owed
to a branch or office of such Lender different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, and their respective Affiliates under
this Section are (a) subject to Section 2.10 and Section 8.03 and (b) in addition to other rights
and remedies (including other rights of setoff) that Lender, or their respective Affiliates may
have. Each Lender agrees to notify Borrower and 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. In the event of any conflict between the right of setoff of any
Lender pursuant to a deposit account control agreement among any Loan Party, Agent, and such Lender
in its capacity as depository bank, and this Section 10.08, such Lender agrees that provisions of
this Section 10.08 shall control.



     10.09 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 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 principal,
refunded to Borrower. In determining whether the interest contracted for, charged, or received by
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.



     10.10 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 4.01, this Agreement shall become effective when it shall have been executed by Agent and
when 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 or other electronic imaging means shall be effective as delivery of a
manually executed counterpart of this Agreement.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered



68









 




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 Agent and each Lender,
regardless of any investigation made by Agent or any Lender or on their behalf and notwithstanding
that 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.




     10.12 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.



     10.13 Replacement of Lenders. If (i) any Lender requests compensation under Section
3.04, (ii) 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, (iii) any Lender ceases to make
Eurodollar Rate Loans as a result of any condition described in Section 3.02 or 3.03, (iv) a Lender
does not consent (a “Non-Consenting Lender”) to a proposed change, waiver, discharge or termination
with respect to any Loan Document that has been approved by the Required Lenders as provided in
Section 10.01 but requires unanimous consent of all Lenders or all Lenders directly affected
thereby (as applicable), or (v) any Lender is a Defaulting Lender, then 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 10.06), 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) Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b), unless waived in writing by the Administrative Agent;



          (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans, 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) from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the applicable Borrower (in
the case of all other amounts);



          (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 payments thereafter;



          (d) such assignment does not conflict with applicable Laws; and



69









 





          (e) in the case of any such assignment resulting from a Non-Consenting Lender’s failure to
consent to a proposed change, waiver, discharge or termination with respect to any Loan Document,
the applicable replacement bank, financial institution or fund consents to the proposed change,
waiver, discharge or termination; provided that the failure by such Non-Consenting Lender
to execute and deliver an Assignment and Assumption shall not impair the validity of the removal of
such Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’s outstanding
Loans pursuant to this Section 10.13 shall nevertheless be effective without the execution by such
Non-Consenting Lender of an Assignment and Assumption and such Non-Consenting Lender shall be
deemed to have consented to such Assignment and Assumption.



     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 Borrower to require
such assignment and delegation cease to apply.



     10.14 Governing Law; Jurisdiction; Etc.



          (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF TEXAS.



          (b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF TEXAS SITTING IN HARRIS COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT
OF TEXAS, 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 TEXAS STATE COURT OR,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL NONAPPEALABLE 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 ANY PARTY HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN
THE COURTS OF ANY JURISDICTION.



          (c) WAIVER OF VENUE. EACH PARTY HERETO 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



70









 




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 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Jury Trial. 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.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), Borrower and each other Loan Party acknowledges
and agrees and acknowledges its Affiliates’ understanding that: (i) (A) the services regarding
this Agreement provided by Agent are arm’s-length commercial transactions between Borrower, each
other Loan Party and their respective Affiliates, on the one hand, and Agent, on the other hand,
(B) each of Borrower and the other Loan Parties have consulted their own legal, accounting,
regulatory and tax advisors to the extent they have deemed appropriate, and (C) Borrower and each
other Loan Party is capable of evaluating and understanding, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; (ii) (A) Agent is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary, for Borrower, any other Loan Party, or any of their respective
Affiliates, or any other Person and (B) Agent does not have any obligation to Borrower, any other
Loan Party or any of their Affiliates with respect to the transaction contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents; and (iii) Agent and
its Affiliates may be engaged in a broad range of transactions that involve interests that differ
from those of Borrower, the other Loan Parties and their respective Affiliates, and Agent has no
obligation to disclose any of such interests to Borrower, any other Loan Party of any of their
respective Affiliates. To the fullest extent permitted by law, each of Borrower and the other Loan
Parties hereby waive and release, any claims that it may



71









 




have against Agent with respect to any
breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.




     10.17 Electronic Execution of Assignments and Certain Other Documents. The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) 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.



     10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant to
the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
Borrower, which information includes the name and address of Borrower and other information that
will allow such Lender or Agent, as applicable, to identify Borrower in accordance with the Act.
Borrower shall, promptly following a request by Agent or any Lender, provide all documentation and
other information that Agent or such Lender requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the Act.



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



     10.20 Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



[Signatures appear on following pages.]



72









 





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



	 	 	 	 	 
	 	BORROWER:




RIGNET, INC.,

a Delaware corporation

 	 
	 	By: 	/s/
Martin L. Jimmerson	 
	 	 	Martin L. Jimmerson 	 
	 	 	Chief Financial Officer 	 
	 



Signature Page to Credit Agreement



 









 





	 	 	 	 	 
	 	AGENT:




BANK OF AMERICA, N.A.,

a national banking association,

as Administrative Agent

 	 
	 	By:  	/s/
Anthony Kell	 
	 	 	Anthony Kell 	 
	 	 	Assistant Vice President 	 
	 
	 	LENDER:




BANK OF AMERICA, N.A.,

a national banking association,

as a Lender

 	 
	 	By:  	/s/
Michelle C. Tabor	 
	 	 	Michelle C. Tabor 	 
	 	 	Vice President 	 
	 



Signature Page to Credit Agreement




 









 





	 	 	 	 	 
	 	LENDER:




COMERICA BANK,

a Texas banking association,

as a Lender

 	 
	 	By:  	/s/
Steven J. DiPasquale	 
	 	 	Name:  	Steven J. DiPasquale	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement




 









 





SCHEDULE 2.01




COMMITMENTS

AND APPLICABLE PERCENTAGES



	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	Applicable Percentage
	Bank of America, N.A.
	 	$	20,000,000	 	 	 	57.142857143	%
	Comerica Bank
	 	$	15,000,000	 	 	 	42.857142857	%
	 
	 	 	 	 	 	 	 	 
	Total
	 	$	35,000,000	 	 	 	100.000000000	%






Schedule 1.01



 









 





SCHEDULE 5.06




LITIGATION



None.



Schedule 5.06




 












 





SCHEDULE 5.13




SUBSIDIARIES

AND OTHER EQUITY INVESTMENTS

AND EQUITY INTERESTS IN BORROWER


Part (a). Subsidiaries.




	 	 	 
	Entity Name	 	Ownership
	RigNet SatCom, Inc.

	 	100% owned by RigNet, Inc.
	LandTel, Inc.

	 	100% owned by RigNet, Inc.
	RigNet UK Ltd.

	 	100% owned by RigNet, Inc.
	RigNet Saudi Arabia (Branch)

	 	100% owned by RigNet, Inc.
	RigNet PTE, Ltd.

	 	100% owned by RigNet, Inc.
	RigNet Europe AS

	 	100% owned by RigNet, Inc.
	RigNet Qatar WLL

	 	49% owned by RigNet PTE, Ltd.
	 

	 	51% owned by Gulf International
Development and Trading Company W.L.
	PG Net AS

	 	100% owned by RigNet, Inc.
	RigNet Holdings Brazil Ltda.

	 	99% owned by RigNet, Inc.

1% owned by RigNet PTE Ltd.
	RigNet Services Nigeria, Ltd.

	 	99.9999999% owned by RigNet, Inc.

0.00000001% owned by RigNet PTE, Ltd.
	RigNet Services de Telecomunicacoes

	 	99% owned by RigNet Holding Brazil
Ltda.

1% owned by RigNet PTE, Ltd.
	RigNet AS

	 	100% owned by RigNet Europe AS
	OilCamp UK, Ltd.

	 	100% owned by RigNet AS
	LandTel Communications, L.L.C.

	 	93% owned by LandTel, Inc. 

7% owned by Babin Interests LLC





Part (b). Other Equity Investments.




              See part (a) above.




Schedule 5.13

















 




Part (c). Owners of Equity Interests in Borrower.



Schedule 5.13
(c).




     Summary of Cap Table — May 29, 2008



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Cubera	 	 	SMH	 	 	Altira	 	 	Duncan	 	 	Other	 	 	Total	 
	Common Shares Outstanding (1,2)
	 	 	7,879,251	 	 	 	4,197,696	 	 	 	4,776,665	 	 	 	639,051	 	 	 	3,719,352	 	 	 	21,212,015	 
	Preferred Shared A — Issued
	 	 	0	 	 	 	500,000	 	 	 	2,000,000	 	 	 	250,000	 	 	 	0	 	 	 	2,750,000	 
	Preferred Shared B — Issued
	 	 	2,919,100	 	 	 	37,910	 	 	 	151,642	 	 	 	18,956	 	 	 	0	 	 	 	3,127,608	 
	Preferred Shared C — Issued
	 	 	1,701,129	 	 	 	1,963,433	 	 	 	1,187,056	 	 	 	148,382	 	 	 	0	 	 	 	5,000,000	 
	Preferred Shared C — Dividends Issued
	 	 	612,405	 	 	 	706,834	 	 	 	427,340	 	 	 	53,417	 	 	 	0	 	 	 	1,799,996	 
	Preferred Shared B — Accrued
	 	 	1,596,046	 	 	 	20,938	 	 	 	83,753	 	 	 	10,470	 	 	 	0	 	 	 	1,713,207	 
	Preferred Shared C — Accrued
	 	 	191,832	 	 	 	221,411	 	 	 	133,861	 	 	 	16,733	 	 	 	0	 	 	 	563,836	 
	$0.01 Warrants — Shareholders
	 	 	1,518,431	 	 	 	801,804	 	 	 	384,115	 	 	 	123,236	 	 	 	47,414	 	 	 	2,875,000	 
	$0.01 Warrants — Escalate Capital
	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	881,380	 	 	 	881,380	 
	$0.01 Warrants — Les Babin (2)
	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 
	$1.75 Warrants — Shareholders
	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	46,246	 	 	 	46,246	 
	Stock Options
	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	2,432,000	 	 	 	2,432,000	 
	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fully Diluted Shares — Before Cashless Warrant
Conversion (3)
	 	 	16,420,193	 	 	 	8,450,026	 	 	 	9,144,432	 	 	 	1,260,244	 	 	 	7,126,392	 	 	 	42,401,288	 
	 	 	 
	Fully Diluted % — Before Cashless Warrant Conversion
	 	 	38.73	%	 	 	19.93	%	 	 	21.57	%	 	 	2.97	%	 	 	16.81	%	 	 	100.00	%
	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cashless Warrants (3)
	 	 	1,447,197	 	 	 	736,009	 	 	 	936,740	 	 	 	117,631	 	 	 	115,626	 	 	 	3,353,203	 
	 	 	 








 




			
	(1)	 	4 RigNet founders and 2 Oil Camp owners hold 3,371,206 common shares reported as Other.
	 
	(2)	 	Babin may receive 1mm warrants issuable by RigNet if the Minority Interest PUT Obligation is not paid in full by Company or Investors.
	 
	(3)	 	Convertible into common shares based upon FMV in excess of $1.75. Assuming FMV of $3 and $4 per share RigNet would issue additional estimated 2.3 million & 2.5 million shares, respectively.




Schedule 5.13














 





     



SCHEDULE 7.01




EXISTING LIENS



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Original Filing	 	Original Filing	 	 
	Debtor	 	Secured Party	 	Jurisdiction	 	Date	 	Number	 	Collateral Summary
	RigNet, Inc.

	 	Cisco Systems Capital
Corporation
	 	Delaware
	 	10/12/2005
	 	 	53232007	 	 	$1 out with
Schedule A listing
specific equipment
forming part of
Master Lease
Schedule No. 01
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	RigNet, Inc.

	 	Citicorp Vendor
Finance, Inc.
	 	Delaware
	 	11/15/2006
	 	 	64194742	 	 	Specific equipment
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	RigNet, Inc.

	 	IBM Credit LLC
	 	Delaware
	 	8/21/2007
	 	 	2007 3190302	 	 	Specific equipment
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	RigNet, Inc.

	 	CIT Technology
Financing Services
I LLC
	 	Delaware
	 	11/26/2007
	 	 	2007 4462163	 	 	Specific equipment
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	RigNet, Inc.

	 	Texas Capital Bank, N.A.
	 	Delaware
	 	9/2/2008
	 	 	2008 2965935	 	 	Relates to Motor
Vehicle Lease

Agreement #22532
dated 7/31/2008
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	RigNet, Inc.

	 	Texas Capital Bank, N.A.
	 	Delaware
	 	9/4/2008
	 	 	2008 2988531	 	 	Relates to Motor
Vehicle Lease 

Agreement #22533
dated 7/31/2008
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	RigNet, Inc.

	 	Texas Capital Bank,
N.A.
	 	Delaware
	 	9/26/2008
	 	 	2008 3271663	 	 	Relates to Motor
Vehicle Lease 

Agreement #22548
dated 8/20/2008
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	RigNet, Inc.

	 	Texas Capital Bank,
N.A.
	 	Delaware
	 	12/9/2008
	 	 	2008 4085732	 	 	Relates to Motor
Vehicle Lease

Agreement #22690
dated 12/4/2008
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	RigNet, Inc.

	 	Texas Capital Bank,
N.A.
	 	Delaware
	 	12/31/2008
	 	 	2008 4325021	 	 	Relates to Motor
Vehicle Lease

Agreement #22475
dated 6/25/2008
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	RigNet, Inc.

	 	Texas Capital Bank,
N.A.
	 	Delaware
	 	12/31/2008
	 	 	2008 4328272	 	 	Relates to Motor
Vehicle Lease 

Agreement #22476
dated 6/25/2008
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	5/31/2006
	 	 	09-1059345	 	 	Fax machines






Schedule 7.01 









 









     



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Original Filing	 	Original Filing	 	 
	Debtor	 	Secured Party	 	Jurisdiction	 	Date	 	Number	 	Collateral Summary
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	10/31/2005
	 	09-1050140
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	12/9/2005
	 	09-1051860
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	1/11/2006
	 	09-1053127
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	2/22/2006
	 	09-1054747
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	3/24/2006
	 	09-1055932
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	4/4/2006
	 	09-1056407
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	5/8/2006
	 	09-1058345
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	5/18/2006
	 	09-1058815
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	7/17/2006
	 	09-1061616
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	7/31/2006
	 	09-1062308
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	8/17/2005
	 	09-1046725
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	 	 	9/16/2005
	 	09-1047862
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	10/18/2006
	 	09-1066212
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	11/16/2006
	 	09-1067551
	 	Fax machines





Schedule 7.01



 









 







     



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Original Filing	 	Original Filing	 	 
	Debtor	 	Secured Party	 	Jurisdiction	 	Date	 	Number	 	Collateral Summary
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	4/27/2007
	 	09-1075500
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	5/1/2007
	 	09-1075701
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	7/5/2007
	 	09-1079260
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	11/7/2007
	 	09-1085829
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	12/7/2007
	 	09-1087241
	 	Fax machines
	 
	 	 	 	 	 	 	 	 	 	 
	LandTel Communications, L.L.C.

	 	Great America
Leasing Corporation
	 	Louisiana
	 	12/1/2008
	 	09-1106022
	 	Fax machines





Schedule 7.01



 









 







SCHEDULE 7.02




INVESTMENTS


See Schedule 5.13.




Schedule 7.02






 









 








SCHEDULE 7.03




EXISTING INDEBTEDNESS


LandTel Communications, L.L.C., as borrower




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Debt as	 	Description of collateral/VIN
	Lender	 	Loan Number	 	of April 30, 2009	 	(Vehicle Identification #)
	Home Bank

	 	 	485017986	 	 	$	10,505.20	 	 	1GTHK29K37E574246
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485016627	 	 	$	2,410.89	 	 	1GTHK29U26E166319
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485016719	 	 	$	2,478.3	 	 	1GTEC19Z67E103215
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485016720	 	 	$	2,478.3	 	 	1GTEC19Z57E100824
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485016451	 	 	$	3,212.76	 	 	1GTEC19V47E104232
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485017765	 	 	$	8,545.10	 	 	1GTHK29U77E101936
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485017481	 	 	$	6,289.83	 	 	1GTEC190X7E515249
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485017373	 	 	$	7,607.80	 	 	1GTHK29UX7E151651
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485017630	 	 	$	8,423.1	 	 	1GTHK29U77E144009
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485017684	 	 	$	8,211.45	 	 	1GTEC19C37Z501289
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485017736	 	 	$	8,365.65	 	 	1GTH529UO7E185209
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485017737	 	 	$	12,211.95	 	 	1FTPW14V57FB16665
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485017766	 	 	$	8,506.10	 	 	1GTHK29U07E188529
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485018132	 	 	$	10,068.85	 	 	1GTEC19J57E565145
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485018333	 	 	$	9,581.44	 	 	1GTEC19J97E597175
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485018334	 	 	$	9,581.44	 	 	1GTEC19J17E599373
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485018335	 	 	$	12,111.53	 	 	1GTHK29KX7E574485
	 
	 	 	 	 	 	 	 	 	 	 
	Home Bank

	 	 	485018501	 	 	$	13,920.79	 	 	1GTHK29K18E114956






Schedule 7.03





 









 








SCHEDULE 7.08




TRANSACTIONS WITH AFFILIATES


LandTel Communications, L.L.C. Lease Agreement with Apollo Ventures (an entity wholly-owned by Les
Babin, a manager of LandTel Communications, L.L.C.) dated September 30, 2009.



Employment Agreement dated as of August 15, 2007 between RigNet, Inc. and Mark B. Slaughter.



Employment Agreement dated as of August 15, 2007 between RigNet, Inc. and Marty Jimmerson.



Amended and Restated Operating Agreement of LandTel Communications, L.L.C. dated August 25, 2006,
as amended.




Schedule 7.08







 









 








SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE,

CERTAIN ADDRESSES FOR NOTICES



RigNet, Inc.

1880 South Dairy Ashford, Suite 300

Houston, Texas 77077

Attention: Marty Jimmerson, Chief Financial Officer

Telephone: 281-674-0118

Telecopier: 281-674-0101

Electronic Mail: Marty.jimmerson@rig.net

Website Address: www.rig.net

U.S. Taxpayer Identification Number: 76-0677208



with a copy to:




Fulbright & Jaworski, L.L.P.

2200 Ross Avenue, Suite 2800

Dallas, Texas 75201

Attention: Courtney Solcher Marcus

Telephone: 214-855-7464

Telecopier: 214-855-8200

Electronic Mail: cmarcus@fulbright.com



ADMINISTRATIVE AGENT:




Administrative Agent’s Office

(for payments and Requests for Credit Extensions):




Bank of America, N.A.

Bank of America Plaza

901 Main Street

Dallas, Texas 75202-3714

Attention: Jennifer Ollek, Credit Service Representative

Telephone: 214.209.2642

Telecopier: 214.290.8374

Electronic Mail: Jennifer.a.ollek@bankofamerica.com




Bank of America, N.A.

ABA # 026009593

Dallas, Texas

Acct. # 129-2000-883

Attn: Corporate Credit Services

Ref: RIGNET, INC.




Schedule 10.02




 









 








Other Notices as Administrative Agent:




Bank of America, N.A. — Agency Management

Bank of America Plaza

901 Main Street

Dallas, Texas 75202

Attention: Anthony Kell, Agency Management Officer

Telephone: 214.209.4124

Telecopier: 214.290.9422

Electronic Mail: Anthony.w.kell@bankofamerica.com



LENDERS:




Bank of America, N.A.

700 Louisiana, 7th Floor

Houston, Texas 77002

Attention: Michelle Tabor, Vice President

Telephone: 713-247-6522

Telecopier: 713-247-7175

Electronic Mail: michelle.c.tabor@bankofamerica.com



with a copy to:




Porter & Hedges, L.L.P.

1000 Main Street, 36th Floor

Houston, Texas 77002

Attention: Joyce K. Soliman

Telephone: 713-226-6685

Telecopier: 713-226-6285

Electronic Mail: jsoliman@porterhedges.com




Comerica Bank

300 W. Sixth Street, Suite 1300

Austin, Texas 78701

Attention: Steven J. DiPasquale, Vice President

Telephone: 512-427-7160

Telecopier: 512-427-7178

Electronic Mail: sdipasquale@comerica.com



with a copy to:




DLA Piper LLP(US)

4365 Executive Drive, Suite 1100

San Diego, California 92121

Attention: Matt Schwartz

Telephone:       (858) 638-6834

Facsimile:      (858) 638-5134

Electronic Mail: Matt.schwartz@dlapiper.com




Schedule 10.02





 











 





EXHIBIT A




FORM OF LOAN NOTICE



Date: ___________, _____




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



Ladies and Gentlemen:



     Reference is made to that certain Credit Agreement, dated as of May 29, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among RigNet, Inc., a
Delaware corporation (the “Borrower”), the Lenders from time to time party thereto, Bank of
America, N.A., as Administrative Agent for itself and the other Lenders.



     The undersigned hereby requests (select one):



     A Borrowing of Loans1



     A conversion or continuation of Loans



     1. On     
           
                
          (a Business Day).



     2. In the amount of $         
            .



     3. Comprised of                     
                 .



[Type of Loan requested]




     4. For Eurodollar Rate Loans: with an Interest Period of _____ months.



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



	 	 	 	 	 
	 	RIGNET, INC.,

a Delaware corporation,

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 





 




			
	1	 	Applicable to the initial Credit Extension only.





Exhibit A

Form of Loan Notice




 









 





EXHIBIT B




FORM OF NOTE




			
	 	 	 
	$ _______________________
	 	_______________________






     FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to
                     or registered assigns (“Lender”), in accordance with the provisions of the
Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the
Lender to Borrower under that certain Credit Agreement, dated as of May 29, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;” the terms defined therein being used herein as therein defined), among Borrower, the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent for
itself and the other Lenders.



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



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



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



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



	 	 	 	 	 
	 	RIGNET, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Exhibit B - 1

Form of Note




 









 





LOANS AND PAYMENTS WITH RESPECT THERETO




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





Exhibit B - 2

Form of Note



 









 





EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE



Financial Statement Date:                     , 20___



To: Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:



     Reference is made to that certain Credit Agreement, dated as of May 29, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;” the terms defined therein being used herein as therein defined), among RigNet, Inc., a
Delaware corporation (“Borrower”), the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent for itself and the other Lenders.



     The undersigned Responsible Officer hereby certifies, in such capacity and not individually,
as of the date hereof that he/she is the                      of Borrower, and that, as such, he/she
is authorized to execute and deliver this Certificate to Agent on the behalf of Borrower, and that:



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



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



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



     1. Borrower has delivered the unaudited financial statements required by Section 6.01(b) of
the Agreement for the fiscal quarter of Borrower ended as of the above date. Such financial
statements fairly present in all material respects the financial condition and results of
operations of Borrower and its Subsidiaries in accordance with [GAAP][IFRS] as at such date and for
such period, subject only to normal year-end audit adjustments and the absence of footnotes.



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



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



     [select one:]


[to the knowledge of the undersigned during such fiscal period, Borrower performed and observed
each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and
is continuing.]




Exhibit C - 1

Form of Compliance Certificate



 









 





     —or—


[to the knowledge of the undersigned, during such fiscal period, the following covenants or
conditions have not been performed or observed and the following is a list of each such Default and
its nature and status:]




     4. The financial covenant analyses and information set forth on Schedules 2 and 3 attached
hereto are true and accurate on and as of the date of this Certificate.



     5. [Since the date of the Compliance Certificate delivered for the prior reporting period,
there have been no material changes in accounting policies or financial reporting practices by
Borrower or any Subsidiary.] [The following material changes in accounting policies or financial
reporting practices by Borrower or any Subsidiary have occurred:]



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



	 	 	 	 	 
	 	RIGNET, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Exhibit C - 2

Form of Compliance Certificate




 









 





For the [Quarter][Year] ended                      (“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)



I. Section 6.12(a) — Fixed Charge Coverage Ratio.




II. Section 6.12(b) — Funded Debt to EBITDA.




Exhibit C - 3

Form of Compliance Certificate



 









 





EXHIBIT D




FORM

OF

ASSIGNMENT AND ASSUMPTION



     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [the][each] Assignor identified in item 1
below ([the][each, an] “Assignor”) and [the][each] Assignee identified in item 2 below
([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the
Assignors][the Assignees] hereunder are several and not joint.] Capitalized terms used but not
defined herein shall have the meanings given to them in the Credit Agreement identified below (the
“Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Assumption as if set forth
herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Agent
as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations
in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement
and any other documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding rights and obligations
of [the Assignor][the respective Assignors] under the respective facilities identified below and
(ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors
(in their respective capacities as Lenders)] against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or instruments delivered
pursuant thereto or the loan transactions governed thereby or in any way based on or related to any
of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by
[the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to
herein collectively as, [the][an] “Assigned Interest”). Each such sale and assignment is without
recourse to [the][any] Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by [the][any] Assignor.


1. Assignor[s]:        
                     
            



2. Assignee[s]:        
                    
              for each Assignee, indicate Affiliate of [identify Lender]]




Exhibit D - 1

Form of Assignment and Assumption




 









 







3. Borrower: RigNet, Inc., a Delaware corporation



4. Administrative Agent: Bank of America, N. A., as the administrative agent under the Credit
Agreement




5. Credit Agreement: Credit Agreement, dated as of May 29, 2009, among RigNet, Inc., a Delaware
corporation, the Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent for itself and the other Lenders


6. Assigned Interest[s]:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Loans	 	 	Loans	 	 	Assigned of	 	 	 	 	 
	Assignor[s]  	 	  Assignee[s]  	 	 	Facility Assigned	 	 	for all Lenders	 	 	Assigned	 	 	Loans	 	 	CUSIP No.	 
	 
	 	 	 	 	 	term loan	 	$	__________	 	 	$	_____________	 	 	 	__________	%	 	 	_________	 
	 
	 	 	 	 	 	term loan	 	$	__________	 	 	$	_____________	 	 	 	__________	%	 	 	_________	 
	 
	 	 	 	 	 	term loan	 	$	__________	 	 	$	_____________	 	 	 	__________	%	 	 	_________	 





[7. Trade Date:                     ]



Effective
Date:
                    ,
20           [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



Exhibit D - 2

Form of Assignment and Assumption




 









 




[Consented to and] Accepted:




Bank of America, N. A., as
 Administrative
Agent




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	[Consented to:]





RigNet, Inc.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



Exhibit D - 3

Form of Assignment and Assumption




 









 





ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR



ASSIGNMENT AND ASSUMPTION



          1. Representations and Warranties.




          1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of Borrower, any of its Subsidiaries or Affiliates or any
other Person obligated in respect of any Loan Document or (iv) the performance or observance by
Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.




          1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii),(v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be
required under Section 10.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender
thereunder, and (iv) it is sophisticated with respect to decisions to acquire assets of the type
represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in
making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of
such type, (v) it has received a copy of the Credit Agreement, and has received or has been
accorded the opportunity to receive copies of the most recent financial statements delivered
pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it
deems appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest (vi) it has independently and without
reliance upon Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest and (vii) if it is a Foreign Lender,
attached hereto is any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it
will, independently and without reliance upon Agent, [the][any] Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will
perform in accordance with their terms




Exhibit D - 4

Form of Assignment and Assumption



 









 




all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.




     2. Payments. From and after the Effective Date, Agent shall make all payments in
respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other
amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the
Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after
the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Texas.



Exhibit D - 5

Form of Assignment and Assumption



 









 





EXHIBIT E




FORM OF ADMINISTRATIVE QUESTIONNAIRE




ADMINISTRATIVE DETAILS REPLY FORM – US DOLLAR ONLY

CONFIDENTIAL




	 	 	 	 	 	 	 

	FAX ALONG WITH COMMITMENT LETTER TO:     
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	FAX:
	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 






	 	 	 	 	 	 	 	 	 

	I.

	 	Borrower Name:
	 	RigNet Inc.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	$                                        
	 	Type of Credit Facility:
	                  
                 
                          
	 
	 	 	 	 	 	 	 	 
	II.	 	Legal Name of Lender of Record for Signature Page:	 	 






 




	 	 	 	 	 	 	 

	 

	 	Signing Credit Agreement
	 	                     YES
	 	                     NO
	 

	 	Coming in via Assignment
	 	                     YES
	 	                     NO






	 	 	 	 	 

	III.

	 	Type of Lender:	 	 
	 

	 	 	 	 
	(Bank, Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance, Mutual Fund,
Pension Fund, Other Regulated investment Fund, Special Purpose Vehicle, Other – please specify)






	 	 	 	 	 	 	 	 	 
	IV.

	 	Domestic Address:
	 	 	 	V.
	 	Eurodollar Address:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 





VI. Contact Information:



Syndicate level information (which may contain material non- public information about the Borrower
and its related parties or their respective securities will be made available to the Credit
Contact(s). The Credit Contacts identified must be able to receive such information in accordance
with his/her Institution’s compliance procedures and applicable laws, including Federal and State
securities laws.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Primary	 	 	 	Secondary	 	 
	 	 	Credit Contact	 	 	 	Operations Contact	 	 	 	Operations Contact	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Address:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Telephone:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Facsimile:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	E Mail Address:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 














Exhibit E - 1

Form of Administrative Questionnaire





 











 








ADMINISTRATIVE DETAILS REPLY FORM – US DOLLAR ONLY

CONFIDENTIAL




	 	 	 	 	 	 	 	 	 	 	 	 	 

	IntraLinks E Mail

Address:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 











Exhibit E - 2

Form of Administrative Questionnaire





 









 








ADMINISTRATIVE DETAILS REPLY FORM – US DOLLAR ONLY

CONFIDENTIAL




     Does Secondary Operations Contact need copy of notices?                                YES                         
             NO



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Letter of Credit	 	 	 	Draft Documentation	 	 	 	 	 	 
	 	 	Contact	 	 	 	Contact	 	 	 	Legal Counsel	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Address:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Telephone:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Facsimile:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	E Mail Address:
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 	 

	 	 






VII. Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed
Wire Payment Instructions (if applicable):




	 	 	 	 	 

	Pay to:
	 	 	 	 
	 
	 	 	 	 
	 

	 	 

(Bank Name)
	 	 
	 
	 	 	 	 
	 

	 	 

(ABA #)
	 	 
	 
	 	 	 	 
	 

	 	 

(Account #)
	 	 
	 
	 	 	 	 
	 

	 	 

(Attention)
	 	 






VIII. Lender’s Fed Wire Payment Instructions:




	 	 	 	 	 

	Pay to:
	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	(Bank Name)	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	(ABA #)
	 	(City, State)
	 
	 	 	 	 
	 	 	 
	 

	 	(Account #)
	 	(Account Name)
	 
	 	 	 	 
	 	 	 
	 

	 	(Attention)	 	 








 




			
	*	 	Day one funding ONLY fax request to Tina Mills 617- 263- 0439










Exhibit E - 3

Form of Administrative Questionnaire





 









 








ADMINISTRATIVE DETAILS REPLY FORM – US DOLLAR ONLY

CONFIDENTIAL




IX. Organizational Structure and Tax Status



Please refer to the enclosed withholding tax instructions below and then complete this section
accordingly:




	 	 	 

	Lender Taxpayer Identification Number (TIN):

	 	            –                                    





Tax Withholding Form Delivered to Bank of America*:




	 	 	 	 	 	 	 

	X	 	W-9
	 	 	 	 
	 	 	 
	 	 	 
	 	 	W-8BEN
	 	 	 	 
	 	 	 
	 	 	 
	 	 	W-8ECI
	 	 	 	 
	 	 	 
	 	 	 
	 	 	W-8EXP
	 	 	 	 
	 	 	 
	 	 	 
	 	 	W-8IMY

	 	 	 
	 	 	 
	 	 	 






	 	 	 	 	 
	 	 	Tax Contact	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 
	Address:
	 	 	 	 
	 

	 	 

	 	 
	Telephone:
	 	 	 	 
	 

	 	 

	 	 
	Facsimile:
	 	 	 	 
	 

	 	 

	 	 
	E Mail Address:
	 	 	 	 
	 

	 	 

	 	 






NON-U.S. LENDER INSTITUTIONS



1. Corporations:



If your institution is incorporated outside of the United States for U.S. federal income tax
purposes, and is the beneficial owner of the interest and other income it receives, you must
complete one of the following three tax forms, as applicable to your institution: a.) Form W- 8BEN
(Certificate of Foreign Status of Beneficial Owner), b.) Form W- 8ECI (Income Effectively Connected
to a U.S. Trade or Business), or c.) Form W- 8EXP (Certificate of Foreign Government or
Governmental Agency).



A U.S. taxpayer identification number is required for any institution submitting a Form W- 8 ECI.
It is also required on Form W- 8BEN for certain institutions claiming the benefits of a tax treaty
with the U.S. Please refer to the instructions when completing the form









Exhibit E - 4

Form of Administrative Questionnaire






 









 








ADMINISTRATIVE DETAILS REPLY FORM – US DOLLAR ONLY

CONFIDENTIAL



applicable to your institution. In addition, please be advised that U.S. tax regulations do not
permit the acceptance of faxed forms.



An original tax form must be submitted.









Exhibit E - 5

Form of Administrative Questionnaire






 









 








ADMINISTRATIVE DETAILS REPLY FORM – US DOLLAR ONLY

CONFIDENTIAL



2. Flow- Through Entities



If your institution is organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non- Qualified Intermediary, or other non-
U.S. flow- through entity, an original Form W- 8IMY (Certificate of Foreign Intermediary, Foreign
Flow- Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed
by the intermediary together with a withholding statement. Flow- through entities other than
Qualified Intermediaries are required to include tax forms for each of the underlying beneficial
owners.



Please refer to the instructions when completing this form. In addition, please be advised that
U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be
submitted.



U.S. LENDER INSTITUTIONS:



If your institution is incorporated or organized within the United States, you must complete and
return Form W- 9 (Request for Taxpayer identification Number and Certification). Please be advised
that we require an original form W- 9.



Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax
form for your institution must be completed and retuned on or prior to the date on which your
institution becomes a lender under this Credit Agreement. Failure to provide the proper tax form
when requested will subject your institution to U.S. tax withholding.






 




			
	*	 	Additional guidance and instructions as to where to submit this documentation can be found at
this link:





     



X. Bank of America Payment Instructions:




	 	 	 

	Pay to:

	 	Bank of America, N.A.
	 

	 	ABA #026009593
	 

	 	Dallas, Texas
	 

	 	Acct. #129-2000-883
	 

	 	Attn: Corporate Credit Services
	 

	 	Ref: RIGNET, INC.











Exhibit E - 6

Form of Administrative Questionnaire